Good morning. This case involves the interpretation of a sentencing guidelines section which has been universally declared to be equivalent to the Army Corps Criminal Acts interpretation of crime of violence. In this case, Mr. Chisholm was sentenced to a higher base of fence level because of a crime of conviction that he had which is criminal domestic violence of a high and aggravated nature. This court, the Court of Appeals has already done the hard work on ruling on this case in somewhat similar fashion in the case of U.S. versus Hemingway which this court decided not too long ago which it decided that the crime of assault and battery of a high and aggravated nature is not a crime of violence. This conviction for criminal domestic violence of a high and aggravated nature encompasses and includes the elements of abhand, assault and battery of a high and aggravated nature which you all have already determined. It's not a crime of violence and only adds to the discussion the criminal domestic violence component. Under South Carolina law, criminal domestic violence is a misdemeanor. It carries 30 days and in this particular case, the definition of criminal domestic violence is causes physical harm or injury to a person's own household or member of the household or offer or attempt to cause physical harm or injury to a person's own household member present ability under circumstances creating fear of imminent peril. The issue that you have to decide is whether that additional component of criminal domestic violence, a misdemeanor, a 30 day misdemeanor, adds another element to abhand that causes it to be a crime of violence. Judd Blot in this case applied a modified categorical approach because this case was decided long before this case was decided, well not long before, but before this case was decided before Hemingway was decided, so he did not have the benefit of the Supreme Court's decision. But what is really interesting is when he was making this decision, the probation office in this case wrote in its addendum, so when I made the objections and the probation office made a response to my objection that this shouldn't be considered a crime of violence, the response was that CDV Han is an over broad statute and therefore one must use the modified categorical approach. But the Supreme Court has now said that an over broad statute doesn't let you use the modified categorical approach. If it's over broad and it includes all kinds of elements that could be done with violence or not, then it's just not a crime of violence. You aren't allowed to go to the modified categorical approach if the elements itself show that it can be done without violence. So in this particular case, when of course you use the modified categorical approach and in this very specific case, Judge Blot actually looked at the specific facts which are not nice, the specific facts of the defendant as alleged in the indictment put his hands on the victim's throat and appears to have tried to strangle her. Those facts basically override any kind of legal analysis when you think about it and you say, of course, that's a crime of violence. But those are shepard documents, aren't they? Those are shepard documents, but you're not allowed to go to shepard documents at all. What? You said for modified? You are allowed to go to shepard documents when you have a modified categorical approach which is what Judge Blot did
. The government has conceded and this court has ruled in Hemingway and the government has conceded in this case that we cannot use the modified categorical approach at all. The government has conceded in its supplemental brief that we can only use the categorical approach. So when you look at the categorical approach. The government can't make a concession of law, though. Correct. I agree. I was hoping that we, you know, if I think if we had come to this point early on in the case, you know, when we were back down in the district court, we probably wouldn't be here at all, but of course, Discamps and Hemingway wasn't decided at that point. So this court has decided in Hemingway that only the categorical approach can be used. You, of course, can decide whether, even though Abhan, we've already ruled, should be followed under the categorical approach, does the CDV, addition to it, let us go to the modified categorical approach? And my argument would be you're not allowed to still go, you're not allowed to go to the modified categorical approach because we have a statute that is indivisible even with you adding those elements. But isn't criminal domestic violence at a high aggravated nature of separate crime? It is a statutory separate crime. And these are the elements. But by the nature of that, it's divisible, right? Was it not? No, sir. Why not? As under this structure here in South Carolina. Right. So the statute, because remember Abhan, or Abhan was not a statutory crime. It was a common law crime. So the statute here says, we, under 1625, 65, you commit criminal domestic violence when you have the elements of Abhan, the common law Abhan, and you also have the crime of criminal domestic violence. Right. That's in the conjunctive, not the disjunctive. Correct
