and so now we are called the case of christopher brooks versus united states but in the meantime i'd like to welcome ms jordan's class governments class thank you all for being here it's a government class right so i think i speak for the panel we're delighted to see young people interested in government and we look forward to you being involved a government i mean one of you will be sitting up here one day good morning may it please the court and rather from the federal defender's office on behalf of mr brooks before we get into the thorny beeman issues i want to begin by emphasizing the procedural posture of this case because i think it informs the proper resolution of the appeal mr brooks filed his initial twenty two fifty five motion on a friday the night before johnson's one year anniversary and it was dismissed on monday the next business day with no notice no opportunity for us to address any of the issues that the that the judge addressed in his suicide bomb to dismissal that that dismissal was a procedural error in violation of rule for b of the twenty two fifty five rules and in violation of the supreme court's decision and de versus mcdonogh it was also particularly unfair because at that time the government was routinely waiving timeliness defenses in our district in aca cases which the district court could not have overridden under what versus day and so our position is that the easiest and narrowest way to resolve this case is to vacate the district court's decision in its entirety based on this procedural error re mand for proper reconsideration of the motion a new  and allow where the parties can fully briefed all of the issues and at the very least allow us if necessary the opportunity to both correct any pleading deficiency that there may be and a good introduce evidence that is necessary that may be necessary to establish our burden of proof under beeman to establish a johnson violation now we don't believe that that is ultimately necessary because even under beeman we believe we have already sufficiently alleged timely johnson claim and not only that how can prove a johnson violation by looking at the legal landscape that existed at the time of sentencing in april two thousand and want to show that it was more likely than not which is all we need to show more likely than not make a later is there any reason to remand with regards to the aggravated assault conviction yet you've got you've got binding precedent in this circuit going back for five years now three cases published work which all say that aggravated assault assault counts so we recognize that precedent we would like the opportunity to preserve that for supreme court review at the very least but i would like to point out we only need to win on one of his priors no i understand that my question was a is assuming you can convince us about your main argument is about the scope of the the scope of the don't you preserve it haven't you preserved it anyways by having the district court deny it probably probably have us and and if we deny it haven't you preserved it i would hope so so so yes we're not going back to the district court to fight about turner and and goldman and those cases we acknowledge that they exist in there binding precedent the attempted first degree murder on the other hand is a wide open question why he was sentenced before de camp right he was sentenced yesterday april two thousand and one but what is the twenty eleven but if it goes back and we assume that he if you're if you're correct that he was sentenced under the ridge residual clause and it goes back for resentencing reconsideration i take it that your position is that the categor approach outlined into camp would have to be applied yes as car as because it's good to camp is a clarification it's not a new rule of constitutional law yes we believe that at  once we have established a johnson violation and we then need to show that that violation is prejudicial or harmful to us and the only way to do that is to show that one of his remaining predicates no longer qualifies under another clause and when you do that analysis we do limited to whether the a first degree attempted murder satisfies the elements clause we recognize the district court ruled on that but that i'd like to note that we did so without any briefing and the case he cites for that is clearly an episode it's a case called rolen which an not only unpublished and i'm playing error but addresses the wrong statute addresses eighteen u s c three five five nine which statutorily enumerates attempted murder so that was clearly the wrong case and of course we didn't have the opportunity to brief that same thing goes with his reliance on a p s i i fax again we had no opportunity to address that issue and we believe that issue is also an open one in the circuit after day comp aftermath as we believe it violates the sixth amendment to do that so we think the fairest thing to do is just send t in its entirety and let us go back and address all of these issues now we do believe the court can go further in this case if it wants to rule in our favor on the beeman issues but we don't think it can rule against us on those issues given our inability to correct any pleading deficiency and come forward with evidence on the burden of proof but we think we have already done enough as far as allegations on timeliness and as far as burden of proof given the legal landscape that existed in april two thousand and one as per the allegations on tim s not only did we find us ask your question about something you just said so when you say rule in our favor on the beeman issues you mean make a finding that you were making a johnson climb as opposed