his history and also to robbery convictions since the matter was brief your honor the supreme court has ruled in the mathis case and this court has ruled in the jones case which affect this case greatly and i would like to spend most of my time addressing those two cases it would seem under the jones case that we could practically take the thing about jones you have to realize is that the mandate has  generic example of what an assault statute should be therefore we will before we even get to the modified categorical approach we run into a problem which is whether or not it even applies under the a c c a and would seem to mr that is highly doubtful  now this is a question of great importance that goes well beyond mr paine his case and or standing by the federal statute requires the use of physical force assault doesn't reach attempt and here the the the there's an attempt issue that may well be judged but unfortunately the mathis case sort of changes things and the reason i say that is because of the difference between the assault statute itself and a new york law takes an injury based approach and it does not matter it does not even mention physical force and when we take a look at obviously the federal statute physical force is a requirement mathis is very clear that if we don't if we are able to match up the generic elements of the new york statute with with a generic assault statute it's excluded we never get into what mr  that is a question of do you make this argument in your brief oh sir i did not i did not have the mathis and jones had not been decided yet actually i and my  friend next to me is is probably shooting daggers at me your honor but i've made mention before the argument that we should probably read we brief this thing but there's so much has happened since the briefs were fun but i'm making an argument for the first time that i realize has great importance well and beyond mr a mr payne is case it may very well be that the new york assault statute in its entirety is not applicable under nine twenty four if that's the case there's a lot of there's a lot of people out there that's three cents under mathis the much broader question your honour's for a better lawyer than me ok also have an argument about counsel you want to pass on your honor and i would like to mention that briefly i i mean nothing happened that was earth shattering or significant that counsel that he was deprived of and the matters to whether or not it didn't actually affect him to begin with if you look i've obviously i've had numerous sixth amendment cases and if you if you take a look at the case law in this area pretty much the supreme court has ruled out any areas in which he's waiting to be transported out and it's been a month goes by medical stage of the proceedings no but it has a difference at the end because what happens in one of these conspiracy cases where i believe there was twenty some defendants as we have basically a race to the courthouse to see who's going to plead first and missed and everyone got a thirty day head start over mr pena that's just the facts time with and i've got a less than a month ago he's a man with a sixth grade education also judge i think there's implications here beyond the mere defense of mr pena i've had other cases where a negligent defense attorney simply doesn't care to go see his client for three months which i think is outrageous i think it's on that and mr pena actually regardless what he's convicted for he's the perfect example of why you need counsel the man has no education he doesn't know what happened him and he's sitting in jail for thirty days with out of his questions answered at some point in time it just becomes fundamentally unjust so i can't offer an excuse beyond that i was literally briefing the case actually judge i was preparing it end of spring when i found out about this and i literally had to make a motion to withdraw the end is great because well we've got some issues in reference to the plead mattered to richie pleaded guilty you mean how did in fact i'm sorry now i mean what was the proceeding like actually under the what did you know what that he'd know at the time with the judge and you know actually ari if you if you take a look at the transcript i think it was a pretty detailed play there was a there was a there was a long give and take between myself and my own interest right i'm sorry you're going to file an end i was going to file an anderson actually i did finally find any non frivolous issues in connection with the place other than the fact that i i think judge mcevoy made a mistake on the law that any of us got made at the time i think it was a very responsible ple actually trying to if anything i there's no dispute about that there's no dispute that he pled to them but also that they prior the prior offenses and talking that were part of the enhanced sentence calculation and there was never any question but that it happened that they were tributed to him that sort of thing ok thanks thank made is that in terms of the career offender enhancement there are two specific arguments that are brought up to this court's attention the first is that as the judge noted attempted assault in the second degree under the new york state law doesn't qualify as a violent felony and therefore should not qualify under the sentencing guidelines and hence meant as a crime of violence and that argument has been foreclosed by walker  the other argument that is made is that the two robbery convictions that were likely the the other basis for the enhancement should should have been consolidated and as we argue in the brief think it's before this court i think you need this court said many times that issues are brought up for the first time and all argument will not be considered absent manifest injustice and i think that term is typically reserved for cases where someone innocent man may have been convicted and here i even just the term manifest injustice you can have a manifest injustice if at the end of the day what has to happen is further analysis of the the modified categor johnson case which kind of is is it kind of and also the comps case those are all prior to the briefing in this matter and so it could have been brought up at the very least  forgiveness of these decisions that would come down later i don't i would i would disagree i think that as the as the parties and in jones itself argued around the same time  that johnson has a suspect and i think this is a been a very active area of litigation as the court knows for quite a quite a while so these these arguments were available it this is a very complicated area of law but complexity of the statute and the impossibility of knowing on the record we have which specific subsection he pleaded guilty to so your i do think that these arguments were available there not before the court mr pena has the remedy of a twenty to fifty five that he could bring and although we we would argue that you can't bring in the  clear in numerous cases where there's been potentially meritorious claims that that claims that are not raised in the briefs they're brought up at the last moment on all argument are simply you have to have a manifest injustice we don't have that here so i which raises the the history the criminal history category and the offense level he was looking at a range of two hundred sixty two months to three hundred twenty seven months sixty two to three twenty seven that's right and the judge imposed a sentence of one seventy eight counsel and in that way i think referring to mr perry on that issue sure yes your honor and i think on that issue i mean a and i'm going to be editorializing here that the way the case law is developed i think the equities here are or are more ambiguous i think it's not the case where someone's been convicted of a crime of the don't commit it's we're in this appeal that you don't remand unless there's a manifest in justice and again i just don't see a manifest injustice that was committed here we'd have to know more and that seems that can be explored through twenty to fifty five because one of the very issues that comes in july about a month later right that's right and when is the sentencing i'm sorry and was the sentencing hearing the sentencing you're on or one second at the briefing occurred according to the regular schedule so ninety days later there's a response and fifteen days there was a reply unless the court has any further questions actually going to be able to address these issues i'm actually sensing about frissons and yesterday give us a start over and i know that sounds a little bit unscholarly but i haven't given you a brief you can really work with judge mcevoy really hasn't had a bite of the apple this we don't have the stuff just like john's with one of the stuff on the record so you can make a decision and we're going to flail around out there and make a mistake that's going to have ramifications in a few hundred other cases and i think that's well i'd like another shot at it's are also judge i would like to mention it as a very real issue i was aware at sentencing i knew very well that robbery is a violent felony in a new york walk and i knew about the spencer case and making that objection was simply inappropriate was just wrong ok ok very well thank you very much for your decision