accord good morning my name celia rhodes of the federal public defender's office and i represent mr young this case presents two separate questions one about office of course clause in light of was ian and the other if chooses to reach it is the government's alternative argument about separate drug predicates and with the court's permission i'd like to get with that st issue which is whether mr young's conviction under the former louisiana revised statute one thousand four hundred and thirty seven two categorically qualifies as a violent felony not an element required to prove that crime and although the district court was completely correct that intent with respect to harmful consequences is no longer required post was enough excuse me volition with based on that definition the supreme court has repeatedly made clear that force giving rise to a predicate offense so in this case again the discharge of a firearm giving rise to an assault must be delish until it cannot be negligent or accidental and have the object or the practical certainty that their force is going to cause a particular harm recklessness is enough and that means post was seen that it's only required that a person consciously disregard a substantial risk of harm when employing in force even if they didn't specifically intend to cause the harm and i think the the dishes example and was seen as a really good illustration of that so the husband who throws a plate against the wall near his wife's head he may not have intended to hit her or known for sure that the plate would break and the shards would hit her but his conduct is covered by the force was because at the very least he consciously disregarded a substantial risk of harm when he fully through the soapy hands is washing the dishes and drops the plate he's not covered by the force caused because even if the dish shatters and the same exact harm occurs he hasn't used force accidental or negligent conduct resulting in force cannot be use of force but purposeful force resulting in unintended harm can be and that's the distinction that's really important in blazin now the problem is that louisiana law didn't make that distinction at least with respect to aggravated assault by discharge of a firearm now likewise in louisiana law doesn't care whether you meant to harm anyone when you discharge a gun but it also doesn't care whether you meant to dozens of other predicates that this court has examined in past cases and what makes this case really unique and that includes that georgia statute that was examined in valley ramirez which the government relies on now it's true that under the georgia statu e it didn't that's actually didn't require a showing of intent to injure it didn't require a showing of intent to scare someone but the court specifically highlighted the prosecutors as an element had to show that quote the defendant intended to commit the act that causes the victim to feel reasonable apprehension of immediate violent injury so in other words the force giving rise to the assault had to be intentional even if the harm wasn't so in georgia based on that discussion you would have to show in an assault by discharge of a firearm case where the assault was caused by the gun going off that the defendant intended to fire the gun and that's what saved the statute in this in that case and that's what kills the statute in this case now there's a related problem with one thousand four hundred and thirty seven dollars that is independently fatal but sort of get hits at the same concept and that's with how louisiana law defines the term intent and how it actually applies that term in practice louisiana is one of the few states that hasn't adopted the model penal codes culpability framework and that's what the supreme court incorporated into the force isn't even an anomaly among the anomaly of states who haven't adopted the m p c because at least for some crimes it incorporates negligence into its understanding of what it calls intent now the n p c lays out four distinct kinds of culpability in the purpose of this was there was a widespread confusion throughout the law over mens rea a before the model penal code so the model penal code clean this up and created four distinct categories and the supreme court determined that three of those fo and also in most states negligence that force category falls below that force or recklessness is the floor negligences below that floor and under of was evenly a call a crime must have as a required element that the defendant at the very least consciously disregarded a substantial risk of harm of which he was aware so that's recklessness as defined by looking to the model penal code but louisiana law doesn't use that framework or any of its definitions it uses a more antiquated general intent versus specific intent for an act which the supreme court actually referred to in blazin and said we're not even going to touch that we don't even know where recklessness falls in that old framework and thirty seven is defined under louisiana law or kit's case applying it as a general intent crime and the government has seized upon that language that use of the term intent there and other places that use the word intentionally and based on that without evidence of application the government is arguing that louisiana's use of that term alone proves that one thousand four hundred and thirty seven dollars only criminalized intentional conduct within the meaning of the force cause but that's insufficient that's the entire point of the categorical approach is that we have to look at state law definitions of terms like this and how they're actually apply because state law varies wildly even when it's using the same exact common terms like burglary for example and intent and it's particularly important to do this with intent because states have never been consistent in how they apply that and as it turns out in louisiana general intent doesn't mean the same thing as purposeful or knowing as used in the model penal code which is what i think the government is suggesting it actually sometimes has a bar even lower than what the model penal code refers to as recklessness so it incorporates negligence and was  rightly distinguish between recklessness and negligence for the purposes of the force clause because recklessness requires a subjective awareness of risk the person doesn't have to know for certain that something's going to happen or or have that result as an object of their act but they do have to be aware of a risk and consciously disregard it but in louisiana what they call general intent sometimes can be proved by what the model penal code refers to as negligence so it's enough to make an objective showing that the person should have been aware of a particular risk and that was true for one thousand four hundred and thirty seven you should have known that the gun would be discharged when you brought it into this heated situation because a reasonable person in that circumstance would have known that it doesn't matter if you intended to fire the gun and it doesn't even matter if you were reckless or negligent when it comes to the gun being discharged and this problem isn't just theoretical with  thirty seven specifically because in julian the court specifically said that this law incorporates negligence that negligence is enough and the court went on to say that a jury only needs to find that the force used to that discharge of the firearm even if it was purely accidental would reasonably be expected to follow from the act of bringing a gun into the situation so for one thousand four hundred and thirty seven dollars this was an objective reasonable person type inquiry that didn't require a willful use of force and those two things the or it's admitting that negligence may play a role and i think there's sort of arguing that they seem to complain on page eleven that this doesn't mean that losing a lot criminalized every accidental discharge of a firearm and that's certainly true i don't think that every accidental discharge would have been covered by the statute but the point under the categorical approach is that