mr henderson good morning may have placed the court and peter anderson there representing they are the district court and i have jurisdiction to hear this case the certification that the attorney general filed did not contain  certification that jr was charged with a crime violence i think that is counsel i'm i must say i'm puzzled why do you describe this as a question of jurisdiction the united states brief also describes it as a decide whether this charge concerns a crime upon us right and that's that's the end of jurisdiction under the supreme court's text well the judge might have decided the question in the correct place right that's your contention but getting an answer wrong is fundamentally different from not having jurisdiction to decide at all well i think that certainly the district court has jurisdiction to determine its own jurisdiction but congress abolished it has jurisdiction to decide whether rico conspiracy is a crime of violence that's true there is no jurisdictional issue here the only question is whether the judge was right or wrong  i think that's right but if rico conspiracy is not a crime of violence there is no jurisdiction to hear this juvenile case because congress abolished general jurisdiction for district court for federal courts to hear juvenile cases this is not based on section thirty two thirty one it's based only on fifty thirty two and so if the requirements of fifty thirty two are not met then there's no jurisdiction to hear any of this case  but the issue here is not the jurisdictional issue it's just whether the judge is right i think that's right and that and there have been cases about what parts of the certification can the judge look into and which which parts the judge cannot look into but i think we all agree that the case does come down to whether whether rico conspiracy is a crime of violence or whether that's jurisdictional or not i think doesn't matter to and result that this case needs to be remanded with instructions to dismiss but how does the will say house play into this that well so that under this court's law the residual clause is not available to determine whether a for an alleged offense is a crime of violence so section sixteen which is incorporated by reference into paragraph one of fifty thirty two section sixteen b is unconstitutional it can't be relied upon solicitor general of course his main argument is demise an immigration case not a criminal case and our arguments is that even even if the maya comes out some some way fifty thirty two is still affected by the rule of johnson because it is a criminal case and that's it depends on what the justices say they could say section sixteen b is constitutional across the board right they could say it's constitutional only in civil case they could say it's unconstitutional across the board but that there may even be other options but those are the three principal ones and the fact that there are three may be why it's taken more than a year and a half to decide it they may be having a little trouble finding one of them supported by five justices but there they are and if they take option two that is it's valid in civil cases and we're not saying anything about it otherwise they may well grant another case to pursue that other issue in fact the solicitor general has filed a cert petition in the united states against jackson from this circuit presenting that issue in a clean criminal case  right but the district court when this was filed in may of two thousand and seventeen has to abide by this court's law and under this court's law we contend the district court didn't have jurisdiction to go forward in this case one by the supreme court the district court does not have the power to proceed in this case because this is clearly not a crime of violence let me spend just a few minutes though let's say that sixteen b is available let's say that it is not unconstitutionally vague discordant bush vs pits are said conspiracy offenses do not involve a subsequent of risk that physical force would be conspiracy offenses or just that it's an agreement to commit a crime and especially when you look at reopen the prosecutor cites two cases from other circuits disagreeing with that progress or what's wrong with what we noted in in our brief i think ump twenty three where under mathis you have to look at elements and means and rico conspiracy does not require proving they are certainly post taylor cases where the categorical approach was developed that's right so i take it your argument is we should simply disapprove them and not follow them that's entirely correct and i think it's awfully hard to blame the prosecutor when the prosecutor has the support of the only tool of tele cases that seem to be available you haven't found any contrary ability already well bush versus pitts or says conspiracy is not a crime of violence under section one twenty four c so this says this is not a crime of violence under either clause the the other circuits have don't have those cases the ninth circuit of course was reversed into camp for not following taylor the second circuit all well one of them was considering rico conspiracy before salinas came out in the supreme court and so it was applying a completely different understanding of what the law was so perhaps our complaints  unfair it's not as if there is no authority to support the government's side but the authority in this circuit is that this conspiracy is not a crime of violence so this charge should never have been brought i'll reserve the rest of my time for a bottle said we agree that under current standing law in this circuit this transfer was improper and we just want to preserve the issue as the circuits second and nine has that question question i have is or at least eight question is how do you preserve an issue just by citing two cases and not addressing an argument that they are wrongly decided are inconsistent with the law of the seventh circuit i look in your brief for the argument that still too much and you can waste this court's time line to god that is hypothetical you realize that one thing that can happen is that you can lose this appeal right here and now on the ground that even if the supreme court says sixteen b wor you haven't preserved an argument about i would applies to rico conspiracy we think and that be about a two sentence unpublished order we think in that circumstance and one are citation doeth already plus i would point out that jr in his brief requested that  as decide in the favor of the government the supplemental briefing be granted so you don't you don't get two chances to brief an issue you have to brief the issue in your brief you can't say we're you know where we're taking a day off today kid to remain in the car my county jail which is down in my area until to my oh well on that we would say if he's not prosecutable and federal court is prosecutable in state court conceding the argument but yet you don't want to do anything you don't want one thing we could do is summarily reverse on the ground that all under seven circuit precedent this is this is not a crime of demise and that would have the result of at least allowing jr out or maybe into state custody pending a final resolution by the supreme court i think that's a viable viable option you're on your way junior will be in prison and the latter option i suppose that would depend on if we took further action but he's already in a state how well that count didn't know i don't i don't believe so but i think that's what the reason there is no stay case is because that the federal government got involved but i would think that if the court summarily reverses know he would have to be released from federal custody immediately neck case then the the state officials would have all kinds of options on detaining them and they would yes your honor i don't think it i don't think there's a claim here that there's not a prosecutorial prosecutable action but i suppose all those options are on the table for the court i think are prefers intended to state that we don't necessarily object to any of them there are no further questions  it's all this news to you i certainly i'm not aware of a pending state action but if if he is to be prosecuted for any of this it should be in state court that's that's the judgment of congress that federal courts are not for juvenile serco you say it's the judgment of congress but the prosecutor says this is a crime of violence under section sixteen b and you say that the judgment of congress should not be followed well i don't don't confidently rely on the judgment of congress when you're saying the drug of congress is bad enough and i think as a general matter congress said juvenile shouldn't be in federal court except exceptional cases i do disagree with the executive branch in deciding this is an exceptional case but i'll just leave it at that thank you thank you all right thanks to both counsel the case has taken under advisement and the court will be