to  yes that's correct or at least we were partially making a johnson claim the same thing that this court said and beam in and in addition to that that we have also met our burden to prove a johnson violation under beeman particularly the footnote five of that case and the accompanying sentence on page twelve twenty four of the decision we lay that out a little bit in our supplemental letter brief on pages six to eight where and this i think is important is that at the time of sentencing everybody knew that both not just one but two of his predicates ag assault and first degree attempted murder clearly satisfy the residual clause under but again that's why there was no objection that's why that the district judge the probation officer the defendant all knew that  and everybody everybody knew that at the time this court was finding far less dangerous offenses to satisfy the residual clause fling in alluding a scape resisting all were satisfying the residual clause here we have four more dangerous offenses at stake and on the other hand there were very strong arguments under precedent at that time that neither of those offenses satisfy the elements clause so we have a really dramatic imbalance in the legal landscape that existed at the time and we we think that it is judge make any specific just remind me did the judge make any specific statements when he found that the criminal acted been satisfied at sentencing yes no there was no objection at to the enhance applied here correct there was not in dispute it all because of the resigning all that happened at the end the district court said that his three convictions counted under aka but i didn't specify or hour why correct he did not specify the clause and that's why we're looking at the legal landscape just made the finding that or or rendered the conclusion that they did count yes yes there's no question that there was an enhancement here but their record is silent as to the clause which is why again we go back to what would the sentencing judge have been thinking had he been properly applying binding precedent in april of two thousand and eleven and so so i think we again we only have to do this for one of the press one of the predicates here one i think is the easiest one because we had a specific binding circuit precedent in palomino garcia issued in two thousand and ten which held that arizona's aggravated assault offense did not satisfy the elements clause because it could be committed recklessly now committed recklessly and we knew also from curtis johnson at the time that this court was required to apply state law and look to state law determinations about the elements of state offenses so there was a very strong compelling argument that it would not have satisfied the elements clause and that's why given this imbalance we believe that at the very least we have shown more likely than not confused you're saying that as far as the attempted murder count is concerned that you would apply that the judge would have to apply the categorical approach and so the judge would be taking a decision that had been made post sentencing and applying it now to a recent thing but you're saying that with regard to the to the  assault if he can't do that when an applied turner no i'm sorry that i can perhaps i wasn't clear it is it is a little confusing but there's two there's two different questions there's the first question about is there a johnson violation did the sen g court rely on the residual clause to answer that question you have to look at the precedent that existed at the time of the sentencing under beam and that's so if though we do show a johnson violation based on that precedent but their point to make is that in april two thousand and eleven even before de comp they comp has no bearing on our elements clause arguments on either of the priors and the categorical approach of course existed back in two thousand and eleven so i see them over my time but thank you thank you good morning may it please the court lisa ruby on behalf of the united states i had all start off where my post and counsel started off with the four b issue and looking up at the district court had to do was look at the face of the pleadings and determine if the defendant was truly raising a johnson claimant to raise a johnson claim we know he has to say at the time i was sentence my sentence was infected by residual cause error in other words he had to say i'm serving a sentence that was based on the research will close and nothing in his pleading did that he said what about the not right have it and or if it's if if it's if it if it could go either way then he's raised  that is if it's if it's not clear what if it's not clear post beam and we know that if it's not clear he loses so if we're going to the merits part of the beam an argument he has to show that it was more likely than of it which i agree you know this case has come up in sort of a truncated fashion we it was decided to marilee in the district court which we think was proper and i'd like to just go back to one point about that which is posing coun states that the government was routinely waiving statute of limitations arguments and it is true that as a policy matter in certain cases the united states had decided to waive those arguments and those cases were the ones in which we recognized that the defendant could no longer qualify as an armed career criminal in this case with the priors of aggravated assault with a firearm and florida attempted first degree murder we think that the defendant clearly qualifies today so we that we would not have waived the statute of limitations under those circumstances or is argued that you wouldn't necessarily