good morning i'm it please the court my name is celia roman and i represent anthony wayne hamilton i'm going to try to reserve two minutes for rebuttal in this case but i'll keep track of my time i'm obviously mr hamilton has raised a number of issues on appeal given the time constraints i thought it might be most productive in this setting to discuss the areas where the laws in the most flux those being the questions of hobbs act in the st step obviously if the court has questions on any of the other issues i'm happy to answer and addressing those at some point i constitutes a crime of violence and for many reasons we argue that those cases should not control the decision here those cases with all due respect don't demonstrate the careful categorical analysis of the elements that's required by lee a cow beginning with the mendez case in one thousand nine hundred and ninety three in that case this court was addressing whether conspiracy to commit hobbs after an act robbery constitutes a crime of violence and in answering that question this court in one sentence said that it is indisputable that how exactly constitutes a crime of violence there's a number of reasons why that shouldn't be indisputable the st is that mendez being from and three predates such cases as johnson and to maya and davis and stoking so there's been a lot of law that has instructed this court on how to analyze whether hobbs act robbery constitutes a crime of violence more over in mendez this court did not answer whether conspiracy to commit hobbs act robbery was a crime of violence under the force closet analyzed whether it as a crime of violence under the residual clause given that it's dicta and shouldn't control then turning to  decisions unpublished decisions for example and howard and jay obviously as unbiased as unpublished decisions they're not binding and this court can look at them though for the analysis but we argue that those cases should not control for a number of reasons for example in howard that we don't control they don't control but they can be looked to for analytical guidance and i don't think they are persuasive in that realm either in how word this court analyzed whether hobbs act robbery was a crime of violence by comparing it to bank robbery and it said bank robbery is a crime of violence in its least culpable way of being committed by intimidation intimidation and bank robbery means fear of bodily robbery and a bank robbery hobbs act robbery as the supreme court made clear should be analyzed the broadness of the purpose is consistent with congress's intent to apply this statute very broadly and in looking at the language of hobbs act robbery it encompasses robbery committed by fear of future injury to intend jubal property that least culpable way of committing a hobbs act robbery takes it outside of the bank robbery context in discussing that in the howard case and in the j case this court looked to self which is this court's decision on bank robbery and what's interesting is again that case was not analyzing bank robbery for purposes of nine hundred and twenty fourth's see it was analyzing when the bank robbery was a crime of violence under the guidelines more over it's ironic in some way that this court repeatedly turns to self on the questions of hobbs act when south itself specifically says that it in that decision it need not determine what whether all robberies are crimes of violence and that's consistent with for example the league of how requirement that the elements be analyzed carefully counsel i think i counted it was seven other circuits even after be a lack of focus on the actual elements of the crime for example interestingly in its twenty a j letter the government cites to the mathis case out of the th circuit and it was surprising to me that the government cited to the mathis case given that in its response or brief the government said that one of our arguments was invalid we had argued that because a hobbs act robbery includes intangible property within its confines  property and what that instructs of makes makes interesting i mean it's a bit of a rabbit hole looking into this because stokely the most recent supreme court case to analyze whether a robbery statute constitutes a crime of violence  was clear that there must be a physical confrontation or struggle for a nine hundred and twenty four dollars c enhancement to apply it's difficult to imagine a situation where there's a physical struggle over an intangible property and that's what stoking seems to suggest doesn't suggest it makes very clear there must be a physical confrontation or struggle nine hundred and twenty dollars more over as i pointed out in my response a brief under hobbs act robbery fear of future injury so if i call someone and threaten them to do something in the future that constitutes a hobbs act robbery under the terms of the statute itself and this court's jury instructions i think the government and i twenty four c a letter also submitted this court's jury instructions and this court's jury instructions are taken directly from the language of the statute and instruct juries are presumed to follow the instructions they're given that fear of a future injury is injury for hobbs act purposes that is not the kind of violent struggle that  kind of physical confrontation and still that struggle that stokeley focused on turning to the st step act we raised two issues the st is the standard of review and the nd is whether the st step act applies to mr hamilton act itself does not state whether it's a political to the cases where a sentence has not yet been final what it uses is the word impose and the government has focused on the word imposed in its response of brief the government does not address or mention the supreme court decision in henderson that explains that the law to be applied in determining whether there's error is the law as it stands when the appeal is resolved and here that case the th circuit was analyzing the question of whether a reduction or a change in the application of the safety valve provision should apply to cases that were pending and interesting lee the language of the statute that changed that provision was very similar to the language at issue here the law there said that the subset section applies to all sentences imposed on or after the date of an act that you know i was reading your  you did you make this argument in your the that imposed is really question of finality roland a question of what the the at the time that this was announced by the judge we argued that it  does not that this court should conclude that imposed means after