judge pryor and i are delighted to welcome judge richard tolman to the eleventh circuit it's visiting with us from the ninth circuit judge home and keeps his chambers in seattle washington and we appreciate you judge stallman coming all the way over from the pacific coast to help us decide these cases this week thanks for having me and we have four this morning that are scheduled for argument and the first is united states we hear this morning known the case of not g oliver has a history of criminal behavior there's no doubt about that but he did not qualify for the long career criminal enhancement that he get primarily because career criminal enhanced mint was among other things based on a charge of terroristic threats terroristic threats was one of four several charges  and yesterday joy just statute is divisible is divided into several different categories including one to make a threa that that could be considered a terroristic threat and the other is did a thing of  of using some type of chemical or something and fumigate a place less let me ask you this the government says that this case is controlled by our two thousand and six decision in united states versus greer and mr oliver was convicted under this georget that statute which makes it a crime to commit any crime of violence government on that why are we buying back career because greer did not follow the what circuit i was just pointing out that this was a change for the middle district from its earlier rulings or i'm not sure you've answered judge wilson's question are we are to an extent except that  the problem with greer is it is not in it does it follow many cases that are the circuits including  the eighth circuit that in this particular case this is sentencing code basically senate steve in the same as he would have without them career criminal and therefore it was harmless error but they held that under the minnesota statute that was very similar to the georgia statute that and that if you take a categorical approach to the statute the georgia statute does not require a crime of violence but didn't  panel determined the statute was into visible and that the three means of committing the crime are all violent acts made with intent to instill fear in the victim yes s the arguments been made and rejected by the court it has been but the court still wanted to hear this one and the years attorney made an argument earlier  that in brief that because a gray we didn't need a hearing in the court decided they wanted the hearing in a way and i was afraid the grave controlled but think that's the key to the thing is the crime of our because you don't have to commit any violence to make a terroristic threat i'm on run you down in my car because you didn't even go shoot it up you you made a wild statement that could be considered a threat and therefore it's but is not a violent crime when you don't guard argument as i understand it and you know the government can kind of dress this when it comes  have to commit a crime of violence against a person you know you have to do is state make a statement that you don't do something that could damage property or cause people to leave for the united states the issue in this case is whether the defendant's prior conviction for the georgia crime of terroristic threats made by threatening a crime of violence qualifies under the c c a this court need not engage in any fresh analysis because it's already decided that exact same issue twice in the case the first was in two thousand and six in that case mr greer was charged the issue was the exact same one as well and in the first three or case the court did not follow the supreme court's direction and math us of course because math came out after why didn't math us abrogate gree the first career case well mathis really did not change the analysis it focused it it refined it it corrected an error that ninth the night circuit made excuse me the circuit and made in the under the i was statute but it did not change the analysis whatsoever what about with respect to divisibility of the statute and to go straight to a that a prior conviction for georgia terroristic threats for threatening a crime of violence qualifies as a violent felony and it spins it the only issue is whether it held that under the elements clause or the residual cla which was still viable in two thousand and six but booking by the language of the opinion we know for sure that the court decided that under the elements clause we know that for sure because it used the exact same phraseology that still applies under the analysis of the elements clause and whether under de comp or mathis for example this court held that the violent nature of the terroristic threats crime was obvious from the statutory elements of the indictment and the conviction documents so it consulted the exact same three objects under the two thousand and six analysis that we're still required to consult today the elements clausing is focuses solely on the elements of the statute and that's what this court in two thousand and six based its decision on the elements of the statute and as far as the visibility for it then uses the shepherd documents which include the indictment in the conviction and again that's exactly what the panel referenced in two thousand and six to find it can address the specific issue we have in this case though because i thought the primary crime area issuing greer was whether a judge instead of a jury can decide whether a defendant explicitly address the question raised in this case that there's been some movement in the last since greer there has been movement in the lawyer on it but but this under this court's prior precedent will it still bound by the holding