Legal Case Summary

. And that would be Mr. Herbstrit and Mr. Binks. And I'm going to tell you your verdict has to be unanimous as to which particular victim or victims you must all agree. So we're not talking here about, I mean at the outset and of course the information itself went after the two wit. But it describes a threat of physical harm and going to get over here in front of that door holding a mop handle. I'll show you when you get out of here, I'm going to murder you bitch. I'll keep till you dead. You tell me you don't murder you. I'll find you and murder you in cold blood and he has the mop handle. There's no question here. No question. And I know I probably echo in Judge Jordan's opinion of Blair a little bit. But we know what this case was all about. In case wasn't about Bergler or arson, it was about a threat of physical harm. But Your Honor, I would submit that the problem with that analysis is that the Supreme Court explicitly and directly rejected that analysis into camps. They specifically said that a reviewing court could not look to the actual evidence presented and look at the prosecutorial theory of the case. And from that, try to determine what facts the jury actually found when the statute is indivisible

. When the statute is indivisible, now there's a distinction with Judge Jordan's case. He said it doesn't matter. It does matter, I think, under the camp. And Judge Jordan's statute was a divisible statute. The question here, I've been trying to find that such difficulty speaking only for myself getting my arms around this case. Not to be doing this stuff for a long time. Getting my arms around the camp. We are permitted now because we have a look. I am the sentencing judge and I have to decide whether the career offender enhancement will apply in part because of the 2004 conviction. So I'm permitted to look and see what does 2706 A.C. and it says this looking at the camp now. Oh, we've got a divisible statute here. We have a one, a two, a three. So you're allowed to look at the Taylor-Shepard documents to see what it is, what was the crime, and you will say, whoa, let's forget about three for now. Whoa, it's a one. Sure, there's no dispute about it. No problem

. And we've always been permitted to do that. Right. Now we look at a one question. Is it divisible or is it not divisible? Well, if it is not divisible, you can't go any further. It's overbroad. Under under. They care. I agree with that. Okay, we would have to vacate and remand. If it is divisible though, we can look at the Taylor-Shepard. I don't know if that people could see that this was in fact as well. But we know that already. This is where George Jordan's opinion makes so much sense. We haven't developed amnesia as we reach the second step. We've already looked at this stuff and we know it's a case of threat of physical harm. But if it's a divisible statue, it's okay. If A1 is a divisible statue. Correct

. If A1 is indivisible, that's where the camp comes in. That's right. Because if you look at the camps, the Supreme Court, I understand the idea. And I don't think it's a with respect to George Jordan. I don't think it's a case that the judge develops amnesia. No, what he said, but he also said to shift the metaphor. The blinders are already off. We know what it is. I think that if there's this blinders exception and that doesn't apply here because he had to look in Blair. And so then he doesn't forget what he saw. If that exception is okay, that may be distinguished this case. But if Blair is inconsistent with this camp, which I think you're arguing, what can we do about it? Well, don't we follow it and then just let the court decide whether it wants to unbox it and become consistent with this camp? Well, I think I understand your point. If I could kind of go down the order to take a couple of things. If I could. You had a distinguished Blair. Right. The purposes of us. I agree that it's an A1 case and you and you can use the modified categorical approach to figure out which subsection applies

. Right. We've done that. It's a one. Notice you now look what are the elements of a one communicating a threat to commit a crime of violence with intent to terrorize those are the two elements. Now the work of the modified categorical tool as they call it into camps is done. We now know the elements. You cannot then you then look is the term crime of violence divisible. Now there is a way even if it's not divisible if the statute was slightly different, it could be a crime of violence. For example, if they give a definition section that said for purposes of this statute crime of violence means an offense that has the use or threatened use of physical force against the person of the house. So follow your theory of day camp or bake however you found it. I'm from Queens. We use the fancy way. Isn't justice Alito right that they'd have to amend 2701 or else you can't you can't start somebody at 2706 A1 because you can't charge someone. Now if you're right for a physical harm threat, it will always be the same problem. I think the problem exists. See there have to change all the state statutes to make them line up with the federal statute or the Congress can fix a statute. The states are under no requirements to change their laws to make the federal government happy. They just are

