better the court's permission i'd like to ask for three minutes for a battle ground if the court hearing correctly determined that mr blair had five previous convictions for violent felonies committed on occasion for different from one another and this finding increased his otherwise applicable maximum sentence and subjected him to a fifteen year mandatory minimum sentence none of the five convictions relied upon by the district court and none of the three additional convictions that are offered  ok can you well go ahead i may be interrupting you was your just about to get to the point what's your what's your basis for thinking that these are violent felonies and that not surprisingly that if if you have a if you have a statute that is not visible then you have no foundation or basis for applying the modify categorical approach isn't that the holding of  ok well you think the pennsylvania robbery statute is not visible no i'd like to start with the one nine hundred ninety robbery convictions we have a robbery statute that is clearly divisible into a one i two i three i through five mr and so we know we can look at tailor shop or documents mister blair we have an indictment a judgment that reflects only that he pled guilty to robbery as a taken your take of the visible statute down to another visible subsection and then saying the camp of life that's exactly what the can stop it has a statute that is it's entry of various places to commit a crime in taylor shepherd and even in the camps they talk about the various places that's divisible but the entry they are talking about the statutes not divisible into entry the element of entry is this broad element and what's most helpful least in my way of thinking is the example hypothetical that the court gives us in the camps it hypothesized a statute just like this one the criminalize assault with a weapon and it says only assault with a gun would nt requires that the jury not a later sense in court has to find facts unanimously and beyond reasonable doubt the only facts we know are elements were in no where actually don't even go there the only i do rely on a lean but here this is it's simple or even it's the only facts that are necessary to conviction are the elements and pennsylvania is a three robbery the elements are a threat to commit any within the robbery statute and so the statute overall is the visible you could we can figure out which piece you call you plead guilty to right we can attempt to using a tailor shop or documents pennsylvania any felony of the first or second degree includes felonies that do not have force as an element and do not otherwise threaten harm and as an example i offered if in the course of committing a three ten that's an f two that is encompassed within pennsylvania's robbery a one subsection three statute so we have a broad i just have to stop you because i had thought that in violent felonies committed on occasions different from one another but it most count as one violent felony pretty good so you're saying when you said at most that was that was you're out of your great knowledge they were violent felonies it's to camps that creates this new argument plain air and that the court can notice that we are so so your assertion is that what was evident from sheppard taylor documents before the can now is no longer evidence or says nothing that the court can figure out same as this robbery conviction i'm talking about we had this court's opinion in my own in my home the court was looking at the indictment term and what the underlying crime was so that's the law that we were stuck with in the district court we now know that to have been wrong well you know and i think i heard you acknowledge that a felony robberies a felony in the first degree if in the course of committ your client plead guilty to that thing which could be one of which could have one of those three things only one through three right and then you go to the third one of my following you right have you say the third one consists of a couple of things  what is a felony of the first or second degree that right exactly and that's where you're picking up argument kicks in and you say well we don't know what it is the king of tells us we can't look right to can say completely actually applies in the context of a robbery and there you even have an admission on the record from the fund that he actually committed the the unlawful entry element i'm betting i'm confused because if what you're of force against property then there could be an argument that the statutes of visible here we have an indivisible broad statute just like the burglary statute issue and the caps entry of a place to commit a crime that pleads guilty never has to admit lawful and treat as an element because it's not an element here to the peculiar of one or two threatened is never an element of the offense the defendant never has to admit committing a particular f one out a statute just like this one and all you have an indictment is an indictment and that's all we have here this court has to consider that the defendant his conviction rested on the least probable conduct necessary to support the conviction you're saying there aren't other argument is essentially the same as the burglary arguments the escape arguments are all about the records and those cases again what the government has put forward as indictments and so we have an from a non secured facility in the case the pennsylvania statute that statute also encompasses the failure to report type of the state which chambers ruled is not a violent felony categorically in the context of walking away from unsecured facility without using force or violence we have hopkins from the circuit which essentially holds that and then we have other circuits that have reached following chambers and held that walking away from a non secure may please the court lar when from the u s attorney's office on behalf of the government i was intending to start with the issue of committed on occasions to one another but if a court would like i'd be happy to jump right into the camps yes i would like prevents you from looking at taylor shepherd documents that's one problem i see that i don't see i don't find any authority for that to kant's the other is it's driven by the grading by the state and what we do know what's clear from everything we've read is that this is an