please be seated good morning everyone welcome to the ninth circuit thanks for venturing out on this very smoky morning schroder and i would like to once again thank our dear colleague  for visiting with us from the eastern district of new york especially given the the weather or atmospheric conditions but we're very grateful for your bit your willingness to come out in the system all right we will hear the cases in the order that they appear on the calendar and first up is united states versus davis so counter for the opponents ready let's let's get ready let's get started  thank you your honors my name is kevin still worthy and it's a pleasure for me to be here today i represent tyrone davis the court did notify us of the evelyn decision and obviously mr davis does support that decision the court i note that in ed lane that the court followed the categorical approach in both looking at the elements clause in the enumerated offenses clause of mr davis would agree that the with regard to the elements clause that nevada robbery statute does sweep more broadly it includes fear of injury to property we would also agree that with regard to in the robbery in the enumerated defense clause that it does refer to generic robbery and it requires danger to person and not to property and then we get to the issue of the extortion definition in the enumerated cause clause and we see that the sentencing guidelines did apply a new definition of extortion that enumerated definition of extortion does not apply towards threats against property so we would agree with that and ask the court to to follow the  reasoning in the edlin decision and the rule of leaning t v i think is very very appropriate for this case and with regard to being a career offender one of the base convictions is the sentence so we believe that that the editing decision would apply to to things would apply to the career offender issue and it would also apply to two k two point one the base offense level we think it would have impact on both of those issues if he was if he was for sentenced the other issue that concerns me is on our motion his motion to suppress if i could go to that and it's the meditator that was on the photos it's an issue with regard to the fourth amendment whether there was a legal search and obviously detective ses or was canvassed by the magistrate at the hearing but there's a couple things that are just really important here that i would just like to alert to the court and that is no one including detective ses are ever checked the camera to see if what to provide corroborating evidence to see if it was true that really that the daylight savings time was what was said on that camera there was nobody who corroborated that even looked at it he didn't even know if it was the wrong date due to the daylight savings time he just basically said i think it was the right date because i wouldn't do that think i think that maybe they did go in first although the judge chose to credit the testimony of the police officer saying i would never do it exactly but i suppose you're right about that and there's a case called mary against the united states supreme court case which suggests that even if they went in first and then got the warrant if they didn't rely on anything they found in order to get the warrant then it doesn't matter that they went in first at least that's the way i read that case well i know it's not it's not cited in the by the parties but right so to get  had the second warrant which was they actually go in and get the guns and the other things was based on the first warrant you know the first warrant they had a warrant they had a they had a warrant because there was a robbery and the warrant was the search for the fruits of the robbery and riley and so while they were searching for the fruits of the robbery they found all this other stuff the illing with the fact that he was not withstanding  disclaimers you know they found scales and baggies and all that indicating that he was selling drugs and so they they call up the magistrate and i say well we went in and we went in with the first warrant but then we found all this other stuff that we were not authorized to seize and we want to warn for that and of course it's even debatable whether they needed that second one because the plane yeah well it's a good question your honor and correctly i was sort of with you all the way and then we we did some more legal research on this and we found this case that said it made no difference and it made no difference because of no prejudice or or what  guy who did the guy the police officer who the magistrate i guess believed said it would have been illegal that's why he would have never done i think zach lee doesn't that invalidate the first the first warrant was well my point is his opinion about it  i guess my answer would be is that they went in under the first warrant illegally under the fourth amendment and i just don't see how an exception when applying that faith if you weigh all the factors i think if you look at the testimony and the fact that they never got the phone he said the camera says i don't know he doesn't know what happened look i i don't have a good feeling about what they did here right there's some i think i have the sense that there's something about what went on here that i don't know i think the police in this city to expend the effort that they describe them for somebody stealing a pocketbook and i don't think that whatever happen victim but you know you get just them but i don't and then there's still the problem of the judge believing the police officer that i would never do such a thing as she says i believe it's it would be him it would have been a close case if it matters right well and then you've got you know her deference to her on the fair standard on a factual issues that i understand plead that's a good question i wasn't i did he got nothing for pleading he wanted our service to the judge that he's pleading to preserve his right to appeal which is the exact opposite we cause a plea deal without an agreement waive your right to  gentleman had any friends down the alley favorable he wanted you and what he was potentially looking at right he wanted to or to preserve his rights to appeal and as you mentioned he could have gone to trial and done the same thing  just what he did was just the opposite right and that was pleaded guilty without any agreement where you're right but we did get a letter from the prosecutors that they are that they provided to him that he would preserve his rights for appeal and then on that note your honor  it there's the fair and just reason standard but if you look at the facts of this you know he and you look at the hector decision and we don't believe that hector decision applies because his gun was under his pillow and he hundred dollars worth