next case on for argument is united states  did say that the record is not entirely clear on this point given that this is a so this took a step back this is a preserved air and so for preserve there on a finding of harmlessness the government bears the burden that's so they have the burden and the standard one two one twenty yet where the court said i don't think that this is going to make much of a difference and so i think both of the that statement i don't think and i don't think there's much of a difference and a little bit of  a y from twenty fifteen that on the court is especially wary of finding harmlessness when the correct range would have been cut in half which is exactly what happened here so we go from twenty seven to thirty three to twelve eighteen and then additionally to follow up on the exactly the same point to your honor's points that a thirty month sentence on a twelve to eighteen range is that you know is a unicorn in the southern district this is there's one percent of cases in the sun district in which there is an upward variance from the range and  a two hundred percent increase from the median point of the what we would think is the correct range and in the case in which the district judge actually found mitigating circumstances about this defendant and so it's really hard to believe  omission yes you're right but when you look at the specific statute that's involved here you're going to do you friend is going onto a school ground and then conducting an assault now how you tell me how a child does nothing doesn't seek medical care and that's enough for assault essentially or manslaughter which is the greater included offense and so if you take those two cases and just alter two minor facts you have you have exactly what's happened here which is instead of taking place in an apartment it takes place on the on a playground in a schoolyard and then the child happens to be a student at the school thats it you're guilty of one twenty point zero five ten b and those two little and i would add that those two minor alterations do not go to the use or the mission question here they're there they're not they don't touch that element of it and so you know you it convert simple assault into this kind of assault but they don't go to the omission issue you're saying a parent could be not do anything if their child was injured in a schoolyard and they were there so that your argument you know the argument let's say that you know my child is on the monkey bars and the child falls and the parent or it could be a page child care workers well  sees the child injured and knows that the child needs medical attention but you know intending to harm to the child literally does nothing and then the child suffers and suffers greater injury that person is guilty of this assault it's it seems to me there are plenty of circumstances that are um that are not so difficult to get the you know the good they wouldn't be frequent but somebody who has a duty them to protect the child and maliciously sees the child approaching a dangerous circumstance that the person knows the child can't handle deliberately does nothing with the intention of causing injury to the child that's that's correct is what we're going to be that's not every day conduct but it's it's it's malicious it's malicious i don't see why it shouldn't off yes i mean if you see a blind person and you are a person who who is it who's charged with the duty of caring for that and and protecting that person from injury you see a blind person approaching up a staircase not knowing it's there all not even the other sprinkling of the poison which is all we know physical action but it's an intentional and intentional withholding of doing something that someone has an obligation to do an intentional withholding of it with the intention of causing injury absolutely and it's that's a it's a you know a property that's not just passively that is that is intentional a control of one's conduct for a purpose of causing harm yes sean or eight and it doesn't qualify because you can commit assault that way it just doesn't halt qualified categorically as the use of physical force which under any you know ordinary in an ordinary english unnatural plain meaning involves active employment and the supreme court has said so much in legal cow to bring six sixteen a which is almost immaterial indistinguishable from this context that use of force is active employment of force intentionally withholding at a terrible act a bad act deserve to be punished by new york is still not a use of force even even in such a way you are that doesn't qualify it still doesn't qualify usually these examples get you know people have better imaginations and may have conjured up these kinds of examples where you you deceive someone so there's a difference and can in your example judge of us there's an act of deception  let's say you deceive a blind person to say oh you take a few more steps it's ok but where there is a big big drop so i think that that there is a use of the force of the fall because you've taken some action withhold some care or a course in that one is under any legal compulsion to give with the intention of causing harm i don't see why that doesn't work ok you are so i thought i misunderstood you that yes i think that they would and omission is really by definition in action right not using just and that would be true if you just had a street statute that was punishing assault without without  particular attention to the particular sect section here which is one twenty point zero five subtend so be where it says in school requires an interpretation of this particular section acting at a place the person knows or reasonably should know on school grounds and with intent to cause physical injury he or she causes physical injury to another it doesn't say at a place the person knows it says acting out of place yes you are so so you're saying that just sitting there and deliberately omitting information or