. It was in the disjunctive, you may have been put in the conjunctive. Right. So you have the elements of CDV, Han are these. You have Abhan is one and CDV, criminal domestic violence. So you have, this is what the statute says. You must have Abhan, a solemn barrier of high aggravated nature under the common law, which is hard. That's right. You have to have the statutory elements of criminal domestic violence. That's right. Right. So here's what criminal domestic violence says. Remember to misdemeanor. So criminal domestic violence. You said that three times, but does that matter in the California? Yes. Misdemeanor. Yes. Is what the matter is violent? It matters because in this analysis under the residual clause, you have to compare the elements or the crime to whether it presents the same serious potential risk of violence. And that's based on conduct, not the classification of the crime. No, sir. Okay
. It's not based on conduct. It's based on the elements in the crime. The elements are based on the, well, here's why I say, aren't you trying to say that because it's a misdemeanor, it can't be, it can't be a crime of violence? Are you getting to that? No. Oh, I thought that was just that. Here's what I'm saying. When you do this analysis as, as you have done in Hemingway and you're, you're looking at the residual clause to see whether the crime presents the same risk as those in numerated in the clause of, you know, burglary, robbery and so forth, you compare the seriousness of the risk post. This one is easy because it talks about just direct physical violence. Well, others are talking about substantive crimes and may or may not be committed without physical crime. Counselor, here I have some help from Mr. Prince Mark. I try to keep this in some analytical framework. All right. Right. Well, here you have to have physical or the threat of physical contact. You don't need to look at other substantive crimes, these who are not, they could be committed with or without violence. Right. Why would you go to that? Yeah. I just, in following up on Judge Gregory's question, why doesn't it come within the force clause? Well, first of all, again, the government has already agreed it doesn't come within the Well, they could. Okay. So to come within the force clause, element, as an element, the use, attempted use, or threatened use of physical force against the person or another
. And the Supreme Court in Johnson has said that force means violent force. Right. And this court has already said, so in the analysis of, of a, of a hand, which actually has the words causing a violent injury, right? Those are actually the words in abhand, the elements, the definition of abhand. So we're saying that is not a violent, that is not equivalent to violent force because it can be committed without force at all or without physical injury. Well, we were looking at the second requirement there by circumstances of aggravation, correct? Well, actually, in a hemming way, this court said either component, either violent injury and circumstances of aggravation, neither one of those elements of abhand require violent force. The key is, require violent force, violent force. So of course, violent force may happen. No question about it. Nobody, that's why these crimes are bad, that's why nobody likes them, that's why it's against the law. But they don't require violent force. This one does. No sir. It does. No sir, CDV. It does. CDV says it's an offer, it can be also an offer to or an attempt to cause harm, physical harm or injury. That doesn't require violent force. It's the attempt to do so. It's, but the phrase offer takes it out of the entire analysis. So you would say if you shoot at the person you miss, that's not violent
. The problem here. What's your counsel on your analysis? Well, the problem here is, Judge, I think, go answer my question. Yes sir. Go ahead. It's my question there. If it was just me as a, not just you, you are counsels them before the full circuit court of appeals and you're suggesting that, and mirror attempted violence, unsuccessful means and not violent. So my question to you is, if you shot at your wife or your spouse and you miss, that's not violent. That is violence, Judge. Why would that be violent? This, an attempted violence is violence. I agree with that. This statute doesn't even require attempted violence. This says offer. If I just stand here, I don't have a gun and I have nothing and I say, I'm going to shoot you. That could be a criminal to mess with violence. The statute requires the present apparent present ability. If you know circumstances, reasonably creating fear of imminent peril, so just standing there wouldn't make this statute. But if you know that I have a gun in my drawer, I live with you. You know what I've got. You know I'm a bad guy. You know I have guns in the house and I say, you do that one more time, I'm going to shoot you
. Isn't that a attempted use or a drug use of physical force? No. No. There's no, there's under, you know. So I'm going to answer that question with what Judge Gregory asked me for a moment and I see that I'm done with my time. Go ahead. Judge H. You know, this whole analysis, I will be honest with you and you know the government in his and Mr. Williams and his supplemental response says something very telling which I completely agree with. He said, you know this is a very confusing area of the law and honestly it's like a rabbit hole. You start making definitions and sub definitions and the common sense of it escapes everyone. And so you know, apparently except for Congress because they won't do anything about it. Well what's so bizarre here Judge is just like a couple weeks ago. Supreme Court decided to castle men which is the criminal domestic violence under another section of 922. And here's what's so interesting. Who's with the Supreme Court said? Basically on our topic, the word violent. You're going to tell us why you stand in there with gun on the table next to you and threaten the sheets or spells. It's not. Yes. I guess I'll finish. But go ahead and answer