. No, we agree with that but the point is that there's two ways out if you're going to take the strict one can argue academic approach, theoretical approach that they can't talk. Now to get to the blinders are off and then your idea of is it different than Blair with respect to Judge Jordan, I think the term the blinders are off is a give away that you're now looking at the facts of the case, which you can't do under the categorical approach. And it's not a fact that you get. I absolutely think Blair is wrong. I absolutely think about that but is it Blair distinguishable because he was dealing with. Yes, yes to both. Yes to both. Blair, the cert petition is pending. I'm just in the middle. I'm looking for a certain. I want to be clear we do think Blair is wrong. My office represented Mr Blair cert petition has been filed. The solicitor general declined to file a response to Supreme Court order them to file a response but that response is due July 14th. So I think Blair is wrong but I also think it is distinguishable. And the idea about the blinders are off we we know what they what they did. If you look at the camps. The Supreme Court in the majority opinion says fine factually looking at what the camps admitted in his guilty plea he committed a generic burglar. That's not the question

. The question is what were the elements of the offense he was convicted of and because those elements did not require an unlawful entry or an unprivileged entry. They said he was not convicted of a generic burglary. So it is never a question of what they actually did. It is always a question of what was what were they convicted of and that is why the categorical approach focuses only on elements and not facts because they say we and the point of as bluntly as possible they say we don't care what the underlying facts are. Well they said the modified factual approach that the right that's what and is no good and once you and the way that applies here is the same way it was the weapons hypothetical in the camps. The element here is crime of violence. Now there are a number of different factual ways a prosecutor can try and meet that element but what the jury gets told is all you have to find is that there was a crime of violence. And the camps talks about the fact that since that's not that's the element that's all the jury is likely to get instructed they have to find which is exactly broad for purpose of a career of any. Exactly. And so the Supreme Court said the same thing about the weapon hypothetical they said fine even if the charging document says gone the prosecutor's theory of the case was it was a gun. The jury instructions are just going to say weapon because that's what the element is and if that's all the the jury has to find there is not been a finding beyond a reasonable doubt by the jury that the assault was with a gun. It doesn't qualify and that applies perfectly to the crime of violence element in this. So back to Judge Barry's question and all of us actually how would you distinguish Claire. I think you will wait excuse me. Okay, I am open here suggestion. This is a lifeline. Yes, I will use my life. You'll try to save you

. What's that? Go ahead. I think you could distinguish it by saying what judge Jordan was really finding was that the robbery statute was divisible and therefore they could look at what individual. F one or F two was threatened and that would be that would be permissible under they can correct if you find that and to the extent he said anything about an indivisible statute that was just dictated it was not part of the holding. Correct. And because it is the fact that Abbott didn't mention Blair. Is Abbott's very so different from Blair that well I think. Number one of these things are coming down pretty pretty fast and so I just hope you know if there's an avid we deal with elements. Yeah, the different drug gives you a chip is a different element exactly because number one the Pennsylvania superior court and Supreme Court had probably previously said. Different drugs are an element but also under a pretty even if the state had claimed that it wasn't an element because it affected the statutory maximum under the pretty rule. As a matter of federal constitutional law the type of drug involved is an element and since it's an element. Then it's not a problem for the decamps in the categorical approach because it becomes an element and you see what element the government had to prove. So I really don't see Abbott as having really any impact here. I can't explain to you why they didn't talk about Blair but I just think that they didn't have to go there because it's just. It was so clear that because of the apprindi rule and Pennsylvania. Case law interpreting the statute that the type of drug had to be an element that they just had didn't have to get to Blair because they were saying it's divisible. The type of drug is an element so we get to look at the Taylor Shepherd document. I take it that's what's driving this elemental approach is apprindi. It is one of the reasons in in Taylor they gave three reasons they said because the statute talks about prior convictions