you know warnings and that kind of thing covers is covered covered by this act honor so acting is defined in new york law at fifteen point zero zero subsection five as to act or to admit to act and and then omit so a mission is is is  argument so even when new york law says acting in they didn't mean to act in the ordinary sense or to not act where there is a duty to act imposed by law so that's the first point about that and the second point is that you know even if you took that we're acting not in such a technical way that the person has to physically do something the acting is not related to the use of force right it's not it's not necessarily relate just as acting in the right so i think for both those reasons that component of the definition doesn't doesn't take care of it and again as to the this idea of your second definition rhes the word acting out of it i mean you're just saying just being there would cover no no it's a baby acting if you may be acting means you do something you literally make somebody gesture but that bodily gesture is not related to the use of force which has to be qualified under the force causing and so you know i understand that this kind of argument is you know highly technical and i don't have a case to say this but you know this court has repeatedly upheld as has ruled in the inst almost identical context that under the categorical approach for instance you know criminal sale marijuana in new york doesn't qualify because  for it to qualify under i think this is high alton which which i sent in recent and at twenty eight you a letter about the reason probability point but in high alton you know the federal law says that it's a misdemeanor to basically give away free up to thirty grams of marijuana and then the new yorks that you criminalize the sale of a new one but above twenty five and so but say oh includes is a broader definition klute sort of transfers of any kind including gift transfers but of course there's never been a case in which anybody been prosecuted for for you know giving between twenty five and thirty grams of marijuana ok but nonetheless you know this court held now that doesn't qualify as a controlled substance offense in that context this court also held in schedule again even though no one has ever been prosecuted in new york state for distributing h c g and i think the argument here is even stronger than that because new york law by explicitly states that one can be guilty of assault by literally doing may please the court my name is chilling grossman and i'm an assistant united states attorney in the southern district of new york i represent the united states on this appeal i'd like to begin by addressing the defendant's contention that it's possible to commit second degree assault in the state of new york by doing nothing it is not possible where a duty to perform an affirmative act is imposed the law transforms in a mission into an action and where there is a deliberate failure to perform a duty imposed by a law coupled with the specific intent and the result of inflicting physical injury that involves the use of violent force under castleman or just to take it take an example suppose and the security officer patrols around and all of a sudden goes into this playground and a kid has a seizure an epileptic seizure and falls down and bangs the kid bangs its head on the way falling down and and hits his head that's not so hard to imagine and if this person just sat there and did nothing you'd say that that would not be covered it would it would constitute second degree assault if two things were true if that security officer had to duty to provide medical care to intervene when a child is injured and second if the security officer amid had to perform that duty with the specific intent to injure the child then that security officer would be intentionally availing himself of the physical force of the child's injury is of the seizure of the of the concussion to inflict physical injury on the child he would be using the violent force  necessarily your honor what the officer does matter if the officer has a duty to intervene and they deliberately neglect to perform that duty neglect is the wrong word because it has to be intentional if they deliberately fail to perform that duty for the purpose of inflicting injury on the child then yes they have used violent force in that situation and the fact that the security officer didn't initiate the force the fact that the force was initiated by a seizure doesn't mean that the security officer didn't intentionally avail himself of violent force to injure the child so your argument is that the hypothetical examples given by your adversary can't occur because you need this additional mental element whether that's true your honor in order to use violent force under castleman in two thousand and ten johnson there has to be the intentional causation of physical injury the government's position is that when mr torres represents that it's possible to commit assault by doing nothing that's a red herring because deliberately failing to perform a duty imposed by law is not doing nothing that is rashly when it's deliberately doing nothing with the intent to cause injury precisely your honor we would not say that a parent who actively starves their child has simply done nothing they have availed themselves of the violent physical force of starvation to inflict devastating physical injuries on a child's body taking a set back to an issue i haven't addressed just before you step back and i'm  let you do that but the so i'm clear so in order to convict a person of assault under the statute in question here their own ways needs to be demonstrated that mental element which then takes it out of not doing anything exactly your honor the statute requires intentional causation of bottling injury and in order for an admission to be culpable the the reason that new york l criminalizes a missions the same way it does other voluntary acts is because an