going to run with matt campbell from the federal defenders of eastern washington and idaho on behalf of leon the sutton and it's my intention to reserve three minutes for rebuttal the issue in this case is whether mr outten is entitled to relief under johnson the united states  specifically she was charged with assault with a dangerous weapon under eighteen u s c one thirteen eighty three and discharge of a firearm during commission of a crime of violence under one twenty four c so as a preliminary matter we're obviously dealing with the categorical approach which asks whether one thirteen a three is a crime of violence based on its elements under moncrief we have to look to the least serious version of that  offense if we decide that assault with a dangerous weapon under one hundred eighty three is categorically a crime of violence we don't need to reach johnson is that correct i think that would be i think that would be correct point i understand it's up in the supreme court but grant of cert is not a change in the law grant of certain simply grant of cert so i do believe the demise binding and that sixteen b and nine twenty four c have the exact same definition so i think the maya binds this court and there isn't a deny a issue but in reference to the court's question they're looking at it so whatever they do they will about my that this is being court absolutely but at this point to my is still precedent that i binding and barring until that unless and until the supreme court decide that to my is the law so i don't think there isn't one i don't think there is a diminishing but understand the court's question i'll turn to the the categor issue here and again there was some talk in the government's briefs about to what extent one twenty four c cases are addressed differently than other statutes and i think it's clear that those arguments have been rejected in cases like element is the defendant assaulted the victim and there's three alternatives by intentionally striking wounding or using a display of force that reasonably caused fear of immediate bodily harm that element is overbroad because it can be satisfied simply using a display of force so showing a weapon without anything more would satisfy that and it's important to note that it then requires that someone fear harm it doesn't necessarily require in that element that the defendant intended to cause that fear it simply requires that the person perceive that as harm secondly it notes that the defendant acted with the intent to do bodily harm and while i understand that might appear to satisfy a crime of violence it's important to note that it uses the term bodily harm it doesn't use the term substantial bodily injury which is defined one thirteen b one bodily harm is not defined in the statute nor is it defined elsewhere in that chapter but by analogy and looking at the case of us b smith which is five sixty one if thirty nine thirty four it noted that the term great bodily harm in the context of what is a dangerous weapon is informed by the definition of serious bodily injury and one thirteen b to one thirteen b to incorporate the definition of serious bodily injury in eighteen u s c thirteen sixty five b three excuse me h three and in that definition it defines if we look in thirteen sixty five h as a whole in h for it defines bodily injury as a cut abrasion bruise burn or disfigurement physical pain illness impairment of function of bodily member organ or mental faculty or any other injury to the body no matter how temporary so if we incorporate a truth that age for definition into bodily harm just as we incorporate serious bodily injury into bodily injury we're left with a situation where bodily harm could be satisfied by things like mental distress stomach ache a headache or a feeling of shock so when we're looking at that second element bodily harm bodily harm is as diminished as it could possibly be it would really be akin more to the type of harm that might result from a misdemeanor simple assault under old common law from a common law touching so the pure elements of one thirteen a three to the extent that they require only the displaying of the displaying of force which means in such as with a weapon and that it requires bodily harm which is not the equivalent of the type of serious bodily harm or serious bodily injury that we see in other types of  one shouldn't define or one shouldn't come up with these definitions stretching believes stretching credulity to its limits but in this case the plain language of the statutes itself supports this result congress chose to use the term bodily harm congress then defined bodily harm in an excessively broad way to include things like it illness mental faculty or essentially a residual exception any other injury no matter how temporary so these are congress's words and they're presumed to have chosen them for an obvious reason and in this case they chose these broad terms that's what we're left with so this is not some situation where we're extrapolating these terms beyond their meaning this is what congress said so based on what congress said i think it's clear that this is an overbroad statute one last point i want to address before my time runs out the government did make some arguments in its brief that because this is a nine twenty four  that we can sort of extrapolate the use of a weapon particularly the use of a firearm into this and that that somehow changes the equation but that puts the cart before the horse because what we're evaluating here is one thirteen a three and one thirteen a three does not require a firearm so this does not require a