. Okay. So here's what the Supreme Court said. I guess two weeks ago. And castle men. It said the word violent or violence stands staying alone kind of connotes a substantial degree of force. This is not true of domestic violence. Domestic violence is not merely a type of violence. It is a term of art. Incomposing acts that one might not characterize as violent in a non-domestic context. So here's the problem. And so, and why this case isn't really on point for us is because it's only interpreting the term of art of criminal domestic violence in 18 U.S.C. 922G9. Okay. And we're not doing, we're not interpreting that section. But what is so interesting about this decision is it's saying you can't use the words in criminal domestic violence in the same way that you use the words violent under the arm-queer criminal statute or under the sentencing guidelines. And so here we are now in this rabbit hole. All of a sudden, you make a good point because in a marriage situation it could be someone just burying down constantly like, I hate you. I hate you all in their face and just raiding someone in a domestic sense that could be, and is violent
. But in a non-domestic situation, you couldn't say it's violent. Somebody said, I hate you. And otherwise you said, okay, very well. And actually, that's exactly the problem. But the problem is though we do have to look at the elements here and they sort of reign that amorphous definition in it is I think you rightly point out out of the language and do bring it down to the violence or the threat of that. And that's going back to Judge A.G.'s question in the context of the hypothetical U. raised, he wants the answer to, when you raised yourself, how do you say that that's not the gun in the drawer? Because as it commonsense ordinary person, people looking on, it looks pretty bad. It looks violent. It looks bad. Me if it was a stranger. Right. I got a gun in the drawer. I'm going to shoot you. That's pretty convincing for me. Under the definitions, and that's all we're here about, you know, this is the denover review. We're only looking at the legal issues and we can't look at the facts. It's not. And, you know, no one is more surprised than I am that I am here
. I will tell you that when Mr. Chisholm, when I first started representing Mr. Chisholm, and I can sit down anytime you want me to tell you. Yeah, well, yeah. Well, you are getting a far-field now. I'm asking the question. So you have some time. Yes, sir. No, you don't. I'm all done right now. I know that for sure. You didn't ask for a revolve. I do. Well, interesting. Well, that's an interesting, actually, I'm about to say strategy, but no, that's an interesting choice, but you made it. See that? Yes, your air? Okay, well, the clerk saved you with her with her integrity, her normal integrity, and you do have some time reserved. Okay. Three minutes, right? Three minutes. Okay. Mr
. Williams has said it. He says, you are giving away the kitchen sink here and said that you can see that a lot of things. Maybe you can help us. Why do you think that maybe I can't do more than you may please the Court. My name is Nathan Williams. I'm an assistant U.S. attorney in Charleston, South Carolina. Any concessions we would have given were before the day camp having way cases. So I think in our supplemental brief, we didn't make those concessions. And clearly, I think you all have said this in different ways. The force clause applies to CD-HAND. There are two elements, whether they're generally or otherwise divisible of CD-V-HAND. And they both involve either the use of physical force or the threatened or attempted use of physical force. You know, the, the, the, the, let me interrupt for one second. It seems like Ms. Walsh is trying to hang her hat on the word offer. And I, and I, and I, and says that that's not necessarily within the force clause. How do you respond to that? I think if that were all it said, that would be a better argument. Unfortunately, it says offer coupled with imminent peril and coupled with present ability. So, you know, when I think of the word offer in the domestic census, you know, I go home after work and tell my wife, I'm offering to make dinner tonight. I think that's typical type offer situation. Yeah, but I don't know if the elements typicalizing law school and the torch first year in terms of it makes the torch actionable because it has to be present and ability. But that doesn't make it violent. That's sort of those elements of present and ability. It makes it a threat, which makes it violent. I would say that, you know, how we determine the difference between an offer coupled with imminent peril. The question though, is that offer connected with the offer of violence? Absolutely. If you read what CDV Han says, it says in the second element, it's unlawful to offer or attempt to cause physical