qualify as a categorical approach for attempted murder correct because it could be committed in a way other than by a violence well such as by poisoning you we actually disagree very strongly with that and we have briefs that in other cases it argument correct correct my only point is that the government believes we have very strong arguments that under a categorical approach murder qualifies but the question is and what beeman says to do is look at this historically in the day what was the court doing with regard to first degree more murder for example and it's the defendant's burden to show that back in the day the courts were or that there was actually precedent holding or otherwise making obvious that attempted first degree murder did not qualify as a violent felony and that he simply cannot do he only says that today post post mathis given that analysis that more refined analysis that it wouldn't qualify but back in the day the court would have done one or two one of two things the court either would have looked at it categorically and said murder is the prototypical violent crime and even postcards johnson violent crime in curtis johnson clue quotes blacked dictionary to say that murder is sort of the prototypical violent felony and if you're doing that isn't that residual based if you're doing it at such an abstract level that because it's murder and murder is one of the most heinous offenses of course is prototypically violent isn't that not real residual based argument and not on the and i'm not saying you take that law today and and take it that through the lens of today and put that back to what was happening at the time but back in the day these kinds of sophisticated arguments about poisoning and recklessness and all of these things were not being litigated in the courts and so even if the courts if the court back in two thousand and eleven would not have looked at this and said  attempted first degree murder plainly constitutes the use attempted use or threatened use of physical force as understood to be violent force even if that didn't happen the court could have looked to the modified categorical approach and perhaps incorrectly post discounted johnson excuse me and mathis but would have looked to the modified categorical approach and said ok how did this defendant commit this crime and then categorically did it qualify following sections would cause for murder with particular types of felonies or you know other circumstances so as to the type of murder being committed this fell into the first subsection which is basically premeditated murder and if the court had looked to the undisputed p s i facts they would have seen that this was a an attempted murder where the defendant held a gun and i can't do that when all you do is find out which which group you're act which and then and then at that point you go back to the categorical absolutely i'm one hundred percent in agreement so what i'm saying is to determine which type of bernard this was the court would have looked to the undisputed p s i facts seen that oh was a murder attempted murder where the defendant actually shot someone so that's in the one as a part of the statute and then ask themselves bait is premeditated attempted premeditated murder is that a violent felony so they would have looked back to those under speeded p s y facts in order to implement the outlook i had and that is the minimal contact that that could be could result in a conviction under that particular section does it fit within the concept of a violent felony u nder you know the generic the federal generic and that's the question yeah and so then then you get into the poisoning and other ways of of committing murder that might not be the one correct and  so as my colleague will recognize there's sort of three levels to this case the first is does the defendant get through the timeliness hurdle on the second is can the defendant prove within the terms that the man has shown us can be defended prove that he suffered from a johnson violation and then once you get past that you get into the merits is the defendant today a still an armed career criminal based on the  prior convictions for aggravated assault and first degree attempted first degree murder so he's got three hurdles to get through and we don't think he gets through any one of them if if the district court was going to summarily and did summarily deny the motion was it entitle to go in and look at the record without giving the parties a chance to address what the record showed or didn't show in other words if it was going to summarily deny didn't it have to go on the face of the pleading correct nothing else and on the face of the pleading with the defendant said was after johnson i'm no longer an arm career criminal because look my two elements clause my two prior for aggravated assault and first be murder they don't qualify under discounts and mathis so he never he never alleged  he had been improperly sentenced under johnson he said post johnson i don't qualify anymore he never said that i was sentenced based on the unconstitutional residual clause and that sort of the bare minimum of what he has to say it when you say it's a bare minimum than that that means it was enough know what i'm saying is the bare minimum of what he has to say is i actually was sentence based on the research will close that's the bear and he  mr brooks now request relief in light of the supreme court's decision in johnson versus united states decided she in twenty six twenty fifteen which held that acas residual clause as i'm constitutional application of johnson to this case shows that mr brooks sentence was imposed in excess of the statutory minimum you