. That means we look only to the elements of what they did. It doesn't say what did they do it says what were they convicted of second was the sixth amendment issue that in this was in Taylor even before apprindi. They decided that there's a serious issue with enhancing somebody's sentence based on a fact no jury had to find until they overrule almond mama that tore us whatever that case. The Supreme Court is going to keep taking this elemental approach. Yes and it is the sixth amendment issue is a driving concern and they talk about the camps repeatedly that you are enhancing if you're enhancing somebody's sentence increasing the statutory maximum based on a fact not found by the jury that's going to violate that's a sixth amendment violation. We'll hear it back. Get you back in the rebuttal. Thank you. Please the court Rebecca Heywood here on behalf of the United States. I just want to note initially that right now we have a career fender case not an advocate so to the extent that we're talking about. Although there's footnotes in the camp that say that the analysis is essentially the same. That is true but there technically would not be a. If there's one thing about Supreme Court cases most cases you read a footnote and you go ahead on to worry about it. Supreme Court cases you do have to worry about it. Because they often a lot of the important stuff is into footnotes and one of the lessons they teach you at the SG's offices you have to read the footnote very carefully. But the in this case doesn't they camp overrule Mahon. It does not how it does not because Mahon specifically notes that you cannot go to a factual approach. You know if you look at the language in the home to a second layer first layer is a one a two a three this is a one

. And then you he looks at a one says okay well you can do the same thing and find out from the documents what aspect of a one because it could be. You know arson where it could be a threat against the person here was a threat against the person. The camp says can't do a modified factual approach cannot and then when it gives the example that your opponent mentioned about the weapon. If it just says weapon you got a problem if it says you know this this this this and this. That's one way you know if it numerates it fine it doesn't enumerate it. You take a strict theoretical approach. But you have to start where you started in the camps which was that statute that California buglerly statute was indivisible. And here what you're starting with is a statute of penciling a terrorist threats which is clearly divisible. I'm talking about crime of violence. Certainly and then you know that's where you go to Blair. A one the question is not whether there's a two and a three the question is whether a one is divisible. Correct. And that's where you have to read this case read this case of brown consistent with this court's president and Blair which is decided after the camps. And while it was a different statute understandably it dealt with robbery and theft that that particular statute at issue in Blair was very similar to this this statute of a one. Excuse me. Excuse me. Well when they in Blair they charged not only they charged a specific statute not a description. I mean I'm getting to the second part of Blair. Certainly. They didn't charge. He hit him with a bat. He threatened them with a bat. They charged blank this statute. But the question I make a difference. It should it should not make a difference. And the question also is whether the camps overworld my own it doesn't make a difference here because once you're looking at what was actually charged in this case. And again one one thing I want to note too is that while this was a trial as opposed to a guilty plea this court in Tucker specifically said that the parameters of the evidence is defined by the information under Pennsylvania law. So you're looking at the amended information which includes a statement as Judge Barry red of the very specific threats that were made that are clear. You're not have to find those specific threats were made though. Correct but the jury could not make reach a verdict inconsistent with what the amended information was charged. I mean that's where you go. We don't know what goes on in jurors heads. And so. And no but you can only go by what the instructions were but if you instructions didn't say you have to find he threatened him in this particular way. Certainly on her but if you look at page eight seventy three of the record the jury instructions do specifically reference the amended information and note that there has to be a consistent verdict with regard to the two with regard to the two victims of the offense. The crime of violence isn't that a single indivisible set of elements

