case it requires proof of the use the attempted use to threaten the use of violent physical force now for more than a decade the rule in this court has been that an element of causing or threatening the cause injury is not the same as an element using or threatening to use force and this court recently reaffirmed that important narrowing principle and it controls the outcome of  because unlike the vast majority of state robbery statutes and even the federal bank robbery statute texas aggravated robbery statute speaks in terms of injury or threats of injury not force and threats of force and that means that mr lim is convictions cannot qualify as aka predicates without the residual clause now there are a lot of issues swirling around in this case and they present multiple forks in the road for this court's analysis but i wanted to be clear before we get into that that no matter what path the court chooses today mr lehrer much should prevail because even if you agree with the government that the texas robbery statutes are entirely divisible and even if the government were correct that the supreme court's opinions in castleman and was enough eliminated the injury versus force distinction the particular means that were at issue in mr lehrer's conviction and that is threatening injury or placing another in injury or fear of injury excuse me aggravated by the use or exhibit of a deadly weapon has been stretched by texas courts to cover conduct that simply did not require or that the prosecution was not required to prove that the defendant either conveyed or intended his conduct to convey a threat to injure much less a threat to actively employ violent force which is what this force clause requires and so that brings me to the first issue and that is the visible case under the supreme court's recent opinion and united states versus excuse me mathis versus united states  visibility is easy in this case we've cited in our briefs the texas court of appeals opinions in burton and woodard and those are concrete examples of cases where the defendant was charged with either both underlying forms of committing robbery or all three aggravators in the texas aggravated robbery statute in a single count of conviction and the jury was not required to be  that ends the mathis inquiry because unanimity is the lodestar of the mathis and corey and if the jury didn't have to be unanimous as to the different alternatives than those alternatives are means they are not elements under ma and you've also got the court of criminal appeals opinion in cooper no that's a double jeopardy decision but what it illustrates is that the underlying forms of robbery in the texas robbery statute and that is robbery by causing bodily injury or robbery by threatening or placing in fear of injury are not separate offenses that could be that could support separate convictions in a single criminal transaction what that means is that they don't have a different element that would prevent the jump to double jeopardy bar from coming in and so that just reinforces the fact that a jury doesn't have to agree and that these are different of these are most is the highest court a criminal those are the highest court in texas is decision in cooper the majority held there that you cannot convict a person of doing a fair robbery and a threat robbery to the same person in the is that these cannot be if these were different offenses as the unanimity or excuse me as the divisibility analysis requires then they would be able to be charged as different crimes in a single  transaction it's kind of like an individual who commits an aggravated assault and or could be convicted of aggravated assault and attempted murder on the same victim because there's a different elements there that the each of the two crowns requires but the underlying forms of robbery are not separate elements or separate crimes that have separate elements but we don't even need cooper to get where the court needs to go today burton and woodard are examples and burden has been followed twice since it came out in january by two fort worth court of appeals so that's three cases since january where a defendant in texas has been convicted of either where were both underlying robberies were charged but the jury wasn't required to be  absolutely your honor and well i want to clarify woodard said that the underlying aggravate are the underlying robbery causing injury or using are threatening or placing in fear are separate elements but then it's said that the  if the underlying robbery is into visible and the aggravators or in divisible is merely causing injury to a person over sixty five and that would that would clearly fall under this court's injury versus force distinction now if you were to decide that the underlying robbery alternatives are divisible and that you could narrow between them with the modified categorical approach but then reach the conclusion that the aggravators are in divisible then we'd be looking at a robbery by threat or exactly where i'd like to go so if that's the case then the categorical approach controls and at the categorical approach controls mr lera wince the least culpable conduct is causing injury to a person over sixty five and that falls squarely within this things could be committed would be just commit robbery when they are much of robbery require the use of force so i mean one of the one of the texas cases said and what we really are looking at is robbery one of our use a categorical approach usually of the robbery element matching up with a sheet right and we do have to look at the specific way that texas defines robbery in texas makes a robbery causing injury either before during or after a set that doesn't have to be causing injury to make the person part with their property that was the requirement before nine hundred