good morning may it please the court my name is and mclennan i represent justin whittington and i would like to reserve two minutes from that of a clock house down as i'm sure you know will help you keep track thank you  this case involves the question of whether using a gun under nine twenty four c whether they be interference with housing is a crime of violence our position is that it is not the statute forty two u s c thirty six thirty one does not require physical force for commission of a felony no physical force was alleged under the force cause of using a gun the ten year mandatory minimum must be based on the use or threatened use of physical force and i would note that i stated in my brief that this is that the standard of review is plain error but then i provided to the court the court's own case united states versus walton and it is my belief that since this is one by force or threat of force sufficient because it doesn't say physical force because all the statutes and by all the statutes i mean act i mean sixteen be in the  to simply say force or threat of force is too broad and this is especially in this case i'm trying to think of a way that you could use force but not force or the threat of force but not of physical force to do the intimidation well there are other cases where where i recognize that you can for example i think it was was a florida case that came up in johnson where a touching that wasn't forceful might suffice right your honor in in the case is there was a case of assaulting a federal officer there was a case of a purse snatcher there were six story there was robbery and there was resisting arrest and all of those were considered not to be violent felonies because they did not require and require i believe is the operative word physical  force yes follow up on judge kleinfeld question is this statute divisible or in divisible with regard to the question of four i believe that it is in divisible because the way the statute reads it starts with a misdemeanor and let me let me just say that i believe it's indivisible but in this case i don't even believe that it matters but i think that it that the defendant is accused of employing in order to determine whether or not it was violent force in this case it was a sawed off shotgun so if the modified categorical approach applies if the statute is divisible it's a pretty easy question to answer but i'm wondering why we don't have to employ the modified categorical approach in order to determine how this crime was committed well which crime it that the statute can be violated in a number of different way some of which are felonies and some of which are misdemeanors depending on the type of force use my question is a very practical one how does the court  how to sentence the defend or which crime misdemeanor or felony was committed without looking at the type of force that was employed boy that's a lot of questions i know and this is not years and no it isn't easy it's very complicated then i think that's why the supreme court has said especially in matheson to come look is it does a statute prohibit does it say anything about use of physical force i think if it doesn't then then there is a problem but that force is different from assault is it not i mean the johnson dealt with the question of whether or not  assault can be committed with a simple touching that does no more than i guess interfere with the bodily integrity of a person without committing actual injury here the statute uses the term force or threat of force it does  sounds to me to be more it's a more active adjective or description of the way in which the crime was committed it also says force or threat of force  intimidate or interfere and what i'm saying is even if you do the modified categorical approach which all it gives you is the right to look at that at the paperwork that underlies the statute and let you look at in this case by the sheppard taylor documents that we do get to subsection c yes the really the only question left is the visibility well subsection c i believe you're talking about subsection c in forty two u s c thirty six thirty one correct interference with housing that's the phrase the phrase that i'm asking about is if such acts include the use attempted use or threaten use of a dangerous weapon etc right that's the felony that's what yeah up there to in file isn't that established in this case by shepard taylor cognize of all documents yes so  but they don't by force or threat of force intimidate or interfere with it unless they draw it and point it well there's an assumption that i don't believe the statute  says that it says what the statute says is that force or threat or force intimidated or interfered because the person was occupying a dwelling and to how do how does a hypothetical person use a gun a firearm to intimidate and without it being a force or threat of force i mean if you use a fire a firearm to intimidate maybe you point it maybe you shoot in the air maybe shoot the person i don't understand why that isn't always violent force it's not fit to not physical force so if you say i'm going to get you if you don't move that violates the statute but it is not violent it i not a violent crime over the business of nine twenty four c but that i am going to get you doesn't involve the use of sawed off shotgun which is inherently a dangerous weapon under the federal firearms act is that yes yes it is though isn't the mere possession of the dangerous weapon at the time he he tells the victim to get out of oil they'll even though we know he also fired it isn't that enough to establish that the crime was committed with a dangerous weapon it is it is enough to violate thirty six thirty one and one twenty four c no because the possession of a sawed off shotgun is in itself whether it's employed discharged or even display a violation of one twenty four c isn't that your honor this that particular question has had many answers in the time that i've been practicing law and i don't i can't honestly tell you whether it  in the federal firearms act inherently the possession of a dangerous weapon i think the answer