. Certainly. They didn't charge. He hit him with a bat. He threatened them with a bat. They charged blank this statute. But the question I make a difference. It should it should not make a difference. And the question also is whether the camps overworld my own it doesn't make a difference here because once you're looking at what was actually charged in this case. And again one one thing I want to note too is that while this was a trial as opposed to a guilty plea this court in Tucker specifically said that the parameters of the evidence is defined by the information under Pennsylvania law. So you're looking at the amended information which includes a statement as Judge Barry red of the very specific threats that were made that are clear. You're not have to find those specific threats were made though. Correct but the jury could not make reach a verdict inconsistent with what the amended information was charged. I mean that's where you go. We don't know what goes on in jurors heads. And so. And no but you can only go by what the instructions were but if you instructions didn't say you have to find he threatened him in this particular way. Certainly on her but if you look at page eight seventy three of the record the jury instructions do specifically reference the amended information and note that there has to be a consistent verdict with regard to the two with regard to the two victims of the offense. The crime of violence isn't that a single indivisible set of elements. No it's not and I'm a violence is a is the visible set of elements just like habit as to the different types of drugs that you. Yes your honor and well the fifth circuit's decision that Mr. Patton cited or T's Gomez the court noted although Pennsylvania itself hasn't specifically in the terrorist threat statute. So I think the court referenced I believe it was forty two Pennsylvania code. Where is it ninety seven fourteen G which is the definition of crime of violence which is where the court then went to say it couldn't rob arson. So while I understand that in the camps this group was very clear that a judge a sentencing judge cannot reconsive an indivisible statute as a divisible on the legislature certain we can. And it would be very unfair for the court in or she's gone as in this court in the only to note that the definition of the crime of violence is reflected in that Pennsylvania statute I just referenced which is in fact a visible. If you deal with justice Kagan's comment in the camp that as long as the statute itself requires only an indeterminate weapon that is all the indictment must or is likely to allege and all the jury instructions must or likely to mention. And most important that is all the jury must find to convict the defendant the jurors need not agree on whether defendant used a gun or a knife or an iron or any other particular weapon that might appear in an imagined divisible statute because the actual statute requires the jury to find only a weapon. And even if in many cases the jury could have readily reached consensus on the weapon used a later sentencing court cannot supply that missing judgment. Whatever the underlying facts or the evidence presented the defendant still would not have been convicted in the deliberate and considered way the Constitution guarantees of an offense with the same or narrower elements as the supposed generic crime. I have two responses first the sentencing court can't do it but the Pennsylvania legislature certainly can. What the defensive annual legislature do to remedy this? It's defined crime of violence in this and the statute that I just mentioned in a divisible way which would include arson in a crime of violence crime of violence. Yes. Okay, where's that? A one is defined in a crime. No, it's just the question. We find no. What I'm noting is that in Ortiz Gomez the when we're talking about what the case that this case when we're talking about what is the definition of Pennsylvania under Pennsylvania law of the term crime of violence

. No it's not and I'm a violence is a is the visible set of elements just like habit as to the different types of drugs that you. Yes your honor and well the fifth circuit's decision that Mr. Patton cited or T's Gomez the court noted although Pennsylvania itself hasn't specifically in the terrorist threat statute. So I think the court referenced I believe it was forty two Pennsylvania code. Where is it ninety seven fourteen G which is the definition of crime of violence which is where the court then went to say it couldn't rob arson. So while I understand that in the camps this group was very clear that a judge a sentencing judge cannot reconsive an indivisible statute as a divisible on the legislature certain we can. And it would be very unfair for the court in or she's gone as in this court in the only to note that the definition of the crime of violence is reflected in that Pennsylvania statute I just referenced which is in fact a visible. If you deal with justice Kagan's comment in the camp that as long as the statute itself requires only an indeterminate weapon that is all the indictment must or is likely to allege and all the jury instructions must or likely to mention. And most important that is all the jury must find to convict the defendant the jurors need not agree on whether defendant used a gun or a knife or an iron or any other particular weapon that might appear in an imagined divisible statute because the actual statute requires the jury to find only a weapon. And even if in many cases the jury could have readily reached consensus on the weapon used a later sentencing court cannot supply that missing judgment. Whatever the underlying facts or the evidence presented the defendant still would not have been convicted in the deliberate and considered way the Constitution guarantees of an offense with the same or narrower elements as the supposed generic crime. I have two responses first the sentencing court can't do it but the Pennsylvania legislature certainly can. What the defensive annual legislature do to remedy this? It's defined crime of violence in this and the statute that I just mentioned in a divisible way which would include arson in a crime of violence crime of violence. Yes. Okay, where's that? A one is defined in a crime. No, it's just the question. We find no. What I'm noting is that in Ortiz Gomez the when we're talking about what the case that this case when we're talking about what is the definition of Pennsylvania under Pennsylvania law of the term crime of violence. The court has to give some teeth to it and notes that that that phrase crime of violence is defined. But what does Gomez is like four years prior to the camp and everything changed last year. Certainly, but then this court decided Blair after the camps and noted that I mean that's that was my second response. There we go again. Under Blair was it was a divisible statute that was being decided to is it your position is that a one is a divisible statute? Yes. How so? How so because the phrase crime of if it isn't you lose. Well, I could lose. No, no. That's one thing in my brief. I do want to clarify and I wasn't I was very imprecise and is talking about was at page 39 of my brief where I talked about what this court actually said in the Hone pre pre the camps, which is that when you got to a one this the phrase crime of violence invited inquiry. And frankly, it's not clear to me whether the court there was talking judgment was talking about the watch on the particular sense. But the example of Justice Kagan gave weapon invited an inquiry. And she said ain't good enough. Right. I interrupted Judge Ambrow and I apologize. No, go right ahead. He asked a very good question before. I did

