hundreds regulations it proposes amendments to congress by april thirtieth of each year and they go into effect on november first unless there's an emergency opposition from congress to go off of that cycle so as we sit here right now the best prediction is that we really see here away from any amendments being submitted to congress i think part of the question was whether those observations and some of the affirmative statements that the commission meet in its materials in the federal register  sort of programs that some of the interpretations the government is offering its brief just don't nap on to what the language is among other things seeing how the act robbery does not meet the generic definition it doesn't it the extortion then finally usually around march votes on the amendments it's going to send to congress at the end of april and so one could you happily look at this and read into this all sorts of conclusions but these are not pronounced ones of the sentencing commission these are questions that are presented and they result in the end it's all opposing publicly on the commission's website they result in coming from everywhere from from the government from the defenders from many other parties who are involved in the system who come in and so i don't think you can read into that a conclusion i'll be happy to hear to argue conclusions that favor our position that are in these materials most notably this rapid effort by the commission to address what we believe is a clear misreading of the amendment it was adopted in twenty sixteen what about the fact that the proposed the current version and that is one that goes to you and not the definition differently ron if you go back to be first request for comment the commission made at the end of twenty eighteen the essential request was how do we fix this how hobbs we're being told by courts that robbery might not be a crime of violence how should we fix it and there are different ways to fix it the one that's in the current proposal is to simply take the language of the and put it in the robbery definition another way to fix it would be to change the extortion definition another way would be to simply announce that the commentary has a twenty sixteen was being misread the commission put forward all of those options with one go well it's finally going to amount to i do feel that eventually when they do have a one there will be a solution i can't tell you exactly which one it will be but what's clear is that the commission seems intent on fixing what we believe is a clear misinterpretation of what it did in two thousand and sixteen just to make sure that everybody is on the same if it's related the government's position has to firmly be aware is that we do not the department does not defend the reasoning of robinson because the supreme court has said many times that the categorical approach must be doesn't seem to apply the garlands ones are practical of various ways doesn't seem to apply when they're tried together and one of them is the text of the statute and robinson itself is a situation which is not a statutory term prior conviction on twenty four c so why is the department not applying or precedent or are going well speaking on behalf of my superiors they their view is that they are bound by the supreme court precedent find a categorical approach be certainly their ex on arguments that can be made if they should never have been applied to the sentencing guidelines of this court did not accept those arguments starting more than ten years ago so we do have precedent of this court regularly applying the categorical approach to the guidelines i would probably welcome the opportunity to appear before the court him back and to make the different argument but i don't think i can do that before the panel and most recently judge works in the in the now presidential decision and lewis rejected the idea that the robinson holding with apply to the guidelines in the same way that it does two to nine hundred four c based on the precedent of this court asking us to apply robinson so the only way the governor can prevail here is if we accept an interpretation of the sentencing guidelines as it currently exist exactly right and i understand your argument the only way that we can get there is through this sort of mixing  property and the guideline going talk about people right that's right ok so the only way you can prevail is by pushing those two pieces together and any other court except that i think in the ninth circuit of the bankston maybe there was some lip service to it but then issue second as a plays out here really were not mix and match where were the line on the definition of extortion explored the definition of extortion which is a threat to a person or property in order to get something from the victim perfectly fits hobson what's called perhaps a whopper it isn't a challenge that the definition of extortion under the guidelines home only speaks quote physical injury and in order for us to except your view we have to say physical injury would include injury to well that's the issue we have that's the exact issue before the court and how can we do that and the guidelines the guidelines and i know you know them backwards and forwards are your adversary goes to the guidelines use definition or the guidelines to use the word physical injury needs anything other than injury to a person when you look at to be two to be three point two you look at five k these two point twelve you look at to see i mean they all seem to fifty one refers to physical violence to persons or property that's the essence of the offense and so we have to look at the context of what we're dealing with my name in answer to your honor's question of why we interpret physical injury this way is simply the canon against an absurd result and this result would truly be absurd as we make out in upper east the habs that is the premier statue for the last century in addressing violent interference with interstate commerce from day one it's been addressed the violence of persons and violence to property and this is known to any participant in the criminal justice system