say that's not enough no your honor because what that does not necessarily convey the idea that he actually was sentenced back in the day to the residual costs all he's saying now is oh look the residual cause no longer exists and if we analyzed by two priors today i don't qualify he alleged enough when he gave you a chance to amend your petition he just well you just deny it summarily like you would a civil complaint well he did in his twenty fifty five he did say my claim is timely because so he raised this idea of timeliness put forth what he thought would satisfy that the judge looked at that and said no you know what that's not enough and we said but the judge went the did the judge didn't go just to that the judge went into the record the judge didn't just say your pleading is facially insufficient right you summarily deny motions complaints pleadings if on their they're insufficient correct but the district court didn't just do that that this record dove into the record extra pleading stuff right and my question is if the judge went beyond the pleading shouldn't the judge of allowed the parties to respond shouldn't have asked the government to respond and given julian an opportunity to mr brooks an opportunity to reply you know to see what the record showed or didn't show the judge basically read the record in a certain way and he may have been right in reading it that way but he did it without any input from anybody well i think that in this case you have to look at this in terms of both what the judge did and what the we know post beeman was the correct thing to do and we do know from just the face of these pleadings that it wasn't enough and we even know from the additional allegations that the defense has put forward in their supplemental letter brief that it's still not enough to get past that again i'm back to the putting up he's i'm reading here argues clearly murder does not have to have happened he's referring to the statute under which that you know the conviction what i mean does not have as an element the use attempted use or threatened use of violent physical force fifty five f three the defendant has to do some very specific things to get through that narrow statute of limitations portal it's a very congress has decided that after a conviction is final there's going to be very few ways to overturn that final judgment and three is one of them but what he has to show is that he's actually relying on a newly created right relying on johnson but what that means is not johnson's all throughout the state but what that means your honor respectfully is not i can say johnson johnson johnson what that means is he has to say he has to assert and demon says this he must he's never given an opportunity to reformulate his pleading either their stuff and it is what he could have he could have but he could have said that because here it seems to me where the judge says nothing and the easy way out is  burden to prove more likely than not that he was actually sentenced under the reason but with with the aggravated assault conviction there was a precedent from this circuit applying the residual clause to a very similar statue from another state that so if that's the only law that existed at the time he got sentenced as an aka offender why isn't it reasonable to believe that he has shown more likely than not th district court used the residual clause to include the aggravated assault conviction as a predicate for two reasons first what what he's saying is that had the courts been doing what they should have  interpretating this prior case palomino garcia had they been interpreting that correctly that's his argument they would have been holding that this qualified only under the residual clause but that's not a showing of what they were doing and we certainly know but there's no other but there's no other precedent at the time he gets sentenced on an aggravated assault conviction from anywhere except palomino so if you're trying to read the tealeaves if the district judge to go back to what walker was saying or does martin was saying if a district judge has a landscape of circuit law that says this conviction counts under this approach why is a judge going to go out on a limb to do anything other than use that settled law to apply the arm career criminal act i think i think reading the tea leaves goes both ways because when we get to turner i know that we can't take to interpret past law but once we get to turner there's no there's nothing in terms of that suggests that it was overturning prior law to say that aggravated assault you know but you can't do that you can't if there was no prior law correct and if there's no prior law saying that he had to have been sentenced under the research you know it's not that he had to have been sentenced you're trying to find by a preponderance of the evidence it's his burden to show under beeman that they were more likely than not that the district court applied the clos to him and if you think that first degree murder doesn't fit in there for the reasons you've articulated then it seems to me that there's a pretty good argument that aggravated assault does count because you've got just one opinion out there from the circuit an aggravated assault at all and it goes residual so why is it why if the district judge has that to fall back on at the time of sentencing why isn't it reasonable to believe that that's what the judge relied on well i think we have to go back to be men's language and the man has specific hurdles that the defendant needs to get past to prove exactly what your honor saying and he has to show that there is precedent either holding directly holding or otherwise making obvious