. The court has to give some teeth to it and notes that that that phrase crime of violence is defined. But what does Gomez is like four years prior to the camp and everything changed last year. Certainly, but then this court decided Blair after the camps and noted that I mean that's that was my second response. There we go again. Under Blair was it was a divisible statute that was being decided to is it your position is that a one is a divisible statute? Yes. How so? How so because the phrase crime of if it isn't you lose. Well, I could lose. No, no. That's one thing in my brief. I do want to clarify and I wasn't I was very imprecise and is talking about was at page 39 of my brief where I talked about what this court actually said in the Hone pre pre the camps, which is that when you got to a one this the phrase crime of violence invited inquiry. And frankly, it's not clear to me whether the court there was talking judgment was talking about the watch on the particular sense. But the example of Justice Kagan gave weapon invited an inquiry. And she said ain't good enough. Right. I interrupted Judge Ambrow and I apologize. No, go right ahead. He asked a very good question before. I did. I didn't know what the weapon thing was good. When I when you were talking I asked you about whether it's your position. It's a divisible statute and a one and you said yes and Judge Ambrow then asked how is it divisible and I interrupted. Sorry. Before you could answer. I interrupted the. Okay. And I basically had two responses to that, which is that the phrase crime of violence and the government's opinion is different from weapon because it doesn't kind of invite inquiry. Maybe not in the sense that it's an issue in the margin and saying but in the immigration context. But because of the phrase is not a unitary one like weapon. It's a crime of violence that is having you look like the statute and issue in glare like the like the robbery statute that says you look to whether it was a first to re-fill in your study. I can't see how crime of violence is more divisible than weapon. You've got different kinds of crimes of violence and you've got different kinds of weapons and I don't see the difference. Well, you know, again, and the second response to that is I still think it is different because it asks then there is definitely going to be a separate crime of violence. It's not unitary. They're going to be different types of crimes of violence, which is a Pennsylvania legislature had to find crime of violence in a way that clearly satisfied the federal statute, the federal sentencing regime. Then I have no problem with that. But you haven't, but you were asked how did the Pennsylvania legislature do that? How did it define crime of violence in a way that satisfied the sentencing regime? And I haven't heard the answer