so then the sentencing commission in twenty six says we want to narrow the definition of extortion and what we want to do is we want to make sure that it applies to quit does not apply the quote nonviolent injury such as injury to reputation and so emily then to do that they use the words physical injury so we're supposed to draw from that that the sentencing commission intended after eighty ninety years of prosecution of violent extortion to exclude the number one federal statute addressing violent crime it's dealing in the context of the queer fender bassman the career offender guideline was drafted by congress excuse me with the express purpose of increasing the punishment on the most violent offenders who repeatedly commit violent or drug offenses and so the notion here is that the sense of commission decides to limit the career offender provision  taking out by starting with the number one violent criminal offense it's most frequently prosecuted without saying anything about that would only have been a much simpler if that's all congress wanted for them to put in a comment that said physical injury is intended to exclude injuries such as reputation rather than changing the definition to be limited to physical injury which is as  words points out everywhere else it appears in the guidelines to be juxtaposed to the property damage or property destruction and i don't think you point us to any any other card line where the term physical words but in my what i'm suggesting here is that the sense of mission itself is taken by surprise and that's why we see this unusually rapid effort to make a clarification and we talk about violence the in the first part of the hobbs act it says that you cannot engage in physical violence to persons or property through robbery or extortion and then proceeds to define robbery and extortion that language has been into the i agree uses the term physical violence and the debate here is what does physical mean is that limited to the person or property in the context of the hobbs act it's never been limited to the person and in fact  great length in a reply brief the purpose stated over and over by members of congress was as much to address extortionate violence to property as to person council your whole argument seems to depend upon assuming that the guidelines are meant to go hand in glove with the hobbs but the failure to use the term in the hobbs act i think should cross point is really cuts against your argument that they were supposed to be so close and then you have to bootstrap this on absurdity which is offenses should be sentenced apple or near the maximum statutory term and the suggestion here is with out mentioning the hobbs act that the sensory commission suddenly decided that the hobbs act again the main of statute focused on interference with interstate commerce is not meant to be included that that's what that's the whole point of the proposed amendment there i think to recognise like we left something now and so by operation of the guidelines i and one of the russian else was you know there's there's a separation of powers component ex post facto and there's separation of powers component to one of the two so why is this case more like their goals than like pew because it had bothered me in our view we believe the backhoes is so it's clear enough on this that it's a situation in which intervening supreme court precedent does overcome the earlier parts of this court so i do not believe that any bank review is necessary on this point if i could just say one is i know i'm over my time as far as you getting back to the absurdity point if extortion does not as defined by the sentencing commission does not apply to threats against property which has always been part robbery york stores and so once again we have to say is this what the sentencing commission was doing when it said physical injury that it was saying that excursion is an enumerated offense there but by the way it's an robbery object excursion that applied to reputational injury and so they made very clear those don't qualify and now we have to get into a debate over whether those statutes are divisible or not but i'm not familiar with any and i will look up organ but i'm not familiar with any statutes which are divisible to the point that you would have an offense that now qualifies under this enumerated fans and i would also say that if it's only one of that that doesn't get the argument very far either that that that's what the sense the commission was up to they were trying to limit to take out the nigella type of case of injury to reputation and we believe it's just not a reasonable reading at all to ascribe to the commission these extreme results alphabetically and i would point the court to arizona a felony is second to extortion at thirteen eighteen zero for a wanting to which prohibits as a divisible offense because it has a higher under the tast for divisibility has a higher punishment prescribe that punishes huge only future injury to the person so we have to do our work here it's not the absurdity argument can't be argument that of course hobb that the commission did not intend to take back the crime of violence definition doesn't hold water either i'm not in the commission's mind none of us are but i think it's worth she probably hit the nail on the head when you said this was an ops and we know this is a complicated situation the mixing the matching the generic the elements the dividing into extortion in and robbery  and what happened here was the commission very clearly narrowed extortion to include only personal oddly injury physical injury and that ended up sending and the normal process here is is this happening we commission comes back this is the normal feedback loop is the guidelines are all about you know courts rule on what the guidelines mean commission  appoint i'll just tick off for you the textual reasons and then touch on briefly the what would be the sort of legislative history but the textual indications are absolutely clear and we saw it in blacks common usage we don't say we in my car was injured but more importantly the guidelines usages as as