of greer and the holding was that the exact same crime an issue here qualifies as a violent felony this court has to follow that holding even if this panel thinks it was wrongly decided but it but only if the statute is divisible that's correct that's correct put but remember that angry or that it involved the same divisible element that is a crime of violence by me of the threat of making a crime of violence and it yes it's divisible that the terroristic threat statute has two elements the first is a threat the second element is the purpose each of those there's a each is required in a creek wired essential element but each one has several alternative ways in which  it for example the if the threat element can be fulfilled by committing complete threatening to commit a crime of violence and that's what we have here in this case or releasing as it is hazardous substance or burning or damage property now those those three are divisible because they're all in the statute they're separated by or and they're set out as alternatives furthermore all the ga appellate court cases say that those are elements  cited four or five of them in our brief saying for example that the threat to commit crime of violence is an quote essential element so those are alternative essential elements and that makes the statute divisible so you can be convicted the that's what the statute says you know there are two elements the threat and the purpose the threat is either to commit a crime of violence or to burn or damage property it can't be b and in every indictment the court specifically states which one of those three alternative elements he's charged with we've cited dozens of those cases so you cannot be convicted for committing a crime of violence against property those are alternative elements of the threat there are a number of georgia cases that state that the crime of making terroristic threats can be committed by either threatening a crime of violence or threatening to burn down property yes that suggests that those are the crime it's one crime and therefore those are means of committing that crime no sir no certainly not because there are two elk as i said there are two elements the threat and the purpose and within the threat element those are three alternative ways to fulfill that element the statute leaves them out they're separated by in the disjunctive and they're mutually exclusive so every indictment has  specifies which of the three types of threat the defendant is charged with committing and then it specifies which of the four purposes the defense is charged of acting under so there's always your argument that we look at the linkage between threat and purpose and that's what distinguishes a pure threat to burn down a building if it is not made with the intent to terrorize another person or to cause public and convenience or back to a ship and so on is that what you're saying i'm sorry i didn't and not understand well i asked a very poor question i'm trying to determine in the analysis whether we look at the linkage between the threat and the purpose and as i read the statute you go to read the two together that the threat becomes a crime of violence when it is made with the purposes that are set forth in the second clause the second element of the statute no i don't think that's quite right i think there are two essential elements threat and purpose there are multiple ways to fulfill the threat element and there are multiple ways to fill the purpose element in each case the indictment specifies which of the three threats the defendant is charged with committing and which of the four purposes he or she is charged with committing but the  cases of someone charged with a threat to commit a crime of violence necessarily involves the threat of physical force against the person of another so that's what we have here mr all over like mr greer before him was charged with the threat of committing a crime of violence and agree or panel held that that qualifies as a violent felony under the c c a that was back in two thousand and six nothing else is really has not changed since then even if it has the court still bound by that specific holding of course the prior precedent will plies applies to the holding even if the reasoning is no longer valid but but there's even more than that because just in september of two thousand and eighteen another pan this court again mean the exact same ruling in the exact same case that's not in that case the parties conceded divisibility in the court so that in the opinion yes that's correct but you're not everyone's conceded divisibility in the in the greer case in the middle district both parties conceded divisibility in the other case in which and which name now scapes me in the northern district both parties conceded divisibility i'm i'm so i'm certain it's digital have i think i'm a little confused by your argument because you said there are two elements there's the threat and the purpose yes but then within the threat element there are three different ways of making a threat that's correct sound an awful lot like means rather than elements to me know they're there not means because in mathis this court said that mathis is the first case to discuss the distinction between elements and means of course that was not eleventh circuit but there they said that the distinction arises when the language of the statute and the purpose for which it fulfills so the like the language of the statute can be either an element or means it's an element if it's contained in the statute it's expressed in th and more importantly if the prosecutor in the state below has to charge and prove that and that's exactly what all the cases only but then then you get into