phillips and his comrades in this robbery and in any event the we are now in the weeds of discussion regarding the intent to use force in other words if  on it but we don't actually use it you don't actually say let's not actually communicated you take other steps that are substantial steps and i think you mentioned reconnaissance type him up and took their money and their belongings left with their car and i think there's a lot of force going on i think obviously here we cannot look at the underlying facts we have to look at the elements and we're back to the have temped and does that overcome the procedural default of failing to raise his davis claim on direct appeal because he cannot show actual innocence of both one hundred and twenty four dollars c charges that were brought against him we know that attempted hobbs act robbery is a crime of violence because of what we know about attempts law what we know about robbery law and what we know about congressional intent st what we know about attempts law in rinker a panel of this court attempted federal bank robbery which can also be committed by threats like attempted object robbery is categorically a crime of violence under nine hundred and twenty four dollars c three and that makes sense given what we know about federal attempt  and here judge briscoe i would go back to what you just brought up which is absolutely correct attempt is not out there by itself untethered to the elements of the statute it's an attempt to commit a substantive crime so taylor is incorrect when it says that the crime can be committed by attempts to threaten it's an attempt to take property from the person of another by force or threat of force to commit an attempt crime manager's house that sort of thing it's all preparation and that was considered enough to be a substantial step and pritchard why isn't why don't why do we have to have actual for instance communication  well i i don't think that you have to have actual communication of a threat but you have to have the violence inherent in the crime robbery as the as the object of the  opinion st of all it's noteworthy that we have to go back thirty or forty years to find a case that even comes close to satisfying an attempt using threats but in all of those cases there are not nine hundred and twenty four dollars c cases and that's significant because the question here is whether we're going to be imposing an additional penalty on someone for brandishing discharging or using a firearm in furtherance of a crime of violence and while it is theoretically possible that one could conduct reconnaissance and buy tools as part of one's preparatory steps but ultimately as part of one's completed attempt offense if you got close enough and you had  the intense to commit the completed crime it would be difficult if not impossible to envision how one could brandish a firearm in further in subduing reconnaissance on a bank or how one could brandish a firearm in furtherance of gathering tools or picking out  massacre talking about the plans in fact be the imagined hypothetical in taylor where it's gathering supplies where it's talking with coconspirators that actually sounds more akin to a hobbs act conspiracy than attempt because an attempt as we know as distinct from a conspiracy under the hobbs act requires an overt act the th circuit in huber has said to constitute substantial steps the defended must do more than merely plan or prepare for the crime he or she must perform an objective we culpable and unequivocal act toward accomplishing the crime and this court has said something very similar in faulkner which is an attempt as an act adapted to approximating and which in the ordinary and likely course of things will result in the commission of a particular crime and if you look at the main guess and walker and several of the other cases that we've cited in our brief and in our twenty eight day letter common sense tells us that a defendant who specifically intends to use violence and then takes a substantial step toward that use has by definition attempted a violent crime and that's that's pretty much a direct quote from domingo's but it's the tell us must unequivocal you mark the defendant's acts as criminal now when you combine that with what we know about robbery it makes it even more clear that this particular attempted crime of violence is itself a crime of violence and what we know about robbery is that it's inherently violent robbery is inherently violent whether committed by threats or whether committed by a forceful act this court in harris said that the supreme court in stokely said that  in harris this court said robbery is distinct from larceny because of the quote violence inherent in taking property from the person of another against his will and quote so yes  in distinguishing the force required to commit witnessed retaliation with robbery this court said it's easy to imagine any number of actions that damage property but do not have the same inherent violence as overcoming the will of a robbery victim and that was i have been instructed by the supreme court that we need to avoid construing a statute in a way that renders most of the crimes it was intended to cover inoperable we know that robbery is a bedrock crime of violence struggling worth pointing out that when the purpose of one hundred and twenty four dollars c three is to deter criminals from bringing crimes to potentially violent scenes the deterrent effect on attempted robber is exactly the same as the deterrent effect on actual robber because at the time before the crime when the robber is thinking about bringing the gun to the crime or not the mens rea is exactly the same the mens rea as to intent to commit the completed crime robert  d yes contrary to what taylor said common law robbery includes robbery by force and threat of force and therefore interpret ing the statute in the manner that the would like this court to interpret it and in a manner the tailor interpret it would exclude most attempts offenses from qualifying even though congress specifically said we want to include attempt offenses  to make sure that i address the procedural default question the appellant cannot raise a claim in a twenty to fifty five petition but he could have raised a direct appeal unless you can show cause and prejudice  or actual innocence mr wilson cannot show either he can show cause for cause and prejudice because the argument that the residual clause of one hundred and twenty four c three is invalid was available to wilson in and thirteen when he was sentenced in this case as it was to mr davis who succeeded before the supreme court just a few years later it's not so that you're saying yes counsel could have made the same argument that coun big change in law that there's no cause cause it's not a applicable well your honor bows lee this supreme court instructs that it's not acceptable to say that that particular argument would not have been acceptable protrude particular court at that particular time and it's noteworthy that there were numerous challenges to residual clauses not only in nine  but the residual clause in the a c c a which is identical or very similar all around the time that mr wilson was sentenced so the argument was available and you can't show actual innocence because as  us you have to show not only actual innocence of the crime you're challenging but you have to show actual innocence of an equally as serious crime that was dismissed as a result of a plea bargain judge posner pointed out in l easily applied to crimes that were as serious that were dismissed as a result of a plea bargain and this court's decision in powell shows that accounts that were dismissed as a result of a plea bargain that were as serious are ones that of the rule and in fact in powell it was even stronger than in this case or this case is even stronger than powell excuse me because in powell the count that was dismissed as a result of the plea bargain was an eight years to excuse me five years to forty years mandatory minimum drug offense whereas the count that was challenge was a nine hundred and twenty four cd five years to life offense so it's true that the drug offense that the government agreed to government did not raise that argument below but number one this court can decide to affirm on any ground that even those that were not mentioned below and number two the factual record on this issue is fully developed because the factual record that matters is the factual record from mr wilson's change of plea hearing and then the answer mine any reason is the idea of having to show  other dismissed counts that the other what's the theory well the that yes the theory is that he cannot show cause and prejudice or actual innocence for failing to raise this argument in direct appeal so this court can affirm the judgment of the district court which dismissed as well as denied mr wilson's two thousand two hundred and fifty five and in addition in terms of trying to prevent a windfall to a defendant which is what bows lee tries to make sure we avoid this case is a particularly good candidate for trying to avoid a windfall because as judge briscoe stated during mr kirkpatrick's argument mr wilson did in fact commit completed hobbs act robbery and completed carjacking in this case so if there are no other questions then i'll see the remainder of my time and ask that the court affirm the district court's decision