respecting the court's prerogative to determine the issues for oral argument i would respectfully like to focus on the following three issues first two incidents which were in fact part of the same course of conduct should have been merged into one predicate crime for a accounting purposes the issue is what on occasions different from one another means second the minnesota domestic misdemeanor assault which was enhanced to a family only because of mr perry's prior criminal record library issue is whether the due process clause requires the prostate offense representing themselves at trial be provided library access to your honor's with this case the government now attempts to create the one only the record reflects your honor that the p s r states of this all happened very quickly and actually there are statements from the government the defense counsel and the defendant himself at the sentencing hearing describing how this all happened within moments and seconds minutes very quickly well your honor here's what happened the defendant walked into the store he pointed a gun at the cashier he grabbed the money and witnessed him running from the store  brandishing the gun which means they were very close because he saw the gun and before he had left really the premises of the gas station he the defendant took his gun fired a shot straight in the air to warn off the witness and the when they were  right you got he jumped into his car in a sort of vigilante justice then attempted to run down the defendant but he was close enough that the defendant didn't get very far and and fired the warning shot to let him know and he was so close to the report for the facts to determine whether this was one or two occasions well your honor it appears that the actual underlying documents were not introduced into the record the government had marked them as exhibits but didn't admit them and so i in addition to the p s r i'd point the court to the statements that that all three of the relevant parties made at the sentencing hearing which agree on these things they agree that the assault happened almost simultaneously they agree that it happened in the same sort of space and they agree that it all happened as part of the defendant's robbery and escape it was a continuous course of conduct to rob the store and escape without encountering anyone else so what the defense counsel said at the sentencing hearing was quote he hadn't left the grounds and these are happening simultaneously they're happening in the same location what the government said was that the robbery that occurred inside the convenience store was one occurrence it's and then the subsequent assault that occurred happened where the defendant was walking or running away and this by started chasing by started i guess one of my my concerns about about this conversation is where do we stop looking because we've got the pre sent time crack so it's his argument on and correct me if i'm wrong i'm not sure that he testified he didn't testify at trial your honor and then we've got some of the statements within the documents that are submitted in the course  sentencing memorandum think so what i'd like to hear from you sort of where it would you are you representing that the parties think we should look at everything that they present even though it was in an evidentiary form no determine this kind of fact based issue no your honor and i agree that it is a very intensive fact based issue and with this court that it will be was that the three factors that this court will consider in looking at whether crimes are separate from one another for a purposes our time space and continuity and i'm sorry to say was or redirected so where do we look for those facts that that's where i guess my bottom line question of concern is we've got facts in the pre sentence report but the other sources of information you're pointing to are not evidence they're not your honor so can we even look at those well or they stipulated to they were not stipulated to your honor i'm providing them to the court as a matter of the record in part of this case but the p s r to which the parties did not object at least with respect to paragraph thirty three which describes the incidents in this case clearly states that the defendant attempted to  flee the gas station on foot and abs and that the witness observed him fleeing on foot and chased him down so all the parties agree on that version of the facts your honor and going back to the will of the factor when you look at time space and continuity this all happened very quickly in a way that actually mirrors what happened in the in the petit case yonder were six different people were robbed inside of a restaurant and the court the congress and the department of justice agreed that that should count as a simultaneous series of events simultaneous crimes and should count as one course of conduct so if robbing six different people in a can count as simultaneous where again the number of a timms was not dispositive in that case if it was if it were then then patty would have turned out differently in your argument  as i understand it at the district court you are mr perry wanted the gov the answer wanted the court to open up the record and actually look at more facts in my right your honor i was not counsel at the district court i was just appointed a couple of weeks ago they all asked sort of in another way are you you're not asking us to limit the type of documents that we look at in to determine if you're not saying look we can only look at shepherd documents or anything like that i'm not your position that your honor you know but what i am saying is that under this court's precedent including what happened repeatedly after after patty that the three factors that this court looks at most significantly time all point to a continuous course of conduct here and so what happened with patty is the court knows that initially the court said that six different people being robbed in a restaurant comes two different crimes they all confessed our the the court agreed that these were separate courses of conduct an interesting lead the congress that amended the statute and made very clear that time was a significant factor and that what they meant by armed career criminal were a series