seventy four wins that was mended but now i don't have a case that i cited in my brief for that propositions your honor but i'm happy to go find their multitude of cases where specifically like a person takes property from a department store and on the way out has an altercation with with an officer walking in the parking lot or something that did see something amiss and so the injury there didn't effectuate the taking in the takings already happened and that's that's what separates specifically rejected the exact argument that the government makes that was in the castle and have changed that and so i'd like to talk really quickly about the reasons why that and that that was a sensible holding the  to it was a very good holding that the supreme court expressly limited its decisions and was in castleman to that common law type of force that was it issue in the mr minor crime of domestic violence definition aka of course involves violent force and when the supreme court has expressly reserved whether or not it's reasoning applies to the aka then it can't have unequivocally over ruled this court's cases on it and i think the best example of that is last year this is this court's on bank opinion and united states versus gonzalez law and boria for all the world it looked like that johnson controlled the analysis and united states are eighteen u sixteen b but this court recognized that when you have even minor differences in the statutes text and context that that doesn't unequivocally over rule prior precedent or prior supreme court precedent and that's that's the exact principle here and then i'd also like to ask you about the place in another inferior part of we are looking at subsection two of the statute we've held that the federal bank robbery statute the federal carjacking statute they use the word intimidation if you do those crimes through intimidation how is that really any different than the placing intimidation involves implied threats not just actually an affirmative threat where is the space between intimidation with implied threats and place in another in fear because you seem to think placing another in fear is broader yes strong the space in the joints there is that the robbery state that the federal bank robbery set a section twenty one thirteen i believe requires the taking to be by intimidation that means that the intimidation is the mechanism that the person gets the bank teller to part with the property and so and then the second thing is that in this court's brewer case that recently decided that issue the court recognized that intimidation is defined as conduct that is reasonably calculated to place another person in fear and so we've pointed to the definition of threat that this court stated in two thousand and one in united states versus white and h continued to to apply in these forced clause cases that requires an individual for something to qualify as a threat it has to amount to a commune and intended communication of a willingness to hurt somebody and so that's of communication you're talking about the perfect example is the howard case that we cite in our briefs that individual walked into a convenience store and he ended up being very lucky no one was there in the person who the teller was in the back in search actually searching on the internet to watch the presidential debates back then and so he saw him on the security monitor the individual who walked in the store took the cashier's wallet he took money from the catheter store and he walked out so in that instance it wouldn't be federal bank robbery because he didn't by intimidation secure that property or make the person part with the property and it didn't in the texas the the main point here is that texas doesn't require the defendants conduct to produce the victim's fear and that's the difference is that they're not conveying a message they're not required to have proof that there was a message of the conduct was intended to tell this person to convey to a person i'm going to hurt you so you better do what i say is just not a requirement in the texas statute and that's the bottom that is you have to have that in order to qualify for a threat and when asked questions about the relief your client is seeking and it was argued below this the government's position that this whole thing is just about reducing your supervisor lease term because he's already served a custodial sentence with a c c a and i think it was a concurrent drugs and so even though he's now in another drug sentence the fifteen years is something that can be challenged not as you agree with i'm not exactly sure if that's the only thing that's at stake here certainly his term of supervised release which would be  illegal because it be above the statutory maximum he has served the arcus and it's that drug conviction was ordered to run consecutive so he is still in custody for the purpose of twenty two fifty five i'm not entirely sure and i apologize for that whether or not he could he could potentially seek some sort of credit to his sentence based on being recent in standards a lower five year such tory maximum i'm happy to to look into that issue for your honour's if it's important to the court but at the end of the day there is something at stake here and that it's a legal term of supervised release at a minimum and it's all to let me do thirty one questions that's what wives thread involved here because if we use should confine your analysis to recklessly or intention when there recklessly causing injury aggravated by the person's status over the age of sixty five and then if you do drill down to the threat component of that i mean if if if you threaten the use of force or under the modified categorical approach that we do have and that's why we've gone through in our brief and explained the various