harm or injury to a household member with a parent, present ability under circumstances, reasonably creating fear of imminent peril. So, I would suggest that an offer coupled with imminent peril becomes a threat. Somebody saying, I have a gun and I'm going to shoot you. You can say all day I have a gun. If there's no gun and it's not reasonably, you know, it's not a reasonable fear, meaning somebody says that every day. Maybe that's not a reasonable threat or a reasonable fear of imminent peril. But if it's reasonable and it's offered, that is essentially a threat. You know, in law, I guess the things scribblers were paid by words so we get these, get willfully wanting to live in a militia office. But what is the distinction between a threat offered in a statute, and in it, we try to give meaning to every word in a statute. Is there a difference between an offer and a threat? I think that in the context of this statute, no. But I would say an offer has to have more than just an offer. It has to have that
. So, you know, when I think of the word offer in the domestic census, you know, I go home after work and tell my wife, I'm offering to make dinner tonight. I think that's typical type offer situation. Yeah, but I don't know if the elements typicalizing law school and the torch first year in terms of it makes the torch actionable because it has to be present and ability. But that doesn't make it violent. That's sort of those elements of present and ability. It makes it a threat, which makes it violent. I would say that, you know, how we determine the difference between an offer coupled with imminent peril. The question though, is that offer connected with the offer of violence? Absolutely. If you read what CDV Han says, it says in the second element, it's unlawful to offer or attempt to cause physical harm or injury to a household member with a parent, present ability under circumstances, reasonably creating fear of imminent peril. So, I would suggest that an offer coupled with imminent peril becomes a threat. Somebody saying, I have a gun and I'm going to shoot you. You can say all day I have a gun. If there's no gun and it's not reasonably, you know, it's not a reasonable fear, meaning somebody says that every day. Maybe that's not a reasonable threat or a reasonable fear of imminent peril. But if it's reasonable and it's offered, that is essentially a threat. You know, in law, I guess the things scribblers were paid by words so we get these, get willfully wanting to live in a militia office. But what is the distinction between a threat offered in a statute, and in it, we try to give meaning to every word in a statute. Is there a difference between an offer and a threat? I think that in the context of this statute, no. But I would say an offer has to have more than just an offer. It has to have that. I would say the threat is really that reasonable creation of fear of imminent peril coupled with some language. You know, all of them, so I'm going to just use the word, grab. I'm going to give them the language of the seat they have. Is that what you're substituting for the chance? No, no, I'm substituting it for the offer. An attempt to me is some over-acting further. You're saying that offering threat would then be the same. I'm saying offering coupled with these second and third parts, which is presentability and circumstances reasonably trading imminent peril. I wouldn't say just an offer, would ever be enough. But is the zip in the way you're arguing a statute said threat to cause physical harm with the other stuff not to install? No, no, I would, if I said that, I didn't intend it that way. That's what I was asking. I was confused. How do you offer without threat? For instance, if you didn't have any presentability and there was no, what I would say imminent peril, for instance, I'm going into a, as Troichism did, choke you until... Why are there these other parts of the joint with the offer? Absolutely. So, let's say Troichism watches home, goes with girlfriends, I'm going to choke you two weeks from now. That's an offer. There's no apparent presentability at the time. Maybe he calls her on the phone. I'm going to choke you
. I would say the threat is really that reasonable creation of fear of imminent peril coupled with some language. You know, all of them, so I'm going to just use the word, grab. I'm going to give them the language of the seat they have. Is that what you're substituting for the chance? No, no, I'm substituting it for the offer. An attempt to me is some over-acting further. You're saying that offering threat would then be the same. I'm saying offering coupled with these second and third parts, which is presentability and circumstances reasonably trading imminent peril. I wouldn't say just an offer, would ever be enough. But is the zip in the way you're arguing a statute said threat to cause physical harm with the other stuff not to install? No, no, I would, if I said that, I didn't intend it that way. That's what I was asking. I was confused. How do you offer without threat? For instance, if you didn't have any presentability and there was no, what I would say imminent peril, for instance, I'm going into a, as Troichism did, choke you until... Why are there these other parts of the joint with the offer? Absolutely. So, let's say Troichism watches home, goes with girlfriends, I'm going to choke