of crimes taking place over time not crimes happening within seconds or moments or minutes be heavy handed you need to get to the armed criminal argument to enhance the defendant to or used to count the defendant as an ac ca every single predicate happened in two thousand and five in this one incident at the gas station even the third alleg crime the found any domestic assault was initially only charged elementally it was a misdemeanor domestic assault the only reason mr perry was graduated to a felony domestic assault was because of his prior record and what did the state rely on in graduating him to a felony domestic assault the exact same two convictions from two thousand and five which happened in the same court at the same time at the same trial that was used to enhance them  to a felony count so we've got again your honor a conduct occurring within just moments that is the basis for an arm to career classification which was not the intent of congress that's not the nature of your argument your argument is that is that somehow this should have been a misdemeanor but by virtue of his criminal history it was elevated to a felony and i guess my response to that is a felony is a felony is a felony and we still count a felony crim force a same way whether or not it was enhanced by a prior conviction or not i think our arguments a little different from that your honor argument is that the state recidivist statutes which rely on misdemeanors being graduated to up to felonies which in fact are not felonies are not an appropriate application of the a c c and in fact may be a constitutional violation of due process and so the argument a little bit broader than that in mr perry's case what is disturbing is again they weren't using domestic violence conduct they weren't using unrelated conduct the state was using the exact same conduct that constitutes his felonies for for the first two a c c accounting so we have a counting problem when it counsel i'd like to start with the thrust of judge kelly's questions with respect to what the court can and should rely on in resolving the a c c a question and then judge benton's question about how much time elapsed and what  might want to do with that factually and then the filmy domestic assault with respect to the material from the record the the levering case with this court recently decided includes a footnote discussing the sorts of documents that this court would examined in making the a c c a continuous course of conduct determination and what the court said in levering is you need not have gone beyond the most observant of approach which was to examine only shepherd related documents which this court identified as the judgment and the charging documents certainly in this case we also have the on objected to pre sentence investigation which under this court's well settled law the district court would be  honor in respectfully i think the record reflects respect with respect to counsel's statement that the district court never admitted the exhibits offered by the government those exhibits included the complaints that underlie the convictions so it's the government's position that the district court of page forty five did accept those as part of the sentencing record and under the levering case taking even the most conservative approach this court could rely upon with respect to statements made at the hearing i think with respect to your question judge kelly about what do we do with the fact that the defendant who's kind of appearing pro se all those council did make argument at the  made some statements regarding the offenses i respectfully submit that if the defendant wanted to testify he should have been subject to cross examination and that's the way that material would have been properly admitted at the sentencing hearing i think the record does not admit of how the district court was treating those statements and i would suggest for purposes of this court's analysis of the complaint material the p s r documents and even taking defendant's statements if you wanted to consider them don't undermine the conclusion that th the gas station and he was observed by the victim who ultimately chased him in the vehicle i don't believe the complaint is clear as to whether the the what i'll call the second victim was in the car at the time the defendant ran out or whether he was on foot and then g station that they have just been robbed whether the second victim that is already in the car or has to get in it he undertakes to chase the defendant he indicates that the defendant crossed the street toward a mall and before the defendant reaches what is referred to as the tree line the victim sees the defendant is holding a handgun the victim then indicates that the defendant enters into the trees and the victim loses sight of the defendant but a shot then rings out from the freeze and he fears it was passed and smells gunpowder must have been fairly close certainly to where the shot was fired and it was this this is all from the complaint yes hearing and sort of not traditionally the kind of facts that that we adopt from those those kinds of documents because we're normally looking to see what was the person actually convicted so i'm guessing that the kinds of facts that we all think maybe are relevant for this analysis was the off the premises how far away was he how much time wouldn't have been the kinds of facts that the jury would have found or he would have had to applaud to does that matter and how we look at those documents to answer this particular question are we decide kind of walking into the footnote in lovering that we just haven't resolved yet i think before directly answering question i'd say i think you do have the benefit of the p s r which is not quite as detailed as what i've just laid out but even the government's position is if you just relied on the p s r under the david and other cases in the of this court that would suffice but to take your question judge kelly i think if the if the court had reached the question of whether to go beyond shepherd documents certainly the court could look at the trial transcript examined by this i mean the district court hopefully making a record for you that the trial transcript other evidence presented at trial and consider that