emission requires a deliberate failure to perform a duty imposed by a law and when that's coupled with the specific intent your honor mentioned it constitutes second degree assault this court however need not reach the guidelines question in this case because the district court made absolutely clear on the record below that it was imposing the sentence he chose based on factors completely independent of the guidelines so would we do with the issues that came up in the discussion between mr william and judge walker your honor i think this court can take the district court at its word when it says it was fully aware of what the lower guidelines range might be it was aware that where the defendant cracked in his contentions about the guidelines the applicable range would be twelve to eighteen months but the district court stated in no uncertain terms that he did not think a sentence of less than two and a half years would be appropriate feldman where we said that the district court should not try to answer the hypothetical question of whether or not it definitely would impose the sentence and the same sentence and instructed we had struck a district courts to consider the facts and circumstances of the case before before us and you have a situation where this is a be a sentence if the lower guideline range is to imposed that effectively whatever it is sixty five sixty six percent to the to the guideline range which is you know pre district your honor although the court in feldman instructed district courts not to try to answer the question of what impact a disputed guidelines issue might have on their sentence district courts can st explain the reasons for choosing a specific sentence and they can of course choose to impose a sentence outside of the applicable advisory guidelines range in molina martinez the supreme court stated that when a district court explains it reasons firm posing a specific sentence reviewing courts can look to that explanation of reasons to determine whether the district court relied on independent factors in its harmless error analysis and in this case that's exactly what the just a court did it explained that based on mr torres his criminal history and the offense conduct at issue normally it wouldn't impose less than a three year sentence but here because of mr torres his work history because of his role as a father because of his statements to the court the district court concluded that a little last two and a half years was appropriate now and it did address the guidelines question and it did say and i'm quoting from page one forty six of the attendance this sentence i'm about to impose same regardless of what the guidelines calculation is i think defense counsel has done and done a good job articulating a legal theory as to why the lower guideline might apply even if she is right it's not going to alter my determination as to what is the appropriate sentence here and that then said wade into his explanation of all the reasons why he thought but you now have your sentence was appropriate based on that record the district court made absolutely clear that the guidelines question had no impact whatsoever on his sentence and there's no question that even if he relied on an incorrect guidelines rage any  supersedes the other the while the discord may have been undecided in during the course of the proceeding during different arguments when the court came out and imposed the sentence it said i would impose a sentence regardless and explain why yes absolutely your honor the district court was very clear when it came time to actually impose sentence that the guidelines question had no impact on the sentence he was imposing the statement cited by defense counsel or made toward the start of the sentencing proceeding right before and after he heard argument on the guidelines question and reading context it's clear the district court was simply communicating that although he was obligated to calculate the defendant's guidelines range he didn't expect it to have an impact on the sentence once he had heard the parties arguments and considered all of the thirty five fifty three a factors which were discussed at length in the sentencing proceeding he made a wholly unequivocal statement that he was basing his sentence on those independent factors thank you thank you created and asked that then satisfies the statue i understand your you have to really just twist this word around to get to this result respectfully this its use use a physical force it means active employment and you know a person who you know a parent who does literally does nothing and watches a child starve has not you physical force and understand it's obviously a terrible act and deserve to be punished but that person has not has has initiated an act has done you know that the sprinkling or the deceiving the person has by that act has employed the ultimate has started this chain intentionally started this chain of events which leads to the  allowed said that it was a connecticut statute intentionally causing physical injury exactly the same as here absent the school and student qualifiers and the court said that that's not used to physical force because a doctor who withholds medicine has not use physical force but it also said i think an example he also gave a sprinkling of poison example and so after cast after castleman you know we did we have we're not making that sprinkling argument anymore because i think that that's taken care of by the kassam and doesn't touch the withholding of medicine or the mission argument and so i think that this course already settled this but as to the harmlessness your honor you know i think this is situation where ties you know even if it's just like a week that could've made a difference in the district court's estimation of the proper sentence that's a significant time for the person who has to serve that time and given that what the supreme court has said that even under the advisory guidelines you know the