primary issue is whether or not his two thousand and eight conviction for voluntary manslaughter in north carolina is in fact a qualifying predicate felony under the use of force clause for the arm career criminal act i  think the parties agree that the court should use the categorical prochoice in analyzing this north carolina crime i think the parties also agree that a crime accomplished by mere negligence is insufficient to satisfy  clause my purpose here today is to persuade this panel that when focusing on the minimum conduct required to sustain a conviction for voluntary manslaughter in north carolina that there is a type of voluntary manslaughter that can be accomplished by negligence there are different types of voluntary manslaughter in north carolina the most common is generally referred to as heat of passion upon adequate provocation there is self defense  with excessive use of force there is also self defense although that the actor was the aggressor in the commission of the conflict there is also a killing that occurs after the defend you can have an intentional act that we all agree that voluntary manslaughter is less serious than second degree murder ok agree or agreed with that  and it's less serious because it's a crime committed in the heat of passion and as is the the mitigating factor there but does that  matter in terms of a crime of violence if the men's ready according to the north carolina decision here on like the earlier case supreme court has put some emphasis on the mill dragon and so we have all these arguments in these in between case know we say negligent that's clearly not a crime of violence recklessness much we get in arguments on that agree but this isn't even that this is intentional and it and that's that's hard for you to overcome and at no because because it let me let me take you because i really don't want to talk about heat of passion mets or i want to talk about excessive use of force self defense ok because  contact the killing is intentional yes it has to be attention yes so it's not negligent it still has to be an intentional killing so i'm not i just i don't see how that helps our case here here's the thing if you read the definition it says of someone who is otherwise acting in self defense ok so for example of someone jumps up from the audience screams bryson i'm going to kill you pulls out a knife and comes at me in attacks me yet i put and shoot them in the head i have killed someone i've done it intentionally i've used deadly force i've had intent to kill but i've not committed a violent crime and if you use  but what is it that makes it a crime the fact that you feel it will it what makes it voluntarily voluntary manslaughter is that you killed intentionally using excessive force under the circumstance that subjective belief was objective lee reasonable so they were already determined that he was acting in self defense ok which is not unlawful conduct but if they determine that he used excessive force it now becomes the crime voluntary manslaughter so the difference between your lawful conduct acting in self defense and voluntary manslaughter is a jury determination is the reasonable he misapplies a chokehold and kills the person while acting in self defense jury can find that person guilty of voluntary manslaughter and the mens rea of the i mean it was an intentional act intentional use of force but it was if if that if that force is reasonable there's no violent crime the only difference between no violent crime and the crime voluntary manslaughter is a determination of the reasonableness of the amount of force used not the decision to issue and i wanted to note that in carson when the defendant made his plea agreement that included the appeal waiver they specifically agreed that he would get a sense of two hundred seventy two months both parties understanding that he was would be or believing he would be a career offender that's very different from what you have in this case where the parties did not know that and the government acknowledged this in their district court pleading where they acknowledged that while neither counsel fauresmith nor the government was aware that smith had qualifying juvenile convictions that exposed him to be or career criminal such as i do think that the the course and case is very distinguish requirement for an intentional act in an intentional killing and i don't think that the excessive self defense argument gets around that because it essentially complaints two principles one is did you deploy the force with intention and were  thinking as a reasonable man when you did so and i know tonight and that in support for the particular proposition mr brightman makes he cites to a north carolina law that deals with accident injury slip and falls and a standard of negligence but i just don't think in some of the other cases for instance north carolina assault for instance where perhaps there isn't a conviction for voluntary manslaughter where the intentional was somehow justified well you know your honor i think that the court already identified that particular issue earlier which is saying that if you are acting in self defense and you do intentionally kill someone  because if you had been justified in some way you are not out of self defense or extreme provocation the verdict would not have come down as it notable that when you look at the case law and there are discussions of these killings that occur with culpable negligence those are cabinet involuntary manslaughter which of course this course of terman is not a crime of violence there's a clear delineation between the out for involuntary manslaughter and voluntary manslaughter and all the cases and all the jury instructions make it very clear that it does require an intentional act and that whether it's in the context of you know extreme provocation or in the exercise of excessive self defense i've just seen nothing in my review the case law that indicates that this particular crime can be committed without that intentionality and so i think that to try to take a step further and separate the intentional killing from the reasonableness of the killing under the circumstances again sort of completely different analysis one relates to behind the use of force and the other relates to the punishment in society wants to pla the same as a result is the same because someone is killed and so it's only the difference between the provocation versus the deliberation in terms of how you know that tropical crime is going to be punished you know as i see that i have a great deal be involuntary manslaughter because as an act of negligence north carolina law recognizes very well that just because an act gets multiple definitions of colonel that says it's not wrong for creative prosecutor to prosecute a greater offen it if it fits that definition the and i could submit supplemental thirty this but the one that i comes to my mind is a minority i want to have a worthless check statute so if i go into wal mart and i write a check for one hundred dollars knowing have twenty dollars in my count that's a misdemeanor fourteen dash one of seven but because i'm making a misrepresentation and it's a fraud it also fits the north carolina general fraud statute obtaining property by false pretenses and the north county supreme court has been very clear that to create a prosecutor can prosecute a basic worthless check ace as a fraud just because the actual physical acts more better fit a lower crime doesn't prevent  prosecutor from pursuing a greater act so that's why even though i would say that the i was using a negligent act in this hypothetical it still satisfies the definition of voluntary manslaughter but more importantly i and i'm having trouble making this point but i think that you can be acting intentionally using force even have the intent to kill but if you're acting in self defense there is no crime the distinction between that and voluntary manslaughter is a jury determination on the reasonableness of the amount of force so you can be acting can completely self defense and have a jury only determine the reasonable list the unreasonable is of your use of