from michael lax the issue in this case is whether california false impression statute is a crime of violence under the recent your cause a section four b one point two a there are no published cases in the ninth circuit because the ordinary case presents a serious risk of injury so why shouldn't we follow park in an analogous context here and i think that's the cha sort of potential for injury i mean just for the nature it's a crime so the question is is it is there a serious potential risk of injury and in the chandler case that involved robbery where where at one point the government resigned it is by fraud and then amended to say just false imprisonment but let's deal with just what the record shows so the record shows that the indictment was not limited to fraud but simply you committed also that the victim be held there by deceit or some other means thank you hypo if i'm having trouble making my question clear to you i'm thinking suppose a man gets a woman to come to his apartment by saying you must come to my apartment to see my getting at that restrain of liberty i mean just the liberty not to go to a sportsman only reason she went there is the false statement that he would have interesting etchings my gosh now that i think of it there's a story in the seattle airport it says forty percent discount on it looks like art of shaving that's just fancy men's shaving cream and razors and that sort of thing and if you go in there it turns out they have no art of shaving supplies and what the science says if you look carefully is art saving rather than shaving kind of pricks the customer and so the customer had the liberty to just go get lunch but was deprived of the liberty to just go get lunch by a deceitful invitation to come in and see the very fancy shaving supplies marked down forty percent it's really pretty much the same thing as apartment under the pretext that he was interviewing her to be a hostess at an art gallery upon entering the apartment he pushed her into a corner and she resisted and said she wanted to leave and in fact left to the apartment those are the facts that were in the petition and the record of conviction here the records i should say of conviction were not presented before the district court rack then the court also at the sentencing hearing described the circumstances of the offense can we use the petition to determine the circumstances under the modified categorical approach categorically a crime of violence and if the court disagrees with that then this court may consider the modified categorical approach but consider only those records that are judicially recognizable including the charging document minute order and the abstract of judgment which show that the defendant here pleaded guilty to count one of the charging document which specifies that the crime that issue was felony false imprisonment by violence it strikes me permission and it strikes me that the fairness argument in this case is parallel to that saying that well if you get the person in there by fraud rather than by violence the king's x and the  we said no because once you develop an intent to commit a crime and parallel here we would say once you falsely imprison the person of the potential for violence  whether there is a serious risk of potential injury it's a test that focuses not on the inevitability of violence or harm but instead the potential risk of necessary we will result and violence in every case instead what you're looking at is whether in the ordinary case there is a serious risk of potential injury and as we miles from the supreme court's decision that drunk driving is not a crime of violence the threat of physical injury is not enough to make such a risk of physical injury is not enough to make something a crime violence  so i think that argument would just argue too much for the current state of the law i'd like to focus a little more narrowly by using that ching cycle again it's pretty plain that you don't need violence to commit the felony it's enough to have to seat for the felony according to the wording of the california statute so if a person lors a woman into an apartment  whether to work at such things that aren't there or to apply for a job because whatever this woman was supposed to be applying for a job for and then the woman gets there and it turns out to be pretty plain that there's no job or no which ngs and she reads it looks to me is so that may be a deprivation of liberty under the california false imprisonment statute depending on whether there are any cases that say well liberty is however there's no violence to it and i don't know if we have a record that shows there was with pushing we do know however that those rockets were not presented to the district well i don't if they were presented to the district court that's like a cop saying i know he's guilty but i have no evidence for me if i may your honor and so there was never any dispute as to what the sentencing guidelines range was in this case and in both the sentencing position paper presented by the defendant and at the sentencing hearing  we is categorically a crime of violence there are two elements to the offense your honor pursuant to the california jury instructions the government or the state here would have had to have shown that the duct attendant intentionally restraint or confined or detained the victim or caused that person to be restrained confined or detained by violence man as frog or just feet and the defendant made the other person stay or go somewhere against the person's will were  two the two elements how do we know about those are the in the district court record they are not your honor they're there they're simply the existing jury instructions that define what it means