we are ready to hear arguments in the st case of my c council are ready or not it states versus man's and their good morning good morning my name is margaret cates i'm an attorney with the federal defender's office in that and at the end of my colleagues argument it's brisker you said it's not that we don't care that we don't understand it's just that we've heard it so many times and i appreciate your crest ration but i think we're going to drink at that point it was say they like the now i'm constitutionally they have residual clause there's sort of a conflation of the concept of force as in just any kind of movement like newtonian fo and a term of art that's in a federal statute the army career criminal act and that is defined by the supreme court in johnson one as violent force force that's capable of causing physical pain or injury  a combination of things yes new mexico talks about overcoming force overcoming existence although i would point out i think this is important in the jury instruction for robbery it does the jury instruction does not instruct the jury that that's what the standard is to overcome resistance it merely says is that amount the amount of force is immaterial the force or threat and use of force must be directly related to the separation of property from the i think there are a number of reasons why you're saying it's wrong i do think it's wrong but i'm going to but i'm going to but i think here here's why i don't think you are bound by no panel is banned by a decision of another panel if the same argument if it's a different argument that's presented to you and i'm presenting you with a different argument that's the same issue well it globally it is all is robbery in new mexico  a crime of violence for purposes of the enhancement of the on career criminal act but that there are there are many issues within that question of whether or not it is and how it gets decided but with hill with mexico which clarified the need for johnson one force didn't change it it didn't change as far as what will stop it didn't make big a big difference no stokely specifically adopted  ad we are adopting and continuing johnson one force were just basically expand it to the idea that the force or it could include overcoming resistance the question that to ask me but i think garcia is just not in keeping with the earlier supreme court cases i just just i'll quote one thing two things from garcia why i think it's not really on point new mexico robbery authoritatively discussed in a case that had has nothing to do with determining whether or not new mexico robbery is a crime of violence basically it talked about whether robbery was a crime against a person or a crime against property but be that as it may the court went on to say and actually applied in new mexico courts categorically matches the definition of the physical force from the supreme court in johnson one that's just plain in correct because johnson one force is violent force force to kim is kim potentially quite capable of causing physical pain or injury to another and we have very specific cases in new mexico that talk about force that is not johnson force johnson one force but if i could just if i could well the whole theory and premise of burn all it's pronounced or not was to bring all case look at whether a single intent with multiple acts can only constitute one crime and that that's under issue they did talk about whether robbery was basically larceny plus assault it was robbery right i mean they did talk about that but that i don't i don't want to go so far as to say that it was dick there but that wasn't the issue in the case the issue in the case where it was whether or not there were because there were multiple victims with could they each have a charge even though the conduct was different but can i go back to my original point for a moment about this parade of cases that's coming before you and what i would suggest a way to do to stop the parade of cases may be to do the opposite of what we're doing right we keep coming in front of you and we look backwards to see how the court defined it and what the elements are and it's it's obviously not clear it's vague or we would not be coming back but if the court would tell federal prosecutors that unless a state court makes clear that what is needed the type of force that is needed to commit a robbery in our state is johnson one level force unless the state says that we're not going to consider that predicate offense for purposes of the arguer criminal so you would have would like us to certify a question in this case and that's the new mexico supreme court to please define what they mean by robbery your honor that was my nd it i did it under th circuit and i never in my experience or i've seen a certified question out of the two thousand and fifty five to the supreme court of the state that it's an interesting idea i like your cutting edge idea i think that but i think it's not fair to the court nor to the parties that we are we're guessing and the truth is unless unless the federal courts are clear in saying what their standard is that we want to hear we want a state court to clearly set in order to commit our state court offense of robbery there must be johnson once las violence if they don't have that maybe within their state it's they can call it robbery but it doesn't make a predicate offense for purposes of the arm career criminal act i go back to my original question would is there about garcia new mexico robbery does contain an element of force and is a by a lynch felony stokely did not disagree with that in fact the concluded that the robbery shadows the junction test and we said the new mexico it's a violent felony you know why do we have to keep going back and repeating what don't you read the cases and then say ok we have decided that issue and then we stop the parade of people coming up and making the same argument over and over and over again because the problem is it won't stop because the answer isn't as clear your honor as it is making right but how do you decide it's a violent we decided it's done i beg to differ it's in that where i think the reason i don't think it's done your honor is because there are fifty states that have robbery statutes  but the issue is the same every time there is a new less culpable way of committing a robbery litigants are going to have to come before you because that's what the test is again i feel like it's a reverse instead of the court affirmatively staying state courts don't make a guest don't make us do all the litigation and go through each case and say and there is no way we can look reasonably look at some of those cases in new mexico and say that's johnson level force that's not violent force capable of causing physical pain or injury it's basically that all the cuts it's physical for right but physical force is defined as but i don't think pushing a bag through someone's arm where you incidentally touch their arm and they may have stumbled but didn't fall that's not violent well this is a person that is court he would in new mexico he would not be convicted  robbery if that's what happened that would be a misdemeanor that that's that's incorrect or are those are that those are the exact facts of curley those are the facts of cloaking those are those  so don't say it counters are over her over rule because we're looking at different statutes at the end i'm sorry the analysis should be the same let's look at the statutes right like there's a new mexico robbery statute we're talking about or to another