please the court my name is barclay johnson i'm going to turn you with the federal defender's office in vermont and pleased to be here on behalf of ronald foley connecticut rock connecticut's robbery offenses not a common law robbery offense there is no requirement that there be a face to face confrontation or that the minimal amount of physical force required to commit the offense be used to overcome the victim's will it therefore cannot qualify as a violent felony under the force clause and we know these factors are crucial because in stoke lying the supreme court held that even though common law robbery and the specific florida offense at issue there could be committed with minimal physical force it was the face to face nature of the encounter and the physical contest over the victim's property that made the minimal physical force into the violent physical force that's required under the arm career criminal act they haven't we just held to the contrary and us we judge of all road connecticut statute defines robbery essentially as understood in the common law and largely throughout the united states requiring the use offenses involving or requiring only minimal physical force connecticut it's offenses plainly one of those that requires minimal physical force but connecticut y stoeckle ing redefines how the analysis needs to be conducted so going tells us when minimal physical force is involved you need something else to make that minimal physical force into the violent physical force the force clause requires i understood part of the analysis in both stoke ling and in the thrower just decided this to new york and in connecticut was that although if the offense can be committed with minimal physical force the requirement of the presence of another person and overcoming the will of another person always  includes in it it kind of inherently the threat that real violent force will be you know that the confrontation will escalate to these violent force and in all cases that is  law robbery and at least two ways that it criminalizes situations where physical force or the threat of physical force is used to compel the delivery of property and that's thus does away with that face to face requirement and with the requirement that a victim's will be over born in some physical sense but yet but judge of all read the statute is requiring men want even minimal force when employed in the taking of propert from the person of another inherently implicates a realistic threat of causing pain or injury so it qualifies as file physical force there has to be a person there it's not you know burglary in the middle of the night or you know taking something that's what we think of common law robbery another or different version of it saying the force is used to compel the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of a larceny so that the first of basically he refers to the basic definition of robbery under fifty three and one thirty three in connecticut us person commits robbery in the course of committing a larceny he uses or threaten immediate use of physical force upon another person for the purpose of preventing and so on that's a that's only the first part of the definition there is a second part to the definition which reads as follows where the use prop the force is for the purpose of quote compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny that but that still is modified by the opening words of the statute which says again he uses or threatens the immediate use of physical force upon another person doesn't that opening part applied a number to it certainly it certainly does but i think the verb to compel  expands upon the range of conduct that's invasion by overcoming physical force in a physical sense or overcoming victim count will not go back a step and ask you how you get to make this argument that it's not timely because the supreme court hasn't expressed it recognized this specific rule is wrong in a couple respects it reads and merits analysis and to twenty two fifty five three and in so doing reads out of the statute the requirement that the claim merely be asserted the seventh circuit and cross circuit to have to have just joined you in that belief context but there are courts in the seventh circuit the first circuit in the d c circuit granting these petitions this is the second reason is this this is the this is merely an application to the mandatory guidelines of the rule already announced it's just the logical application of johnson to an identical provision that there is no requirement that the supreme court expressly apply straightforward and the application of johnson to the slightly different residual clause in section sixteen b is straightforward the residual clause here is is in fact identical on the application is all the more straightforward and your argument is because mr foley was subject to magic torrie not discretionary sentencing that that takes him out of that calls right and the the logic fact supports this the beccles is expressly limited to advisory guidelines the logic of back holes in fact in hinges on the fact that the guidelines were at one point mandatory in our brief we believe there are at least five reasons why the judgment of the district court should be affirmed in less you judges steer me in a different direction i propose to talk only about one last the robbery issue  as we all know just a month ago a panel of this court decided as where the panel unambiguous and unambiguously held that all forms of connecticut robbery constitute violent felonies within the proposition relevant to this case even if in council as we just discussed to get over the timely issue he loses on the merits he loses on four i don't think that there is any basis in the law or in logic for that by the way your honors i do want to point out something two things actually first of all the defense says called into question the inner elation ship retains vitality in light of stoking it seems to me i suggest that the best panel of judges to pass on the interplay between is the panel i have been told that mr shabaab has asked for and received an extension of time until february nineteenth to file a petition for rehearing i would only assume that stokeley in would be front and like it would be prudent for this court to wait for that ruling the disposition of the petition for rehearing before you move on secondly there's a plain error issue here the argument that  mr foley now may after no claiming is that connecticut robbery is broader than common law or robbery and therefore it may not a conviction for first degree robbery may not constitute a in the career offender guideline mr foley did not raise this issue in the district court he did not raise it in his principle brief to this court or in his role reply brief so we submit that under well established rules he has forfeited this argument and if it is going to be reviewed at all it would only be for plane air plane to air it's hard to find plane air in this case because of the operative portion of the new york statute is textually identical to the general definition of robbery under connecticut law and the thrower opinion as we in the twenty eight jail letter noted that new york you know our section one sixty point zero zero textually identical to the connecticut statute explicitly incorporates the common law definition by explaining that physical force means enough for prevent or overcome resistance to the taking or to compel the owner to would deliver the property clearly taking in to account the second clause of the definition of robbery that mr johnson talks applies to ship by as is that the connecticut statute is broader because in addition to kata fine the overcoming of resistance to the immediate taking of property or the retention it goes further as new york statute does and criminalizes confrontations where  the threat is intended to cause the victim to deliver up property at some point in the future the objection that mr johnson makes to my mind may go to the question of whether connecticut law constitutes generic robbery within the meaning for example of the enumerated crimes provision of the career offender guideline but that issue was already decided by this court and pereira gomez mr johnson's objection about the second clause dealing with forcing a victim to deliver up property  not speak at all to the degree of force that is necessary to commit robbery and therefore that portion of stoking in no way undermines the conclusion that all forms of robbery  connecticut involve either the use or threatened use of physical force either to take property or to compel proper to be delivered up and therefore satisfies not generic robbery but the elements clause of the career offender the supreme court has told us and still going that we need to think about the way we deal with these statutes ones that require minimal force we need to think about them differently we've done that and we've briefed briefed on the merits and i don't think it's been waived or the plane or applies to turning again to the connecticut robbery statute the statute goes further even beyond cases where the physical physical force of the threat of physical force is used to compel the delivery of property and says or applies also where it's used to compel someone to assist in a robbery this offense again does away with the face to face or component of common law in robbery with the requirement that there be a physical contest over property that there be resistance be overcome and even that there be a larceny this is just compelling someone to us arnie noted these if it's part of it the other part is that the connecticut supreme court and right has analyze this statute and the analogous that you larceny from a person and said it's a larceny from a person in under connecticut law that requires this face to face confrontation robbery by contrast requires that a use or threaten use of force but there is no requirement for a threat for a physical confrontation and we know from stoking that that part of the key that's what creates what transforms minimal physical force into the violent force required under the