the supreme court case law says you have to assume that the conviction is rests on the lease act the pilots the statute and so that here would be the offensive touching and so it wouldn't qualify where you think the judge went wrong and it was you know at the invitation of the government was relying on this court's case united states versus montages you know in the district court the government argued that montel stands for the proposition that the judge can look at the factual description of an offense in the p s r and decide that it's a bodily injury battery but mont never gets chucker documents and then on the hill the defendant argues that the government hasn't shown which version of the invisible statute the convention rested on because the government didn't produce the shepherd and this court quite reasonably has said that if the defendant were number one you're reviewing for plain error and if there are no shepherd documents you can't show point and it's basically it's a it's an anti sand bagging and that you can't not object in the district co violence the shepherd documents were produced and even the district judge herself said it's on page eight of the appendix that the shepherd documents did not make clear what qualifies the other part wouldn't if the shepard documents don't show which ones it is you it categorically doesn't count that's pretty straightforward application of the modified categorical and additionally  force illinois battery statute is the same it there doesn't have to be any intent to injure and so the government concedes all of this in their brief they ask this panel of the court to reverse florida's arguing that subsequent supreme court case law has undermined it but of course as this court has said you could lead one panel can't reverse another pronk of acco which of course is the same as that the elements prong of career funder but it didn't address at all the intent to harm issue that was talked about in flores and in opinion that they were not deciding if the same analysis applied to eighteen us code section sixteen a the section that was involved in flora's acknowledging that there could be don't think this is harmless error because the district court did not say she would impose the same seventy two month sentence if the aggravated assault conviction was not a crime of violence she did make it clear that this was not a guidelines sentence obviously it wasn't a guideline fenton went out of her way to say that even if i'm wrong about the aggravat conviction and how to classify and the sentence stands on it's own without regard to the guidelines calculator offense level of twenty i think she specifically said it doesn't matter the determination here that's what she said then she's now to decide if i'm going to grant the government's request for an up or variance and then she did and went up to seventy two months factors that you do fifty want to sixty three months into the if there's can confusion on this and confusion in the way the district court expressed herself it is the government the bears the burden of proving harmless error and this court has made clear that a simple statement saying well i would have imposed the same sentence anyway is not enough to overcome the significant procedural error better when the guidelines are mis a plot divisible we also agree that this court applies the modified categorical approach to determine which type of attempted battery the correctional officer face when involved in bodily harm or physical contact of an insulting or provoking and examination of the sheppard documents and mr jesse's aggravated assault case shows that the district court was correct in concluding that the correctional officer faced a battery involving bodily harm which means that his prior offense had as an element the attempted or threatened use of physical force in the rock island county jail in august twenty four teen mr vesey became upset over looks like there was something about missing a meal on that particular day for whatever reason he rips the shower curtain rod off while he then swung at correctional officer sara mr bessie's attorney agreed that the state prove those facts and mr vesey indicated that knowing that an actual basis in the penalty as he wished to have the court accept his guilty plea and the shepherd documents show that the bodily harm whether he did so across the room or in so much closer proximity and also like to briefly address mr putin's comments about the case and while it's true much as was looking at whether the court could rely on the p s r in the absence of an objection where there and when no shocker documents were introduced i think it's also important that the court in montana has said because i contested findings in the p s r indicate that min the face and based on that this court found that the uncontested findings showed he was convicted under that only harm clause to briefly discuss also mr pattens just comments on in reasonable apprehension of battery in making this argument he relies on this court's two thousand and three decision that flores which held that crimes of violence under sixteen a are those intended to cause bodily injury johnson and the supreme court find physical or is as forest people who causing physical pain or injury to another person for the purposes of the a c c i is at the armed criminal acts on its plot the supreme court reiterated that definition more biting and hair pulling can qualify so even this conduct that leads to relatively minor forms of injury a cut of raising or abuse or bruise necessitates the use of force under the elements a force that causes minimal pain is a which involves a misdemeanor crime domestic violence and the court there ultimately held that the term physical forest used in that statute should be given a presumptive common law meaning of offensive touching  even at the district court aired in determining that mr bessie's prior conviction for aggravated assault as i move violence that error was harmless the district made clear it would have imposed the same sentence even if it incorrectly determined that mr vesey is prior a of the p s r it talks about a prior charge of aggravated battery against mr vesey where he was charged with committing aggravated battery in that so the defendant in committing a