opinion which is first in time will control the drug statute part of mr jordan i feel its case so i haven't answered questions about that but otherwise i'd like to focus on that i was on that panel and i think your inclination is correct that we probably would be  but on the facts of this case that request constitutes nearly forfeiture of the claim grazing now and not a waiver and for that reason this court can still review for plain air forfeiture is the failure to make a timely assertion of a right it waiver is the intentional relinquishment of a known right well why wasn't that intentional if he affirmatively asked for those guidelines to be applied why wasn't that intentional so this court in its prior cases that sort of finesse the difference between forfeiture a waiver looks at the issue in question on a very particular specific granular level and not a sort of high level of generality so for instance in the pres case which we cite in a reply brief question there was whether it was defended had forfeited or waived case among other cases where this court says that an error is waived and therefore unreviewable when the defendant has both invited the error and to relinquish the known right so even if it's invited as long as there's only forfeited the twenty fifteen why isn't that relinquishment of a known right so it has to do with the level of specificity which this court defines the right in question so as i was saying in peru as that the court characterized the right as the right to receive that very specific jury instruction about in relation to element not as the sort of general high level right to have proper jury instructions would have a jury who's but that's something that was very specific right the right to the twenty fifth to apply the twenty fifteen guidelines are the right to apply the twenty sixteen guidelines how much more specific could it have been well it could be specific to the right in this case the particular right is the right to be sentenced under the new definition of extortion under which nevada robbery no longer qualifies as a crime of violence the twenty sixteen guidelines are only worth the right to twenty sixteen guidelines is only worth of indicating for the defendant only wasn't that the issue at the time also it's a sort of dance of the question i think it's important step back in time and reconstruct the legal a guideline commentary is only valid if it's consistent with the text and once the residual clause drops out of the four b one point two robbery which is a new marriage in the commentary of the guideline is no longer valid because it's  not consistent with it's not an elaboration of the remaining text of the guideline and there was substantial case law to support that position at the time the first circuit held in january of two hundred sixteen that once the residual clause is found void for vagueness crimes numerate in the o there's no evidence in the record that defense counsel was specifically aware of the right to be censored of the sixth or some definition that didn't include the right to didn't include about a robbery and this court does look for affirmative evidence in the record if you go back and look at pres the court talks several times about the court says quote we are concerned with evidence in the record that found it was aware of the right or in miers the court said on this record we cannot say that miers was waived and yes there are not reviewable even for plain air so we're not we're not parsing that argument but we do really believe this was a forfeited error because this court looks at the very specific facts and looks for affirmative evidence in the record the defendant knew about a particular right and in this case all the action at the time based on the government's concession and the uncertainty in the law all the action was on the residual clause and the twenty fifteen guidelines in other words unless we apply the twenty six thousand version of the  this court talked about a situation where there was a quote misapprehension of the law and where that's the case this court will find forfeiture and not waiver and that's essentially what we have here all the parties were under the misapprehension that johnson invalidated the residual clause and forty one point two turns out after battles that was wrong we know that now but no one knew it at the time and so that is what the parties focused on there was no discussion of doesn't that a robbery fall within the new extortion definition twenty sixteen because that is you just didn't come up and the miers case which i also cited to the court does consider the the existence of intervening supreme court case law to be a relevant consideration in the forfeiture or waiver analysis in that case at the time the defendant opted for a judge led settlement conference in its plea bargain it wasn't exactly clear whether that was allowed in the rule of one eleven one c then the dealer case from the supreme court came that it's a that's categorically and permissible and this court said well in light of the will hear from the government good morning may it please the court where elizabeth white for the united states the government does believe that this that this reliance on the post august two thousand and sixteen amendments was waived the defendant clearly knew i mean the default at sentencing is that your sentence under the guidelines that apply at the time of sentencing unless ex post facto considerations would mean that that would be a lower sentence and that this defendant here obviously the  two thousand and sixteen the post august two thousand and sixteen guidelines were in place that guideline had the definition of extortion that the defendant is now arguing means that his offense doesn't qualify and was certainly aware of that and specifically said to the court my client has a right to be sentenced under the pre amendment guidelines and the government said ok fine and the judge said ok fine and then he was sentenced and so as it turns out all of the arguments that he made the district been rejected by this court in a published decision and so and so really at the end of the day they asked for it one way the judge the