may it please the court my name is jonathan solidly representing the petitioner pallant terry is though i'd like to reserve two minutes for a bottle all right this appeal is about giving effect to the united states supreme court's decision and johnson versus united states it is not often that the united states supreme court reverses it's own precedent but that is exactly what the supreme court did in johnson versus united states that supreme court reversed two decisions its former decisions insights as well as its former decision in james interesting really united states supreme court decided james burglar attempted burglary offense and found that the residual clause did apply what's your best argument with regard to the berkeley counts that the district court relied on that residual close in terms of the government's argument anything said during the proceeding focus on the residual clause the government did extensively rely on the residual clause the government seven at least seven times important to consider that we have a situation where the government repeatedly asserted that the residual cause applied at sentencing and now at this stage it would be improper to simply ignore what the government argued and ignore the fact that the it's a court expressly relied on the government's arguments as well that's what provision stated so we have issues of of waiver anything that pointed more specifically to which of the alternative arguments being offered up was the basis for the board's decision when it when it came more recently it made a statement that doesn't point but did say it would have been enough to rely upon the in numerated clause the reference to burglary the court did not say specifically what it had done but why is it we shouldn't draw the inference that the court having said what have been enough for me to find these is burglary under the enumerated clause and in the court could have done that why shouldn't we take that as a statement by him in effect and that's what i did i think it's it's a matter of following what the precedent of joseph provides because the focus of gives those is did did the have the defendant's twenty two fifty five claim relies on the constitutional rule announced in johnson to the focus of this holding focus was on could the district court have relied on the residual clause the focus on y really safe that a claim has to contain the assertion that it relies on johnson or a rule made retroactive to cases and collateral review so that's exactly what the supreme court did it's not often that the supreme court will reverse its own precedent and make a case retroactive collateral review and to try to nearly can through it or or take a maybe strained or or maybe an inference could be made i resolved on the merits very straightforwardly the district court conducted an on the record modified categorical analysis stated no less than three times that the burglary offenses qualified as generic burglaries therefore making it crystal clear the court was relying on the enumerated defense clause in evaluating those convictions there's no ambiguity so there's no need for about this court set for the reasons they did in the government's memorandum and the p s r both of worth respect to the church burglary for purposes of the clear offender adjudication which for that purpose that was the only way the church burglar could count because it's not a dwelling so the government was quite clear that for aka purposes it was relying on the numer defense clause and that for the crew offender one of the convictions could only qualify under the residual clause now that analysis is not material to the aca determination that's before the court now so i think reading the record in its to when the court says basically and frankly the council's defense counsel trying to make basically do a lot of work to create ambiguity in what was an otherwise crystal clear finding by the district court about about the status of the aca burglaries what the court is basically saying is that they count and remember we're also talking about the the assault convictions two so i'm not sure how that one phrase can create ambiguity into what was an express ruling relying on the enumerate offense clause with respect to the burglars now with respect to the assault they'd be analysis is slightly different the district court did not explain why any either of these all convictions counted the issue was undisputed it because at the time nobody seriously doubted that the esol convictions were crimes of our kinds of violence or violent felonies but under the under the gaze of sergei's also not sure the proper pronunciation there and i don't remember i can't help you the court has decided that if you've got an ambiguous record which is what we have here with respect to the assaults the government can't dispute that if there is controlling precedent that accounts under the force clause or the defense clause the court will presume the district court relied on that clause even if it didn't say it did and so with at least respect to the assault resulting in serious bodily harm that presumption should apply and that's three predicates and that's sufficient for the aca judy cation on the merits your argument is take the two burglaries and take the conviction assault resulting in sanchez bodily harm we can disregard the other one he would still have the sufficient predicate that's correct and i would also i mean i would be the government has an argument that the fourth conviction can count as well because at sentencing the government abandon effectively abandon its argument relying on the residual clause we don't need to go that far because there was under strict years analysis you have two convictions where there's no ambiguity in the purposes in the last one we don't need to resolve but if we were that would be problematic because it is the law at that time at that time there was missed yes with respect to the deadly weapon at that time there was precedent not controlling precedent but considering similar statutes under both clauses i could say the government effectively abandoned its reliance on the residual clause at sentencing but i'm not i can't sit here  out if you're going to follow that framework i want the case law i believe that's correct yes although you can look at the case law but i think you also can look at the total sentencing record because it's not uncommon for you to advance alternative arguments and then  that is a basis to distinguish those with respect that it's all conviction began the court doesn't need to go there because you've got the three and with those three he's probably adjudicated defendant at least he's probably educated for reasons unrelated to johnson and whether there's maybe some other defect with respect to the reliance on the force causing great offense clause that's just not correctable in the second twenty to fifty five so unless the court is in the questions thank you thank you ever made an affirmative statement that we are abandoning our reliance on the residual clause if the government made at least seven references to the residual a clause at the time of in a sentencing memorandum and didn't mention the residual called for in sentencing although and i don't believe that's necessarily true and i have to double check then it's not it's simply not a statement that the government abandon reliance on the residual clause and also it's it's important to understand at the time of the hearing the residual clause loom very large there was at the time the courts and i don't have a requirement to make determination specifically state on the record that the residual a clause applied or any other clause applied and unfortunately because of that the courts are left in a very difficult position i know to determine what the court actually residual a clause now in terms of the the other two predicates other than those two thousand nine hundred eighty seven burglary offenses the government if the government asserts that it's crystal clear that the district made determinations that's the three burglaries but in fact the district court never really made any statement as to the one thousand nine hundred four second degree assault and first degree burglary offense that's essentially a blank