that only the residual clause applies and even if even if he could kind of maybe get there after palomino garcia with regard to aggravated assault which i'm not conceding he certainly can't get there with regard to attempted first degree murder and he's got to overturn both you know but to get through the beam and hurdle he only has to show that one of them was used in other words let me let me change the facts for you so this is not this case ok if the district judge had said at the sentencing hearing i believe that palomino is on all fours although that involved an arizona aggravated assault conviction to florida aggravated assault statute is exactly the same i am finding that florida aggravated assault count as a predicate under the residual clause says that expressly explicitly says nothing about attempted first degree murder he's gotten through the beeman hurdle right he may not win on the merits because later law says that aggravated assault counts right under the elements clause but he gets through the beam and hurdle he get right even if there's nothing said about attempted first degree murder in other words getting through the beam and hurdle isn't a guarantee that you're going to win on the merits you may get through it and lose because of later case law so he doesn't have to prevail on the an issue with regards to attempted first degree murder well i can see where you're coming from and that does get into the three different layers of review that we have the timeliness the beam and merits and the he hasn't taken it far enough to show that in a theoretical level there was some kind of maybe the courts should have been doing something kind of argument that doesn't get passed beam and beaming came forward with very specific kleiman not a johnson claim but in beeman one of the things the panel considered was the day the petition was filed and of course mr brooks filed you know one day before two days before the the one year anniversary of of johnson so do you just not consider do you do consider that the beam in court looked to three things that the man had should be given equal importance which is that he had to he said historically this crime qualified under the reasonable clause and he said that back in the day courts were analyzing these things sort of as a default under the research will cost and those two things went to the assertion that he indeed was sentenced under the research will cause and you have to if you look at mr brooks motion it's more instructive to look at what he did not say because he did not say those two things he did make the timeliness argument look i'm coming in right under that right in the time he did say that criminal but you and you can't use the elements clause plus post to comp and mathis understood your argument thank you your  so i think the court well understands our burden of proof argument so i think i want to focus on the timeliness aspect if i can the government is basically requiring magic words at the pleading stage  and this is a rule that's going to be applied not only in this case but to many other cases which are pro se pleadings and we think of that not only the timing of the filing here but the number of to and not only the number of times th johnson is cited in the motion about a dozen times it's perper vase of throughout the motion but we are specifically alleging in the motion that in light of johnson we are no longer an armed group criminal and application of johnson to this case shows that we are no longer an arbiter of criminal now could we have used the specific language that the government wants us to use yes and if we were given an opportunity a notice to do so in the district court we would have indeed i think the i think is quite telling that the fact that we can meet our burden to prove a johnson violation only reinforces the fact that we've sufficiently pled to johnson claim in this case but you know that i think the government's position really elevates form over substance here  seeking to benefit from johnson that that movement is going to lose either either at the timeliness stage or on the merits and so i think we're looking at a pleading state pleading requirement here where we're looking at i mean this was by the way motion for motion from our office that we filed in hundreds and hundreds of cases if you look at the man's motion it's really the same theory and this is the motion that people were filing all over the country of course beeman did not exist at the time so we didn't we didn't you know know that we had to specifically use certain phraseology or language that the government is now accusing us of not using as for the the rule for issue i didn't hear anything in the government's argument explaining why why our case was frivolous which is essentially the rule for standard the language of rule four b says that the district court is authorized to sue a spohn to dismiss a pleading only if it plainly appears from the face of timeliness issue not only do we have the argument that i just advances to her as far as her allegations but we also have the fact that this motion would be timely in other circuits we got a c e o way on this very issue so at the very least it's not plainly untimely as for the government's response that it was not routinely waiving in aca cases it may not have been routinely waiving but it was waiving repeatedly and not just in the cases where it was conceding on the merits in fact if you look at the lavelle phillips case which we cited in our letter brief and you look at the filings in the district court there that's a first degree attempted murder case just like this one they expressed they conceded timeliness in the district court