is yes under nine twenty four  necessarily a safe weapon at nine twenty four c requires that the crime of conviction be violent physical force ok in this case interference with housing is not does not establish that with or without the modified approach but what we've taken you well over time let's hear from the government and we'll give you two minutes  may please the court and flynn on behalf of the united states your honors the defendants felony conviction for interference with fair housing rights as charged in count one is a crime of violence and two elements make that clear as opposed to both judges tolman's questions and those elements are one that the jury had to find that the defendant used force or threat of force and second that the jury had to find that that force included the use attempted use or threaten to use of a dangerous weapon explosives or fire given those elements of the offense easily meets the definition of a crime of violence under section one twenty four c three a which requires only that the offense always involves the use attempted use or threatened use of physical force against the person or property of another and where physical force has been defined as only that force capable of causing physical pain or injury certainly it's always the case that using or threatening force that includes the use attempted use or threatened use of a dangerous weapon explosives or fire is force capable of causing physical pain or injury and for that reason there was no error let alone plainer in the district court instructing the jury that the fact that below they didn't actually think that the defendant had failed to raise these arguments in the district court and so that partially was part of the prejudice analysis as to the government having both an opportunity in the district court and in the circuit court to address the issues of whether or not the crime there was a crime of violence certainly this court's opinions do you recognize that it's within the court's discretion as to whether to play apply play in a review where it's purely a question of law here it is a pure question of law as to whether an offense is a crime of violence that said we still think that a plane or standard is appropriate because it wouldn't be clear to the district  clear obvious to the district court either that section thirty six thirty one isn't a divisible statute or that section thirty six thirty one discharge where you have both a force or threat of force and the inclusion of a use of a dangerous weapon that with those elements it's not clear obvious that this offense isn't a crime of violence and certainly to get to your question judge tolman the start time times i'll start i'm still working on my as i read that opinion it says that if it's a pure question of law and if there's no prejudice to the party against whom the question might be decided right then we can do clean air or is there some prejudice the prejudicial to the government i would about this issue for any appeal right exactly we're not talking about that kind of pressure but i and it's different than factual questions below where we wouldn't have had an opportunity for example to make all of the arguments or have all of the documents in the record certainly in cases for example where the district court would have decided against us below on an issue of a crime of violence we'd have i think you know the so called concrete on this what we do what would what would the government done differently if the defendant this isn't the crime of violence and the jury instruction is wrong and i want something different well i think you know we we could have potentially fleshed out the jury instruction differently the pattern instructions here do submit the question to the jury as a legal question that sort of avoids confusion with trying to have a jury match elements for the crime of violence definition against the elements of the offenses this court and the numerous decisions on crime of violence show it's difficult for the counsel and judges to sometimes do that matching never mind that it would have changed the instruction to the jury and as i said it's within the panel's discretion as to whether to apply plainer review or didn't know before of you and but but just to finish your honor that i do think that the government is prejudiced for example where where we have the benefit and the court has the benefit of a district court opinion below we can not only respond to the defendant's argument but respond to the court's concerns as to why that might not be a crime of violence and then raise those arguments before this court as an appeal as of right standing here today if this court were to decide in the first instance that this statute isn't a crime of violence the government is prejudiced in that we're only left with discretionary  whether or not coming back to this court for rehearing for example or over there saying it's harder on the government is just not helpful what i want to know is suppose that instead of saying a lot of these things for the first time in the blue prejudice the government have in this case that was done but your honor in this case i don't think that there necessarily is prejudice it's not as though for example that the defendant or the victim suffered both bodily injury and that there was use of a dangerous weapon explosives or fire and that we charged only one and not the other for example or that we charged only bodily injury and we did not include use of a dangerous weapon explosives or fire which for example we might submit is a clearer element clearer fence that satisfies the definition of a crime of violence than perhaps bodily injury standing alone so if if i could just move from honor i'm not saying that i'm saying that this particular case might not raise prejudice to the government and this not having been raised below but that's not to say that in any case in which the defendant doesn't raise the crime of violence objection below that the government isn't going to be prejudiced on appeal and so we don't think that it would be appropriate as a general matter to say that whenever the