good morning me please the court my name is bill tice and i represent mr enoch this case raises issues about the interpretation of the fourth clause of one through four c and the residual one to foresee we know that a number of other cases have dealt with the residual clause and in fact i'm aware that a couple weeks ago two members of the current panel heard a few cases on th i so i know the court is familiar with the issue we think our brief handles that and so i'd like to unless the court has for the questions about the residual clause talked to you about the forced clause this morning section twenty one fourteen the count of conviction for mr necker one of the counsel conviction has as one of its elements the use of force now in name two for c also has a reference to force but the thing that we should keep in mind is that force as it's used in twenty one fourteen is a much weaker degree of force than the force required by the johnson case and  reason we can say that about twenty one fourteen is is that this court has actually written an opinion u s versus read regus which figures for it prominently in our briefs with a very simple fact pattern where someone comes up and yanks some keys off of a lanyard that a post employee has doesn't hurt the post employee doesn't fit any pain or injury which is the touchstone of johnson type force and this court said that that was robbery that was the necessary force required under the twenty one fourteen statute because that's the way the common law you know had regarded robbery and that opinion has has never been overruled it's a very sound opinion and when we when we look at that and we look at johnson force we see the twenty one fourteen is not categorically a crime of violence under the force clause because the fo required for twenty one fourteen is much milder than the amount of force that's required to johnson the government in opposing this takes the position that we're really twenty one fourteen  requires the same amount of forces as is required in bank brown briefs and the bank robbery cases the bank robbery statute requires a higher degree of force the johnson level force and therefore  deserves to get the nine to four c sentence that argument however it ignores even though it's fully briefed and in our papers that the supreme court took special note of the bank robbery statute and said no that statute was not meant to codified the kind of more that something very different and the court even said you know it's unlike what congress did with twenty one fourteen where they retained a common law term so the  that does our recent decision in armor in which we held that robbery under twenty one thirteen is necessarily a crime of violence had any effect whatsoever in this case it does not your honor be because that goes back to my point that the bank robbery statute so said the supreme court  carter is a different sort of animal it is one that is not based on the common law the congress decided to do something different as a matter of fact if you look at the statute putting aside the caption on the statu of the statute says nothing at all about robbery and of course bank robbery is a very sort of different animal bank robbery isn't that pushing someone or pulling something out of their he and it's someone going into a bank and saying i am here for your money stand and deliver that is the sort of threat of force if if now the actual force that johnson has in mind so i would say your honor that rodriguez said look this is the way the common law is set up and that's why the cases that we've cited involving common law to robbery that have come out recently are porton and it's not because they really define the scope of twenty fourteen only federal courts can define the scope of twenty fourteen but they illustrate that there's this one common law tradition which actually has attained even greater vibrancy in the last year or so is courts deal with aca cases in considered state robbery statutes and say you know when we look at that statute it's a very common law statute doesn't require the level of force that   violence but we would maintain that those cases really don't displace redbrick use either as a matter of fact if you look at the the legislative history behind the hobbs act quick cameras had in mind robbery now they added some little tweaks to it but in terms of the force element that's in the hobbs act it was made clear in the legislative history and then confirmed by the supreme court in that sh case which is in a criminal case but still confirmed by the supreme court that that's what what congress had and had in mind so given that that line of cases as well as everything else we would we they asked the court on each place the court good morning and everybody meet you know i represent the united states in this matter your honor the the statute that's involved in this case twenty one fourteen a is a crime of violence does constitute a with a gun in his pocket but he never takes it out of the spock the victim never knows he has doesn't that mean that there are robberies under twenty one fourteen a that are not crimes of violence as defined under nine twenty four c three well you honor we don't think so we what we would say is that the degree of force that's required to satisfy the elements of twenty twenty one fourteen day even within the description provided by you that your honors or  e courses in and rodriguez satisfies that the requirement of force of the force is not as as a defense describes it much less than the force that's required in an in general or in in the bank robbery statute or in the hobbs act that it is it is really sufficient the physical force that needs to be shown is not significant bodily harm or if you don't have a tremendous amount of harm in in johnson the courts for civically held that the degree of course that's required is actually not that great at all it's comparable to potentially a slap in the face  government i'm sorry i don't i don't think johnson does anything for us here because i'm sorry but if you say something johnson does anything for us here but go ahead well the the issue i t doesn't if you don't consider the two the two definitions comparable but the issue here is whether i think is whether under right regus and also under you know general concept of robbery