reasons why threatening or placing in fear also don't match up to the force water is like the assault statute the robbery statute provides two separate underlying robbery offenses robbery causing bodily injury and robbery by threat site for that is to ninety four southwest third at six o eight the government didn't argue below and we're not arguing here that the aggravators in and of themselves are divisible and supply the element of the use of force of the question here is the divisibility of the underlying robbery statute what do you say to burton i think burton over reads cooper it is not the kind of decision that the mathis court was talking about whatever the math this court said sometimes the answer is easy you have a state court decision that just tells you in mathis the supreme court was dealing with an iowa supreme court opinion which explicitly said these two alternatives under the iowa statute are different means and explicitly said jury unanimity is not required but when those two you don't have you go ahead i'm just going to ask you why we are looking at cobra because cooper doesn't answer that question either and you said they were dealing with it and i was supreme court opinion right and we're not dealing with the texas court of criminal appeals opinion we are it does not answer the questions  unanimity or the questions of elements the actual like what does this mean for the three paragraph opinion by the majority stands for the proposition that it violates double jeopardy to charge someone for both robbery by threat and robbery by injury in the same transaction because it's a single offense because it's a single offense that doesn't say anything about union and then doesn't answer the divisibility question is not on and that's clear because the way that the texas court of criminal appeals analyzes double jeopardy questions does not rely in this context on the elements of the offense it relies on whether how many units of prosecution are authorized under the statute and how many units of prosecution were proven a trial between depends on the actual look just you can't be punished twice for the same discrete act so that the principle but i think that is generally the sentences to read from that just cochran says do or convictions for making the threat and then the immediate carrying out of that threat to harm an assault victim they saw about assault because it is structured somewhat lead to robbery statute is not barred by the block berger same elements test because each subsection of the assault statute contains an element not contained by the other subsection bodily injury in subsection a one and threatens in subsection a to just property saying those are two separate elements in the next sentence judge cochran goes on to say nonetheless i agree with presiding judge keller that the threat and bodily injury elements of a ult and robbery are simply alternative methods of committing an assault or rob and what that makes clear is that when the texas court of criminal appeals is talking about elements and methods it is not using those terms in the mutually exclusive way that the magic can have different elements of a single offense can't you you can have alternative elements of a single offense sure you have alternative means of committing the same offense but a single offense could have more than one element of it and that right well most i want to make sure i understand the court's question most offenses have multiple elements all right some of them have alternative elements where you can either prove this one or that one and that's what mathis says a court has to figure out as its first step in deciding divisibility are these two alternatives alternative elements or are they rather alternative me that's and given the conclusion the nature of the majority opinion in cooper and the way that judge cochran deals with the elements versus methods question it's  that this is not a decisive opinion from the highest court saying like the iowa supreme court did these two things are just separate means limited is required and in the face let's say we disagree course of right then i think you look to brewer and the discussion there of the fact that these sorts of far fetched harms like poisoning setting someone in the back in their car of things just don't don't get the right prophetical not actually prosecuted you did you argue that anywhere in your brief or below well we didn't argue a below because there was an agreement that right it was divisible so it never would have come up and we didn't argue it here because  hundred seventy nine or eighty ninety five version of the robbery statute in texas where the force element required a showing that by assault or violence or putting in fear of life or bodily injury somebody fraudulently took from the person  possession of another their property with the to convert it and as you point out judge davis the court of criminal appeals found sufficient evidence the defendant had laid his hand on the victim without his consent for an evil again that's got we would argue at best limited and more likely no bearing on how the current force element is interpreted under the separate statute which require a new test that you have to show a reasonable certainly look at this whether it's hypothetical or real or and so on just to discuss the owners of the statue and say it's too broad i'd don't your honor some of that me and sometimes sufficient to satisfy the force element and its court found that it was that the new texas threat or placing the statue or element of the robber a person walked into a convenience store at night aggressively brandishing a rifle and wearing the mask all of those things are implicit threats particularly in the context of walking into a convenience store late at night that decision howard is on a