the appeal is finalized didn't have the six circuit case at that time which was why i submitted it in the twenty eight j format ok  but we think that that case should be controlling turning to this court's question about what happened in this case at sentencing here there was no doubt that there was a breakdown of communication such a very severe the district court asked mr hamilton whether he was satisfied with the services of his lawyer he said no we did this he had just been convicted on a large number of counts and you know so to say that he was not satisfied with our trial had no on is a not very surprising and b not necessarily indicative of a breakdown in communication well i think there's two responses to that the st is that i've been a trial lawyer in federal district court since one thousand nine hundred and one i've lost a number of trials and the court always asked at sentencing whether you're satisfied with the services of your counsel and it doesn't happen in my experience with any regularity that people say no at that point but even if that were the case that wasn't the only information the district court had because counsel advised the district court that she had no additional information to provide the court other than what was in the pre sentence report to consider at sentencing  told the court that there was there was a breakdown she couldn't come up with anything else because there their relationship had fractured as was supported by mr hamilton statement given that even if there was a chance that that was what was going on this court's decisions in velocity is and daniel sources walford instruct that when that happens the court should ask should make inquiry it should daniels about what the court should do when it's given a motion presented with a motion to substitute is there any case that says that an expression of dissatisfaction on accompanied by an actual motion triggers a duty to inquire i think the factual scenario that generally is the court is there is a motion that's presented and that motion and i just i think that sort of must be true because you're dealing at some point with somebody who is essentially saying look at me as a pro se at this point i don't like my lawyer any more and he's my experience in federal sentencing is that ninety nine percent of the time people are satisfied as are lawyers sat with them gone through pre sentencing preparation they really worked it and come up with a strategy and you know just as a district court judge for me it's just it's a giant red flag and it may just be they're having a bad day and we talk about a little bit more in there well he didn't call me back right away and i need fifteen more minutes to go take that talk a little bit and then everybody is happy and they come back and things are fine so and so and i  i think the court has a couple of options they could send this case back for additional fact finding as to what was the nature of the breakdown to determine whether there was a problem that warranted a point of of new counsel for mr hamilton  the other option is to send it back for re sentencing with counsel that doesn't have such a fractured relationship with the defendant at this time and how do we know that there was a fractured relationship and i'm looking on page seventeen i guess of the  know because we're not talking or because our relationship has broken down she just says our he hasn't given me anything else to i think what she says is that you know obviously mr hamilton  satisfied or not happy with my services at this point i don't have anything additional to add i think what that the raises is the problem here is there were no questions asked and i think even that that i would ask this court at a minimum to send it back so that those questions could be asked and answered that the counsel for mr hamilton presented no written request for variances although the court at the district court did give something of a variance at the sentencing in which no one was hurt it's a harsh sentence your honor it's undoubtedly a harsh sentence well it's a harsh sentence because you charge them harshly i mean this was really in control of the prosecutor's office based on what you chose to charge it wasn't just a charge on thing that was to produce at least on your view of the case two hundred and seventy years it wasn't subways and i think it was many widows at least in our district it's very rare that someone would face what is effectively a life sentence for a string of robberies like this what i would say is it's also extremely rare and the st case i've heard of where someone committed thirty six robberies and was convicted of eleven of them charged eleven and you say that there is thirty six we know that there were eleven and he was charged with thirty six and we only proceeded to trial  eleven and i think nine hundred and twenty four see perscribe harsh penalties for this sort of thing you mention that no one was hurt in your and you're right no one was physically hurt but i do think it's worth taking a look at the transcript to see the impact that this had on some of the victims i mean this is not a homicide or  that they were and i think it's an important thing to know and i think there were important harms that were caused here and also in terms of the prosecutor's discretion here i think it's at least worth noting mr hamilton was offered a chance to escape what was effectively a life sentence both before trial and after this is in the record he was offered a plea agreement that would have provided a sentence of no more than thirty years and no less than twenty five dollars before trial he rejected that plea agreement even after trial after these convictions and and sentences are after the convictions happened but pre sentencing he was offered a plea agreement that would have stipulated to a thirty five year sentence if he agreed to cooperate against the other robber who is believed to be his brother he again rejected that opportunity so i get that the u is the issue about sentencing and i want to address a couple things on that front the st is that i think just milledge correct there really wasn't a motion made here and there is no case out there that says that the district court's obligation to inquire further is triggered simply by a one word no in response to this standard question and if why ask the question if the answer no means nothing and i think that's a fair question to ask  process it's certainly is your honor but i think what's important note is that the district court had other important information in front of it on the question it had to decide and