good morning and made please the court mr wynn bush's counsel was constitutionally ineffective for failing to challenge an invalid career offender predicate the government doesn't contest that so the only issue is whether on collateral review the district court committed reversible error by relying on a new predicate that was never identified during sentencing and the answer is yes the district court got it wrong for two independent reasons first under this court's decision in the united states district court cannot identify a new career offender predicate for the first time on collateral review and second the new predicate at issue is not a crime of violence ohio third degree at sentencing itself if the government fails to identify a predicate at sentencing it loses the right to rely on that predicate in a later proceeding such as a hay vs proceeding that is exactly what happened here mr winbush is with third degree robbery conviction was not listed as a career offender predicate in the pre sentence report or identified as a clear offender predicate by the district court or the government during the sentencing proceedings therefore under the rationale of hodge the government lost the right to rely on that conviction in a future collateral proceeding so you know this on the district court obviously didn't have the benefit of hodge and hodge involved in our career criminal act  pointed out the rule of forfeiture the idea that when the government fails to raise an argument at sentencing it loses the right to rely on that argument in a future proceeding there's no reason to treat a c c a predicates differently and there's no reason to treat creer offender predicates differently under normal rules if a defendant fails to challenge a clear offender predicate at sentencing he will lose the right to challenge that predicate in a future collateral proceeding unless there is an excuse for that failure indeed if i'm remembering right the government made that argument before the district court right the government's you before the district court was that it could rely on the ohio third degree robbery conviction but the defendant had forfeited the right to argue that it didn't qualify as a  violence that's right it's not clear exactly what the government was arguing with relate with regard to johnson too but that is what they were so saying about it so when you say a defendant would forfeit the right to challenge a predicate but obviously in that scenario the the issues is fairly joined because the government is putting forth the predicate as a in order to enhance a sentence and then it makes sense for the defendant to respond to that but here the government assume that it had the sufficient number predicates in order to enhance the sentence and therefore had little incentive to sort of make the argument as to an additional predicate does not i mean i understand that hodge talked about all that but doesn't that is not a different situation as you point out rod hodge rejected that rationale but even so it's useful to think about what would happen if that were not the government's duty at sentencing the government would be encouraged to remain silent about potential clear offender predicates and therefore deprive the defendant of a meaningful opportunity to challenge those predicates and circumvent the normal judicial process then this case is a good example of that in this proceeding no one identified the ohio with third degree robbery conviction as a crime of violence during sentencing and therefore both sides didn't brief the issue if mr winbush had had effective counsel then this court would have the benefit of a full briefing and could have decided the issue on director of you as it is now mr winbush had to challenge this new predicate pro se in the district court and this court has to decide the issue without the benefit of full briefing in the district court and that is one of the hodge raised that the idea that the government might sandbag the court if it is not required to identify every potential predicate in sensing proceedings also point out that hodge noted that in the context of  c a the government regularly identifies more than the minimum number of predicates under a that it has a sentence there's no reason why the government should be held to the same responsibility here here and there is no reason why the government cannot do the same here can surprise you a question about relief if if we were to agree with your argument that hodge precluded on what the district court did here and so you prevail on your ineffective assistance claim the remedy would be that it goes back for re sentencing with effect of counsel right there's a there's a recent in saying and this time the council has to perform effectively i think the remedy here would be first that the district court cannot rely on the high with third degree robbery why is that if this is assuming we stop with your hodge argument putting to one side your alternative argument why doesn't it just go back for a sentencing hearing with effective counsel it doesn't go back because of the of forfeiture and the concerns raised by hodge one of the government had a full opportunity to point out this conviction and claim that it was a clear offender predicate recent report isn't longer worth a ton of convictions there they could have identified this conviction as a career offender predicate by not doing that they lost the opportunity in future related proceedings such as such as a collateral proceeding or re sentencing to rely on it and if the government were held to a different rule it one addressed the concerns that hawtrey hodgkin a doubt that