bob so we might as well just wait until the room is clear the only spectators left are the ones who want to listen to y it may please the court my name is julia pamela hyped and i represent the appellant and marie watkins we know that today there is a serious circuits split and determining how the supreme court decision of the my should be applied in order to avoid constitutional pitfalls three circuits including this circuit advocate the application of the actual conduct rule of the underlying crime to assess whether it is a crime of violence three circus have it here to the categorical approach which is we look just at the crime of conviction to determine whether there is a crime of violence that categorical approach has in effect been declared constitutionally infirm and by demaio now in this case contend no matter which approach this court takes it will be shown that watkins nine twenty four c conviction cannot be sustained watkins we know was charged only with a hobbs act as spirity and the nine twenty four charge upon pleading guilty walk ins did not admit to a single act of violence nor was any act of violence charge in the government's summary about the colloquy a plea the government did not mention a single act of violence that was committed by walk ins while the government did say that guns were involved the government big knowledge the guns were not brandished nor were they pointed at anybody they were just possessed it was no actual robbery only a conspiracy an agreement to commit a robbery hence from the very get go this case differs dramatically from barrett the second circuit case oh valas the circuit case and the  circuit case of douglas the facts of all of those three cases establish without any doubt that the hobbs acts conspiracies charged to those defendants where the appear to me of violence and barrett a man was murdered and douglas the victims were beaten by a crowbar beaten bloody by the way and in no less a ten year old child was struck during the robbery and there were other acts of violence that were in compass in this particular charge hence the court had before it vicious substantive crimes underlying the predicate convictions or underlying the facts of the crimes charge these cases depicted real world conduct as mentioned in my now one admittedly would have to be blind to ignore the barbaric nature of the crimes in the barrett ballast and douglas hence we submit it was reasonable for the courts to base their interpretation of nine twenty four on the actual conduct of the defendants rather than having to rely on the categorical approach and only address the conviction of the particular defendant involved in other words to only look at the elements of the crime charged but most important in all three cases the defendants let's say in the valleys and douglas in their respective pleas admitted to every single act of violence attributed to them by the government while in barrett a jury actually found the defendant guilty of that he committed the murder that was in compass in the conspiracy are you saying that the but for this your client would not have entered a plea well i don't think it matters whether he entered a plea or not here he entered a plea and we're addressing that particular play and there is nothing of that indicates any violence in the plea i mean i think that that is kind of irrelevant to look at it as your client is is would be interested in going to a jury have a jury decide whether whether your client a new or anticipated that firearms would be used to rob an illegal poker game yes you can walk in and how does it work otherwise you would you say to the people playing poker give me your money and they say you have a gun you saying no i just want your money but what your honor is doing and this is what the my forbade your honor is speculating as to what the future facts of this case would have been had the defendant not been a writ rested in the car before any robbery took place and india my it specifically states that when the crime itself and hanssen is the penalty within the within the set forth in the indictment itself which is conspiracy to commit object robbery right and so proof of the enhance satisfies the enhancements of that's a point of right use pinion that which is why you can use a specific facts to do ploy which which goes against the might just in some circles think that when you think about that i don't think it makes any and are you saying that a jury could not find a firearm likely would have been used had the robbery occurred or that they can't even consider a robbery would have occurred even though he's being convicted of conspiracy to object robbery but your honor i think that's a totally different case and it depends upon what the allegations are in the indictment if i'm the defense lawyer at that particular trial i would surely object saying on these facts he can't get the enhancement he can't get their hands made it can't get to enhance a categorical approach or the actual conduct approach ok and if i could just mention because i think this is sort of an interesting point is that the government points out this court's prior case in u s vs hill where in the court declared an actual hobbs act robbery to be a categorical crime of violence and then the court goes on and by the way when the prosecutor in his main  it was decided state it and agreed that that would be that it is a categorical crime here and therefore it would undermine barrett if you don't use the actual crime approach however once barrett came down and there was really just a sentence with no explanation that this court said well since we're saying that a hobbs act robbery is a categorical crime of violence and we're also going to say the conspiracy to commit a crime hobbs act robbery is also a crime of violence i don't think it matters one way or another because it's still categorical crimes and it's still a categorical crime would it does so for to win the pennant reasons first when the object of a conspiracy is a crime of violence on the force clause meaning that force necessarily categorically requires is required to have been used to commit the crime then the that physical force would be used and that's irrespective of the on the line fact for this reason alone the barricades governs the outcome of this you discuss counsel's argument that it goes against the mandates of to my yes trying to my  did not address nine twenty four c and there are a couple of reasons why that matters when we're looking at nine twenty four see that means i judge wesley pointed out that a jury would necessarily have to decide whether there's substantial risk that force to be used a judge is not making decision is not taking that decision away from a jury and not looking backwards sometimes in the aca context you have to look backwards you know ten fifteen twenty years to see what the facts were in that case you'd have to do thousand foresee context that's why demise different and barrett explain that the difference the second reason that baird governs the outcome of this case is the interplay between the force clause and the residual clause we ask where there's a substantial risk in this particular case where the physical force would have been used in this case the answer is yes these men the five men were on their way to rob a gambling establishment they were armed guns were loaded and the robbery didn't happen only because of the arrest so there's no question there's a substantial risk that physical force would have been used so using the underlying conduct approach that the panel held was appropriate and there also well when i'm suggesting and it's somewhat unusual is that i think that rather than barrett and i know that your honors will follow through i think that this case is probably the best case of all the cases in the circuit to go up to the supreme court to resolve the purton issues and i know that i'm somewhat behind the other cases but i think that at least in this circuit if we can somehow manage to get these two cases together i think it would serve justice and clarity with respect to the area of the maya because some guidance by me some guidance what you suggest give the courts guid well your honor has the guidance to hold cases in abeyance you know pending you know that they know another case is coming up and if your court with this court finds this case you know somewhat compelling which i think i do in the context of barrett that it isn't  stark and i would just mention the last thing i would say is what the prosecutor did in presenting his argument is exactly what the might have forbade he said it's what if what if there's a dings that they wanted certain allegations used they didn't that is the way the cases that's the lay of the land and i would ask this court to please if it's possible maybe maybe i'll succeed and i won't have to go with but in any event we asked that the conviction be vacated thank you thank you both we'll reserve decision