of i'm not an expert from this sort of counter or knowing whether it's a lot of drugs or not but they find a scale in bank he's he's basically whatever he may have had in there at that moment doesn't mean he wasn't engaged in possession of of of the gun to further his drug business well you know if you look at the gun aspect of it the gun was not in a direct path where he was he wasn't even completing the cell he was just smoking with his friends and the gun was under his pillow it wasn't really falling what the hector decision said with regard to that i see i have thirty seconds so you are over your time but we'll give you a minute for about oh they clock keeps going up so you please the court we'll read for the united states mr davis did not decide to plead guilty in this case you start with the at least if you do you agree that we need to remain and if your honour's and if the court is not willing go on the written this record that this constituted generic robbery under one of the enumerated defenses we mean for not willing to i'm just asking that we have a decision that seems to address the same statute no it doesn't rest so how do we then have discretion to come out differently it's i'm just do you have an argument as to that or is it just doesn't control addling certainly controls as to the extortion component of the nevada robbery statute there's certainly no that's not debatable the court is found that however issue before this court is nevada has nevada's robbery with use of a deadly weapon and my argument if the if and my second argument would be ask the court to remand for further findings if you don't accept my first argument that the robbery with the use of a deadly weapon wasn't considered by the court and lan it involved the threat the property and the as i read the nevada robbery statute it's a mirror image of the california statute and therefore it's not and therefore it was a crime of violence but then the sentencing commission adopts a definition of extortion which is identical in many respects to the robbery war so i don't see how you prevail here it's understood from the sarah local residents and it's progeny that the courts held that if it was not robbery it was generic extortion right but that was before the guidelines were amended agree with your honor's assessment that the nevada robbery statute its incorporation of extortion exceeds the definition of extortion under the guidelines now but this court i don't believe is ever held specifically that the counterpart the actual robbery component of the nevada robbery statute is as an enumerated defense is broader but in generic robbery under the federal definition a we don't want to spend time on this but adopted but he said the effect was secured because of the time it could also be extortion but it can't be extortion now so i don't i don't  why the judge gave less than the guidelines by the way for for career offender but he might have he might have his his mistake might have affected what sentence he gave the theory about getting the guidelines right is that under the statute one of the factors you have to take into account you're not bound by that is the is the guidelines where you can pick guidelines  held that the california robbery statute which the nevada robber statutes modeled after either constituted generic robbery or generic extortion extortion is out under nevada statute based upon addling but unless i miss apprehended the court's opinion i'm not aware of an opinion where the court has held that robbery per se under the generic definition of the federal definition  is out in this case and i would submit that there's strong evidence in argument that this was generic robbery because there was use of a deadly weapon as an element of this is so is is the is robbery with a deadly weapon is that it is a separate offense from the two hundred point three zero three zero found on your right arm i believe that that underneath that a law is is an enhanced punishment but i believe in order to apply that enhanced punishment there has to be is an element of that offense in order to apply that is under a different statute than the than the two hundred point three eight zero because i'm looking at that statute it doesn't say anything about use of a deadly weapon that's what i believe it is  be to that that that's that's correct your honor i would concede that that i would just i would submit that this is this court is always treated offenses involving the use of a deadly weapon differently and in this case here we have a deadly weapon and that this is not explore ssion it can't explosion can't constitute can't be a crime of violence under this court's definition or under the guideline definition in addling but here we have robbery with use of a deadly weapon and robbery is still an enumerated defense lead in lesser any other questions about that as i was saying mr davis didn't plead guilty in this case one of them after four years and four attorneys the on the first day of his trial he made a conscious deliberate decision to plead guilty after a jury was chosen in this case record shows that mr ed lang was not someone who was susceptible to influence or or domination by authority including the district court or his counsel or anyone else for that matter he clearly based on the record in this case knew what all his options were in this case mr erlanger is your honor his judge korman has alluded to mr dave mr davis i may have apologize mr davis insisted upon preserving his right to appeal both of his motions to suppress evidence which i would submit is the hallmark of an individual's conscious deliberate decision to enter a guilty plea mr davis for whatever reason insisted upon pleading guilty to with respect to the nine twenty four seeking out count three he here had to respect mr rattlings right constitutional right to trial but it also had to it couldn't force him to trial and had to respect is his insistence upon pleading guilty here the district court had as a factual basis not only that the very specific language of count three but by the time accepted the guilty plea formally the p s r all the evidence that was found in the apartment his own words as to detectives that he was selling  briefly on that last point and i understand the court's comments but you know he kept not wanting to agree that he used a gun with regard to count three when they when he was pleading guilty to that count and finally facts and look at that but simply reading an indictment out of you know exasperate because he won't admit it just doesn't just didn't seem like it cut it in his mind with regard to the idling decision again we we support that decision that the rule of limited should apply also the separation of powers concern allows that to happen notwithstanding the backless and decision and thank you very much ok thank you