the government should be required to raise each potential predicate at sentencing so that the court could consider it at sentencing itself and the court would not be sandbagged and the defendants would have a meaningful opportunity not only happening in my scenario this would be going back for if a new sentencing with effective counsel everything would be aired the burden of proof would be on the right party the government would have to prove up that the burden would be on the government to prove that ohio third degree robbery was a crime of violence would i'm sorry your client would by hypothesis now have effective counsel he wouldn't be pro se so it seems like that would actually address most of the concerns and hotch maybe not the forfeiture concern i invalidated in a future proceeding and again we have to go through this process of identifying a new predicate and deciding whether was a proper career offender predicate the rule of hodge's that all of these issues should be decided in sentencing that is the most efficient and fair process for the defendant and the court well that's right but and i'll let this go in a minute but sort of ineffective assistance of counsel is sort of her say an inefficient way to run a judicial system but it happens and usually to correct it we just redo the proceeding this time with the fact of counsel that wouldn't be a solution here because of the forfeiture point the points that i've already discussed but even if this were the district court were to reconsider this conviction it should not hold and should not be able to hold that is a crime of violence under the force clause under the supreme court's decisions in johnson one and stokely a crime is a crime of violence under the force cla only if it categorically requires violent force that is force capable of causing physical pain or injury as the court's recent decision in stoking explain the force required to overcome a victim's resistance is violent under johnson one but is the sixth circuit found in united states ohio with third degree robbery does not require such force because it punishes mere snatching snatching that neither causes physical pain nor injury and does not overcome victim's resistance and a few examples illustrate this point in stately pace a one nine hundred eighty one decision from the ohio intermediate court of appeals the court held that merely snatching money out of the victim's hand constitutes ohio with your degree robbery in that case there was no allegation that the victim resist it or that the victim was injured or cause any physical pain or that the victim even knew that the snatching was about to happen and yet that constituted a high with her degree robbery state b johnson is also similar in that case a man asked a woman for directions and while she was pointing out the directions he quickly snatched her purse and ran into a getaway car once again that was held to be sufficient force to con e ohio with third degree robbery those two cases show that in order to commit a high with third degree robbery you don't need to use violent force or overcome a victim's resistance as the yates court found in both in finally i would like to address the point of mr when bush has eligibility for a media release mr when bush was incarcerated in october two thousand and ten under the new guidelines range appropriate in this case he should be sentenced to no more than ninety two months in prison at minimum and that would mean that he would have been eligible for release in june twenty eighth scene and we think there's good reason to think that the district court would sentence him at the low end of that range so i counsel can just clarify for me where does the ninety two month minimum come from this is my question the ninety two month minimum comes from amendment seven eighty two so  the district court during the sentencing proceedings noted that if mr winbush were not a career offender it would sentence him only to eight years in prison rather than twelve and a half years in prison therefore we think that if this went down for recent and saying once more mr winbush would be eligible for immediate release especially because under the logic of hodge the district court would not be able to rely on the ohio third degree robbery conviction and even you know that all of that may be correct when you are asking the court this court to issue the mandate in advance of a opinion which seems a bit odd why couldn't we simply just if we agreed with you issue the mandate immediately upon  e filing of the opinion and that way expedite the case but not so quickly that we essentially almost dictate to the district court what he or she should be doing this court issues immediate mandates one time is of the essence and mr winbush is serving an unlawful sentence as judge when pointed out in a recent concurrence this is especially concerning in criminal cases where concurring opinions dissenting opinions can slow down the judicial process so the court of course has discretion whether or not to issue the mandate immediately but we would request that it does in the senate ask you a follow up question in response to terraces questions hard was not an ineffective assistance of coun fact that we're dealing with ineffective assistance of counsel doesn't that suggest as judge terrorists indicated that the remedy is to go back down to the district court with competent counsel to hash out all these issues including whether or not there was a fool for tour involved by the government that's an issue that this court can decide the record on forfeiture is fully developed and again the process would slow down and allow the