the cases about this the sufficiency of the indictment and there was the indictment has to give proper notice to the defendant and that's why they charge but that doesn't mean they would have to charge it that way does it in other words that to commit the crime there would have to be a threat of a crime of violence because you could have a threat to burn down property and that would not qualify as a pr and furthermore we have the pattern jury instructions which also lay out the three alternatives for the threat as alternatives in parentheses with the instruction to only charge that one that is appropriate to the case and as if all that weren't enough we have the recent amendment the judge's legislature made to the terroristic threat statute there they made it even clearer by restructuring and eight they used for example the number one to designate the threat and they have  and c for the b alternative threats and then they used the number two as the second essential element for the purpose and the use of letters a b c and d for that the different ways in which the purpose can be fulfilled so that you that outline structure just an entirely proves my point that it's totally divisible that among the two elements we were to apply the modified categorical approach for this conversion were qualified because you can't be convicted for making a terroristic threat we said and major verse of stay the plain language of the statute or curb its threats to commit any where the georgia supreme court said in major versus state the plain language of the statute prohibits threats to commit any crime of ballance for the purpose of and you can be convicted under that statute for communicating or for out of hours in a reckless manner but but that's only if the purpose element is charged for the purpose of the fourth alternative reckless disregard of causing terror that's exactly what happened in major in major the defendants was different was charged with committing terrorist acts threats by the first element was threatening a crime of violence and the second melman was with the purpose of reckless disregard of causing the terror so yes that's one of the four sub elements of the purpose element and the only one that can be fulfilled by the mens rea of recklessness but that's not what mr oliver was charged with r you can be convicted of this george or cross with a man's right of recklessness i'm not arguing that the entire crime qualifies categor i'm arguing that it's divisible and so we had used the modified category approach to see which version he was charged with and then we apply the categorical approach to see whether that involves the the required element of threat and physical force yes i'll concede that in major that if that defendant was charged with the purpose of reckless disregard of causing terror so yes that could be caused that could be committed with the m of recklessness but that's not what we have here mr oliver was charged with instead with a specific intent of terrorizing another and the georgia supreme court itself that that requires specific intent and i apologize before i do this but what mr elder was charged with was his statement over the telephone and then his statement in person that the person was going to pay for this shit in excuse me in my language but that's what the language in the pre sentence report is and that was what he was charged with was was saying that and he also he said it a number of times in the also said that another person and her boyfriend were going to pay as well  he also tell her that that he had a gun and that he was going to shoot up or out and i don't think he ever said that but he apparently in another crime he was charged with that he was not  he actually kept off around i don't i don't i don't remember that if it does and that and looking at the sentencing report right now and it doesn't say that  now i'm not sure that you look back and go into the facts of the underlying charge but just look at what the charges and what the statu and to say you don't pay for this doesn't threaten any particular bounce it doesn't threaten any particular actions and i think that's the key to this is th you can buy the georgia statute by just some all fan remark is made in inappropriate circumstance like over the phone to somebody who's call the police on y all over the phone to somebody who's thrown a brick three when you know we're going through a bunch of breaks back and neeleman and that's a threat but it's not really a threat of indictment well it goes on to say oliver followed behind badger with a gun in his hand and made a motion as if he was going to fire the weapon badger was able to close the door and heard one gunshot followed by oliver kicking the door demanding badger to open  then after that is when he said the language that you quoted that's right going to pay for it but i would point out that in this particular lanston say was charged with terroristic threats and aggravated assault the but why wouldn't that conduct constitute making a threat with the intent to cause terror and another because the government did not proceed with aggravated assault they allowed him to plead guilty or no i'm sorry things are on the terroristic threat i mean it seems to me that's a pretty strong factual record to support the charge of making a terroristic threat been guilty of aggravated assault as well but that wasn't what the code needed to look at the code had to look at whether the statute itself  and i've got forty eight seconds left but i sometimes it's best to shut up in that often the hardest thing a lawyer ever has to learn we appreciate your service mr blackburn i say you were appointed to represent m and the next case will be calvin were