judge did what they asked for and now they're up here on appeal saying that the judge plainly erred by doing what of the judge to do so we would say that that was a waiver in any event though i mean at most i mean even if even if this court were to find a waiver we would then be put in the in the area of plainer and in fact there was just simply no step back and we say here's so this goes to the merits of the of this argument about the new extortion definition when we think about extortion what is extortion probably the classic maybe the quintessential example of extortion in our culture is the mafia protection racket right i mean the guy goes into the shop and says hey nice story you have here boy wouldn't it be a shame if something happened to it right give me money or i will burn your store to the ground that's what we think of as extortion in the o'connor case the tenth circuit actually said that several states specifically and acted extortion statutes because there robbery statutes did not cover threats of damage or injury to property and so that's what is now if the sentencing commission in adopting this new definition of extortion had intended to do a complete one eighty and exempt from its definition of extortion the thing that we think of as sort of fundamentally extortion they would have said so and they didn't wouldn't you agree that the amended get does have a more restrictive definition of extortion absolutely and the sentencing commission explicitly an specifically explained what it was that they were narrowing what they said is they they cited in the commentary the supreme court's decision in our delo and in our dello the supreme court said extortion means threats you know getting someone's property by threats or fear and in our delo the supreme court said that that that that can include fear or threats of nonviolent fear fear to injury to reputation public humiliation the case in r l essentially blackmail about threats to property rights and what they said what the commission said is that they they intended this amendment narrows the generic definition to limit the offense to those having an element of force or fear of threats of physical injury as opposed to nonviolent threats such as injury to reputation  within threats of unlawful injury ok the defendant is that consistent with the comics or i guess that's what i'm asking you whether or not the expansive language empathy or low pay is is consistent with the more restrictive definition in the twenty sixteen amendment right and i would say yes i would say i would say no there is no there is no problem there because the commission was absolutely explicit that what they were eliminating was these threats blackmail type threats to reputational harm threats to public public humiliation and they were they were keeping violent threats right violent threats pay me money or i will burn down your store is a threat of violence i mean that is physical harm as opposed to emotional harm reputational harm and that's specifically what the commission said they were doing and in fact investor a lopez there was discussion about this about injury i mean in the defendant's reply brief they sort of i guess mock the sentencing commission a little bit saying well you wouldn't use the word injury to talk about property you do use the word damage and we assume that the sentencing commission has  language and you wouldn't use the word injury to talk about the right word injury to talk about property well in fact in this in the context of this specific case that argument is especially meritless because the  whole reason we're here i mean the whole reason that this question about nevada robbery is a question is that nevada robbery talks about taking someone's property by means of fear of injury to the victim's person or property rights so the statute that we're interpret in here talks about injury to property the california statute investor a lopez defined sphere as the fear of unlawful injury to the person or property of the person being robbed and the circuit with all due respect to the tenth circuit the hobbs act robbery statute says the same thing i mean all three of these statutes talking about injury to property now i haven't done a fifty state survey and so i don't know how many state statutes define robbery specifically in the generic sense of only to persons or this broader sense like nevada and california does persons or property but the three that we know of nevada california and hobbs act use the phrase injury to property so this idea that you wouldn't use that word injury to property well you know if they didn't use that we'd have no there wouldn't be a legal question here the question is whether this injury whether injury to property  physical injury as opposed to nonviolent and or injury such as threats of injury to reputation injury to harm the  in any event at the very most what we have here is uncertainty right i mean even the government's position is this is entirely clear because the commission was absolutely specific about what it was was cited in our jello which was about blackmail it said specifically that it intended to exclude nonviolent threats such as injury to reputation right but even if this court were to find like the tenth circuit found that there are some ambiguity that there's a couple of different arguments that could be made the posture here is playing there and so our argument is there's no error at all and certainly any  no now the defendants say oh that means no these weren't elements of the crime but that's not what lukman says what lukman says is no this wasn't an unconstitutional delegation the legislature set forth an intelligible principle the legislature set the pen of an intelligent pretty full principle of what types of substances go into each one of these schedules so that the penalties and then delegated to the subject matter experts the responsibility and authority of deciding which substances go into which schedules that's exactly how it's done in the federal system right i mean congress in the controlled substance act set forth the schedules and what kind of drugs go in each schedule and then delegated to the attorney general who in