the question here is a narrow one which is was there a complete breakdown in the communication between defendant and counsel that prevented effective assistance and the answer is we don't know why i think the answer is that the district court here did know because it had other information in front of it it had just observed it moments before these two individuals  conferring in the courtroom and that's that's documented in the transcript and it also had heard from these that we don't know what they said night so what's the point of raising well the point is to show that there was some communication between them and also that defense counsel had noted that she had gone over the pre sentence report with the defendant the judge here i think having some legitimate concern about the fact that communication was apparently strained between them inquired of the defendant in particular in a i don't think so because the question that was asked was not about whether there had been a breakdown in communication or whether the defendant had received effective assistance which of the two things that this court needs to look at based on the question presented the question asked was whether he was satisfied and this court case why i think it's pretty clear that satisfaction is not the standard well you asked this guy has there been a complete breakdown in the term you're going to go through all that with perhaps unsophisticated person rather than let us do your job and go forward and follow up when a person who's not going anywhere so as i have a problem well i think the judge did take some steps here to ask mr hamilton to make sure that the issues that he wanted to raise had been raised in that he understood the proceedings and all the things that would impact the sentencing here it in talking about the impact of the sentencing here it's important to note two hundred and fifty seven years of this two hundred and sixty or sentence were mandated and the judge actually very and known at that time it was not the sentencing i think was approximately a year before this st step i had been in process that had been discussed it wasn't an issue at all no it was not your honor and addressing the communication part that the district court here did inquire of mr hamilton i want to make sure that you are what you say is what you're saying essentially because this you know there was very little discretion the judge did not need to inquire further once step one of the possible breakdown of the attorney client relationship issue has been raised well is that the argument i think there's a couple arguments is that one of them there's two pro here and i think the arguments as one of them to both problems yes ok but i do think that the the deeper focus here should be on whether there was a complete breakdown in communication and that's usually where the deeper focuses in these cases that have been in front of this court the district here  followed up with mr hamilton and asked i want to make sure that you've had a chance to talk to your lawyer get any questions answered raise any issues that you want to raise and in response to that mr hamilton said that the only issue i wanted to raise was the one that he raised in his pro se objection it's important we know that he had communicated that to his lawyer and talked about the reasoning for it because his lawyer talked about that at sentencing as well and said i didn't raise this issue judge because i had reviewed documentation relating to that offense presumably she had seen corroboration of the information that was in the pre sentence report the attorney here also noted the reasoning that mr hamilton wanted to raise that issue and talked about how mr hamilton had concerns about his assignment to the bureau of prisons and his custody level and things of that nature so the district court would have known for certain based on those answers that there was not a complete breakdown in communication there the relationship may have been strained and this record is not perfect and this court has said before though that the record need not be perfect so in smith for example this court affirmed even where the issue was clearly raised even where defendant moved for a new lawyer and asked for one specifically and the district court conducted no inquiry whatsoever and in that case they said look we would have preferred to have a better record here this is not perfect but the question is is the record sufficient for the district court to have determined whether there was a complete breakdown in communication that prevented effective assistance and in that case they found that even without any hearing even without any questioning that there was a sufficient record based on the fact that there had been a trial and that the court had had a chance to observe defendant and counsel communicating during the trial based on the fact that there had been a prior request for substitute counsel as was the case here and even where hearings have been held this court has sometimes commented that there were there could have been a more extensive conversation with defendant and counsel in corona garcia for example the court noted that based on the limited inquiry that was made that there was a limited conflict as you've indicated previously is actually speculation we don't know what the court observed and we do know that once you have convictions that you're sort of step two in terms of your relationship with your client and you know it's a different situation different concerns different issues certainly i don't mean to imply that you couldn't have a breakdown after a trial before sense obviously that could happen another case from this court that addressed that sort of situation and again it's relevant on a couple friends here there the court held that the fact that the motion was made ten days before sentencing was not particularly timely it was another factor the district court could consider and denying the motion and again their emotion was actually made there there was no motion made here there was no request for substitute counsel made here and we're not saying that mr hamilton acting pro se needed to use some sort of magic words and file on pleading paper a motion for substitute counsel or a motion to determine counsel but he he knew how to ask for a new lawyer had done it before and he made no such request here it's also worth noting that in the pro se document he filed with the district court he not only raised the issue about his child abuse offense that he had wanted to contest the facts on he raised another issue which is that he wanted sentencing to happen