different result simply because a firearm is used the fact that a firearm is used would be the type of fact for categorical purposes we can't use under de camp in analyzing one thirteen e three and like to reserve the rest of my time with what the court initially asked if this case is determined under the first clause part of nine twenty four c and we don't have to reach the residual clause part which is exactly what the district court did in this matter it said that this was not a johnson issue it's clearly not a johnson issue on the specifics of johnson because as we know johnson is related to the a c c and johnson said that it didn't affect any other ultimately made to apply to this type of situation or to the elements clause nine twenty four the elements cause the residual clause in one twenty four c three b due to it's was closer track than it is now with the supreme court and because it is ninth circuit law it went on to assess it but specifically said that this case does not fall into the residual clause it said that  while it was not discussed by the parties it was clear on the record that this was a fourth element analysis the bottom line is that the defendant was charged with assault with a dangerous weapon with the intent to commit bodily harm and what we're what the bottom line is is that while that has not been specifically articulated the ninth  your honor seems to be burnt broader than what you just referenced is a nicer construction as i listen to that immediately struck me that what we often do is we change words to say bodily harm serious injury violent show of force and we are different agitators all the time in this case i think that the statute has been further defined through the jury instructions of the application of the statute to the jury instructions requiring the type of force striking wounding or i display of force with the intent to commit harm with a dangerous weapon e of whether the crime of violence then falls within the nine twenty four stand alone and that the nine twenty four simply a specific statute that congress has enacted so that people statute is out there is not specifically relevant to the crime of violence what is specifically relevant is that the crime of violence includes the use of a dangerous weapon  i just wanted to quickly indicate that one of the as the district court indicated that there was a possibility in fact this is why it continued with the to hear the case as being premature  may be extended i would respectfully submit that in this case this would not be the case to extend to the residual clause of nine twenty four c and this is why because a residual cla one twenty four c indicates that it is a crime of violence by the nature of the offense in this case when one assesses the nature of the offense in the facts of the case before the court now this case the nature of defense is in fact the assault with a dangerous weapon with the intent to commit bodily harm so as you assess the nature of the offense you come right back to the very elements of respectfully request this court to affirm or uphold the district court's denial of the defendant's twenty two fifty five motion before the question to see live all right thank you very much what about that argument that said mr mason this isn't a situation where you can never really have generalized force because of the requirement that the it be accompanied by a deadly dangerous weapon of some sort which then it's addictive that violent force is required well a person could say i don't think factually that argument makes a lot of sense because if a person has a dangerous weapon and the definition of a dangerous weapon can be fairly broad essentially it's anything that could cause i think it substantial bodily harm so if a person has is standing with someone with a baseball bat in their hands and they sort of slap a baseball bat against the palm of their hand arguably they're just playing a dangerous weapon now what intent somebody might derive from that is a different question but a person can certainly display  dangerous weapon and that wouldn't necessarily mean anything if a person held up a firearm right now and said hey look at my gun they're displaying a dangerous weapon what intent you draw from that is whatever intent a person draws from that  but i don't think that the element also requires that sort of display with the intent to do bodily harm and that would reasonably cause a person fears so that's an area that that example no one's ever  to be charged with the one thirteen eight leave if that's all you had well but again that would require that we have to look at each element separately and this is where i think one of the ways in which the government and i differ we have to look at each element separately intent has to be the intent to do bodily harm and bodily harm encompasses as i've already discussed virtually any form of harm so if a person intends to display a weapon for the purpose of making someone feel emotional distress and nothing more that could satisfy this because bodily harm is that broad under the definition so again the display of a firearm which i think many people in everyday life would consider shocking or distressing or could cause a headache or a stomachache student nerves that would be enough under this statute as it's defined because we look at each element separately and if any single element is overbroad i think it's clear that this under de camp would be an indivisible statute and that's what we have here we have over breath in terms of bodily harm and we have over breath in terms of the display of force because a display of force