the johnson decision on the number of massachusetts predicates this court has accepted a government's concession that the johnson when called johnson to decision the two thousand and fifteen decision to the sentencing guidelines but has not yet decided this issue both parties agree that it does and if the court has not made up its mind i will address that issue cases one of our problems is that there is a law out there which is contrary to the government's position and we're very reluctant to make law where there is no opposition stated before us i'm not quite certain why we should change map practice perhaps you could  this court has has not addressed and there is no decision from this court and we're well aware that it has and it's given the got the i think that the government's concession that it does apply is an indication of a consensus at least in the within the government and with defense for that johnson does apply to the guidelines analytically if use the supreme court's in johnson itself were a lot discussed a number of guidelines cases in describing the disarray of the created by the residual was and right the a c c and guidelines clauses are are identical the courts routinely have applied the same analysis to both clauses and this court has said that there is no principal difference between enhanced mintz under the c c a and increases under the guidelines and johnson and its vagueness analysis focused on the arbitrariness and traditional inconsistency why don't we do things let's just assume hypothetically that the court will take your view johnson oh what a factors that have on the sentencing  whether the whether a b t w has an element of the use attempting to use or threaten his physical force against the person of another and that brings into play two prior decisions from the supreme court first johnson one  purchased johnson decided in two thousand and ten which addressed what is the physical force that is necessary in the elemental clause and it rejected the common law  use of just an intentional touching as sufficient saying that in this case were construing a provision that talks about violence of violent felony and that for that you needed violent physical force that this intentional touching was not enough it had to be force that was capable of causing physical pain or injury to another person and then the third case that comes also talked about when offenses were indivisible and when or overbroad and what the ramifications of that would be massachusetts but a b d w has been is not statutorily define the massachusetts statute simply says if you commit a song battery is a dangerous weapon then you have you get sentenced to certain within certain parameters  so we look to massachusetts judicial decisions for defining what b t w is and in appleby the s j c said that it's intentional an unjustified use of force on the person of another however slight by means of a dangerous weapon and ford court said it requires intent to commit an assault by means of a dangerous weapon and touching with that and not just intentionally doing the act resulting in the touching the court has also divided assault and battery into two theories intentional and reckless reckless is the you agree on with respect to recklessness is the visible no we think they're an extra element when it's reckless just on your own account because you have to so bodily injury yes but it's intentional you do not that's right it doesn't make it visible at least in that respect it makes separate offenses yes but the question is whether whether it is it may still be just overbro that you seem to be making which is a b t w because it affects just slight touching is overbroad categorically middleton seems to go against that ok so putting that to one side you also are making an argument that it's overbroad because of recklessness this doesn't fit the force cause because of reckless yes what i'm asking is isn't b t w divisible on the lines of mens rea in the sense that there is a you do have to prove bodily harm so that under decamp you have to check the separate documents to see was this reckless or was this intentional you do have the two theories but the question is in looking at  only dealing with the assault aspect of it here we've got assault and battery so with that point does not hold that there is no distinction between harmful and offensive touching you saying that comes from davis that juries don't have to agree on  though it doesn't have to if it's not instructed in some cases it isn't structured and so it becomes an element it could be but we're talking about looking at the statute definition about with respect to the nature of the touching i have not seen instructions to buy in that manner and on the point about the jury instructions about recklessness versus intentional what's your if the record showed that in fact the conviction here was one in which the jury had been instructed as to intentional rather than recklessness would that mean therefore it's not overbroad in that that conviction could qualify well i qualifies under the force clause under either theory but but let me just answer your question as to why in our view it is it is a crime first off it's clear by massachusetts case law of if there are two distinct theories that have different elements and different mens radius as well with respect to the so called intentional form the defendant mustn't tend to the conduct underlying the act and intent of touching but not intend the resulting harm and as you noted there doesn't have to be any showing of bodily harm that resulted under the reckless theory by contrast the defendant intends the conduct but doesn't necessarily intend the touching or the resulting harm and there has to be a showing that bodily harm resulted and there are massachusetts instructions that distinguish between those two theories my friend is correct that the courts have said that your unit dimity isn't necessarily required but the massachusetts courts have made clear that they have to be instructed correctly as to those elements and that if a defendant requests a unanimity instruction my understanding is that it has to be but if could it be otherwise well i think the courts of appeals that have addressed this have said that unanimity is only one element or one of the things that you look to in deciding whether something is divisible you look to you know whether it separately instructed as to the different theories then if you had been there but it is the jury case by definition there is not going to be a shepherd approved document showing which form it was committed that doesn't necessarily mean though that it's not cited