going beyond just the shepherd documents that are identified in levering and of course the shepherd case and  and whether there be a jury finding on those almost certainly not there would have been no special jury finding so are we walking into the footnote are you sorry walking a footnote in levering i don't think i don't think you're doing anything but following this court conclusion and levering that it's ok to follow the most conservative approach you need not decide whether you can consider other material and and frankly judge kelly there there isn't a record here  beyond the shepherd documents in the p s r for the court to consider except arguably the statements of the defendant the sentencing hearing which i only briefly scanned again before before coming up here and i don't think are much help either way in resolving the question either as a factual or a legal matter i just wonder for stepping into the very problem that was highlighted in addressed in our a c c cases the supreme court's a c c cases in fact finding when what you're really doing is increasing the statutory mandatory minimum and maximum by fact finding by a judge after the fact in federal court and whether that should give us pause in this sort of slightly different area of the a c c not what the conviction was but are they separate convictions i think the probably the best response i'm able to give you your honor is that question is not before you in the sense the complaint was offered at the sentencing hearing and it's the government's position at page forty five the district court admitted or accepted those for purposes of the record without objection it could be that this court will have to grapple with how to how do we deal with the question you're addressing where there's an objection where it's before this court where the district court either relied on the complaint and there was an objection in that and it's before this court or or didn't rely upon it should the government be in a position to take across appeal but that's that's really not this case and i think those cases may inform that question when it arises but here you have p s r you've got the admission of complaint without without objection and you have the leverage footnote that says the most conservative approach would permit a court under the shepherd line to review those documents we can't tell what the those materials to which you referred be incorporated into the record wherever they may be now which is just the physical but then i'm talking about the conclusions of the district court the district court doesn't say what the district were that relies upon just dates a conclusion that's accurate your honor but no difference as a legal matter than than the panoply of court cases that say you assume that the district court has considered letters and received filings that receive the trial record except or even if the district court doesn't go by your by the analysis you gave  the documents you're relying on we have a situation where there's a robbery that occurs the defendant flees the clerk runs out that essentially someone goes after and chases him and two where he is he's in the tree line across the street in the mall and he pulls out a gun and so my question for you is is her case that suggests that that is enough so that it's what not one continuous course of conduct and if so what is that case actually i think to create his closest is hamil it's this court case cited in the government's brief there is twenty five minutes right on the time in hamilton twenty five minutes right time ok and of course the court in repeatedly after this is within minutes within minutes within minutes of each other i think three times go it so and with respect to both of your honor's questions i think what take a half a step back  proximity in location and long in time which is hamil so i cite hamel for the proposition that the fact that the second assault in this case occurred in close physical proximity to the gas station does not prevent you from reaching the conclusion they're different well that's true but here you have time it's relatively short it could be many could be one minute it could be five minutes i guess we don't really know you're literally across the street from the gas station and he still immediately fleeing the scene of the crime and so it seems to me that there's a it's at least debatable on all three elements i mean you do have different victims but it's debatable on all three elements of the test i'd say so let me let me focus a moment on timing  this court has said with respect to timing in the in the davidson case is that quote the primary purpose of the pause the pause that you require between different episodes is the chance to discontinue criminal activity and i think that  sometimes the struggle that appears in opinions about well is one second enough is ten seconds two minutes twenty twenty five minutes i really don't think this court's precedent is so concerned about the amount of time as it is about whether the defendant has had an opportunity to stop one criminal episode before engaging in another and on that principle which is tougher than david and i think this clearly is a separate episode the defendant has not only left the location he has made his way across the street entered a tree line turned around and fired a shot and he could have continued progressing through the trees continue to the mall he ultimately was apprehended at his house or his apartment i believe does it matter when the victim number two starts seeing him in other words right after he gets out in the first offense so he's being chased so there's really not what's the language to use sort of a clear opportunity facts were that the defendant either convenience store or gas station x or the gas station and pointed a gun at the officer who was standing outside a grocery store thing pointed a gun at the officer standing outside and police in court the fourth circuit how that was enough because again the defendant once he executed the store had completed the robbery and he engaged in all of the officer i think leeson judge kelly as the case closest to the to the circumstance you're describing and in that may be a little heavy handed tear too because i'm the one i'm struggling with is the