as quickly as possible and the district court took note of this and mentioned it at sentencing the only other issue he mentions in that letter is he said my attorney has raised the possibility of a continuance and i really don't want that because i don't like the conditions i'm currently in in my pretrial detention facility i want to be assigned to be o p facility and he talked about how he thought that that would be better for him so i think based on that the district court may well have also thought that mr hamilton would have preferred to go forward with sentencing knowing that with a new attorney he would have had to spend another few months in this facility and have a new attorney get up to speed on that could i ask so if this were a ineffect only would say that's not we will consider that on direct appeal and you can raise it on twenty to fifty five or the facts can be better developed and i wonder if that wouldn't also be a more appropriate approach you're given the factual questions of does the government have a view on that well i think certainly it there are portions of this that could be raised as an ineffective assistance claim in the context of a twenty dollars to fifty five dollars and undoubtedly that's true i think if the court has concerns and thinks that a motion to substitute really was raised here that triggered the district court's obligation to inquire further i think in terms of fact finding the remedy that would be appropriate your be a remained to the district court for the district court to conduct that fact finding not necessarily to vacate the sentence don't i think the the answer is there's no reason to reprove seed with the sentencing if there was never in fact a problem here and if mr hamilton never in fact would have needed new counsel here the moment we don't know correct but i think  correct and i apologize it was a bit circular other courts have looked at this and have said that district courts are in the business of imposing sentences appellate courts are in the business of affirming them or faking ignorance of looked at this in the context of the on direct appeal but four other circuits in all unpublished opinions have looked at the identical language of section four a one of the st step act literally the same provision just applied to a different context and in four published opinions four separate circuits have determined that imposed means imposed by the district court most importantly one of those circuits is the th circuit and so to the extent there is this new argument here that clarke somehow provides mr hamilton some relief the th circuit which it was the court that decided clarke has actually expressly decided that that is not the case and that in the context of the st step act imposed means the time of sentencing without your honors unless you have any other questions i would carjacking other robbery statutes and under federal law and other circuits have held that just as this court did in an unpublished decision in two thousand and sixteen that the bank robbery decisions are binding in this context that that these provisions are sufficiently analogous that you simply can't escape the reasoning of those decisions that intimidation is sufficient to constitute a crime of violence and i think it's worth noting the hobbs act has been around a long time and it is a statute that is used a lot you saw there a lot of cases cited in the briefs just within the last few years this defendant nor any other defendant in the numerous circuits that have decided this question no one has produced a case in which hobbs act robbery was committed in a nonviolent manner all of the cases produced are in the it still might be interesting i guess the answer is because of the extent and the nature of these particular crimes as i mentioned there were thirty six crimes that were actually connected to mr hamilton and that he was charged with originally because of the ongoing nature of this robbery spree and the fact that there were so many of them in such a short period of time the f b i got involved in the investigation of this case that happen about halfway through that happen in january of two thousand and sixteen up to that point phoenix police department other metropolitan police departments were investigating and it probably would have been a state case counsel i don't know for sure in this particular case i can tell you it is sometimes the case that we will talk to them about who's going to take the case and sometimes it's simply more a matter of the fact that our federal partners have taken a case in and we've decided to take it at that point so i don't know exactly what happened here thank you thank  you you're down to fifty seconds with money would you put two minutes on the clock please thank you your honor i just have a couple of points that i'd like to make the bench i asked about when the st step back was considered i looked at the legislative history and i believe it dates to twenty seven thousand dollars was when it was st considered by congress obviously mr hamilton was sentenced in two thousand and seventeen so that was a live issue that was being considered at that point the government talks about that there wasn't a complete breakdown and it points to the fact that there is conversation i guess it depends on how one defines a breakdown of communication with a client simply saying words does not i think an attorney client relationship make and i think here the record is so unclear about what was going on between counsel and mr hamilton that it should it should have fact finding before this court rules i would note as the government did that mr that obligation obviously didn't happen here and the concern that there wasn't a motion filed well mr hamilton after we filed had a motion previously in the case to have new counsel appointed was specifically told by the district court that the court was disinclined to grant any future motions on that issue and so this mentally ill defendant who's dealing with the court has told him i'm not going to do it again it's unlikely he's going to file another motion for new counsel on the question of the st step act none of the cases that the government has cited that they say uniformly go against mr hamilton have addressed the conflicts between what law will apply that we've argued in the henderson case finally on hobbs act i would note that no cases that i could find have addressed the elemental difficulty in hobbs a future injury that future injury can be a basis for a hobbs act robbery and how those are consistent with the stokely requirement of a violent conflict or struggle