that as in the generic sense whether that is a degree of worse that's capable of causing physical pain or it's error and comparable resisting or of i guess resisting resistance right that's that's what is at issue here and the question is well our look our president which you know costs nerver says the united states united states versus rodriquez they hold the common law of robbery in illinois is not categorically a crime of violence so robbery of government property doesn't constitute a viol is more comparable i would say to the bank robbery statute not because the bank robberies statute made reference to common law robbery but because it it defines robbery in  a common law sense in that it technically requires that the use of the use threaten the use of force be employed to obtain the money it's true that in in basic robbery you're dealing with taking money from from another right but the use of force which can be can be used against both the person and the property or or the property of another in this context it's not limited to the person i have a terrible time trying to figure out on what basis we should analogize the crime of robbery under twenty one fourteen i'm not sure i know what you're relying on but i would say that what we have here is a federal statute that involves a robbery of money right from another individual and robbery is just generally understood to include the use of the taking of money from another by use of force temper the attempted use of force for the threatened use of force and that that is the common law understanding of robbery necessarily satisfied with an attempted bank robbery by intimidation a bank employee can reasonably believe that a robber is demands for money to which he is not violent physical force but really miss bonamy why is this necessarily true of robberies under section twenty one fourteen a well the question that you're asking is basically i mean basically what we're doing is we're equating the type of robbery that was described in rodrigue is with a a person now cheating type of scenario where the the victim may not even know that the robbery is occurring and that that is not the type of robbery that would be typical in the context of age that from a postal worker or united step of property belonging to the government i would say that the theft from a bank is is more similar to the thousand a person holding united states government property then it would is by definition taking a property from another by the use of force or threat and force and that when a any kind of force is applied or threatened that that it needs that it is necessarily going to be the type of force that would cause the the victim to fear that any attempt to resist would be met with reprisal that that oh you know i me that there certainly are circumstances under twenty one fourteen a in which the crime would therefore not constitute  you know we're we're all sensitive to that it think but what we have here is and the government's argument by the way incorporates the fact that we also believe that in this particular case the defendants crime was also a crime of violence under the residual clause and we make we make several arguments with respect to why the residual clause in this case and under nine twenty four c is not is not governed by the sports analysis and give us a high and it's not it's not touched by the supreme court's decision and johnson so we would say that even if this court were to find that twenty one fourteen  does include a broader set of circumstances than that which you have previously held to constitute a you they use or threatened use of force even if you were to say that we would say that and on our second argument it definitely question for you here every question we're with this is eight hundred fifty dollars used to buy a gun yeah what was stolen money how much i think you're right about the amount during the robbery now of course we're getting beyond the statutory language with the statutory language that was incorporated here was that the defendant or the victims like was put in danger by the use of a dangerous weapon which was in this case identical residual causes and that alledged at the true causes are virtually identical virtually identical and you know we declared clause to be unconstitutional in vivo se asia i think that should end the inquiry about the residual clause if we found it to be unconstitutional and and i before the supreme court right now unser shari and is what this court could do with respect to our second argument as was suggested last week is the court could hold this pending a decision from the supreme court into my  which makes some serious sense in the government's view in that no matter what happened what this court rules if it were if it winds up being inconsistent with the decision of the supreme court and b of a set are in  litigation will continue and so and i don't even i don't know whether my opponent even disagrees with that concept but that's something that certainly the court could do and it would make some good sense to do that honestly talk i thought there was a gun involved in this robbery the the purpose of the meeting was to do a gun transaction so that i think is the answer to your your question  case had a gun and you know now i'm not sure we have focused so much on the legal issues i'm i'm i'm shaky ground when i like i'm shaky around period in this just as i didn't seem like a big problem a bit apparently it is so i mean he was no no what i'm talking about government counsel said that they were drawing the line between person edging and all sorts of other robberies but you know i think we've lost sight of the fact that right regus is essentially a person etching now it's not someone's purse but it's keys are attached to the postal employee and off that is enough force to make you a robber but when you go to johnson you've got to inflict pain or injury on the person and that didn't happen in rodriguez that's the actually government counsel also talked about how typical robbery case as well that's not the test for the categorical approach we have to look at what are the elements of the offense and what sort of cases do they encompass now not imaginary cases but real cases and rodriguez is a perfect example of a real case where someone commits a robbery