government to sit in silence if it were able to even attempt to re designate this conviction morning and may please the court your honor injury a minute on behalf of the united states this court should affirm district court's denial of the petitioners twenty two fifty five motion petitioner claims that his counsel was ineffective for failing to object to a career offender predicate at sentencing however he cannot establish prejudice you cannot establish as counsel is ineffective requiring re sentencing because had his counsel objected to that career offender predicate conveyance of drugs into a correctional facility the united states would have relied on the alternative ohio robbery statute and he would have thus been determined to be a crew offender and sentenced exactly the same without being able to demonstrate that prejudice there is no effective assist ineffective assistance of counsel i ask you just to square up your argument today with your argument before the district court because if i'm reading it right you are the government argued before the district court that the petitioner was not allowed to challenge the was not allowed to argue that third degree robbery under ohio law did not constitute a crime of violence because petitioner had not raised that sentencing but before us you're arguing that the government is allowed to rely on that third degree robbery conviction even though the government didn't raise that at sentencing so how is that fair your honor my understanding of the because he didn't raise it at sentencing so i don't understand why the government didn't forfeit the argument because it didn't raise it at sentencing it just seems weird to argue that the petitioner should at sentencing have argued that a conviction that nobody was pointing to as a predicate not the government not the probation office not the court that it was up to the petitioner at that moment to say here's this conviction no one's talking about it but just in case i want to argue it's not a crime of violence and that his failure to do that means he can't talk about it anymore on collateral review whereas the government can say nothing about that conviction but comment on collateral review and for the first time say we want you to rely on that so i'm just asking you to square those two positions or maybe you've abandoned the position you took in the district court your honor my position here today is that the defendant or excuse me the petitioner can argue that ohio robbery is not you are not no longer making that's how you square that you're giving up the argument you made before the district court that's correct your honor the salient point here is that we are in the context of an ineffective assistance of counsel allegation in so he has to demonstrate prejudice he can absolutely claim that there would have been no way that he would have been a career offender irrespective opposite here hodge as your honor pointed out came not in the context of ineffective this instance of counsel claim this was a direct collateral review challenge to an unconstitutional sentence it was unconstitutional because one of the predicates for the arm career career criminal act was invalidated based on johnson it was found to violate due process because it vagueness it was a direct attack on one of his predicate felonies that resulted your honor in an unconstitutional sentence because the mandatory minimum that resulted under the a a was above the statutory max he could have received without that armed career criminal designation so we have threefold difference number one this was a statutory challenge it was based on a statute sentence not based on the discretionary guidelines number two it was a mandatory minimum that resulted from that statute and number three that mandatory minimum was unlawful because it was above the maximum that petitioner could have received without that armed career criminal designation your honor it's important to recognize here that the defense the petitioner could not have even brought this challenge on collateral review he could not bring this challenge on collateral review directly as hodge did this court has recognized in the united states v foot the court cannot cure guideline mistakes such an improper career offender designation that's not an appropriate venue for a collateral challenge that's why the petitioner brings this under the context of an ineffective assistance of counsel so you challenge strickland saying that if counsel had raised it it would have them of no avail because then you would have done something for the and you think this is fair that we have to speculate all of those things and there has to be a perfect when demonstrate the petitioner is the one asking this court to speculate no no no we agree that it's a petition has burned but let me it following up on chief judge gregory's question you know when we get a case under strickland where the issue is may be counsel should have moved to suppress evidence and he didn't if we find that that suppression motion likely would have been granted and that the evidence that came in was important to the case that's the end of the matter we don't go back and say well maybe if the lawyer had moved to suppress in the he granted it the government would have gone out and fines and found some new substitute evidence and we don't do that extra step so i guess i'm following up on judge gregory's question what why here would be try to figure out how the government might have tried to fill the objected at sentencing to that predicate the united states has a positive duty to look to see what is the to maximize the sentence under the guidelines