i would suggest that this should be a relatively easy inquiry and so far as the definition section of the hobbs act provides a number of ways in which hobbs act can be carried out including under color of law that doesn't involve the use of force at all the government up against the definitional section of nine hundred and twenty four city instead takes a new approach to try to suggest other language in the hobbs act regarding the use or threat of violent force against any person or property constitutes a separate stand alone theory under the modified categorical approach  respectfully your honor that is not the case and i think that argument is foreclosed by the supreme court's decision in scheidler versus national organization of women which is a case number five  us nine reading from page twenty three of that opinion the supreme court said dressing this very question whether the this physical violence language in the hobbs act actually created a separate stand alone divisible section of the hobbs act or whether it was only in service or a mode of doing either the extortion or the robbery suspects the supreme court said we concluded congress did not intend to create a free standing physical violence offense in the object it didn't tend to forbid acts or threats of physical violence in furtherance of a plan or purpose to engage in what the statute refers to as robbery or extortion and related attempts or conspiracies earlier on page seventeen of that same opinion the supreme court noted that that it's only the interpretation of that language that ties the violence to robbery or extortion that is the correct interpretation so just as a threshold matter we would say that in applying the matter of the modified categorical approach there is hobbs act extortion there is hobbs act robbery and of course  coate versions but there is not this hobbs act threats theory that the government is trying to present in its brief to get around the adverse law in the definition address whether this court is going to view that as a separate divisible interpretation of the hobbs act but again i think that i think that under the supreme court's controlling use of physical force violent physical force under johnson against the person or property of another the hobbs act in question in  contrast does not have this of another restriction it says that any person any property if it is the target of the threat of violen it could be and very well and in fact if you look at a number of their number of cases in which this comes up not many that are prosecuted at this point but you may see more of it especially when you look at  domestic violence situations situations where you have a manipulative or abusive partner who threatens to kill themself unless their partner who would do something you know that they require for  them you also encounter it potentially in for example environmental activism terrorism cases where people chain themselves to a redwood tree so that you know in order to obstruct the the economic us e of logging the tree or whatever they're not threatening the threat involved the harm involved is not harm to another person it's harm to themself that they're doing to obstruct commerce i believe i believe your honor i would i would have to look at i want to misstate anything but certainly the intervening decisions in davison this sort and the just separate arguments that have been made i don't think my client can be bound by arguments that are made and choices litigation choices that another attorneys making are not making in terms of issues in arguments that they're trying to raise in this case mr newdow help me understand one particular progra your grief and page twenty six point three you write as follows finally mr nicola raises in part simply to preserve the argument that his you know your honor i filed this pretty from the beginning of march th seen at that time the binding precedent of this court and hill as i go on to explain for claims that i was trying to explain that i was not making a frivolous argument because i had a good faith reason which has now been vindicated i'd like to say by the continuing development of the law including in it particularly in davis thank good afternoon hours and may please the court my name is not he has a hard time as an assistant united states attorney in the eastern district of new york the government respectfully submit the judgment against the appellant and his nicola should be affirmed the crime charged  count seven of this rd superseding indictment threatening physical violence to john doe number two and for furtherance of a plan to extort john doe number two is categorically a crime of violence under section one thousand forces elements clause indeed sound and it's particularly illustrative because it's not just another case where a similar charge has been found to be valid but it is in fact the codefendant charged with the exact same crime in the exact same case and so i think the court can and should consider that it doesn't i mean the fact that it's not precedent and the fact that it's a summary order rather than a published mean that we're free to decide like cases indeed identical cases and different men and different manner i mean it's a it's not precedent perhaps means that that every statement in it isn't isn't deemed binding binding precedent but are we free to decide like cases and different manner just because we decide one by a summary order i mean if i decide one case one way on wednesday can i decide an identical case differently on tuesday because just because one of them is a summary order the government but we certainly argue here that the court should not do that and and that despite not being binding precedent there should be a really good reason to find differently in the exact same case the exact same charge the exact same facts what are we to make of the difference going t examples of what could possibly happen it must point to either his own case or some other case where the statute had been in fact applied in the manner suggested in the hypothetical he has not done that here and i would know that i think underhill that's correct john or that that hypothetical like that should not be entertained and i i would also note that the hobbs act has been in existence it was enacted in one thousand nine hundred and sixty four so there's certainly been plenty of time to for for to see it in practice secondly i would note that the definition of hobbes act robbery which was at issue in united states vs held when you look at the full definition of robbery under the hobbs act it would also allow for the hypothetical advanced by the appellant in this case in eighteen u s c section one thousand and fifty one dollars b one states as follows the term robbery means the unlawful taking or obtaining of personal property from the person or in the presence of another against his will by means of actual or threatened force or violence or fear of injury immediate or future to his person or property but then it goes on to state or  his company at the time of the taking or obtaining so or of anyone in the victim's company at the time of the taking or obtaining so certainly the same hypothetical if if the court were to follow that line of thinking could apply to ho robbery and which would certainly undermine the court's precedential holding in  if i can briefly respond to some of the issues especially the so called hero issue which is really an application of the supreme court's language and in moncrief and when his olive arrest which really primarily concerned the problem of interpreting state statutes in conjunction with with generic language under under federal law one important reason why this the hobbs act is different is that it is a federal statute which unlike in this robbery situation that my friend from the government was stating is language the can be changed by congress whenever they want to conform it without this court having to essentially rewrite the statute to artificially never being used at all to be prosecuting the kinds of things that prosecutes now for example the the notion that the robbery of a drug dealer is the kind of obstruction of commerce that it's now done back in the one thousand nine hundred and sixty s and when it was in congress decided oh well maybe we wrote this a little bit more broadly than we really intended because of nine hundred and twenty four see they could change that well by by suggesting that self harm for example they could conform the language of the hobbs act to the language of the elements clause nine hundred and twenty four c and therefore could make it absolutely clear and unambiguous whether they intended to have nine hundred and twenty four c applied to any of these subsections but but it should not be for this court to rewrite the whole jack to accomplish that i think if no further questions your honor how do you respond to the government's argument that you express the way the record section nine  to be a tactical decision in which a party is gaining a specific tangible benefit and therefore trying to essentially have their cake and eat it too by taking a specific litigation position and then later taking a specifically adverse litigation position and there is absolutely nothing in this record to suggest that that the failure of the attorney in the district court i don't know what was in his mind because i wasn't the attorney why he didn't preserve this asked the question when i was st up here about the language about why i was saying i was specifically preserving it some attorneys don't specifically preserve these things and then it ends up being a problem in certain ways but it doesn't seem at all that this was in any way an intentional decision to abandon this question it was an oversight and if this were found against my client i believe it would almost certainly just result in him filing a