ok thank you may it please the court daniel to be federal defenders of new york on behalf of raymond rodriguez the district court committed procedural error by treating rodriguez's prior new york state conviction for nd degree  required to satisfy the elements clause of guideline for b one dollar a one nor does it correspond to the generic offense of aggravated assault enumerated in guideline for b one point two two twenty eight j letters we acknowledge the sings holding that this new york offense is a crime of violence under the elements clause of eighteen u s c section sixteen a with respect we submit that saying is not dispositive on the ultimate legal question because saying did not address as the parties do not appear to have raised the omission argument that rodriguez advances here based on this court's decision in hilton versus sessions  specifically saying concludes that there was no realistic probability of omission liability under twelve thousand and fifty two dollars because neither of the parties nor the court had identified a case involving such a prosecution in our view under helton the realistic probability test is satisfied by the plain text of the applicable new york statutes in particular penal law section fifteen ten which provides that the minimum requirement for criminal liability under new york law is the omission to perform an act that one is physically capable of performing and by fifteen dollars subsection three which provides that  omission liability arises where there is a legal duty to act where's the omission liability here theoretically possible under the assault statute so the the assault statute issue here simply requires the intentional causation of injury by means of a deadly weapon or dangerous and strummed and so in our brief we've suggested the example of a parent who fails to intervene when his child is about to touch a hot pan intending that the child suffer injury but meaning to do so to sort of teach the child a lesson another example is the washington supreme court's decision in bauer which is cited in a footnote our opening brief which involves a parent leaving a loaded gun accessible to children in the home so these are instances where the parent has taken no affirmative action the parent has stood by and watched in der duty to protect the child from harm harm because that's that example you know watching failing to intervene as a child is about to touch a hot pan concept how does that fit within the statutory language which requires means of a deadly weapon or dangerous instrument i so argument is a hot pan as yet and in fact there's a new york appellate division case saying that a hot pan is a dangerous instrument the statutory definition of mean it's  deadly and it's a dangerous instrument when left on a tendon so the the definition of dangerous instrument is any article or substance which in the circumstances it's used is capable of causing death or serious injury about something different you're talking about somebody being prosecuted under this statute for leaving a hot pan attendant on a stove and so if you're on any case and it hasn't been held that never in so we knowledge that there's no case imposing omission liability u so i've i've suggested in addition to the pan example that advance in the brief i'd also point to again the washington supreme court decision in bauer which talks about leaving a loaded weapon accessible to a child or leaving a knife excessi to a child and other situations it is a more than a few radical possibility of that in new york state again we acknowledge that there's no case imposing this liability it's our position that under health and the statutory text itself creates the realistic probability and let's step back and recall the purpose of the realistic have to be more than just leaving a weapon you would have to be leaving a weapon and then watching your child play with that wet weapon and  tent is present we're talking we're talking now about the conduct element and whether the statute can be violated by omission and if so whether that constitutes the use of force within the meaning of the guidelines again we know that new york imposes penal liability based on culpable emissions indeed it does so many more serious cases and so for example the court of appeals in steinberg upholds a st degree manslaughter conviction based on omission inflate hearten henson you know polls criminally negligent homicide commissions and then miranda refuses to manslaughter and are different they don't necessarily require you know the specific intent to harm is as you noted to the contrary your honor the manslaughter statute issue in steinberg required purpose of the realistic probability task is to this court explained in hilton assure that minimum conduct analysis does not degenerate into the application of legal imagination or the presentation of hypothetical scenarios but when the statutes playing text tells us that the new york legislature has contemplated liability on this theory hylton holds that in the case of facial statutory over breath the realistic violated by omission and if so whether that constituted the use of force for purposes of sixteen a what i'm suggesting today is that saying gave an incomplete answer to that question because saying considered realistic probability only to the saying didn't address and that's what i'm suggesting this court should take up all reserve new york assault with a dangerous instrument or a deadly weapon the same statute that's at issue in this case was a crime of violence under the force clause in section sixteen a an analogous provision and space and importantly in doing so sole be committed by means of a deadly weapon or a dangerous instrument needed quote unquote obvious that the violent force element was satisfied and  smaller quantity of drugs less than an ounce then was required for federal felony liability that's an entirely different situation from the statute which on its face if you look at it requires intentional causation a physical injury by needs of a deadly weapon or a dangerous and shipment section fifteen point which cites does say that the minimum requirements for criminal liability under the new york penal co include certain types of admissions but that's a generic provision applying all across the new york penal code the question still remains as to a particular statute whether it's possible to violate that statu in this case that the new york statute would be up this new york statue would be applied to a pure a mission and finally although seeing results of this appeal in the government's view i would know that even if there was such a realistic probability that the new york state should cover it omissions the statute still would qualify as a crime of violence under castleman and this court's subsequent decisions interpreting and apply one and those because those presidents make it clear that the inquiry under and under this clause is that intentional causation of physical injury in a c n n only involves the use of physical force and the doesn't matter how that physical injury is inflicted those presidents make clear that use of force simply means veiling yourself of force in order to intentionally cause somebody physical injury to your positions that can be done by a mission that you could still have the use of force by omission and therefore it would be covered correct your honor our but otherwise it's the same statute and just just it takes i would just know that just to take a step back mr rodriguez this position if adopted would really create a sort of absurd result because it would mean essentially that all crimes under the new york penal code including crimes like st degree murder other robbery which this court has already held is a crime of violence all of those crimes rodriguez's response to that is once again to raise the same missions argument and for the same reason that that emissions argument doesn't doesn't hold water in the four schools context so it doesn't here just because there  no reasonable probability that the new york statute could be violated through pure emission and in addition to that again even even if new york law did accommodate a mission liability in this particular statute that would be consistent with the generic definition of aggravated assault thank you helton states more than once that the realistic probability test is satisfied if statutory over breath rather than the application of legal imagination to the statutes text create the possibility of liability premised on non qualifying conduct and that's what section fifteen dow ten does it states that the minimum requirement for criminal liability is the omission to perform an act which a person is physically capable of performing i agree with the government that not all new york offenses can be committed by omission indeed there are a number of offenses such as robbery which involves the taking of a property or the assault provision to which the government referred that requires an affirmative act with respect to a child and so for that reason the government's concerned that rodriguez argument excepted would invalidate a number of new york offenses as guidelines crimes of violence is not well taken there are a number of offenses who statutory tax excludes the possibility that they could be accomplished by omission but we know from the text of one million two hundred thousand and fifty two that the injury need only be inflicted by means of the dangerous instrument or deadly weapon we know from the decision of the new york court of appeals in muhammad the possession of the weapon is not an element of the offense that is the holding of muhammad and we know that the new york court of appeals has recognized omission liability for more serious offenses in particular steinberg which recognized omission liability for a manslaughter offense that was more serious in both intent and result intent to cause serious physical injury causing death this might be persuasive if you it's open to this court's to get the issue write sing sing was prepared to recognize the possibility that omission liability would take this assault offense outside the scope of the elements cla indeed that's why saying ordered sue a sponsor a supplemental briefing on the topic saying got part of the answer from the parties it got the concession that there was no case imposing liability based on a culpable mission but with respect saying didn't get rodriguez's argument premised on hilton that the identification of a case is unnecessary in light of the plain statutory text that what i'm suggesting is that this court should complete