by force almost exactly the threat threat you don't have the resistance you don't have to wait i'm not supposed to be focused on the resistance right overcoming think stokely makes clear that johnson one force is required and that i believe the court is referring to the case of the supreme court case in new mexico the  where there was a seventy year old woman whose purse was under arms she gave no resistance no struggle her arm was touched and and she stumbled that was found to be johnson according to garcia  garcia said that they're looking at this court looked at it being johnson level force and then again postcard c a they're still playing that reaffirms the idea can i just make this point because if they only have two minutes and i'm not usually going to reserving any time that i think we can't lose sight of what's the purpose of the arm career criminal act the army and i don't jail excuse me to put on career criminals away for a longer period of time absolutely and when you rip something or somebody even if it only makes the trip that maybe should fission overcoming the resistance but the arm career criminal act the arm but i think it's easy to say everybody who commits a crime is bad and then just throw them all in the same bucket and say fifteen year mandatory minimum but the supreme court has been really clear to say the point of the arm her criminal act is to look at past crimes to determine which offenders create a special danger by possessing a gun that's the issue what is by their prior conduct what is it about that that you would think when that person possessed a gun that they put that they pose a special danger a history of crimes involving purposeful violent and aggressive conduct shows an is i think that the certifying the question to the supreme court is a great idea or even this this court could make a decision telling federal prosecutors that you're not going to accept something from new mexico or any state unless it's made clear that the force to overcome resistance it still has to be force that is violent force that's capable of causing physical pain or injury can i reserve my final twenty seven thank you good morning may it please the court counsel my name is page messick i mean assistant united states attorney in the district of new mexico your honor the district court here granted a certificate of appeal of the appeal ability seventeen days before this court decided garcia in which it held that new mexico robbery is categorically a violent felony and incidentally in a case decided after garcia this same district judge denied a c e o away on exactly the same issue and then this court did the his argument boils down to the claim that garcia was wrongly decided and that stokeley doesn't control the government happens to disagree forcefully you might say with both of these arguments but that's almost beside the has not explained how a three judge panel of the court could overturn garcia a published on point decision of the court so this court could affirm here because garcia controlled and that would certainly be violent enough to count under the e c a because any force that is used to overcome resistance would count in new mexico no matter how slight the problem with that argument is that was precisely the situation in st that was the case with the florida statute that was it issue there and the supreme court made clear that that was enough for the a c c a and common law robbery to also allowed any force no matter how slight to count a force required here you're using the phrase any force is that correct it has to be physical force it has to be a johnson level horse but what the supreme court made clear in still clean is that johnson level force can be any slight force that overcomes the victim's resistance we don't ask how strong that force was stokely and gave some examples of very minimal force like taking a pin out of someone's hair or when doing so rips one hair from their head so it's clear that we don't have to ask in overcoming resistance cases how strong was that force used to overcome resistance now we don't also have to have in every robbery case actual overcoming a resistance that's certainly enough that's what stokely was about but there are other ways to commit a robbery such as doing something to prevent resistance that all such as you know coming up behind somebody knocking them over the head and then stealing their wallet while they're unconscious that's absolutely robbery at common law and in new mexico and it doesn't involve overcoming resistance because it prevented any resistance the same would be true when somebody takes property by threat of force that doesn't necessarily mean that there is going to be a physical contest the point of the struggle is or the point of the threat is to prevent the physical contest ari's points in his brief to various cases in new mexico that don't involve a physical contest that does not show that new mexico doesn't require at the kind of force that the a c c asks for the court could affirm for a rd reason if it needed to i don't believe that it would but it could also affirm because manson arias has not shown that the district court in his case and his initial sentencing actually rely on the residual imposed sentence now mandan are says that the government has waived this argument by not raising it before i have always been clear that we did not raise it before and it was not decided by the courts before but this is exactly the same position that burrell a case was in there there was also a report and recommendation by the magistrate judge which did not reach the reliance question the government didn't argue reliance and the district court also didn't determine reliance and then this court the record and that certainly is manson arias has still not made any effort to carry what is his burden to establish that the district court improperly relied on the residual applies when to impose sentence so there are three separate reasons that the court could affirm the district court's decision here if there are any questions and i would be happy to return the rest of my time when we do the ball a bong is a case as you pointed out judge briscoe dealing with a different statute one in kansas the difference is the kansas statute actually can be committed by a mere snatching unlike new mexico so the differences in is in the two statutes at least that is how supreme court had interpreted its own statute we don't have that same situation in new mexico about the idea of certify a question to the new mexico supreme court we could put this on hold for possibly two to three years that way i think they came from our experience the case has been on hold already for for quite some time being debated during garcia and stokely and i don't think that the court needs to do that the court decides issues of state law in federal cases all the time and i don't believe that it normally resorts to the certification process would also be kind of a strange thing to ask the new mexico supreme court to to say whether it's statu requires a federal definition of force that really has no importance to new mexico courts so no i don't think that the court needs to or should certify the case to the mexico supreme court new mexico says that the amount of force is immaterial how can immaterial immaterial level of force johnson level one force even to overcome resistance when the case of the talk about overcoming resistance you're still there is that level of force to overcome it doesn't work that way thank you the case is submitted we appreciate