misdemeanor domestic assault i'm not sure that i completely understand whether this a double counting argument which at times it appears to be a or whether it's that categorically something that was a misdemeanor and elevated to a felon by virtue of prior criminal conduct is impermissible and i'm just trying to get your best take as to what this what this argument is about and i may continue a little bit with opposing counsel and it's well as well your honor i thought go it's an element of the offense that there was a prior felony to enhance it so it is a felony by virtue of state law as you said your honor a felony is a felony for purposes of the a c c well my problem with that in this is maybe this maybe gets more than double counting then i think that the version we heard today and again opposing counsel can correct me is that you have three a c c a crimes and the last one was essentially made into a felony by first few of the prior to and so it's not really three independent credits really two and then one that involves double counting and my question to you is it may not be a double punishment problem but is it a counting problem under the a c and the answer i believe your honor is no because although the court characterized in the question as they are really three separate crimes they are three separate crimes it's just that the third crime depended on commission of a prior felony to enhance it and i do think the closest analogy to at least the argument that's actually made in his brief and of course the government would would preserve its waiver claim if there's a new argument being made here today but i think it is an argument that it is third crime it is indisputable ie a felony under state law it has an additional element different elements altogether given its domestic but at least the element that you've got a prior offense and not not only is the government believe there's no support for the notion have to have violent force in it before it's any just base it's a domestic so under minnesota law does it have to in every case for this to work does the misdemeanor have to be violent force it does a cause in about harm this court held in shafer that both prong satisfy curtis johnson and physical force so any minnesota statute including domestic assault that includes fifty three assault as an element a proximate location different victims but in both of those situations this court found that it was a continuous course of conduct here's where i disagree respectfully with the government's position that hamil is the most analogous case hamel as judgment and pointed out involved a series of of crimes that occurring over twenty five minutes and in fact what happened in that case was the defendant committed an assault inside of a bar was not content to try to run away and  escape from the scene of the crime but then hung around outside looking for more crimes to commit assault and a different person and then when law enforcement was called created more havoc essentially this was a series of different crimes against different people over the over the course of time where he had an opportunity to premeditate on what he was doing whereas what you have in our case is  responding almost instinctively to being chased from the scene of a crime and again i think the involvement of law enforcement does make the situation different which is again what i respectfully disagree with the government that david in or that levering are relevant to this case in fact the situations in davidson and levering if anything show why this case is more on the willoughby end of the spectrum in levering you had an individual who stole a vehicle i drove the vehicle through an extended chase through three different counties rammed a police car attempted to assault other vehicles as he was careening down the road and was charged with assault in three different jurisdiction acts are here that we have different victims in different purposes so in state court they quit one of this is the rest just a sort of doctrine and there you look at different purposes and so in petit for example that he had the consideration i would submit your honor that it was part of a continuous course and in that way it's like what happened in willoughby and in patty where he was responding instinctively to being  chased he wasn't premeditating that he was going to commit a different crime against other individuals he fired a warning shot in the air not trying to hurt the individual but to warn him off and then he continued to run he didn't commit any more crimes after that he  research i don't know the answer to that question of honor with even if it does there is something different about law enforcement being involved i would think it's more analogous to an intervening a raft or an attempt at an arrest where a citizen has clear notice that law enforcement is attempting to get involved he is likely to be charged with a crime and all conduct following thereafter is likely to result in additional violations so there's something substantively different about law enforcement being involved i'm going to just ask you this i want to  verify you heard me in my in mikes with opposing counsel that i'm accurately characterize your argument on the other point the domestics all which is that it's double counting because it would otherwise be a misdemeanor and the only way it becomes a third felony is by using these two prior felonies that the charging documents are in the record that's the first part of the question and if so do you think that we should look at those your honor i've known mr ginsburg for ten years he's an honorable man and if he says that they are i agree that that is something that is relevant for the court to consider this is a fact intensive question and the goal posts here i think are significantly far away when you think about the facts in cases like davidson and levering and i see i've run out of time your honor but i would submit that if mr paddy is a career criminal there is no distinction between this case and the mistake in braced in patty let me see if there is a question of the questions from the panel thank you both for your very good argument very good briefing the case number seventeen dash thirty two thirty six is submitted to the court for decision