all right next up we have united states versus fernando sanchez and lloyd just a moment for the courtroom to clear position that new york attempted nd degree murder is not a crime of violence as counterintuitive as that may sound our argument is that it can be committed by omission and that a mission cannot categorically cannot be  used to force so i think this is a really hard case it sounds funny to say that an omission could be a use of force right and i think that under curtis johnson if we were just looking at curtis johnson and nothing the came afterwards the answer would be easy and omission cannot be a use of force then we had castleman but castleman i think is distinguishable because it's a misdemeanor case rate and that's the reason why the court uses the common law definition of force but then we have still cling and i i frankly i don't know where the status of the law is after stoking because in stoke when the court says well we're going to use the common law definition of force but we're going to do it because this is a burglary right and this is consistent with johnson we're not overruling johnson johnson was a battery and that's a different kind of common law definition that we don't use the common law definition of force there so now we have nd degree murder and to me the answer to this question about whether or not an omission can be a use of force depends upon whether we have to look to the common law for the definition here or we don't look to the common law and frankly i'm a little bit confused about what the answer to that question is so i'd be really interested in what your thoughts are on that and also the government when it's their turn yes your honor i agree still cling  which enabled a fifteen year minimum mandatory were robbed robbery and burglary and that was very important to the holding and still cling because basically the supreme court said it would not have made sense for congress to have written a way robbery and then they get into what robbery was on the common law but it's very specific to robbery i think potentially could be argued to expand to crimes which require for sufficient to overcome the victim's resistance but i think that's as broad as  example the supreme court has held that murder is a prototypically violent crime that the a c c started with robbery and burglary so i think still cling is really based on the history of the cia that that is why they decided part of why they decided that that the common law definition of robbery had to be incorporated in that in the force clause so i think still cling actually assist mr sanchez as to his robbery murder argument  aware your owners would know better cases that interpret the term physical force tell us that that requires a physical act so curtis johnson cited black's law dictionary for the term physical force and provided us with the definition as force consisting in a physical act in your honour's have also adopted in some of your own cases that same term force yes your honor can i just ask you one more question yes do you agree that the answer here rises or falls on whether we use the common law definition or do you think that it there's something else that we have to consider i don't think that there is a case that holds that the common law definition of force incorporates emissions castleman it self doesn't touch on omissions at all so here's what castleman says that makes me concerned that it does castleman as it's impossible to cause bodily injury without applying force in the common law sense right so if new york says that you commit nd degree murder by omitting to act and it has defined conduct as omitting to act right and that winds up causing someone's death why doesn't that meet this definition where justice sotomayor says it's impossible to cause bodily injury without applying force in the common law sense i think the issue is that castle and wasn't considering omissions so there just wasn't it they were talking about emissions they were talking about indirect use of force things like poisoning so i just think it's not it's essentially not fair to apply it outside of the concept of what was in front of the court in castleman i agree with your honor if we're going to essentially obliterate curtis johnson in favor of castleman that that yes if we fully embrace the common law concept of force and use this castleman phrase as broadly as possible but i think it's important to to try to cage cast a minute leas into what castleman was about and castleman of course was just a misdemeanor case it would be more my thought would be more to the extent that still cling to the extent that stokely would stand for the proposition that the common law definition of force would be applicable here then the common law definition of force as the supreme court has discussed it includes this statement which i think may present a problem for your client but i don't know if it doesn't get down to the common law definition then it's not an issue i think that so clinton go as far as to overrule queers johnson and curtis johnson specifically said were rejecting the common law version of a physical force we're not applying that to the c c a so to the extent there is a conflict between  stoking and curtis johnson on that point i would say it's still clings limited to robbery based on the history of the cards johnson applies to the force cause broadly and omissions don't count say that again your position is curtis johnson rejects  common law version of physical force yes your honor let me go back if finish because i heard you say we want to look at the statute shouldn't really start with statute here yes new york that he can't be convicted without actually forget about how he goes about killing the person but let's leave that aside for ok but at the tail i'm kind of simple and i start with one of the elements of this is you've got to actually and intentionally cause a person's death is that not an element of the crime the intent is to cause death and it's not a tempt it murder cause the death of another person and so you either take on at or you fail to take an act with the intent to cause the death of the person is that it ok and