you two weeks from now. That's an offer. There's no apparent presentability at the time. Maybe he calls her on the phone. I'm going to choke you. There's no imminent peril and no presentability. But can you give us an example of an actionable offer that's not a threat? Right, just that that's the way. No, you just gave us one where it would be an offer and wouldn't have the other elements to make it actionable. I'm talking about an offer that's not a threat, but it would be meet the other definition on the statute. No, because I think when you add in reasonable fear of imminent peril, it becomes a threat. You have to read then that if the countis washes correct that offer is disjunctive, then she may have a point there. I think offer is disjunctive until you add the reasonable fear of imminent peril. I think that, essentially, to me a threat is an offer coupled with imminent peril or the reasonable fear of imminent peril. Well, then what difference does it make then to have an offer if it meets that? Then it's a threat, isn't it? It is. And you know, that's why offers offered to fund as a separate word that it means that we have to give meaning to that word. Well, all I can say is I think that's what people in South Carolina say. That's just a linguistic difference. That's part of what's what the Pal Meadows state, Pinnieson say. I mean, we have to go by what the legislature wrote. Right, but in that sense, as they've been saying, the world construes by their wit. We must construe by the law. And so in that sense, if offer is disjunctive word, and you can offer and meet that, and that's not violence, then that's a problem for you, wouldn't it be? Well, I think it would be if in the disjunctive, it didn't also incorporate person's own household member with parent presentability and circumstances. I think what they're saying is offering plus those two things or attempting plus those two things. So if all that says is offer and it doesn't include the ability to injure a person's household member or creating a few of eminent peril. Absolutely
. There's no imminent peril and no presentability. But can you give us an example of an actionable offer that's not a threat? Right, just that that's the way. No, you just gave us one where it would be an offer and wouldn't have the other elements to make it actionable. I'm talking about an offer that's not a threat, but it would be meet the other definition on the statute. No, because I think when you add in reasonable fear of imminent peril, it becomes a threat. You have to read then that if the countis washes correct that offer is disjunctive, then she may have a point there. I think offer is disjunctive until you add the reasonable fear of imminent peril. I think that, essentially, to me a threat is an offer coupled with imminent peril or the reasonable fear of imminent peril. Well, then what difference does it make then to have an offer if it meets that? Then it's a threat, isn't it? It is. And you know, that's why offers offered to fund as a separate word that it means that we have to give meaning to that word. Well, all I can say is I think that's what people in South Carolina say. That's just a linguistic difference. That's part of what's what the Pal Meadows state, Pinnieson say. I mean, we have to go by what the legislature wrote. Right, but in that sense, as they've been saying, the world construes by their wit. We must construe by the law. And so in that sense, if offer is disjunctive word, and you can offer and meet that, and that's not violence, then that's a problem for you, wouldn't it be? Well, I think it would be if in the disjunctive, it didn't also incorporate person's own household member with parent presentability and circumstances. I think what they're saying is offering plus those two things or attempting plus those two things. So if all that says is offer and it doesn't include the ability to injure a person's household member or creating a few of eminent peril. Absolutely. If it's something like this, then you say, you know, that brick is sitting in the other room, you know, that would be a fine object to come in here and bash your brains out. So they'll be an offer another threat. It would be an offer and if it was reasonable for that to create imminent peril, then it would be a threat. Is that reasonableness of an imminent peril that converts it from something that would be just a general offer, which is not criminal to what I would say an element of CDV hand. It is a linguistic issue and certainly if I'm struggling with offer, why would the legislation put the word offering? Well, if you look at the Apphan statue, there's a lot of, and I say statute, the common law, Apphan rulings. There's a lot of confusing language in there. The South Carolina still has a law of dueling on the books, which involves challenges, which are... The problem is, Ms. Wash made a good point when she read that the passage from the Supreme Court. Because when you look at these cases, obviously, I shouldn't say office, but in some of them are the plain to me, that when they wrote that statute, they wanted to be as broad as possible to deal with the things that involved domestic violence. And some of those are not really violent in other places, but it is violent all the way every time you come home from work. You're no good, you're this, and beat them. Why is my supper not ready? In other words, that kind of thing, it offers the circumstances of violence, but it's not really a threat, but we want to make it... I don't know why we always try to shoehorn. People already get enough time in these federal crimes, anyway. Why should we try to shoehorn everything in their make it work? I mean, I even question whether or not he's modified or purchased even the broker