that united states or assistant united states attorney would have been deficient by not trying to substitute the conveyance statute with the ohio robbery statute and moreover your honor the judge has a requirement a legal requirement to ensure that the defendant is sentenced accurately under the guidelines you in just in connection with that why did nobody catch this mistake i understand that it was really up to defy defense counsel but why didn't the government or the judge the district i mean it just seems like this was a really obvious error and as you say everybody has a duty to make sure that this gets done right how did nobody catch this that's a great question your honor ok your honor on that point however the it may not be ideal but typically what happens at sentencing is if a defendant does not challenge something the government won't look forward look beyond that to ensure that there's backup arguments the petitioner just today argued that t government might be incentivized not to object to career offender predicates because the defense it won't be able to later challenge those however i would turn that argument on its head on the contrary defendants in this circumstance might be incentivized to not object to false career offender predicates if there are valid career offender predicates that were not named by the government because by allowing that ineffective ineffective air to proceed they can then challenge career offender status on collateral review which under foot they would not be allowed to do they could not challenge their career offender status challenge a guideline error of that nature on collateral or review however if they don't object at sentencing suddenly they can and they can prevent should your honour's rule this way they can prevent the united states from designating these backup career offender predicates and that's a dangerous precedent to set of i mean but hodge has put you on notice of what it is that you're supposed to do on the front end so i'm not not following that argument no longer surprise you brian todd you know what requires so why would the government in an abundance of caution make the arguments with respect to all of the predicates on the front i agree your honor that going forward postage that may be the best policy for the united states at the time of when bush is sentencing hodge was not there and as i stated perhaps this isn't the ideal manner to proceed but at sentencing typically if a defendant does not object united states would have no reason to look for backups given that the defendant at sentencing has conceded what his guidelines will be your honor i would like to turn now to the issue of whether ohio robbery constitutes a crime of violence  absolutely does still cling proceeded by describing it summarizing the force required at a common law robbery and summarized quote sufficient force must be used to overcome resistance however slight that resistance and other words according to the supreme court force that overcomes resistance however slight will suffice for a crime of violence under the career offender guideline stokely was also explicit that this definition of force comports with johnson one's opinion held that the physical force in the elements clause must be violent force force capable of causing physical pain or injury still cling quote overcoming a victim's resistance was per se violence against the victim even if it ultimately caused minimal pain or injury still cling also clarified that just as specified in johnson when there is the threat of force quote there is no there is not required any particular degree of likelihood or probability that the force will cause physical pertain or injury only potential honor i want to address some of those cases that the petitioner raised in particular he said that pace shows that there is no requirement of overcoming a victim's resistance or there is no requirement of the potentiality for physical pain or injury on the contrary in pace the victim testified in that case as i was walking to the store i was carrying my billfold and my left hand and a man came a person came at me at the time grabbed it out and i started screaming and in the meantime a car came up practically right front side of me and the fellow that took my billfold got into the car she describes in more detail the theft he came up to me and he pulled my shoulder strap down i had my purse and pull and then he pulled my right hand off my left hand where i was holding the bottom part of my purse that is exactly the kind of force delineated in stoking that sufficient to constitute a violent force in fact still clean gives the example of the robber peeling the victim's fingers peeling the victim fingers off the object stolen and they said that is sufficient pace clearly meets that threshold under stokely your honor there's another example of stow in stokely demonstrating violent force and it's when quote the robber quote runs against another for the purpose of diverting his attention and robbing him so again the petitioners reliance on cases where the elderly victim was bumped to distract distract back touch you you go on right you touch left so touch deaths is enough for because that's what she was saying basically because he bumped for distraction and took it so in practical reality a pickpocket or pickpocket or is generally going to make some contact with the victim's absolute best buy on question is that is that enough you said distraction was enough that's distraction touching your honor i'm relying on i'm relying on you and if so my question your honor i would say that stoking is met if that so called pickpocket or bumps