so we have said if you poisoned somebody that qualifies right yes and i thought we had in june i thought we had a nd degree murder case jones jones and that well the question of omission was not actually before the court so in jones heiler the one i can't pronounce to because it wasn't argued it wasn't argued across so the opinion doesn't address it that's right that the only way you go around it well i would also point out that in jones this court held that the difference in intent between nd degree murder in florida and st degree murder was irrelevant and that   differences act right so an admission being a culpable failure to act that question has not been as far as i'm aware before the court and it hasn't been answered which is why why mr sanchez is focused on it here so i think and i don't want to put words in judge hall's mouth or anything and you'll let me know if i've got it wrong but i think what judge sauls asking by starting with the definition of the crime is because new york defines omission as an act then why wouldn't a qualify under our precedent that i have that right she's got may confuse so i don't know but it was new york mean because new york law defines omission as an act why wouldn't an omission qualified and as an act under our circuit precedent well i i respectfully don't believe that new york defines an omission as an act i think that would what new york has held is that you can commit an intentional homicide by omission an act they're not doing a force analysis they're not doing is it an act or it isn't they're saying it doesn't matter you can kill someone intentionally through a mission but even if new york law has a separate provision that defines omission as act then what is your position on that well the way the new york law defines a new mission is the failure to perform a legally imposed duty that's in steinberg so that's it doesn't define it as an act and that's how i would read that statute ok thank you thank you felonies under the as clause of the armed career criminal act i'll turn directly to the murder discussion it is the government's position that attempted murder and mistake oblivion volves the use of physical force against the person of  another that conclusion we believe is dictated by the supreme court's decision in castlemaine and this court's post kasman precedence that the castleman is castleman specifically says we're dealing with a misdemeanor the definition for use of force in a misdemeanor is different it's dependent on the common law and it's different from what it is under curtis johnson where we specifically said it's not the same as what it is under the common law do you agree that that that's a fair sort of explanation of both of those cases well i would agree that castle it arises in the context of a misdemeanor crime of domestic violence but the discussion in castlemaine for why it doesn't matter whether the harm is employed directly or indirectly i think goes straight isn't limited i would say to the context of the domestic violence context and this court hasn't read it to be so limited because this court has relied on that logic in castlemaine in both in all of its murder murder preceden including heiler and jones and thompson and of course unveiled bayliner and i agree that it's been read that way by this court but if we look at if we go back to the source material and we read through the source material the source material is talking about it in the common law sense in fact says when it's talking about poisoning it says it isn't this is the same sentence that i read to opposing counsel is it possible to cause bodily injury without applying force in the common law sense and so you know obviously we're bound by what we've said but just from the standpoint of whether it's right which is important here because we're talking about an omission which is something we haven't talked about yet my question for you is why does castleman really apply here if it's just talking about the common law definition of force and the common law definition of force doesn't apply to nd degree murder i mean maybe the answer is it's the common law definition of force doesn't apply to nd degree murder after stoke lying i don't know your opposing counsel says that it doesn't because the reason that the supreme court applied the common law definition and still cling was because it was it went back and looked at the history of the statute in a talk specifically about burglary and robbery and so that's why the common law applied there but it didn't talk about murder or attempted murder so it would apply so i don't know what your thoughts are on that that's a lot and i'm sorry but no i mean i think whether you use the common law definition of force or you use the kurdish johnson culpability standard which is reinforced in st you reach the same result which is that intentionally causing the death of another necessarily as a matter of law constitutes the use of physical force but here's the problem with that right it's if touched does not equal physical force and we can all agree i think that curtis johnson said touch does not equal physical force would you agree with me on that yes ok and the reason that curtis johnson said that is because even though touch would be force under the common law definition we're not using the common law definition right isn't that what it said yes ok so if touch is not physical force and we're not using the common law definition how can not acting at all be physical force i mean that just seems to be a logical an act so this is not doing nothing this is making a deliberate decision to withhold food from a starving child in a very malicious and gruesome way over a you know presumably several days so that's not nothing gets back to my question which is doesn't liability under a c c a for nd degree murder of men depend on whether we use the common law definition or we don't use common law definition i mean i completely can see where you're coming from on the common law definition i don't i'm not following your reasoning under the not common law definition because you are going back to castleman which relies on the common law definition and then