it is us versus river and please the court again in the less the court really wants me to i'm not going to repeat what i just said in the united states versus worse than all adopt those arguments unless the court really wants you to but it's afternoon and you already heard it half an hour ago so same argument i'd like to add a couple of thought this defendant mr rivera does not have an appeal waiver we do have a plane air issue and then a clear agreement issue because he stands convicted of just two nine twenty four c counts no underlying hobbs act robbery so obviously if he were to win this argument his two convictions would be vacated it would go back for a potential proceedings on the remaining hobbs act robbery and he does face significant time under the  hobbs act robbery i believe stacked it's one hundred years because they're twenty years each and there are five counts of hobbs act robbery there's underscores one of the concerns that i feel is being argued by the government is that if we make this finding str mr rivera's case it's in seven years consecutive twenty five years it's a harsh sentence but the judge could effectuate that exact same sentence with just two hobs act rather a stacked on top of each other so this idea that the defendants are going to all of a sudden get you know a pass on their admittedly violent conduct in this case is is not true i will also add  that in the last case and i know that my opposing counsel is here so i feel like i can address this the government said the that that case was the only one where the residual clause and twenty first is the only issue i actually marking one case on november sixteenth united states versus thomas are e t o and where the government's conceded that the underlying conviction does not qualify under the elements part of so all we're arguing about is the residual close i want to add that because as far as i  know and i do keep track of these cases those are the only two cases where the residual clause is the only issue and the elements pause is not really impacted i will also say and this isn't in our briefs as well under various cases nine twenty four c is a statute of conviction and a sentencing statute as i was just saying and i'm twenty four so you conviction mandates a particular mandatory consecutive sentence so the idea that this is not a sentencing statute is really wrong because it does really control what a defendant receives from the district court judge it actually takes discretion aware in the district court judge in fashioning a sentence so and then finally the government c various united states attorney's offices but that was a concession in the supreme court on that clause unless the court has further questions on a lot of response from the government for a bottle thank you thank you court my name is keith alexander and i represent the united states every court that has considered the question of whether hobbs act robbery is a crime of violence under nine twenty four c has held that it is that it is a crime of violence of the elements cause of such an one twenty four c so the sense in court therefore simply did not commit plain air by failing to sue a spot to become the first courtney country to hold otherwise plain or requires that the court is aware obvious error that is clear under current law and the defendant points to no case that has held otherwise in fact despite this issue being litigated fairly substantially  courts throughout the country there has been no controversy on this issue for the court of appeals the second the ninth and eleventh circuit of all held that hasek robberies a crime of violence and of the elements calls of nine twenty foresee and alvarez and if it's a supreme court case in which it's that it provides that when using a categorical approach we don't use what the court termed a legal imagination but rather have to look at specific cases in which the violence it was a bit was applied in a certain way that wasn't a crime of violence and certainly here where there is no dispute about it below is a plea the district court can't be said to have committed plain air by by holding otherwise so but with regard to fear of injury or are i think that it's simply and i'm borrowing the reasoning of kassam which is similar here the supreme court decision in castleman it's just common sense that an act or threatened act that causes a fear of injury and someone is such that it would threaten force that would overcome the victim's resistance to relinquish that property and so i think there's good reason therefore that every court that has considered this issue has held categorically that hobbs act robbery is a crime of violence under the elements clause of nine twenty four c and the district court did not considered the question is held the same so the sense in court here did nothing close to committing plain air by except in the defendant's pl with so i think that it's clear that the defendant didn't commit player on the elements clause and so i don't think this court needs to get into the question of whether the residual clause is unconstitutional the court does not need to exercise it's powerful just to review when it can make a finding on the day elements cause here we don't need to go to the residual clause and even if the court did want to go there again the district committed an obvious error or plain air by hold by failing to declare the residual clause unconstitutional when the circuits thus far that have addressed that issue of hell but it is constitutional and that is particularly  when as has been mentioned in previous cases here the supreme court has taken up a similar issue to my versus lynch so this record and plainly err by doing that but again i don't think the court needs to go there here i think the court's decision here can be quite narrow that the district discuss the procedural error argument of the defense of the defense the question of whether or not the district court committed procedural error when it imposed a five year term of supervised release i think that the court's to set this court's decision in united states versus controlling still address the comments made actually by this same sensing judge who in that case also used the word obliged and held that was not procedural error jill the stands for the reasonable proposition that you don't just look at a statement like this in isolation you have to look at the whole record my only hesitation in that argument counsel is that we have become very scrupulous about supervised release argument well i think that that you know we have to look at the the whole record here to determine if the court really believed truly that he was bound by statute to impose a five year term of supervised release and or rather that he said he felt obliged to impose a five year term of supervised release morally obliged morally obliged based on all the thirty five fifty three factors that he just had gone through which was quite substantial chances particular defendant and so i think that to answer that question we have to look at other parts of the record for instance earlier in the sensing hearing the district court said that the range was two to five years articulating the guideline range the statement of reasons again the court said the range for supervised release was two to five years and that's important because there was a mandatory prison sentence here and the statement of reason specifically says it was bound by statute to impose a mandatory minimum it says nothing about the mandatory minimum it felt bound by with regard to supervised release  similarly at the at the change of police here in the district court on the record asked the defendant to state for the record what the maximum term supervisor release was and he said it was five years so there again wasn't it an instance where the district court clearly on the record indicates its knowledge that it was not bound to impose a five year term a supervisor lease so all other indications on the record i think support the interpretation of of the district judge is final statement that he was obliged to do so that he was morally it wise to do so based on the thirty five fifty three factors rather than statutorily revised to do so and that's that's why i don't think there is a procedural  minutes i've had a lot of time my concern about this argument about the elements clause is we're getting into that ordinary case the defendant hasn't shown a case of how exactly that doesn't have violence and johnson blew out that ordinary case that's a residual clause analysis we are going to not elements and elements only and when the elements don't have a use of force it's and it's perhaps a means but not the only means the next not a worry over i'm sorry you practice before judge dredd you are not directly know you're right and perhaps perhaps it may be however i try not when i'm arguing to make specific judge arguments i make god district court arguments rather than  personality arguments or mostly because i don't know all of the judges and seventh circuit personally it's true that he recognizes sentencing guideline range but he never recognized with the fact that no sooner term of supervised release was required at has really mandated that the court make that decision or not just merely say i feel either morally or statutorily obligated to impose this five year sentence i believe that he thought it was mandatory i did not