the victim sufficient to distract their attention and steal the property and that states have no interesting interest in narrowing what they prosecute their broad but then we come here do we know it fits here it has no recognition would what rob really is rob vulnerabilities of the victim to factor in that potentiality for force or harm to them so that is a salient fact in those cases of crime changes based on the age and the the muscular or  and whether the ohio robbery statute is met and that's why the appellate courts factored into whether that was a particularly frail or vulnerable victim but ultimately the court all still required that there was  potential for harm and overcoming that victim's resistance and voluntarily stealing from i'm sorry just to go back to the the the touch to distract during a pickpocketing you say that and that's still going says that's enough just a touch to distract b because i thought that stokeley and you have probably read it more recently than i have i thought it turned on this notion of victim resistance but even if there is no resistance the touch combined with the pickpocketing is enough under court with very different than just a touch and then a pickpocketing right the language i next quoted was they actually said quote run against another and i think that connotes more than a touch of just a pickpocket or i think that connotes some sort of the ohio appellate cases and still cling are committing much more than a tiny touch and i forgive me your honor if i did not make that clear in trying to distinguish it your honor ohio case law someone who will hold the other hand and still the resting of the money from their hand was not sufficient and i'd like to point out there is a contrary case the facts are very light it does not describe the struggle between the victim and the robber but resting money from the victim's hand constitute a robbery that was in unpublished non presidential opinion and that's why in my twenty eight j letter to this court i noted that there is no high all supreme court case where in the syllabus of the case and ohio case law in ohio supreme court cases syllabus is the law is the law and contrary appellate precedent that contradicts the syllabus point is void that case stately davis says that ohio robbery statutes requirement of the use or threat of use of force against another is satisfied if the fear of the alleged victim is likely to induce a person to part with property against his will and suspend his power to exercise will by virtue of the terror impressed and other words the force has to create or the threat of the force has to be such to suspend their will by the terror impressed and that's an indication of what kind of force and that's on that i'm sort of stuck on it so your argument on that is that a bump is more than a touch your honor i would say in that case the victim was run up against as described and still cling to distract them to rob from them and in particular this was a case of an elderly victim who was particularly vulnerable to that running up against and so there was that potentiality for harm as johnson describes the bomb ok yes your i see that thank you just a few points your honor the attempt a distinguished college is not meaningful for several reasons first the reasoning of haulage do not rely on the the idea that it imposes  statutory minimum unlawful sentence is an unlawful sentence whether under the guidelines or they say that is why this court routinely reverses miscalculations of guidelines as abuses of discretion second the united states counsel for the united states argued that the judge has an obligation to accurately calculate the correct sentence we agree with that and that is true under the a c c a and that is true under the sentencing guidelines so again that underscores the point that there is no meaningful distinction between the circumstances of this case and the hard case third the government's attempts to argue why ohio third degree robbery qualifies under sto unpersuasive as the slip opinion in that case states on page seven person action is something less than what is required under a traditional robbery robbery that requires resistance on page twelve justice example of money snatching not being a crime under florida robbery but money snatching where the offender has to peel fingers back being a crime and that is why it was a crime of violence but under the ohio intermediate appellate court's decision in state b grand which the citation for which is nine hundred eighty one w l forty five seventy six if that case holds that merely bumping into someone and  pickpocketing is a crime of violence and as we discussed earlier in stately pace merely snatching money out of someone's hand without even a bomb constitutes a crime of violence the government's attempts to point to other cases are not meaningful the minimum kind that would constitute a crime in a categorical approach and it's absolutely right you judge gregory those cases show that the minimum con conduct required the minimum force required is not force that overcomes resistance finally the government's reliance on davis is misplaced davis addresses the element of the threat of force not actual force used and in an alternative means offense like ohio with third degree robbery both means need to meet the definition of violent force even if one means the use of actual force does not meet that definition then the crime is categorically not a crime of violence and should be noted that several of the cases that we cited post date davis thank you thank that well as mr inman thank you for able to represent the united states will come down