. I didn't know what the weapon thing was good. When I when you were talking I asked you about whether it's your position. It's a divisible statute and a one and you said yes and Judge Ambrow then asked how is it divisible and I interrupted. Sorry. Before you could answer. I interrupted the. Okay. And I basically had two responses to that, which is that the phrase crime of violence and the government's opinion is different from weapon because it doesn't kind of invite inquiry. Maybe not in the sense that it's an issue in the margin and saying but in the immigration context. But because of the phrase is not a unitary one like weapon. It's a crime of violence that is having you look like the statute and issue in glare like the like the robbery statute that says you look to whether it was a first to re-fill in your study. I can't see how crime of violence is more divisible than weapon. You've got different kinds of crimes of violence and you've got different kinds of weapons and I don't see the difference. Well, you know, again, and the second response to that is I still think it is different because it asks then there is definitely going to be a separate crime of violence. It's not unitary. They're going to be different types of crimes of violence, which is a Pennsylvania legislature had to find crime of violence in a way that clearly satisfied the federal statute, the federal sentencing regime. Then I have no problem with that. But you haven't, but you were asked how did the Pennsylvania legislature do that? How did it define crime of violence in a way that satisfied the sentencing regime? And I haven't heard the answer. Well, and that's where I say Ortiz Gomez, as well as the one who noted that the term crime of violence while not specifically defined in the terrorist threat statute, is defined elsewhere in the Pennsylvania code. And that is where why the court looked to that to indicate and look specifically at that statute that defines a crime of violence to include our sentencing. So, Sam, let you go to the Pennsylvania code. Well, I would think Blair does and that's what that's the other part of this is. Should we wait till we see if the Supreme Court takes certain Blair before we decide this case? Certainly, that would be, that would make sense because the other, I think, the stronger argument is that this case Brown has to be decided consistent with Blair. And then Blair, this court said that, you know, said specifically said even if the first part of the statute issue, the robbery statute there was overbroad, once you engage in the modified categorical approach, once you're dealing with a divisible statute at the outset, you're allowed to not develop the blinders and the endezza. And that's why I say, you know, to say that the camps over roles my own, they have to be inherently inconsistent, that you know, you have to read my own as it stands unless you can say that the camps overruled it. Is crime of violence in determinant? I don't think so because of the Pennsylvania statute that I cited that list alternative ways and definitions of crime of violence. Some of those won't satisfy the federal scheme. That's the problem. But some of them work. And they weren't, and specific, they weren't, he wasn't charged with terrorizing someone with a crime of violence that was a specific crime of violence that would satisfy the requirements of the sentencing guidelines. That's the problem. He just wasn't, when charged that way, he wasn't, the jury wasn't instructed that way. So all you have are these facts that are in the information and that's what you're hanging your hat on, those facts. And, you know, that's tough to do now. Understood, but in Guerrero, for instance, Guerrero involved the question of simple assault and I cited that case not for the proposition that it's not for the divisibility, individual ability part of it, but it notes that, you know, one simple assault can be committed intentionally, recklessly or no, and then the question is, is that divisible or not? And once the court found it was divisible, the court then looked at facts. I mean, that is, that is the part of this that is, well, yes, the modified catapult approach is not, shouldn't be a factual approach

. Well, and that's where I say Ortiz Gomez, as well as the one who noted that the term crime of violence while not specifically defined in the terrorist threat statute, is defined elsewhere in the Pennsylvania code. And that is where why the court looked to that to indicate and look specifically at that statute that defines a crime of violence to include our sentencing. So, Sam, let you go to the Pennsylvania code. Well, I would think Blair does and that's what that's the other part of this is. Should we wait till we see if the Supreme Court takes certain Blair before we decide this case? Certainly, that would be, that would make sense because the other, I think, the stronger argument is that this case Brown has to be decided consistent with Blair. And then Blair, this court said that, you know, said specifically said even if the first part of the statute issue, the robbery statute there was overbroad, once you engage in the modified categorical approach, once you're dealing with a divisible statute at the outset, you're allowed to not develop the blinders and the endezza. And that's why I say, you know, to say that the camps over roles my own, they have to be inherently inconsistent, that you know, you have to read my own as it stands unless you can say that the camps overruled it. Is crime of violence in determinant? I don't think so because of the Pennsylvania statute that I cited that list alternative ways and definitions of crime of violence. Some of those won't satisfy the federal scheme. That's the problem. But some of them work. And they weren't, and specific, they weren't, he wasn't charged with terrorizing someone with a crime of violence that was a specific crime of violence that would satisfy the requirements of the sentencing guidelines. That's the problem. He just wasn't, when charged that way, he wasn't, the jury wasn't instructed that way. So all you have are these facts that are in the information and that's what you're hanging your hat on, those facts. And, you know, that's tough to do now. Understood, but in Guerrero, for instance, Guerrero involved the question of simple assault and I cited that case not for the proposition that it's not for the divisibility, individual ability part of it, but it notes that, you know, one simple assault can be committed intentionally, recklessly or no, and then the question is, is that divisible or not? And once the court found it was divisible, the court then looked at facts. I mean, that is, that is the part of this that is, well, yes, the modified catapult approach is not, shouldn't be a factual approach. The reality is, when you're asking the question, like you were in Taylor, is this a vocabulary of a boat or a dwelling? The reality is, in Guerrero, in that is a question of what actually happened once you're going down that road. And I understood this could have been charged as he threatened criminal homicide, but is that a distinction that should matter? I mean, in Mahoney, the tarage, you talked to me, I said that. You really understood that this was not charged as the crime of violence, a physical harm. Sure, I mean, certainly. It was charged as a matter of. I mean, I was trying to say it was, but. Well, I mean, you don't agree with that. I think it, what I'm saying is that it's not a material distinction in terms of, it was charged as a threat to kill, which is criminal homicide, whether it's listed as, you know, it was charged as a definitely physical harm against the person of another. It certainly was. That's what I thought. I mean, you're right. Exactly. And that's in terms of that being a material distinction as to why this case would fall under Mahoney. I don't think that that distinction should matter here. Once you go down the road of being allowed to look at that amended information and being, and knowing that as this court stated in Tucker, that the parameters of evidence in a courtroom under Pennsylvania law are defined by the information. That is what matters. Are there any further questions? No further questions. Thank you

