to adopted and maintained by virginia it contains a notable exception from horse or intimidation prong of common law robbery such that virginia common law robbery is not a crime of violence or purposes and therefore stokely does not abrogate this court's decision in winston the st principle that is important to keep in mind here is provided by statute and it's article one section twenty of the virginia code and i want to read it because it's important it states that the common law of england in so far is not repugnant to the principles of the bill of rights in the constitution of this commonwealth shall continue in full force within the same and be the rule of decision except as altered by the general assembly since the revolution no appellate court in virginia has challenged or even questioned the criminal in an exception to the force and intimidation prong of common law robbery in houston and eight hundred and ninety dollars the supreme court of virginia had no problem can saying that this is a part of the common law of virginia and had no difficulty doing that despite the fact that there were no prior virginia precedents saying that was part of the virginia common law despite the fact that there were plenty of cases more houston in which the case had discussed the elements of common law robbery and that there were no appellate decisions at the time in which the exception had been specifically discussed or applied to the facts again in the next century and three cases in three years these are the maxwell living and while the decisions the court again had no difficulty saying that this exception is part of virginia's common law despite intervening cases in which the common law all robbery elements have been discussed without referencing the exception and again despite the fact that they were not appellate evidence that there had been a prosecution on the basis of that exception since the houston case it simply makes no difference that houston who maxwell followed in the wedding that these were not cases that involved a prosecution on the basis of the exception that argument right that opportunity to consider this issue in the context of robert common law robbery ginia and i'm been struggling with whether this is a case that is here that we now have one supreme court a decision that says once versus texas that says sodomy without more is not a crime ok so how does that the i think potentially we could we should trouble supreme court of opinion about it i don't think that lawrence st texas changes our analysis of sodomy it is not an archaic phrase i mean it is one that is continually in use  the virginia code and even in two thousand and fifteen and the tug hill decision which is in my brief they describe virginia as probably worded anti sodomy law and so sodomy it is not just the conduct that was protected exists today but those are mostly sodomy plus in other words sodomy thing a minor or sodomy you know whatever it is again you give us an example of i don't say just plain sodomy can you give us an example of sodomy when got plus this is still a crime in virginia no certainly the conduct that the if you use word sodomy just to be the conduct that was deemed protected in lawrence versus texas the answer that is no but i don't believe that the common law use of that phrase swept that narrowly and that's the reason why let me let me ask you let's assume you're absolutely right the robbery was taking property by force or by threatening to charge or whatever attack the reputation of somebody in this with sodomy and that type of thing let's assume that's still to continue in the common law it looks like virginia took robbery and broken into two prongs still using the common law terms because begin is still plus and two hundred and fifty eight legislature was going to excise this version of extortion from robbery and now put it underneath this extortion punishment statute the supreme court of a genius tells us that there must be clear legislative intent to do so and that that intent must be plainly manifest and so it so you so you you know what i'm reading here it seems you really were in line in terms of the strict up occasional law as it is i someone from telling you now that you've been gate insanity that's so different big and the question of whether to send it back the supreme court i'm i mean it sounds good to me but it seems like the certification would be a supreme court of the dania why don't you overrule those cases that you've got on a boat that does not have a clarification well this case of the bad they've had a chance to overrule the legislature it's it's it's an interesting thing but i don't think we're talking about extortion here we're talking about a different type of robbery and that arises from this exception and the question is this is session because this whole gun laws versus techno bout of things is w got it to be the modified one isn't this of the visible situation here though to work backwards no i don't think this is divisible i think under the vinson you would say that there are different mean but if it is you lose below always on the district categorical approach and i do think mr white safe under modified chemical approach if i could turn back to your your st question i think the question for sort of cation would be whether or not there has been judicial common law or whether or not there has been legislative abrogation of the common law and i think a set forth pretty clearly my brief i don't think there's any case to be made that there's been judicial abrogation and then i think the legislat abrogation you have to look to whether it's the purging the supreme court region or this court look to what the standards are asked set by the supreme court of virginia and the supreme court proceeding has set an incredibly high common law separating from naing they're both common law based crimes no abrogation but they put them with different penalties in different sections and as a consequence  supreme court of a genya regularly probably a dozen times as defined robber in virginia now as the taking with intent to steal of personal property of another from his person or his presence against his will  intimidation and then they have to find intimidation