. If it's something like this, then you say, you know, that brick is sitting in the other room, you know, that would be a fine object to come in here and bash your brains out. So they'll be an offer another threat. It would be an offer and if it was reasonable for that to create imminent peril, then it would be a threat. Is that reasonableness of an imminent peril that converts it from something that would be just a general offer, which is not criminal to what I would say an element of CDV hand. It is a linguistic issue and certainly if I'm struggling with offer, why would the legislation put the word offering? Well, if you look at the Apphan statue, there's a lot of, and I say statute, the common law, Apphan rulings. There's a lot of confusing language in there. The South Carolina still has a law of dueling on the books, which involves challenges, which are... The problem is, Ms. Wash made a good point when she read that the passage from the Supreme Court. Because when you look at these cases, obviously, I shouldn't say office, but in some of them are the plain to me, that when they wrote that statute, they wanted to be as broad as possible to deal with the things that involved domestic violence. And some of those are not really violent in other places, but it is violent all the way every time you come home from work. You're no good, you're this, and beat them. Why is my supper not ready? In other words, that kind of thing, it offers the circumstances of violence, but it's not really a threat, but we want to make it... I don't know why we always try to shoehorn. People already get enough time in these federal crimes, anyway. Why should we try to shoehorn everything in their make it work? I mean, I even question whether or not he's modified or purchased even the broker. That's another matter. That's my legal theory that is we're trying to find a way to shoehorn and give people more time. If it doesn't fit, we are trying to find it. It's the rule of liberty I thought you still applied. In these cases, I think that's why I didn't make common sense because the courts are trying to find a way to give somebody more time. These statues weren't written for that purpose. They wanted to make them broad for protecting children, protecting people. That's why she makes a good point about the question of offer. Offer might be that element that's broad enough to cover those things that are not threats, but they're in the context of the domestic crucible that is but maybe not violent. That's my answer to that question. But I think there's also a contemporaneous problem with that, which is trying to determine what threatened means it would be equally challenging, but for the inclusion of it in our guidelines. No, but threatening is pretty easy. I'm going to beat you up. I'm going to come in and offer something they've meant to do. They can get convictions on people when it's not a threat, but it's offering the context of violence. But it's not a threat. What I said is that existential type is part of it. It's very clever to legislate you to do it. I know it because I used to do criminal defense work. I had this but just enough in there to be that little soft spot to say it falls under it
. That's another matter. That's my legal theory that is we're trying to find a way to shoehorn and give people more time. If it doesn't fit, we are trying to find it. It's the rule of liberty I thought you still applied. In these cases, I think that's why I didn't make common sense because the courts are trying to find a way to give somebody more time. These statues weren't written for that purpose. They wanted to make them broad for protecting children, protecting people. That's why she makes a good point about the question of offer. Offer might be that element that's broad enough to cover those things that are not threats, but they're in the context of the domestic crucible that is but maybe not violent. That's my answer to that question. But I think there's also a contemporaneous problem with that, which is trying to determine what threatened means it would be equally challenging, but for the inclusion of it in our guidelines. No, but threatening is pretty easy. I'm going to beat you up. I'm going to come in and offer something they've meant to do. They can get convictions on people when it's not a threat, but it's offering the context of violence. But it's not a threat. What I said is that existential type is part of it. It's very clever to legislate you to do it. I know it because I used to do criminal defense work. I had this but just enough in there to be that little soft spot to say it falls under it. Even though clever lawyers has not a threat. And he said that it has to be just an offer. And I think again that's a whatever the legislature was thinking in the state of South Carolina. When I just bring a quick, South Carolina said offer means threat. That would help you. No, it hasn't and there's not a lot of. And they also haven't said one way or the other