in our brief it's several different decisions commonwealth versus applebee commonwealth versus burke commonwealth versus ford all of them set out the elements of these two distinct theories touching judge baird actually that's one distinction and that's one area in which is different from simple simple assault and battery because simple assault and battery under the intentional form there can either be a harmful battery or the so called offensive touch g and it offensive touching requires as an element lack of consent by the defendant but the s j c in commonwealth versus burke made clear that no one as a matter of public policy can consent to a soul or a a battery by means of a dangerous weapon so there is no so called offensive touching form of the intentional or even touching however slight  under because a dangerous weapon is capable of causing serious bodily injury or harm even a touching however slight constitutes an a b t w and it would satisfy the age that remember the the physical force clause requires the use attempted or threatened use of physical force a t w is a lesser included offense of the intentional for you so even before you get to the battery you already have the physical force requirement her window and has already been south ok that's on the intentional stance right ok if we go to the reckless side for second two harm to have a result that means that it's a completed about assault with a dangerous weapon is by definition uncompleted battery to that cannot be committed recklessly that's right that's right it's either it's either the attempted or threatened  physical force so the reckless theory place no part with respect to the point we make about the reckless theory with respect is that it's not a crime or an offense that has  accidental uses those force against the other right that's right and so what is your answer to that with respect to because it doesn't seem to be sufficient to just say that some activity was intended what has to be intended is the use of force against another and how can that be true in a case in which all the only mens rea is recklessness and to insist that very first off be the work it's satisfied because under massachusetts law you have to show that the defendant intended the undock so for example a defendant who is swinging a bat or swinging a knife around wildly in a in close space with people around is intending that conduct satisfies that element it meet it once again it may not be intentional with respect to any particular victim or the arm but what you felt was was responding to was the government's argument that no mention was required reckless as my understanding is those have all been statutes involving mere recklessness where there has not been this additional element required that the defendant intended the conduct and as we noted in our twenty eight j letter that's exactly the distinction the ninth circuit picked up on in their recent distinguish this distinguishing the rhode island reckless theory which also uses the terminology wanton and reckless from the massachusetts the ninth circuit put rhode island in the category of extreme indifference recklessness because the supreme court has said that once and is the functional equivalent of requests and there was no further clarification they noted that massachusetts law that the question is does it have a sufficient recommenced rate that itself is informed by a lead a foul which says it has to be the act of employment of force can just be accidental against another w whether we have to revisit it wasn't at issue in that particular decision which i would suggest suggest certainly it's clear that and has not been you know or this court has never said am has been overruled in that regard so our which do involve mere recklessness does it have this additional element and one final point because i know that both judge train just later on the holloway panel where this issue came up i would point out that it's distinct there as well because when we talked about the reckless theory of holloway with respect to assault and battery it was under the residual clause so you're talking about the you know something that might  risk a potential injury to another so the focus there on the mens rea was different then the focus under the account as to whether or not there is the active point of force so i would just i just common law defined by case law actually resisting arrest separately defined by statute so there are two separate forms and made it said the first form qualifies under the force clause and the second  is our decision right i'm sorry i mean this is ours but i guess i'm asking is there any guidance under state law where the state law in fact requires separate instruction between the two theories whether there has to be jury unanimity whether in fact those are elements because i was just a little points out the camp is you can't tell necessarily from the face of a statute whether they're talking about elements were me and i can tell from the face of the resisting arrest that she was that on resisting arrest the district court jury instructions provide that the commonwealth has to prove that the defendant prevented her attempt to friend a police officer making an arrest acting under color of authority a defendant resisted either by using using or threatening to use physical force or violence or by using some other means it doesn't seem to require that the jury choose between the two which would mean it would be over brought on your theory taking the government's concession that part of it is not qualified in terms of the m  rea or for a song that with a dangerous weapon in fish this court did address b t w even though it was under section sixteen which is very similar to look at commonwealth you well which described a reckless form of the salton factory and talked about that the lack of intent that is actually required under that theory and that the use that the court is requiring the demands for physical injury as a substitute so that as a legal fiction actually they say actual intent to commit the crime is not present but may is a legal fiction be inferred from the nature of the act and its actual results emphasizing the actual results so i think that that is you know further support for finding that recklessness is not enough to swing a bat around doesn't mean that you are acting employing force using force against the person of another and it's the force that has to be the driving the driving force so to speak in the elemental provision not simply whether there is physical injury counsel your brother said that they did not agree some of these two visibility issues because it was