under that which is the only one available for a nonviolent as to take or attempt by intimidation means willfully to take or attempt by putting in fear bodily harm and they go on explain that further place in the victim in fear of bodily harm and they've cited several cases for that so my whole point is that the two dash fifty eight  says taking a property by intimidation which the court hasn't construed to mean intimidation of putting somebody in fear physical harm and of course that's almost verbatim what the supreme court in still clean said was a and it also had a shit and so eight hundred dollars s to fifty nine dollars i think is best read a simply the punishment or the other versions of common law extortion and it doesn't it isn't limited to this scenario but it's not limited but includes it in other point my whole point is really if we look at what the supreme court is saying about its own law now virginia and how they've construed that i was just reading from the bins vs commonwealth that wasn't that was  prochoice what happened with the euston formulation it's not gone it's taken up you threaten somebody with charging him with sodomy is taken up in fifty nine dollars and they do call it an extortion but they mix it in with all the aspects that cause extortion but that's included i think to do so your honor that would be essentially an abrogation of the common law formulation of common law robbery and to have done that it would be judicial abrogation or judicial modification essentially excising that exception from let me ask you then i hear your point and i am i'm not sure it's an abrogation i think it's a splitting up but let's set that aside for a moment how do we handle the supreme court's statement the only the only gate you can go through is taking property by intimidation and intimidation they have specifically defined as putting somebody in fear finally harm now how do we handle that appeals are statements of the elements and they simply are not stating the existence of the exception just like there were cases between houston and not nine hundred and thirty dollars s the state of the elements without noting the exception and just like there are cases since then between the two sets of cases that did state that that is a statement of the law as necessary for those cases and i don't think that we should read into it at virginia you know i don't think very limited to those cases they're stating the elements their state in the elements of the offense and defining those elements and under the categorical approach we look at the elements and the fact of conviction i think i believe your honor is also true we have to look at the rest of the common law which informs exceptions to those elements and so i think the virginia supreme court through houston through maxwell when appalled it has already answered that question as to whether or not it remains a part of the virginia all so so but i think i think just to be clear so that i understand it problem here because it goes back to the cases i mean you get a state supreme court in three cases that says it right open water and they have an aggregated it annoys the legislature so we has an appellate court on the fellow side dealing with a state to charge you with it if somebody out this cinema won't go out and do this i think people would it would submit the robbery who if you put them a lot of people who probably feel like that's not something i want you to do and i will give it to you or whatever under that explicit discussion of a statute is that sufficient given the church's commitment to the common law is that enough you know that this court this federal court could now and should now say that no the state of the law i but they don't really have to you don't really have to apply it on a how low we had it on bum case recently does aparicio case pretty much ains is that it just says you know you don't need legal imagination if the state supreme court has said that we don't get in this possibility of stuff and i grant it is in no case and i also pray that i don't think they will ever do it but i'm looking at this case and if we do that then i don't think we can reimagine how this thing is can be applied even at the launch because the state supreme court has said it you tell me what is everybody to the state supreme court's decision not the legislature ahead so who is that and i'm saying it should be i'm just saying if you go back if you start the beginning says well the genius supreme court just ignore that best dicta what oh all they're doing is stating what the common law is and the end of the genie has i don't mean any disrespect to any court especially the supreme court of which and the higher respect for all or so i don't mean any disrespect i don't want to imply that you do i know you to be a very professional person so don't don't take that anyway as a personal criticism i know you would never do that you know him and i would not well mr joseph you you have some allies because the supreme court has repeatedly talked about looking at the prosecutions actually taking place the jury instructions that are given in trials throughout the state and the definitions given by the court in ongoing applications and none of those it we could find not a single case prosecuted under this and the chances that they would ever be prosecuted and to say that categorically therefore this is not a crime of violence is would be speculation because they re cite it as reciting some english english there is no weight you can never mind it isn't like the distinction in virginia is that the common law is defined by the supreme court of virginia unless otherwise defined by the general presenting a firearm or the threat of a firearm it's not discussing the punishment it's not purporting as you say to discuss the punishment so how can you say a crime that was or the questions thank you ms judge mr jones thank you your honor i think it's important to follow up that with looking at what eighteen point two to sixteen says and it says that a common law offense for which punishment is prescribed by statute shall only be punished in the mode so prescribed and then when you look at eighteen two hundred and fifty eight it lists the prescriptive