that creating a fear of imminent peril is a threat when coupled with other activity. I will say I don't know that threat. The bottom line of your argument on these two distinctive words in this part of the statute. You're saying offer is fully synonymous with threat by this person. I was saying offered when added to that other land right is a threat. You could your your argument is that if reading offer there you could in all circumstances read threat. Is that true? Right. When coupled with those other right to me it's you know offer maybe isn't as important as the reasonable creation of fear of imminent peril. And you know when we talk about threats I think it's easy to take it as a verb. When it may be more of a noun I mean the question of somebody standing next to a gun. Well it is a transitive verb. You know to threaten. Well but threat is a noun it could be a transitive verb. To threaten someone
. Even though clever lawyers has not a threat. And he said that it has to be just an offer. And I think again that's a whatever the legislature was thinking in the state of South Carolina. When I just bring a quick, South Carolina said offer means threat. That would help you. No, it hasn't and there's not a lot of. And they also haven't said one way or the other that creating a fear of imminent peril is a threat when coupled with other activity. I will say I don't know that threat. The bottom line of your argument on these two distinctive words in this part of the statute. You're saying offer is fully synonymous with threat by this person. I was saying offered when added to that other land right is a threat. You could your your argument is that if reading offer there you could in all circumstances read threat. Is that true? Right. When coupled with those other right to me it's you know offer maybe isn't as important as the reasonable creation of fear of imminent peril. And you know when we talk about threats I think it's easy to take it as a verb. When it may be more of a noun I mean the question of somebody standing next to a gun. Well it is a transitive verb. You know to threaten. Well but threat is a noun it could be a transitive verb. To threaten someone. But when I think of what a threat is I think it's the person with a gun next to him saying things making offer. So to me it's the danger present not necessarily the words or the what said. And you can certainly have you do know your position that was inconsistent with conventional statutory construction as we ought to give meaning to everywhere in the statute. Unless somehow it's inconsistent it doesn't seem to be inconsistent with a legislature trying to broaden the definition to cover a broader range of domestic violence. I thought it was rather brilliant for this wall wall to bring in that photo. This is certainly out for pro it really does. That's exactly what they're trying to do. But that little difference they wanted to be a different we can't just wish it away and say it's anonymous in every circumstance. Well I would say the definition that they give here this offer with presentability under circumstance creating fear of imparital would be a definition of a threat. I mean it is a way of explaining what a threat is and probably a pretty good definition. I don't know that offer always means verbal either you can offer something in a physical way. I watch too much baseball and people offer pitches to batters. Those are there's terms in the statute which isn't which I would say is probably better than the word threatening. I think it's more descriptive and you could have a threat that wouldn't include imminent peril and this statute would fix that. So I feel like it fits squarely under the force clause. I think Ab Hand created a lot of confusion because it was common law and because there's a lot of cases interpreting it but I think CDV Hand gets us back to a more direct argument and probably a more reasonable result. You don't have any other questions I've got nothing up there. Okay thank you Mr. Williams for your argument. All she do has some time reserved
. But when I think of what a threat is I think it's the person with a gun next to him saying things making offer. So to me it's the danger present not necessarily the words or the what said. And you can certainly have you do know your position that was inconsistent with conventional statutory construction as we ought to give meaning to everywhere in the statute. Unless somehow it's inconsistent it doesn't seem to be inconsistent with a legislature trying to broaden the definition to cover a broader range of domestic violence. I thought it was rather brilliant for this wall wall to bring in that photo. This is certainly out for pro it really does. That's exactly what they're trying to do. But that little difference they wanted to be a different we can't just wish it away and say it's anonymous in every circumstance. Well I would say the definition that they give here this offer with presentability under circumstance creating fear of imparital would be a definition of a threat. I mean it is a way of explaining what a threat is and probably a pretty good definition. I don't know that offer always means verbal either you can offer something in a physical way. I watch too much baseball and people offer pitches to batters. Those are there's terms in the statute which isn't which I would say is probably better