elements driven an offense elements driven analysis we started the petite case in our supplemental briefing the proposition that you don't look at a state's grading because it's an element because the state this  a question of federal law it allowed to be driven by those things to which a defendant does not really are going to further confabulate in confound the analysis a level that will be more and more difficult and our position is anything in the camps makes it easier now because we know although the circuit wasn't doing it and you know the limits the visibility into visibility analysis and we were indivisible you don't go any further and decamps also takes us back and reminds us get to the what we do have how do you convince us that we do have violent felonies that count here well in this case we have some that are divisible ones i'd be terroristic threats and  burglary obviously the ones that we can lead off with are the robberies which are indivisible we look at his we look at the statute we know that they qualify and his judge jordan pointed out that issue was not before this court as to whether or not they in fact qualify the issue that was presented was do they qualify as commenced is that offenses committed on occasions different than another so that issue is gone the only only robbery that was preserved on appeal was the one of the pi from hollands of any force however slight and we would argue obviously grieved as we did in our break that those qualify so now we have four all right so you're saying for the district court the argument was just made was never made right i mean i appreciate that the supreme court can come along and say things but then might change things with a that was not made clear in the brief that that's what their position they were taking and b i'm not sure it's even a playable here even if it does change anything for the reasons we've already discussed so we have four for the robberies  we can go on to the states and talk about those and talk about the terroristic threats but again if if the analysis have to be broken down to every statute it subparts to the point of being invisible i think that the camps would have if that's what it says there would have been an outcry if this is more complicated than less complicated in the supreme court started off on page twenty eight twenty two eighty three saying really our prior cases decide this case this is there's nothing new here if that were the correct and it's also correct if you look at there the issue i thought the court wanted to hear about was committed on occasions different than one another and i think that if you look at what that means first of all that's completely separate from whether something qualifies as a predicate the predicate analysis is is there an anough question of violence for congress to have said you know congress is all about the violence the committed on occasions different than the other is the final through which you have to put those predicate those cases to see if they are predicates i would turn the course of you'd like more detail on that and we believe it's a question of law i can add on that i can talk about any of the other prior predicates if you have any questions well if we haven't mentioned residual close which is a big part of the argument i thought does qualify as we stated in a brief as an enumerated offense that you can look at the criminal complaint and if they are back drop argument would be the residual cause i don't believe it's been waived because all the information is there for this court to make a determination say in your briefing that the nine hundred ninety one convictions were for physically taking or moving property from a person by force oversleep but there were they were actually first degree and then than ninety robberies the ninety one convictions those three are all felony one robbery convictions right before well i think they're subsection three whereas the by force however slight because i hesitate to classify them you first with respect to the raising the new issue in the supplemental brief it was clearly raised in the supplemental brief that the three robbery f one robber's from one nine hundred ninety don't qualify under t to the lowest subsection where defendant can take refuge and say and now it's visible you can look to see that i actually aggravated assault actually no that's not the case because the government of course has the burden of proving that it's an actor qualifier and if the government wants to if all we have is an indictment and all we have is a judgment that could be true it might not be true after night after you know amendments to the statute and they don't have to be true at taylor shepherd documents if the guilty plea colloquy hadn't been introduced entering the guilty plea colloquy the defendant admitted to a one version or the eighty two version then it's a violent felony here the government has the burden they feel to come forward that additional evidence the government always has the power in the district or in sorry it would have been in the state court to have charged just a one or on the judgment to have the judge reflect a guilty plea to just a want they didn't do that in this case it's the failure of proof here that makes this not a violent felony but when we talk about you know suspending disbelief i guess i have to point to the camps decision itself they would have thought i think even six months ago that the supreme court of the united states would hold that california berkeley is categorically never a violent felony that was the holding the biggest state or the most populous state in the country and a burglar in thirty seven no one is divisible and to a one through a five but i should point that there's a concession all along from the government and the district court and in this court that looked at the robbery by force however slight from one thousand nine hundred seven that's under a one five the government always conceded that a one five was not itself divisible that you couldn't look at the conduct underlying that conviction to determine whether that crime was a violent felony it was always look at the elements of a one five and determine is it categorically a crime of violence it's exactly the same thing applying it to a one three right thank you we may need something further on this or we may not but you know we do thank