. The reality is, when you're asking the question, like you were in Taylor, is this a vocabulary of a boat or a dwelling? The reality is, in Guerrero, in that is a question of what actually happened once you're going down that road. And I understood this could have been charged as he threatened criminal homicide, but is that a distinction that should matter? I mean, in Mahoney, the tarage, you talked to me, I said that. You really understood that this was not charged as the crime of violence, a physical harm. Sure, I mean, certainly. It was charged as a matter of. I mean, I was trying to say it was, but. Well, I mean, you don't agree with that. I think it, what I'm saying is that it's not a material distinction in terms of, it was charged as a threat to kill, which is criminal homicide, whether it's listed as, you know, it was charged as a definitely physical harm against the person of another. It certainly was. That's what I thought. I mean, you're right. Exactly. And that's in terms of that being a material distinction as to why this case would fall under Mahoney. I don't think that that distinction should matter here. Once you go down the road of being allowed to look at that amended information and being, and knowing that as this court stated in Tucker, that the parameters of evidence in a courtroom under Pennsylvania law are defined by the information. That is what matters. Are there any further questions? No further questions. Thank you. Thank you. Thank you. Mr. Penn. Your Honor, the government tries to claim that the term crime of violence as used in section 2706 is defined by the Pennsylvania legislature. It's not. You look at 2706. It has a definitional section. It's its subsection. But the only definition it gives is the definition of the term communicates. Now, the fifth circuit in Ortiz Gomez and then this court in the home in trying to struggle to figure out what could be a Pennsylvania crime of violence referred to 42. P.A.C.S.A. section 9714, which is a sentencing statute that calls for enhanced or requires mandatory minimum sentences. If the person is convicted of committing a crime of violence and they have a prior conviction for a crime of violence, that section has a definitional section that says as used in this section

. Thank you. Thank you. Mr. Penn. Your Honor, the government tries to claim that the term crime of violence as used in section 2706 is defined by the Pennsylvania legislature. It's not. You look at 2706. It has a definitional section. It's its subsection. But the only definition it gives is the definition of the term communicates. Now, the fifth circuit in Ortiz Gomez and then this court in the home in trying to struggle to figure out what could be a Pennsylvania crime of violence referred to 42. P.A.C.S.A. section 9714, which is a sentencing statute that calls for enhanced or requires mandatory minimum sentences. If the person is convicted of committing a crime of violence and they have a prior conviction for a crime of violence, that section has a definitional section that says as used in this section. So it only applies to section 9714. And oddly enough, terroristic threats is not in that definition. So even under Pennsylvania law, it's the terroristic threat conviction is not a crime of violence. Now, I understand that that doesn't control whether it's a federal crime of violence. But 9714 by its own terms only applies to that section. 2706 has a definitional section that does not give a definition of crime of violence. So you can't use 9714 to try and bootstrap in and say crime of violence is divisible because there's this definition in a completely different section. So the case that the facts of the case has no application when you're doing the modif, the categorical approach, even if you have to use the modified categorical approach tool and the camps expressly states that. So the invites in choir thing is gone. You're saying yes. If the categorical approach applies, the invites inquiry does not. And if you look at and I will mispronounce this. Neowon or Nijon. What the Supreme Court said is in the when you're interpreting the immigration and natural nationality act and trying to decide what's an aggravated felony. Some section of that definition, for example, it was a 43 I said a fraud offense where the loss involves $10,000 or more. I said that statute invites inquiry because you have to look at the facts. So they said sometimes categorical applies and look the invites inquiry only applies in the immigration context. That's the only place they've ever used it in determining whether something is an aggravated felony

