morning tonya morrow representing mr willis may please the court i believe mr willis should be reset and so on the supervisor lease violation in this case and that is based on argument that the district court failed to calculate the guideline and actually imposed the supervisor lease violation based on a correctly calculated guideline range actually the correct guideline range would have had a high end of twenty seven months which is what the parties were actually in agreement with and recommending however for some reason i stated in the record it appear that the probation department just within days of the sentencing hearing and after mr willis submitted his sentencing memorandum decided that the guideline range was based on a grade a violation and as we've argued the offense conduct that the court found which was allege were state violations and none of which would class classify as a grade a violation the only one that potentially comes close in that is the government has argued is the unlawful use of a weapon  state charge what we've argued is that although this court has found that that these subjects the second subsection of section one of that statute which is one sixty six to twenty is categorically a crime of violence that subsection deals with discharge of a firearm this court has not ruled and especially not since the united states supreme court and the scamps hoping pronouncing that correctly  will this court has on numerous occasions found a failure to calculate the appropriate guideline range is plain error because it right begins the process if that is a crime of violence then the district courts calculations were correct that's true so so my question is given this is an issue of first impression the ninth circuit hasn't ruled on it why did the district court plainly are in determining correctly we've never said that the first prong no i understand terry crespo only deal with part two of the state offense but we've never said that the first part of that state offense is not a crime of violence so the district court could have determined that that was a crime of violence therefore that he was convicted of a great a violation is that wrong but with the district court didn't i mean i  the conduct that is the subject of the criminal charge or of which the defendant is convicted rather the grade of violation is to be based on the defendant's actual conduct so in this case he's looking at the conduct which he would not be able to look at under taylor can you only look at the you know the category gauri in the elements but if the guidelines say replication you can look at the conduct and looking at the conduct that district court concluded that within the grade a violation  crime of violence right that's exactly the case and so as a result if you've got a provision that's in the visible and overbroad she can't make i believe she can't make a distinction between the two that's that's our position that it is not categorically a crime of violence she's unable the judges then are unable to to make a distinction as to that state law violation look you know the record determined would be a great while i understand your point it's as if the court is actually acting as prosecutor and judge and therefore saying that i'm i'm using the first section of subsection a i think we still are stuck with the the categorical test and because it's overbroad we can't use that statute and that provision as a potential predicate for a crime of violence the guidelines th in this particular context when you're dealing with revocation sentence that you're trying to determine whether the conduct rises to the level of a crime of violence you kind of use the taylor t weapon does not qualify as a crime of violence you haven't explained what i'm saying is because of the definition for the great a violation has to be a crime of violence when you still we still ply that the whole taylor analysis and that subsection is in divisible and overbroad because it's got it's got conduct that wouldn't qualify as a crime of violence which is which is the possession of the weapon so i'll remain you can save your time for a committed was not a crime of violence the first is the district judge couldn't have plainly erred relying upon terry crespo the supervised release violation report referred to unlawful use of a weapon and it's been well established sin two thousand and four out of a case arising from this district that is a crime of violence chris was pretty specific that was looking at the second part discharging a weapon towards a building or at a person that's not the same  offense that we think applies to his crime or conduct would be a crime of violence i don't understand and if i may your honor the supervised release violation report didn't specify a particular subsection so but i agree with you that the if you look at the oregon statute the subsection that more precisely applies to what mr willis did is subsection  doing some additional research on subsection a which makes it a crime under oregon law to attempt to use unlawfully against another carries or possesses with the intent to use unlawfully against another any dangerous or deadly weapon that aligns pretty neatly with another case from this circuit and that's united states versus jenna and it was five ninety six fed third five ninety four it was a washington second degree assault with a deadly weapon in which this court held categorically constituted a crime of violence and i think if you take a look at the elements about washington statute they align fairly neatly with one sub so so let me ask you  second the catch all otherwise involves conduct that presents a serious potential risk of physical injury now we know that that that second prong is currently on review by the supreme court and they're focusing in johnson so two questions first does the offense that his conduct resembles fall within the first or the second definition and if it's the second definition even under plain error review would we have to wait for the supreme court and i think it falls far more neatly in the first definition to threaten the use of physical force and if it's under that subsection than we're not even concerned about the residual clause and what the supreme court may or may not do based upon the supplemental briefing that's been ordered and if i may there i think when this first this issue first came up and