different point which is does there have to be an actual physical confrontation between the victim and the defendant and court found that there didn't but they just a categorical approach the court went through all of the steps that it could be expected to reasonably do mathis says the first step is determined divisibility the court did that by asking the parties it went to a texas court of criminal appeals ex parte dentin decision which laid out the elements of aggravated robbery by threat and it did that in the context of a judge will double jeopardy analysis to see whether due convictions for aggravated robbery and aggravated assault violate the block protest and in that context texas courts apply the block berger test rather than the units of prosecution test and so there the question is squarely before the texas court of criminal appeals to decide what are the elements of this offense and it lists threat as one of the elements of that offense it ultimately finds that there's a double jeopardy problem between those two convictions because the aggravated assault is a lesser included offense of the aggravated robbery ex parte denton clearly says here are the elements of the offense before the district court and it's a decision from the highest court in the state making that proclamation and the district judge here was imminently reasonable to rely on that rather than the sort of multi step analysis that you have to go through with cooper and burton which doesn't plea agreement that came in and took that into account after the qualifying convictions were for at that time of course the residual clause still exists so that was accurate just sort of start out just really quickly with to respond to the government's position on divisibility i'd like to point out to the court that the government has conceded that deadly weapon is no longer in play in this case and so we have briefed and explained extensively why the debt the presence of the deadly weapon doesn't create an implicit fear or threat of force in this case but the government by acknowledging at least that the aggravators or invisible has it has conceded that you cannot narrow the offense based on the particular use an exhibition of a deadly weapon aggravator in fact we are happy to the extent that the court doesn't think that burton represents the law in the state of texas to rely on woodard because establish that the aggravators at least are indivisible but i would like to point out to the court that the dissent in cooper advocated the very reasoning that would have relied on to say that the underlying robbery alternatives  e separate offenses with separate elements and that was not a lot of attention to the divisibility questions they used is that because you see part one of the statute the causing injury as as much more problematic for the government than the part to place him in fear which your client was convicted of no i mean if we are if we go to the threat or fear the really if as long as and i should have made this clear in my opening and so i'm glad that us a judge cost so if the injury forced distinction you don't need to even address placing in fear because a three year threat to cause injury is not a threat to cause force and that's exactly what rico makiya held in the arkansas terroristic threatening statute a threat to injure is not a threat to force so mr lerma wins as long as those cases have not been abrogated but if we agree with you it's not true there's a bill then is then is this focus solely on me part one then you're present that one is what makes the statute as a whole yes that's that's that would be mean it's just it would just be the causation of was a bodily injury aggravated by the person's status as over the age of sixty five or disabled and so that's how you respond to the argument that there are texas cases actually showing a distinction between using force and causing injury i can your honor and what i want to say first of all is the reasonable probability test doesn't apply in the force clause contexts never been held to and it shouldn't because of the elements clause means what it says in less it has to be impossible to obtain a conviction without proof of the use of force and the the analysis isn't isn't the type that lends itself to that reason a probability test that the court looked at in castillo rivera and i'd also argue that the reason you're saying that applies more when it's i offense context that a statute was and was non generic without going into whether or not there was a case or reasonable probability it just said it's brought on the face of the statute you've shown something special cited  very sentence and then moved on so we don't think that that requirement of showing a case is one that simply here i would like to address judge davis or the discussion  and intending to play someone in fear that's that's the difference that we're saying is that by intimidation means that the person's conduct is calculated to cause fear in a defense and a victim and howard it's true all of the things that that individual did going around the store looking around those create an implicit threat in the observer but a jury in texas doesn't have to find that the defendant intended his conduct to convey a threat and i would submit that in a person cannot his conduct can't be reasonably calculated to cause fear in a person he doesn't know exists and that is what the courts  texas court of criminal appeals such as said and howard there is no evidence that the defendant was aware of the cashier's presence so it's hard for me to imagine that somebody could be intending to convey a message of force to a hypothetical person that they don't even know is present in the room and in the over that that should qualify under the force clause and then in your honour's if see that my time