. So it only applies to section 9714. And oddly enough, terroristic threats is not in that definition. So even under Pennsylvania law, it's the terroristic threat conviction is not a crime of violence. Now, I understand that that doesn't control whether it's a federal crime of violence. But 9714 by its own terms only applies to that section. 2706 has a definitional section that does not give a definition of crime of violence. So you can't use 9714 to try and bootstrap in and say crime of violence is divisible because there's this definition in a completely different section. So the case that the facts of the case has no application when you're doing the modif, the categorical approach, even if you have to use the modified categorical approach tool and the camps expressly states that. So the invites in choir thing is gone. You're saying yes. If the categorical approach applies, the invites inquiry does not. And if you look at and I will mispronounce this. Neowon or Nijon. What the Supreme Court said is in the when you're interpreting the immigration and natural nationality act and trying to decide what's an aggravated felony. Some section of that definition, for example, it was a 43 I said a fraud offense where the loss involves $10,000 or more. I said that statute invites inquiry because you have to look at the facts. So they said sometimes categorical applies and look the invites inquiry only applies in the immigration context. That's the only place they've ever used it in determining whether something is an aggravated felony. It specifically looks at the facts of the case and into camps. They say when they're talking of why the 9th Circuit case is wrong. They say we use a categorical approach here which looks only at elements because that's the way Congress wrote the statute. If Congress wanted us to look at the underlying facts, they would have written the statute in that way and they use as an example. Neowon in the invites inquiry approach. If I could give I think there is a there is a way you could a very narrow way you could rule in this case that would not have to put you in conflict with layer or to camps. And that is if you would find that because the jury instruction because the information does not alleged the person specific crime of violence he was alleged to have committed and because the jury instruction only required a finding of any crime of violence. That you could say even if you were applying the Mahon logic or the Blair lot the Taylor Shepard documents do not allow you to make it finding that the jury necessarily had to find any particular crime of violence. If Mahon just to assume for the moment if Mahon remains good law despite the camp did the court conduct the analysis correctly here then he did not think it's clear from the proposed findings of fact that judge co-heal issue he erroneously was taking a position that any violation of a one was a violent offense and that's the way that's written. And so in our position is even if Mahon applies and you do you could do the right analysis because the jury instructions did not tell the jury they had to find a particular crime of violence. You can't satisfy Mahon and the unanimity instruction that the judge gave to the jury only applied he said the charges that he threatened two different people you have to be unanimous on which one you find he threatened either or both. There was no unanimity instruction given on the crime of violence they did he did not instruct them that they all had to agree beyond a reasonable doubt to the particular crime of violence threatened. But wasn't that the only thing that went to the jury well that wasn't it wasn't anything else that went to the jury well the only way to know that your honor would be to review the transcript and we know we can't do that as far as the categorical but you can't review the transcript. If you're going to the jury know what even though here we go again even though we know what a judge Justice Cardozo said I cannot ignore is a judge what I know as a man. Well and I get that you could probably just distort say I know what when I see it I don't know what he was talking about. And I understand it's a human I understand the human nature that that's but the Supreme Court if there is anything clear about the categorical approach and arguably there isn't it is that you have to ignore factually what happened you just you do and but the way the judge can take that into account and remember this is even if he says he's not a career offender. Because elementary it's not a crime line when the judges deciding what sentence to impose then he can look at the prior convictions make findings about what happened there to decide how serious that offense was to decide am I going to give a sentence within the guideline range. I think that here is mandatory minimum right the career

. Yeah this is just saying you couldn't be a career fender doesn't mean the judge co-heal couldn't say all right fine you're not a career fender because these either the categorical approach or the gaps in the charging document in the guilt of the but you know what I find that you threatened to to hurt these people and so when I'm deciding the ultimate sentence to impose within this actuary maximum when I'm using my discretion under the 3553 a factors I'm going to consider this and so it doesn't mean that the judge can. It never gets considered in the sentencing decision it just means when you're making the career fender decision or the act of decision you can't do it there. Thank you very much thank you to both counsel for very well presented arguments of I would ask if counsel would get together and have a transcript of this or argument prepared and sent to us and with the government mind picking that up the consulate thank you very much well done. We'll call our second case