turn delegated to the da responsibility and authority for figuring out which drugs go into which schedules clearly in the federal system the identity of the substance is an element of the offense it's just not an unconstitutional delegation because the court because the legislature gave proper guidance lukman is the constitutional delegation it's not about elements other than in that little question presented the word element does not appear anywhere in the decision that's not what the case was counsel do you think it might be prudent for us to get the advice of the nevada supreme court rather than us trying to guess as to what those cases mean i think that said the celebes controlled substance requires proof of an additional fact that the other does not is the particular identity of the controlled substance and in fact they cite four cases for that and if you look at the cases that they cite that shows just how broad they intended what little problem is there are no model jury instructions in the battle and there are cases that can be read as saying that the jury does not have to indicate what particular control substance context of making jury findings in a bad a case law does not require specificity regarding the particular means of committing the crime and i think that's a problem if it's a means but as i say i mean the court mahler said these are elements i mean these are actually elements of the offense and they well you didn't say that in it didn't say that in the context that we're talking about whether or not something is an element or means  and account type of question actually right off the bat ok if we were to go down the road the judge in the suggestion of sort of find the caliph arm to argue that a supreme court my concern with that is with your client sentence can you take briefly touch on if we were to go down that road would end up all totally benefiting your client even if you got a result he wanted in light of what he's potentially going to be released the short answer is it might not benefit him because i don't know but the certification process as i understand it can take quite a long time mr mayfield is serving a sentence of ninety six months which is middle of the guideline range if this court if the district court were to hold that subset the statute is indivisible and therefore shouldn't count it would be a four level reduction which would knock down his guidelines range to sixty three to seventy eight months middle of which is about seventy months at that point you know it's pretty close to him being out anyway and in any event there are collateral consequences no yet in any event mathis tells this court what it should do when there is uncertainty matthew says taylor demands and impose impose a demand for certainty on sentencing court unless there is certainty that a statute is divisible you stop with the conclusion of the statutes overbroad and here the fact that we're arguing about this at a pretty sophisticated level should indicate that there is no certainty in that that for that reason you just stop and say the statutes overbroad you don't apply the enhancement as for the the robbery statutes like to touch on the merits f extensively to the sense in commissions explanation of his reason for the amendment but respectfully that gets the analysis backwards and also starts with the text of the guideline the text in this case is very clear it says extortion is a turning something of value from another through fear physical injury or threat of physical injury injury is simply not a word that people used to describe harms to property we would never say someone injured a lamp or injured his shoes she just gave us examples of where the stack you see the injury to personal property well the fact it's understood that that would be a more a better way of putting it they were using a shorthand because regardless point is when you see the word injury by itself that refers to harms to people as i said you don't by i definition hypothetical proposition in the in the definition of extortion it is by soft your honor says fear of physical injury or threat of physical injury doesn't say injury to person or injury to person or property or one of the other is just as injury and as the tenth circuit recognized in the o'connor lord the government is a government that in o'connor the tenth circuit said that historically extortion was used to fill a gap left by robert statues that didn't cover harms to property and that might be true as a matter of background and history but it is a matter of interpret the plain text of the extortion with knowledge of how the ninth circuit had interpreted it extortion in the sarah low pass you know your honor because best rule of hers was interpret it used a different definition of extortion from the supreme court's more delegates so you don't think the since the commission was aware that they were certainly aware of it they said so in their explanation of the reason for them and they said we're changing the definition and they and they used language that on its face refers to harms to people oftentimes when the sentencing commission is attempting to correct what it sees as error in the case law i was specifically so articulate why do you think it was an articulated in the twenty sixteen amendment that the sentencing commission was attempting to correct the misapprehension of the ninth circuit in best of a low pass you know i don't know your honor but i think this is why courts are sometimes skeptical of legislative history is that it's it's a snapshot of how those few people are thinking at a certain point in time but it doesn't necessarily capture what the text of a certain statute or guideline or rule actually says and that's why courts always start with a plain text of the statute or the guideline and then only if that's ambiguous only if you can figure out what that means if you look at the legislative history and here you don't need to go to the legislative history because the text is clear on its face talks about threat of physical injury and injury is just not something that you do to prove it's something you do to people and thank you counsel thank you your honor thank you to