was completely understand point well taken if there were one that's ok and i think it's telling that this was not an issue raised in the district court but there was no contention that mr shelby was ever convicted under anything argument that it's different in oregon because something more than just being armed is required i would submit that the plane's text of the statute combined with the binding zimmermann opinion in the state courts tell us that that's not howard and state interpret of oregon would decide i don't see any country indication of how the supreme court of oregon were treated but do we do are we required to say that a court of appeals decision is the long war yes if the court unless the court finds a contrary indication the court does defer there's an arizona case arising out of arizona prior conviction i'm blanking on the name that says after the johnson won ruling the federal courts do defer in oregon law anyway if you can if we didn't have zimmerman the statutory text is clear there's never been any case indicate otherwise so what we have is the indictment that says well armed and then we have a sentencing order that says he pled guilty to the that robbery in the st degree charge in the indictment so now on appeal that so that was what the district court consider the district court somehow got to that one section now on appeal the government takes a different tack and they say that m shelby was actually convicted under the state gun minimum statute which if true would that and handsome and requires the use or threatened use of a firearm but we have three responses for why the court should reject that contention st that it met waived because this is an issue that's fairly radical change in position from what the government argued in the district court there has been no explanation of why the government has changed its position there is every indication that the government chose not to raise this issue below because the same conviction record documents were in the record there's been no intervening change in the law no new facts and the government in fact had repeated opportunities they st defended on procedural grounds yes i believe so the nd position is that the conviction records do not support it because as i already noted here the indictment and the sentencing order define a singular crime of robbery in the st degree while arms and the sentencing order specifically says that mr shall be pleaded guilty to that offense it's described as robbery one not robbery one with a firearm there is no indication that he admitted to using or threatening to use a firearm there's no charging there's no right to a jury trial it's simply not an element under the statue so in light of that the state supreme court after mr shelby is offenses were committed but before he was convicted issued an opinion and wedge saying that this needs to be treated as an element no matter what the statute says because it goes to the offense conduct and it and essence creates an aggravated offense affect what you're trying to do here is apply charged with offense at a robbery in the st degree not an aggravated he pleads guilty to offense a robbery not an aggravated and the judge imposes sentence potentially for i've done minimum there are other we don't we can't tell from the disconnect between the indictment and the judgment that this is actually what he what the jury necessarily would have found him guilty of that's the standard under mathes for what constitutes a violent felony and we don't have it here so yes please the court suzanne miles for the united states so i'll pick up just on that issue right now so looking at the sentencing documents what we have here is clear state law at play at the time of his sentence right but was it an element of the was see this it was it was a sentencing factor at the time because the supreme court had been sorted out this stuff and i think a judge would be entitled to impose it on his own finding on a preponderance of the evidence would he not be either found beyond a reasonable doubt by the jury or admitted by the defendant at his plea and sentencing and so that state judgment was already in place now the legislature didn't pick it up and change the actual statute until seeing the district judge could sort it out correct that's one way to do it or this court can look at it now under the court's ruling in atkins this court can affirm on any grounds supported by the record if it's a purely legal issue and all of these records were in front of the district court why didn't you make the argument earlier than any other number of opportunities that you had your honor had i don't have a good reason for why it wasn't raised before what i can tell you is that it is a legal issue and the record  fully in front of the district court and in fact the district court looked at this issue but you can't you know you didn't argue to the court you can't you kids ask us to believe the court relied on it i'm not saying that the court relied on an argument i didn't mean and you kept the district court for not ruling on it i'm not i'm trying to explain what the district court did you know but normally see normally we might not impose waiver were it had some consequence to the government but in this case your friend says look you want to raise  just because it's another way to affirm with all the questions that everybody else raises about this so when you get to the merits of absolutely and we don't even need to get to the want to a and one b issue because we can get back to the core robbery three discussion  to overcome resistance strickland rests on oregon case which says you can commit robbery even if you're not overcoming resistance by sort of running by and snatching something away from so that seems broader so tell us why that still doesn't survive and if i can just stokely involved a florida statute i believe it and so i'm just this doesn't seem to be a parallel organ case requiring that novel of force to be convicted of robbery three so i'm just trying for out why then stokely is clearly irreconcilable so let me answer that last part  strickland looked at johnson and oregon's johnson at oregon robbery through the lens of the johnson i mean how many cases can be called johnson i'm sorry but through the through the gyre point one definition of forced  have to look at the eventual judgement in the case why is the eventual judgment which says one reason that oregon robbery this rover is broader than generic robbery is because it can be done without violence at all right and that does require us to look at johnson and oregon's johnson case in oregon robbery right through stockings definition and still clings definition is not just that you need force sufficient to overcome resistance it also says that it's the of injury that's at play here so you don't have to have an actual injury you need for sufficient to create the potentiality for injury and that's i mean i admit that johnson won or i'm sorry that oregon johnson  oregon johnson is definitely the on the bubble it's the lowest watermark for oregon robbery but it still fits that still cling definition because here's what we had in johnson oregon johnson we had an elderly woman standing at her door with her purse on her shoulder and the defendant came up behind her and ran and swipes the purse off her shoulder as she felt it fall but before she had the ability to grab at it he was already down the block with her purse and so what oregon requires and this is important oregon has always held that held this in its johnson case in the williams case that strickland looked at as well it says that we do not have a per se rule in oregon that person is violent what we have is  definition of her of robbery that requires the jury to find that the defendant acted with the intent of using sufficient force to prevent or overcome the resistance of the defendant so we have to look at these person cases case by case and what it said is because the defendant came up behind the woman used enough force to get down the block before she was able to even reach for it there was enough intent and enough force and you can look at that through this lens with the potential for injury he lucked out the defendant lucked out that the woman's arm happened to be straight at her arm had been croaks that person would have snagged on her arm and we would have had exactly the heartland cases that stoke and was talking about where we have between taking something that's attached to the person's body and taking something that's not attached on my hand how's it different from hanging from my hand and it depends so there are cases for example in stoke playing if you have to pry the fingers away and take the phone out of your hand that very well may be enough for stoke lying if all you're doing is gently slipping the phone away while you're concentrating on something else stoking would say that's not what is that enough for oregon robbery for oregon robbery what we for sufficient to prevent or overcome or and here is my problem your argument makes a lot of sense but we're we have a prior case and the question is not whether the prior cases reasoning is undermined but whether that part of the ca clearly irreconcilable with stokely and now you've gone through five minutes of telling me why it's it it should come out differently it makes it hard for me to believe that it's clearly a wreck and so that's why i want to get back to my st point i mean if we can even just step back to the language that we use in law school right a case has a rule and application of the rule and a holding and so in strickland the problem that we have is it applied the wrong rule it applied the wrong rule robbery rd degree is not a violent crime that it's holding and it says so because it can be accomplished in the way that johnson says is it clearly irreconcilable with with s or is it just if if if we applied if we were starting all over again and applied stokely we might come we would probably come to a different result i think because this court used the wrong standard in coming to that holding it is said that cases like the florida goldsmith case and the florida walker case where something was taken out of the hand and goldsmith and where a necklace was removed from the neck and walker were not violent under the arms of her criminal trial would they be  robbery or they would meet the force element for robbery in oregon robberies force element has two components it has the actual or threatened use of force and it also has the intent to prevent or overcome resistance johnson state versus johnson held that any degree of nonviolent force meets the st part so long as the jury finds that it was employed with the intent to overcome or prevent resistance and that's how acting swiftly could do could