it criminalizes son accidental conduct and it criminalizes some negligent conduct and that in the means that it  fall if this court determines that this particular statute which no longer even exists is it incorporates negligence and falls outside of the force laws because this the statute has been amended the wording no longer says for example by issue i just want to briefly touch on the government's alternative theory for denying mr young relief and the government is asking this court to find in the alternative that mr young has three separate drug predicates now the district or didn't explicitly rule on this issue and thirteen charging three drug distribution counts two of which are listed as occurring on the same day but for those three counts to end dependently support application of aka the government is going to have to show that they were committed on occasions different from one another and there's a near circuit consensus including in this court in fuller and owens that this separate predicates requirement is a fact that must be proven by the government i'm using shepherd i will say though i think that if the court agrees with me on shepherd issue that is a purely legal question it's just looking at our way one hundred and thirteen and saying when two predicates are identical and listed on the same day we cannot as a matter of law determine that they are separate i think that that's under oath and especially which i think has a really good explanation of this and that's very easy so in that circumstance i don't see a reason to remained but of course especially if you're getting into whether that presumption should be rebutted with facts in the record that is a more fact intensive determination that it might be better for the district court to reach so i i do think that if this court agrees and i think it's very short for i think the law is very clear on th issue opposing counsel and her brief and during her argument takes issue with louisiana general intent i'd like to point out that this court has reviewed louisiana general intent multiple times and has never had a problem with louisiana general and ten point two two cases in particular herrera and hernandez those are cases that have been red flagged as a result of raids contrary but they've been red flagged for a different reason they talk about another louisiana general intent crime aggravated battery and they talk about aggravated batteries inclusion of noxious gas and poison elimination of certain distinctions did away with the problem with noxious gas and poison in those cases that's why they have the red flag but they do talk about louisiana general intent and are perfectly comfortable with accepting louisiana general intent and that that is ok at least in the context of louisiana aggravated battery it's the same standard that would apply here for louisiana assault also want to point out the fact that louisiana defines this crime aggravated assault with a firearm defines it as requiring both delusional conduct and violent conduct in order to commit th twenty five dollars he said firing a gun in the presence of another person whether intentional or reckless clearly constitutes the use attempted to use or threatened use of violence physical force i read that i don't see the district court conflating negligence and recklessness i see him doing the analysis that at the time was dictated by by velocity and that has been reaffirmed since race contrary what louisiana the way the louisiana defines this crime precludes negligence there's just no negligent way to commit this crime and so  adopting young's argument in this case adopting opposing counsel's argument in this case would blow up that one element of this crime that does have a negligent aspect to it and have that negligent aspect subsume the entire crime that's just not what the state of louisiana says with respect to this aggravated assault crime it is at a minimum volitional convertor that is required in order to be convicted of this crime i want to turn briefly to unless there's any questions about the aggravated assault statute of like the term really briefly of the another in a sequence of distributions another nd distribution of cocaine i can see that if they were if this was violent crimes then that wouldn't be enough toller says that i can see that if they were different drugs that that might not be enough that on the face of the shep documents that might not be enough if it was heroin and cocaine or if it was heroin and methadone in but because it's distribution of the same drug in two different counts on the same day it just defies common sense that defines logic that that would be to distributions of the same drug at the same time it plain common sense reading of the sheppard documents is that it was one and then the other so for that alternative reason the district court's denial of mr young twenty to fifty five should be denied unless there's any further questions to commit this crime negligently but is also conceding that well with respect to one element of the crime there is a way to commit it negligently because julian explicitly says that but the problem for the government is that the element that can be committed negligently is the use of force  nt that is the most important element and if the use of force is being done that diligently plainly underlay a call this must be excluded there's just there's no argument there and as to the district reckless it is a use of force if it's negligent it is not so there's a clear distinction in the law and if louisiana law allows in any circumstance for there to be a negligent discharge of a firearm that satisfies the use of force element that statute the crime has to be excluded i also want to talk about the general intent issue the government keeps pointing to but what's important with general intent is how it's actually defined now i do know that in the past this court has upheld statutes that incorporate general intent i don't think there's any reason although they've i think two of them are technically on the reyes control list of death and so are therefore theoretically no longer good law  in this particular situation julian defined a general intent as when the circumstance indicate that the prohibited result may reasonably be expected to follow from the offender's voluntary act irrespective of the subjective desire on the defenders part of the problem is the voluntary act in julian wasn't the discharge of the gun it was bringing the gun to the situation so in this situation unlike the past we've come forward with a case where the court is interpret ing and applying general intent in a way that expands the bounds of the force clause or goes beyond the bounds of the force was finally on those last two the government is arguing that commonsense reading of the sheppard document is that these were  probably committed at different times the problem is the shepherd document does not say that and under fuller and owens the sheppard document has to exclude that they were committed at the same time and that the shepherd document without giving any times without giving any details without giving any locations sequence of events cannot prove that as a matter of law and we know from the eight circuits decision in willoughby that it is possible under the test for whether predicates under are separate to have two drug counts that are committed at the same time and will be it was the same day it was different people's people but sitting in the same living room buying drugs at the same time and the court rightfully sad that of course should not be two separate predicates that make someone an armed career criminal because what we're focusing on is whether a person is a recidivist and selling drugs at the same exact time does not indicate that that would undermine congressional intent and it also defies the plain meaning of what it means to to commit to crime sequentially so it doesn't matter if we think that probably this was committed in a different time sufficiently to make those two different predicates if the shepherd document does not rule that possibility out the government can't