some of the panel had pointed out i would particularly point the court to to be three point two which judge wards you mention that's the extortion guideline which is titled extortion by threat of injury or serious damage it's the same throughout the guidelines but then were what it were just as importantly i would say when we look at both the twenty sixteen amendment cycle and now the twenty eight proposed amendment cycle all we see is indications that this is an injury in fact when the when the commission promulgated the twenty sixteen amendment it actually interpreted this this language and it said the proposed amendment requires the threat to be a threat of physical injury against the person that's what was eventually passed in twenty sixteen so the commission looking said exactly what they what they were talking about that's it eighty federal register fo nine three one seven ok so we have that we have the overall project of what was happening in twenty sixteen remember this was triggered by johnson the residual cause it gets eliminated but  whole the whole kind of violence definition in the in the notice they said should we include property offenses all we want comment on that they didn't go that far but it is quite clear they dropped involuntary manslaughter  against property and explosives frequently if not typically is to so does that indicate that there's not this person property line that you're drawing there is in extortion overall no in the twenty fifteen  which is essentially a mostly a property damage type of fence and so what we can divine from this is the extortion was a blunt tool and you know my colleague talks a lot in his brief there so it's not a bright line is the whole definition whatever but it is do it story where was it requests for commentary when it came to the actual guideline against the person was not was not carried over and if congress and if the commission used the lean jury and we probably wouldn't be here today it's this term physical injury why shouldn't we step back thinking about the big picture here congress in narrowing this down and authorizing to two things your honor when your honor said he didn't carry it over i would i would dispute that but the language against the person that was in the notice was not it was not duplicated in the reason for amendment but that doesn't somehow that they changed the meaning of what happened in the no this was the text of the of the change of the actual guideline and then it never changed they said promulgating this this is what it means and they promulgated exactly that exactly what it means and then in the reason for mehmet they just they rewrote it and yes he didn't include that doesn't mean the meaning changed what we have is we have to we have two indicators  that the language that my colleague relies on as opposed to nonviolent threats such as reputation two things there first of all it's very clear and they were taken my friend was taking the position in the briefing i'm not sure if you stand by that to nonviolence and the point there is this is exactly the project that i was discussing earlier some of property offenses are violent and some are are not or the commission would consider not violent then extortion against with n as your honor judge trashy pointed out the the the proposed amendments don't touch extortion so we've got three circuits on the books right now that say the twenty sixteen limiting narrowing of  excludes property damage and the commission comes back in twenty eight hundred says we're fine with that no change but we have this hobbs act lottery situation we're going to propose a new definition of robbery essence if this court were to step in sort of in my opinion you know get in front of a of the process here and say only in a we're going to we're going to interpret extortion some different way that is actually going against what the commission is trying to do the commission on the twenty eight eleven said no we want to keep it in we look at these cases o'connor camp we know what the law is and we're fine with that work the the point as to you know i'll make one other touch point on absurdity i do think we should step back here and take note that what we're talking about here is talk about this was not a violent crime that's not the issue of course the issue is what there is a statutory issue but the court this court and every other court is well within its power to grant variance to a just under thirty five fifty three day for whatever deficiencies it may perceive in the in the workings of the guidelines here in fact the court did not do that that once the once the career federal designation was made against the  i would say to the court in addition to we briefly noted this after we know the government's concession and so did the court to this this the third circuit decision and stern which says we don't and waiver and said it's an abuse of discretion not only for district court but in would be for a circuit court to intervene when there's been an affirmative concession and of course that's what happened here at app one forty eight in appendix and as my colleague candidly said at the podium here this is not the position of the department so underwood i think this court doesn't have the power to reach the issue and my my friend mr spicer i speak some half of the commission thing things that have been the commission itself has not said that reference to against the person was in the request for comments that the commission made which again if you look at the force asked questions every which way which could be interpreted and in favor of one side or the other that language of course did not appear in the final version what appears as physical injury and as we said in the context of the  is we are taking out quote nonviolent and quote threats including such as injury reputation extrusion is addressed whether it's marring somebody store or breaking their windows or blowing up the store entirely has always been seen as violent in federal law and that's the problem here is that by saying nonviolent we're being told that the sentencing commission took out the principal federal violen