defendant is challenging a crime of violence for the first time on appeal that it's never prejudicial to the government i think the way that we charge this is the way that we would consistently charge this we would have argued this the same lie in the district court it sounds t  basically because when you look only at a misdemeanor offense of section thirty six thirty one that wouldn't satisfy the crime of violence definition because a crime of violence has to be a felony that involves the use attempted use or threatened use of force against physical force against a person or property of another but the statute is divisible under mathes and it has all the markers of divisibility which are that one it defines multiple crimes and that's clear from sections a b and c of the statute on section a which was charged in this case reaches both threats of force against a person because of race for example based on their exercise of housing rights section b would allow a defendant the government to charge a defendant who threatened a real estate agent for example for helping someone find a home section see what allow us to charge for example a defendant who threatened a housing advocate for trying to promote fair housing rights it's also with the graduated punishment scheme clear under mathis that there's a misdemeanor or felony punishable to ten years of fun a felony punishable to life and that those have the  divisible statute and so once you multiple offenses you then need to isolate the statute of conviction and certainly once the court isolates the statute of conviction here which is a statute that the defendant the conduct where the defendant takes action against a person because of their race and exercise of housing rights so for all thirty six thirty one of fences the government has to show force or threat of force that or interferes with under subsection a of the statute and we have the full text of the statute and are done don the government has to show elements because of race and because of the exercise of housing rights and then the one that constitutes the misdemeanor offense the language in terms of the felony enhancements for the aggravating factors aren't broken down  into a b or c for example your honor it's just that the first clause of the punishment is a misdemeanor the second clause of the punishment is in effect the felony offense allows punishment up to ten years and then the third cla of the punishment allows a felony punishable up to life so there's no subsection c for purposes of hand i don't know if you understood my question did the jury verdict on the instructions be sure to listen to me and i just think what you're going to say right now is the jury verdict as delivered under the instructions that the court gave the jury established that the jury found that the defendant's acts included the use attempted use or threatened use of a dangerous weapon explosives or fire your honor that the verdict form excerpt of record eleven there was no special verdict where the jury marked that the offense included the use attempted use or threatened use of  dangerous weapon explosives are fire and that's because when the jury was instructed and the instructions are at our supplemental excerpts of record at seven eighty six the jury was instructed that it had to me  had to find beyond a reasonable doubt the four elements of the offense and here those four elements were the first the defendant used force or threat of force second that the defendant willfully intimidated or interfered with the victim third that the defendant acted because of the victim's race and because he was occupying a dwelling and forced importantly that the defendant's conduct involved the use of attempted use or threatened  dangerous weapon so when the jury found that the defendant saying the jury did specifically find because of the instructions given that the defendant used attempted to use or threaten to use a dangerous weapon yes the guilty verdict shows that the jury necessarily found that the defendant used attempted to use or threaten to use the dangerous weapon explosives and fire let me also flag for my colleague jury instruction number eighteen seven eighty nine and that specifically instructs the jury that if they find the defendant guilty you must also decide if the government has proven beyond a reasonable doubt that the firearm the defendant used or carried was a short barrel shotgun and that the defendant brandished or discharge the fire yes and that special finding your honor goes to the penalty under nine twenty four c so normally it would be a five year penalty simply for carrying or using the firearm but where the jury specifically finds that the firearm is a short barreled shotgun it's mandatory ten year minimum sentence the same way that when the jury specifically found here that the defendant discharged the firearm it's a mandatory ten year sentence under nine twenty four c one hundred one thousand and four c one b i recognize that honor this was jointly prosecuted by our criminal section in washington d c and the local u s attorney's office under the u s attorney's manual civil rights appeals go through the civil rights appell section in washington d c and so it's kind of our normal process and certainly where we jointly prosecute the case below we generally take the lead on the peals and the civil rights criminal statutes so let me understand this little more so so d o j was involved in the trial as well yes so one of our attorneys from the criminal section of the civil rights division which is based in washington d c prosecuted the case with one of the usas out of the eastern district of california and let me understand the underlying policy there's a deal jay participates in the prosecution of what it is what's the category here's the house and to find the higgs normally well there are different kind of considerations that go into the staffing of the cases  the u s attorney's offices where there are criminal civil rights offenses always provide notice to the criminal section of the civil rights division that they are perceiving or seeking to proceed sometimes they need