than the word threatening. I think it's more descriptive and you could have a threat that wouldn't include imminent peril and this statute would fix that. So I feel like it fits squarely under the force clause. I think Ab Hand created a lot of confusion because it was common law and because there's a lot of cases interpreting it but I think CDV Hand gets us back to a more direct argument and probably a more reasonable result. You don't have any other questions I've got nothing up there. Okay thank you Mr. Williams for your argument. All she do has some time reserved. I know it's slightly irrelevant to the issue but just to perhaps put this in perspective. I didn't represent Mr. Chisholm in his original trial or his sentencing and then when he filed a 2255 action I was appointed to start representing him and that was many years ago before any of these cases and his writing to me saying CDV Hand is not a crime of violence. Ab Hand is not a crime of violence. I said you know I'll present your arguments. The law is so against you. I don't even agree with you but I'm going to go ahead and do it. And so all these objections were preserved when you know any normal person who listens to what these words mean who listens to the elements of the statutes who hears the words criminal domestic violence. How could it not be a crime of violence? And I heard Mr. Williams say that he wants the force clause to apply. The force clause is clause one typically under 924e or under the sentencing guidelines. Here's what the Supreme Court says must be present for the force clause to be applied. There must be the element of violent force in the statute. That has to be the first thing for the force clause which is clause one to apply. What if the statute is divisible? Well, I mean I think you're making a really good point on this issue but it seems to me that you've still got a problem with the fallback. And the fallback is if it's a divisible statute one requires violence one does not necessarily then under they can't you can look at the shepherd of pew documents. Can't you? And they they definitely put your guy in the category of violence. Let's go that rap judge. Let's say we're going to make this a divisible statute. So now let's look at the CDV statute and see if there is an element of violent force in any part of it
. I know it's slightly irrelevant to the issue but just to perhaps put this in perspective. I didn't represent Mr. Chisholm in his original trial or his sentencing and then when he filed a 2255 action I was appointed to start representing him and that was many years ago before any of these cases and his writing to me saying CDV Hand is not a crime of violence. Ab Hand is not a crime of violence. I said you know I'll present your arguments. The law is so against you. I don't even agree with you but I'm going to go ahead and do it. And so all these objections were preserved when you know any normal person who listens to what these words mean who listens to the elements of the statutes who hears the words criminal domestic violence. How could it not be a crime of violence? And I heard Mr. Williams say that he wants the force clause to apply. The force clause is clause one typically under 924e or under the sentencing guidelines. Here's what the Supreme Court says must be present for the force clause to be applied. There must be the element of violent force in the statute. That has to be the first thing for the force clause which is clause one to apply. What if the statute is divisible? Well, I mean I think you're making a really good point on this issue but it seems to me that you've still got a problem with the fallback. And the fallback is if it's a divisible statute one requires violence one does not necessarily then under they can't you can look at the shepherd of pew documents. Can't you? And they they definitely put your guy in the category of violence. Let's go that rap judge. Let's say we're going to make this a divisible statute. So now let's look at the CDV statute and see if there is an element of violent force in any part of it. And it's still not there. The element of violent force is not present. There's no intent requirement in any part of it. That's a physical harm or injury. Right. It doesn't require violent force. I can cause physical harm or injury. And again, any of the variety of ways I can do it recklessly. I can do it negligently. I can do it carelessly. I don't have to have the intent to do it. And I don't have to use violent force to do it. And that's why this is so non-intuitive. You could yell at someone and they fell backwards and tripped up and and and and and that's still live. I mean, this is the kind of stuff that you hold it in your brain for a second and you turn your head and it evaporates because it's so evanescent. And so meaningless unless you are comparing what the Supreme Court says with what the statute actually says. Because I agree with you, Judge Keenan, when you look at the statute, of course physical harm or injury should require violence. But Johnson says no. The element of violent force has to be present. You might assume that violence causes the physical force, but that doesn't cut it under the Supreme Court analysis
. And I see that my time is up. Thank you very much. Thank you very much. Thank you both. We will come down and greet Council and proceed to our last case for today