stoeckel in which again relies on common law and it specifically says it's doing so because it's involved in burglary or robbery which the refers to specifically mad don't think you need the common law definition of force two to conclude that new york attempted nd degree murder qualifies you could proceed under the kurdish johnson potentiality standard and certainly intentionally causing the death of another is capable of causing physical pain or injury because it has yes and we know that it's impossible to cause physical injury without using physical force within the meaning of the armed see i don't do well let's just say i mean i hate to get back to this but let's say you know you touch  someone you know and it does cause their death and i mean it sounds crazy that it could happen but there are fluky situations where something like that could occur you know maybe you're playing a joke on someone or sitting in a chair by a window and you sneak up on them and touch them and they get scared and jump and whatever there's an open window i don't know it's a crazy scenario but the point is flukey things could maybe happen i mean it seems to me point is that when you have an offense that requires as an element the causation of serious physical injury or death then you necessarily have the use of his own credit just said that because curtis johnson saying touch was a battery statue where it had no requirement that the act or admission cause death or serious bodily injury no requirement that you have the intent to do that so that's what pot touching kurdish johnson is it is what it is it was a battery a simple battery case whereas this has an element of the tend to cause well you know most serious bodily injury this is an intent to cause death that's correct and so that's walk touch here are whatever or no mission here is not inconsistent with him and that's your argument as i understand it yes and it seems to me but  force is force physical force is physical force we're talking about physical force which has been defined in kurdish johnson his use of violent force that type of thing i mean it seems to involve some kind of an act and i'm not disagreeing with you with your spec to the common law definition i think there's that's why i'm saying it would be helpful to me if you explained to me why the common law definition is the one that applies here and perhaps respond to opposing counsel's argument that battery that it does that the common law definition doesn't apply solely to battery and rock i'm sorry burglary and robbery defense offenses  not answering the question i think really you can just revert directly to the culpability standard that's reinforcing stokely whether common law is the is the is the deciding factor as to force in the murder context i don't think  proper inquiry because what matters if is if the conduct is capable of causing physical pain or injury and we know that's the case and in councilman for example the sprinkling itself didn't even require the touching of the of the victim technically you could just put poison in a cop and the victim you know drinks it so and then the supreme court in that context specific lee says it doesn't matter that i don't i was going to ask if i may actually isn't it that and a mission is not less and degree than a slight touching but it's it's simply in an issue of a different kind right it's him it seems that and a mission is of a different a different sort of category rather than a lesser category than a slight touch does that make sense view sort of an omission as really an act because in the end you're making a deliberate decision to withhold medical care with the intent to kill or food and so why i guess we resist the idea that this is a so called pure omission because there's really an act very much bound up in that decision and i think the reason why the supreme court in castleman makes that very clear that some possible to cause physical pain physical pain or injury without the use of physical force i because it doesn't matter whether the harm is caused directly or indirectly ok and it's about employing that device through physical bodies can i just ask you though and i understand what your position is with respect to why you think there why you think it is physical force being used even under curtis johnson but can you address the other question which is what is your response to if the comm just assume for purposes of this question the common law definition of physical force let's assume that that that for whatever reason we don't agree with you on that ok ok so then the question is why doesn't why does discussion in going about the common law definition of force is really in the robbery context and it's a deep dive into what was considered a robbery in the common law which is why the court focuses on that element of overcoming victim resistance i don't think that's a direct transplant to the murder context which is why the curtis johnson culpability standard ultimately carries the day and which is why stokely makes it a point to say that what its doing in its analysis is fully compatible with the curtis johnson ok i think i understand maybe you can just let me know are you saying then that the common law definition of force a physical force does not govern the outcome here are you agreeing that with that  i honestly don't have a well considered view on whether the common law governs the outcome here i would just say again you know i asked it badly let me ask you this way if the common law definition of force governs the outcome do you agree that this is not a violent crime no i do not i think murder in all its forms unmistakably qualifies as a violent felony and i don't believe any court has said that murdering somebody isn't a violent felony and let me ask you this then let's assume just for purposes of this question that curtis johnson's definition of physical force doesn't get you by here and we need the common law definition to get you by izzie your position that stokely does not allow the use or does not require the use of the common law definition of physical force i don't know i don't believe that once and for all declaring that the common law