again none of this was brought to judge brown's attention when it first came up on appeal i went very quickly to terry crespo and perhaps to quickly if we go back to seventy one point one the suggestion has been raised that this has to be a crime of violence for a con to constitute a class a violation and that's not entirely accurate seventy one point one a one refers to the first clause a refers to a crime of violence or a controlled substance offense but if you drop down to  a great a violation is also any other federal state or local offense punishable by a term of imprisonment exceeding twenty years now mr willis when he admitted the violations and there were a whole litany up and there was a long list that was prepared by the probation office he admitted that he was a felon in possession of a firearm that's a g c r one seventy five n one seventy eight that's what he was charged with in this case his felony possession of a charge which was nine to two g coupled with a nine to four in hand cement carried a fifteen year minimum with a life maximum so therefore an alternative basis to affirm the district court's finding that this was a great is the fact that mr willis engaged in conduct that constituted a nother federal offense that is felon in possession of a firearm carrying a sentence that was far in excess a maximum punishable sentence in excess of twenty years this happened here and turned out the way the cases argue that everybody you're lying on the stand you right right but again and i like to say i think we jumped too quickly i jumped too quickly to terry crespo but in judge brown defense the grade a violation doesn't necessarily depend upon a state conviction constituting a crime of violence the federal conviction which mr willis admitted to also constitutes a about looking at conduct which is not something we're supposed to do under modified or the categorical or the modified categorical how does it play in judge trials that it's sort of  again there's not a lot of case authority interpret ng seventy one point one i mean the plain language of the guideline doesn't fact refer to conduct that's a material difference between this case and the aka cases that do involve the strict er categorical modified categorical and it's our position that what mr willis actually did was categorically a crime of violence and so therefore descanso never comes into the mix and you get  there either by analogy to jenin or the alternative route of saying this also constitute the federal offense punishable by more than twenty years your honors the other thing that i wanted to point out that we didn't in our brief that i think  ffirms what judge brown did here and that is that even if you were to conclude that the court plainly erred in not foreseeing that this was not a great a violation as was suggested by the probation office is that judge brown treated this sentence as a package what she said at g s r two seventeen was what's driving my analysis here is the combination of the sixteen months and the hundred eighteen months and she said mr willis you've earned the five years on the supervised release violation now judge brown and chapter seven as we know it's not even a guideline it's a policy statement judge brown clearly if you look at her explanation for her ruling relied upon the statutory directive that she select a sentence that was sufficient but no greater than necessary to address all of the conduct that mr willis engaged in that night she she she rejected the government's suggestion that she do a high end on the a c c offense she gave him the mandatory minimum one hundred eighty but to accurately reflect all of the conduct he had engaged in since his supervised release began which was just a two month period but in addition to the offense which forms the basis for this conviction we know that he had another gun incident with a girlfriend with another convenience store clerk and judge brown considered that significant and particularly significant in light of the fact that his prior federal sentencing which was handled by judge redden was one in which judge read an granted a significant downward variance so given all of those factors we would urge this court not to exercise discretion to recognize plain error in this case because judge brown's ultimate conclusion as to the what came out to be a twenty year sentence was one that reflected all of the factors that she was supposed to consider are there any i want to be sure i answer and questions you may have about this the motion to suppress if there are no questions then the government would submit the the new argument concerning the a c c is it is addressed by way of the judge brown made specific comments that she was treating the change of plea on the specifically states state law offenses of an authorized use of a weapon for being a felon in possession of a firearm for possessing a little firearm in public cetera et cetera that set out quoted at page six so she was being extremely careful with regard to not using his conditional plea to the felon in possession for purposes of the supervised release and she also says that some something to those regards in the change of plea hearing at the  government's super skinny supplemental record at one forty eight with regard to she her treating this as a package with regard to whether she might have done a different sentence i believe the record is pretty clear on that as well not only in the at the change of plea hearing did she mention that this case she anticipated that there were going to be arguments of the fifteen year sentence was sufficient for both violations and that's also  it the government supplemental excerpt records at one forty seven but she also says it specifically asked the prosecutor why the sentence should be should the supervised release that should be consecutive in light of the guideline range imposed that could be imposed on the felon in possession i think in context it's clear that she agreed that he should be he should be sanctioned for the trust's violation but she was concerned with over incarceration that's why she only gave him one hundred eighty months and if in fact she knew that the guideline range the max was the twenty seven months both parties were recommending she probably would have just i think it's likely she would have she would have imposed that and i guess i'm out of my time at this thank you