certification from  the d o j leadership on certain sorts of the criminal civil rights violations sometimes they can indict without approval other times they can go forward simply with a notice depending i think on resources both at the out of the jury's hands the jury was instructed in the instructions on count two you must find this i instruct you that this is a violent felony ok ok it's they were told that they had to determine whether you know what he carried and how you how we brandished it in the verdict they were they had check marks for that but i hadn't the actual jury instruction the court said and it was in bold in that that i believe that it the jury was instructed you must find this i instruct you that this is a fine one felony if you find by prove beyond a reasonable doubt that he carried a short barreled shotgun and brandished or discharged it i agree with you the next line says i instruct you that interference with housing rights as charged in count one is a federal crime a bio correct yeah in order to find that he committed the weapons offense which is nine twenty four c they have to find that he he had a weapon well i guess what i'm trying to figure out is where's where's the error here with regard to telling the jury once they found those two key facts that if they find out by proof beyond a reasonable doubt as a matter of law that that constitutes a crime of violence that makes perfect sense to of you're the judge thirty six thirty one does not define a crime of violence and no matter it's telling the jury that if you find this then under is instruction for nine twenty four see right and then look about the middle of that page and you'll see where he told them that right after if you find those two things then i and then i instruct you that interference with housing rights here would be a crime of violence right but i thought our separate clauses the court is saying he's made he's saying that the instruction for interference with housing rights is a federal crime of violence these other are are related to the nine twenty four c yeah i'm not not to thirty six thirty one but i think it's back to my question where's the error here i realize we're talking about both count want to count two in one instruction but the declaration of a matter of law follows telling the jury that they have to find these two key elements of my proof beyond a reasonable doubt and if that's the case then where is that error  telling the jury once you've made that determination that is a crime of violence under thirty one sixty one but those are two different things thirty six thirty one it's instructing that i'm here i'm taking this decision out of your hands i'm i'm instructing you find this and this in under nine twenty four c but i'm instructing us to thirty six thirty one that you don't have a decision to make because i am instructing you that that's a crime of violence and therefore qualifies under nine twenty louis amount in another way if if that language about proof beyond reasonable doubt to find those two elements have been included in the instruction for thirty one sixty one followed by the statement this would be a crime of violence would that would that be or what would be it different case well i'm i'm i'm trying to find out what difference it makes that it was included in an earlier instruction we look at the instructions as a whole do we know right but then order to determine when i'm certain in order to determine whether the jury was properly instructed all right but there are two different statutes yes thirty six thirty one he instead of saying nine twenty four she requires that it's an analysis of a crime of violence correct and that court instructed them that thirty six thirty one is a crime of violence but i'm not and i'm not sure we talked about this the first time you were up but where i was going with my questions on the modified categorical approach was that if we determine that these facts occurred that he  shotgun that would be a crime of violence under thirty one sixty one would it not i no no no what more would the jury have to find physical force brandishing or discharging why is that not physical a short barreled shotgun and this is a really noxious weapon and if you're displaying it or firing it at the same time you're telling somebody get out of oil dale that's interfering with housing rights by force or violence is that it is well i don't know how i don't know what more aggravating factors he would need in order to reach that conclusion well well i mean there are a lot more aggravating factors you know you need a victim i mean we fortunately the victim survived here he missed well he didn't yes and what comes up must come down somewhere right well supposedly they never found anything but yes of course some think what it comes up must come well i mean i think to a certain extent we're arguing over how many  the fact in my opinion and in the law don't necessarily come up the fact that mr whittington was had never been convicted of a felony doesn't matter it's you know what matters here the district court accommodated for that did it not by blow guidelines well he departed better he did but the sentence itself was not really a probation officer because it was struggling with the same thing we're struggling with here is this violent decided wall this is a lot like an assault or an attempted murder and hence the sentence within the sent and you know at that point i think that probably a signal could have been sent to defense counsel that perhaps some sentencing objections should have been filed but they weren't and  the bottom part of the guideline in the guy and in both sentencing it's transcripts both the sentencing matters said that  attempted murder and assault were added in the first time they guided the whole guideline the second time they added four levels but they were still considered to be the underlying facts which were not  united states for switching to submitted for decision the next case on the remaining case on the calendar united states vs and i apologize i don't know whether to pronounce the name hagar hage i'm sure i will be informed