use of force governs all all inquiries into into specific convictions that was inevitably a robbery focused decision there have been other contexts where the common law has has sort of won the day such as in castlemaine but the bottom line is that in castlemaine it's not about the action that initiate the consequence it's the cause of a consequence itself which is in this case death and you're certainly employing a device i e starvation in a physical way through concrete bodies using the kurdish johnson and johnson terminology to cause the death of a human being so your position then is that the case rises or falls that is this  crime of nd degree murder either is or is not a violent felony dependent solely upon the kurdish johnson definition of which is the which would be the common law definition of force as you would say that it has been construed through castleman even though i think castleman is a common law decision i don't think that we we absolutely cannot win without the the kurdish johnson definition if you were to analyze the common law meaning a force in the stoking terminology you would have an offender overcoming the victim's resistance and in the case of murdering somebody  you're certainly overcoming their resistance to live i would say and you're deliberately employing a device to kill them i just can't imagine a contra construct in which killing another person intentionally ever could  violent felony and frankly i think it makes a mockery of the law to even suggest as much because we're talking about killing another human being i don't think any court has been willing to say that murdering someone isn't a violent felony and i don't believe this court should do so precisely because of its murder precedence and heiler and jones i agree with you if we did things by the way think sound absolutely there's no question that murder is a violent felony but we can't do it that way we have to apply the tests that the supreme court has laid out for us and so while i respect what you're saying about why it sounds like murder is a violent felony and you've obviously made an argument as to why that the law requires it to be deemed as such i don't think we can rely on of course murder is a violent felony would you agree with me on that of course and so we're bound by the legal principles and i think those are laid out quite clearly in cases like the old male and thompson and jones and heiler and other circuits for example have addressed  you know omission in theory in people's and in waters th and nd circuit decisions and both have concluded that the deliberate withholding of food from a starving person qualifies as the use of physical force and whether you do so directly or indirectly are nonetheless using physical force exerted through a concrete body so i think this omission theory is is is you know creative but it doesn't change the legal conclusion which is that killing somebody intentionally constitutes the use of physical force for those reasons and the other arguments made in our brief we respectfully ask you firm the district court sentence under the armed criminal act thank you force is that under new york state law two acts includes both performing an act or omitting to perform an act and so when you look at omitting to perform an act that's actually a positive act as opposed to just you know just sort of an omission i guess to the extent you can look at it what do you want to address that if we have to start with the definition of the conduct we have to start with a definition of the crime that the state has given us and then the question is why wouldn't an omission then count as an act as a physical act of force if it results in death or if it is intended to result in death i'm just not and i apologize i'm not sure i may not be asking a clear that where the definition so the definition comes from new york penal law  to failure to perform an act is the same as an act says to act includes both performing an act or omitting to perform an  act i don't think that changes what we know an admission to be it isn't fact a failure to perform a legal duty that's the other way the new york statute defines it i don't think that we can change what an omission is it has a legal definition which i think that statute in itself is a little confusing honestly basically i don't think that that dictates the outcome here because we are applying the force clause which of course has a federal definition and we're asking does does a murder by omission or an attempted murder by omission fit into the force costs and i know that the the government in its argument said that no  no other court has found that a murder or an intentional homicide is not a crime of violence and i would note that people's and waters both when both rely on a strained interpretation of castleman and they basically cite castleman for the argument that omissions can't count without noting that kassam it doesn't say a thing about emissions and focuses on the common definition of physical force but in united states st mayo the rd circuit really did a very careful analysis and in holding that aggravated assault did not qualify as a philadelphy aggravated assault did not qualify as a crime of violence because it can be committed by omission on note that in pennsylvania aggravated assault as cited in may it can be can be a death so there though in mayo at let's see i guess this is what the west leverage and i have at page seven the court cites the commonwealth versus thomas and thomas the defendant was convicted of st degree assault after she starved her four year old son to death and the rd circuit goes on to hold that because because this crime can be committed by omission it castleman doesn't dictate the outcome we can't pretend that the use of force is the same as an omission  forces in the text the potentiality standard is not and it also includes the workforce and and the rd circuit comes to the uncomfortable but inevitable conclusion that we ask your honour's to find  sanchez does not have three a c c predicates and therefore that he has convict his sentence must be vacated and his case remained it for sentencing thank you thank you counsel