punishment for ten different means of committing virginia common law robbery it d not say all common law robberies are punished as x and it says nothing whatsoever about this particular version of common law robbery and so somebody if somebody commits this version of common law robbery  what's the sentence i would suspect that it is a common law punishment known to the jurists of virginia all the more reason to send it to them but it is the question is for th can't have death there's no couple punishment except by statute so i'm not positive judge nearby are but i know that the jurors in virginia would understand that in so judge when asked your question can you have a common law  law crime of suicide and by statute in virginia they specifically did away with the punishment for suicide but the supreme court said that even that legislative act specifically doing away with the entire  punishment is not sufficient to mean that the common law fence is no longer there and so in virginia we have a city where it is a crime a common law crime to commit suicide but there is no punishment on the books and in two  fifty two thousand and eighteen the general assembly has had bills to try to decriminalize suicide none of which which have gone through so those cases and this this court case in hill and also brown versus harris w to say that we now have an extortion punishment that covers this conduct in eighteen days to fifty nine dollars i don't think that that solves it because the common law they knew that there was a difference of this version of extortion would be understood that this was different and worse and so they made it part of robbery which was a worse offense and you have situations where they describe the elements of common law robbery before he used it without referencing dispersion you have incidents where they reference common law a robbery and the elements without referencing this exception between houston in the one thousand nine hundred and thirty cases and then you have it to the present i don't know that the fact that there is now a specific punishment statute  intent by the legislature or the judiciary to have intentionally carved out this version this form of extort of conduct and call it something different and the i don't i've let me ask you this  committee goal is to try to determine whether mr white committed a crime of violence in the past the question is under your formulation what are the chances that he committed a crime of violence by threatening sodomy looking at the elements of the offense and the fact a conviction i guess the question is in the mat modified categorical approach or other documents are we ask we looking at what his specific conduct was the effort is to try to find out without going into the facts of a particular case trying to find out whether a predicate offense is a crime of violence i don't know that when the question is asked the question is whether mr white committed a crime of violence and i can tell you what i'm getting into is that this area is a difficult area because the every state has a whole range of crimes and they have all kinds of elements and you end up as in formulations about it and the court has never said it has to be one hundred percent or has to be perfect they have they basically said whether there is whether this man committed it is more of a percentage is type of thing in other words they don't use percentages they use another word but the likelihood that he committed now we have undisputed evidence here that we have no record of this crime ever being prosecuted in virginia we have four cases as late as one thousand nine hundred and forty s that refer to the formulation of england and we have no recent cases that refer to that reformulation and we have these two statutes one statute fifty eight to fifty eight and the question is ultimately did this man when he violated committed common law when he committed robbery in virginia did he commit a crime of violence and your argument is because there is that formulation beginning in eight dollars about threatening to charge sodomy that this guy therefore didn't commit a crime of violence and i think i wonder how we satisfy the demand to show that this man committed that crime looking at the descriptions of this offense and how it's been prosecuted and how the jury instructions formulate it we always look at those we look at the cases that actually been done and of course it fails on all of those we know this man was not committed convicted we know almost with a certainty this man was not convicted of robbery for threatening sodomy so we're arguing this very intellectual academic point which actually i enjoyed reading your brief on the fact that one into in quite detail i sort of got sucked into it and thought maybe you should do an article on that that was great but i'm not sure a pretty strong language from the supreme court agenda about what its common and the one thing i want to be clear is that our analysis here is not of the modified categorical approach because that's not been raised by the government not even  issue in the case of the categorical probes which you can slot into the other room but it's not here and then when you get in the business of well it's never been done before that on bump case we've got that apple ratio sharia cases  point i'm he that is there if this state's highest court has spoken all of it well you don't get in the business is saying well they've never done it before you know everybody knows you wouldn't do it we've got to respect the when which is that the only way we would i think know about these cases would be if somebody were convicted on it and then appealed and so i'm not aware of despite having worked for a circuit judge in virginia any w retrospectively go back and identify the factual predicate for all robbery charges in the commonwealth it was an interesting good point that i had thought about that would that we approach this as though just because we have seen a case on appeal of this nothing written on it it never i i think we've covered the point very well mr joe johns your court appointed i am your honor i'd like to recognize that and thank you for your service to the court of course that makes the system