forth the two arguments as to why the aggravated robbery statute twenty nine eleven point zero one a one is not an appropriate put a kid offense for the armed career criminal  act the first argument is that the aggravated robbery statute that specific subsection does not include use of force with regard to the two elements of indicate and the elements of display the weapon brandish the weapon indicate that the offender possesses a weapon or uses the weapon  by which the deadly weapon element is defined isn't it a singular element of the deadly weapon element and then you define it  broken down into different alternative means could be a knife could be a baseball bat could be a construct all to gratify one element but is there's only one enhanced punishment we wrecked yeah you're i think the way we're we need to be on the same linguist ok so that we know that that we're talking about elements ok to fit within your argument right it is a singular it's an understanding it is a singular element because the only way you get the enhanced sentence is by satisfying the deadly and you're correct absolutely that would make a difference i think at the district court level what i was arguing to judge alito ois was that even under a modified categorical analysis you still have the as different alternative manners of hitting that element is overly broad my argument all along has been that two of those ways that fulfill that part of the career criminal acts use of force clause and obviously the brandish and the actual use of the weapon i'm not making arguments as to those and  i tried and maybe poorly wrote my briefs and then every time i wanted to use indicate i i should have put quotation marks were displayed but those two elements or manners or whatever overly broad with the statute because a person as i put forward in a couple of different examples can technically and realistically because i've seen cases in which people get indicted for things that you can prove under the law those a person could be very easily found guilty of aggravated robbery under the subsection without having during the indication or display of that weapon threaten the use of force used force or attempted to use or even a little bit as i'm struggling with notion that displaying a weapon or letting someone know you have it i mean why would you ever do either of those things if you were seeking to threaten the use of force i'm a little i mean abd puzzled as a practical matter about how that could be all right and i struggled with whether i should have started my analysis with the mens rea argument or the argument that i had because the mens rea argument doug tails with your very question especially in ohio which is an open carry state and as well as the right to carry concealed weapon there can be individuals who are actually carrying guns around and it could be by the same token a construction worker with a knife somebody with a hammer a softball player with a baseball bat in his in his backpack they're carrying around what what under ohio law would be deadly weapons and eating  assaf or attempting to commit a theft the same well being d d examples i gave do have the individual who has the right to carry the gun or not the right but is not intending that the gun be used to further the theft as i pointed out if you have an individual and a gun club for instance trap shooting skeet shooting and he wants to steal something he's walking around with a gun in his hand he steals he's committed a theft offense he displaying or you're talking about lifting you're not talking about taking into account all the circumstances threatening behavior and the potential of threatening behaviors when he's aggressively demanding from the individual that they turn over something of value and he's got the gun on display in connection with that different from shoplifting where the i agree with that what what my point in using these these examples in is to show that the statute can be committed in a way that makes it overly broad to the a c c a use of force well i mean why in the world if you are attempting to commit or committing the why in the world you would use i and by the way i gotta go on other than you intended to threaten the use of force well you can i mean obviously people can disagree with with minds ample but i did not put in there the fact that a lot of times in you see this all the time somebody will be charged with weapons of sense for wearing a night all right that is a deadly weapon if they commit any kind of theft offense with that weapon on them whether they forgot about it or not that's an aggravated robbery and yet it has been displayed the person is indicating he has a knife that done the outside of them i will grant most of the aggravated robbery you see that are indicted and then end up in a court system involves someone using the weapon in a way that they're brandishing it or they're using it to facilitate the commission of the offense without a doubt and in fact if a person in a particular case it was shown that the analytically it's easier to start with the ms right now i'm not telling you to do that i'm just reflecting atlanta because it seems to me that where we run into the mo problem it's where i run into the most problem with the government's position is who we get to the point is that there's not a women's right to requirement for the part of the statute that is as you pointed out your honor aggravated robbery the part of the statute that is the triggering part for the a c c a is strict liability there is absolutely no doubt about that that that is the case law in ohio and as such that alone disqualifies aggravated robbery under this particular subsection from ever being a proper predicate under the a decision and holler which talks about the men's rights and talks about how it incorporates the theft in israel there the court was strictly looking at whether or not there was a men's wear for aggravated robbery and there they said because there was a  theft of knowingly and purposeful there went on to say that it could be strict liability in the us that is not our argument your honor our argument today would be that stuff doesn't cooperate and but additionally your honour's these words that we're talking about  aggravated robbery which eight to aggravated robbery simply says that the person has to have a weapon on or about their person it does not go forward to then say that they must displaying it brandish it or any of those things and we believe your honors that with the addition of those actions there are there is a mens rea and there and that those words kind of take action additionally your honour's if you were to look at the statute let me ask you a include physical force three clearly doesn't your argument might part three just explain yes no your honor it's part one looks at also having physical force but has a threat of physical force with a deadly weapon first this part three doesn't require any type of deadly weapon ordinance it just says that you have to inflict harm so i tend right but it doesn't ask for a deadly weapon so that's what separates the two were it's part two requires a deadly weapon part three does  like lists which just say in your falaise that there's no means raia requirement for that part of the statute and i don't troubling your honor however in those courts they were strictly looking at whether there was a mens rea at period and what those courts were saying is basically that because theft was incorporated and that that had him and that the other part  strict liability and that it's that part we're looking at the one that doesn't have a black eye requirement and we believe that those words incorporate imagery and if you're on a four to look at you know i  requirement but they didn't say they said there's not one say that strict liability that's correct on top of that court was looking at whether it needed one and what that court basically with saying is that because period that lester and all found anything about we don't need to decide that or we don't need to consider it because you know those words i'm glad i mean i however just because they declined they declined to say you had to prove a mental stay i don't believe means that it isn't there and if we were to look at i'm sorry or you have it both ways when i'm trying to prosecute somebody on it i don't have to prove it but when it turns around and i want to use it for the i c c purposes i get to assume it i don't think we get to do that and i think it had and i mean we've looked to state law to interpret all these statutes we're not creating several law about what the state of finance he is you except that down yes your honor and you know i don't if we were to actually look at though which is the tennessee robbery statute we would find that it also has two parts and that in the first part it has robbery and robbery incorporates emmons read but if you move down to the second part of that as well it does not state a specific woman's right and that statute the that the second court is accomplished with a deadly weapon or that the victim suffer serious bodily injury so that doesn't that clearly distinguish it from part one that we're talking about here i believe it reads accomplish with a deadly weapon or by display of any article use or fashion to lead the victim to reason  it to be a deadly weapon so i believe that's what the statute reads but your honor what we would say is that in the robbery accomplishment maybe i had the wrong language but the language that i had was in the robbery accomplish with a real or disguise deadly weapon or that causes serious bodily injury what your honor is this reading what you're yes what your honor is reading is what the court said in gloss but the actual tenancies i was referring to the actual wording use of physical force however when they were saying that they were talking about different parts of the statute and that wasn't the actual wording of the statute the actual wording of the statute is that it's aggravated robbery accomplished with a deadly weapon or by display of any article use or fashion to lead the victim to reason we believe it to be a deadly weapon and as we see there that second part accomplished with a deadly weapon similar to the ohio statute does not list purposely or knowingly or anything to that extent however the accomplish with incorporates action and therefore incorporates a mens raya and as your honour's just pointed out there is simply no reason to commit a robbery while displaying a firearm indicating possession of a firearm or using a and to one of the elements of robbery in those cases they were looking at whether ohio robbery with a lesser included offense aggravated robbery and in both of those cases they said that the element here that we're talking about displaying brandishing a weapon they said that and to the element of inflicting physical harm in the robbery statute so in saying that they were saying that that element does include a threat to inflict harm and if we look to the finley or that was recently put out by and is unpublished at this time it's talks about that the ohio robbery statute is a threat to inflict i'm sorry is a threat of physical force so they took that element of physical harm and they said that it is a threat  of physical force and so here we go back to the reading of the statute by the house supreme court they have said that this element we're talking about is equivalent to physical harm which we have now found to be physical force so that reading itself also tells us that this would be a violent felony so your honors for it those three reasons because there is no realistic way to play it brandishing indicate possession of it or use it in a way that is not inflict physical force and because the oh how supreme court has said look your argument  was not i'm sorry does not imply a threat to inflict as a force i'm sorry that perhaps the distinguishing factor so because there is no way to do that that does not imply a threat of physical force and because the house supreme court has said that this element is equivalent to physical harm which in the new finlay decision this court has decided is physical force and because this court found that a united states you're looking to in earlier you're looking to done earlier in harris which is not exactly the same thing so i don't think we can view harris as in some way sup playing conduct so i guess we get into a discussion of whether you know accidental conduct and negligence conduct in a placid the same way as deliberate act of violen the import of mcmurtry is simply to say more than recklessness is required which we do agree that more than recklessness is required and we believe that those words require more than recklessness along room very briefly first of all there there is a difference in the aggravated robbery statute the different subsections and i would argue that in fact the way the subsection the third subsection is written reinforces i mean it's it's written different for a purpose and i think the court can should weigh that in considering whether force is necessary to commit a by a lesion of the first also i would argue that the second subsection of the aggravated robbery statute doesn't deal with a deadly weapon it's something entirely different  i think was in one volume subsequent to the harris case so what was right almost concurrently but yet a little bit subsequent they in three different spots come out and say that that element that part of the crime in strict liability they also discussed the intent of the ohio legislature at the time that that statute was passed and it's it's in there that that they come to the conclusion that the legislative intent was to make that a strict liability as well and that that is explicitly in their opinion your honour's so for those two reasons the lack of appropriate mens rea and for the the important elements that the government wants to rely upon we're not here because somebody is committing a theft we're here because someone had a weapon involved in a crime and that's what the courts are looking at to see whether or not it should be a proper e c c a predicate thank you very much for your time thank you very much