good morning here on morning we have please the court brenda brand with the federal defender's office on behalf of mr st hubert if the court were to decide this case  see that excuse me over alice is controlling and mr cent would lose it is presidential even though the mandate has been by the supreme court's decision into maya and in that circumstance the government has asked the court to decide the case on an alternative ground and that is that the government be clear our prior panel precedent rule applies with equal force as to prior panel decisions published in the context of applications to file second a successor petitions in other words published three judge orders issued under twenty two forty four b are binding precedent in our circuit moreover we have repeatedly treated published decisions of valving applications for permission to file a second of successive petition as binding precedent seems to me it's clear your argument has to be they said it but they could rule no more than that which sort of make sure really in the posture of their case and assuming that was an open question for us to decide today why would we draw a different rule and say the prior panel precedent rule applies to decisions that cannot bind a case like this on direct appeal on de novo review the the prior panel precedent rule integrity to it is appell context congress has said no you don't you don't have a and you don't have cert now that that is quite problematic for a case like this on direct appeal for  additional reasons and and that in and i will point the court to a decision published by this court which is united states versus rose cost and in that case the court said it may well be true as can see there are many unpublished i guess what is why is it fair that let me just help me with our law is is it fair to say that our own published opinions are going in different directions on this question i  have the state of our law right in our unpublished opinions on direct appeal we've said at least twice that would ban and by that prior precedent issued by a three judge panel and a second successive and once we've said we don't think that that may be right we question that quite issue but we need not reach a holding on that matter because we can decide the case for other reasons would that be a fair statement of where we are i just want to know where we are there have certainly been several decisions in the  by judge martin severely criticizing the the concept that in s o s decision could have any binding force outside the s o s context and let me point out why in this case in the s context which is collateral review on the the inquiry is quite limited as to whether there's been a prime efficient showing in the court after sent actually in re rogers set forth the standard the standard is only is there on point binding precedent the court can't consider de pump moncrief mathis intervening supreme court cases and a a three judge panel in the second or successive context to issue a decision in thirty days without briefing and for ever for close defendants on direct appeal you get me ever resolve the merits of in issue in an s o s opinion because by law the court i disagree with that but i'm not going to buy that they are you can't cite another circuit that says we're not going to follow a publish this case that has a lot of confusion and cases going both ways it seems to me united states versus brown twenty fourteen and says you  i get to that i want to make sure i understand what happened here and i want the government to listen to it because this is what's troubling to me about this case there are admitted three or four hobbs act robberies here or attempted robberies you indictment and so he the government agrees let him plea to ninety four see which was actually a really good plea deal here he had two ninety four see counts he didn't play to any  the robberies he has to to plead to ninety four c you have to admit the underlying robberies is that not correct you have to admit they have heard they may not during a robbery yeah you don't have to admit it's a crime of violence arguably sure position i don't know what that crack to not but you have to admit these are all the robberies occur right how many robberies was he charged with doing there were there were here where of the store and i know what was he charged me robbers was you charged with committing i believe there were six robbery six nine twenty four c counts and a felon in possession ok and and so he's a convicted don't stay to climb crime correct correct ok if you play at all the hobbs act robbery cases us suggest one of them would have had a senate as long as the senate and you wouldn't be facing you would have this issue correct if you pl let me explain why you're a no let me ask this question was there a conditional play the government refused to agree to it because the government said it was because the government said it was a jurisdictional erin they could not get authorisation to agree to the police and that we should appeal in raise the issue but there wasn't a play here there was no conditional plea here let me just say i'll try shouldn't we say brown which is very similar to this case as long as it sets forth all the elements the fact that you can't one of the elements there is a claim a statutory claim about our constitutional claim about that's what brown says we have the waiver there correct are you familiar with brown i am but let me say that this one heyse is actually more like peters which is followed and approved in brown and in peter's on the face of the indictment it could be determined that the claim did not state in offense because in the interim the supreme court this was peter's was a mail fraud case and there was a question about property in the indictment in that case allege that property were licenses and the supreme court had just held that licenses are not property so that was a case where you could tell from the face of the indictment that it did not state a federal  and then dight much too broadly it went to all the conduct that was not the kind if it was specified was not in offense and in this case the court would have to reach the merits on both  nine twenty four c three a and three b and determine that we are correct on the merits either because both because the residual clause is unconstitutional and hobbs act robbery is not a crime of violence but if the  court but you would still have the issue of whether it's a crime of violence under the elements clause which would be a statutory interpretation issue correct irrespective of that period to my question yes if if answer let's assume the residual you know it's micro not a question is have four circuits criticized peter as being not following cotton i think you know the answer to that i don't know if or circuits have how many i have i don't know your honor ok i will cotton is a different situation because cotton is dealing with a new mission in the indictment and i believe that courts have distinguished the cotton situation of an emission from the into af ound through are you aware of these two waiver is not enforceable unless it is discussed with the defendant at the plea and i urge you to look at the plea colloquy in this case and you will see that it was not mentioned by the district court judge so it is not not discuss it as any way for the court didn't even talk about it and not talk over it and under bush for that reason it would not be enforceable here i guess i'm not relying on that i'm looking more at the jurisdictional issue whether pleading guilty to this cases like that yes i do got it on you have reserved five minutes you'll have your  why should a claim that the indictment did not charge or a legitimate offense be jurisdictional and does our law suggest that that is the way we have to review it well your honor i would actually like to point out that in this case i don't think is that a guilty plea quote waives all a non jurisdictional the facts in proceedings against the defendant brown does not hold nor could it hold that a plea of guilty waives a jurisdictional defect is not right that's correct or ok so if the defect is jurisdictional in way in nature it doesn't matter what he said or what he did his court is correct your honor in this case we have to remember that we do have in reflow or of united states so we actually have two cases that affirmatively provide two different options about why there is no defect here now i don't know that i don't want to couldn't if you use a merits determination with a jurisdictional question the jurisdictional question asks only one thing does the court have the power to entertain the issue in the first place it doesn't ask if the does have the power this is how it ought to be resolved so what i'm going to is the threshold jurisdiction question is the issue here raised the claim that the indictment did not charge a legitimate crime based of the laws of the united states a dearest fiction matter that cannot and therefore was not waived well your honor jurisdiction has been defined in this context under cottoned to be the court's ability to hear matter whether it's to then has the power to entertain the matter in the right place correct and the district court in this case would have the power to entertain this indictment because it alleges offenses against the united states and under and i would argue i recognize that peter is the case law in this and so how do you read peter what is peter teach us peter tells us that if he was wrongly decided maybe not but it's on the books and i'm bound by  what is it teach me peter argues peter holds basically that if the indictment read such that no matter the amount of proof that the government puts forward there could still be no crime then in that case that would be considered jurisdictional and it is true that multiple circuits have felt that peter was incorrectly decided but recognizing that that why doesn't he there and i'll cite to us second one s find me because in peter i would know that there was an intervening supreme court decision that affirmatively how i believe it was a certain item didn't constitute property in that case anymore i would know in this case even if learned of values didn't exist there's no case law to suggest that the fifth on the face of the indictment we don't have a crime and so it's what the punt would want to do here is put the proverbial cart before the horse we'd have to go into the indictment investigate the crime to argue but he put the western this way we decided a case called sac in two thousand and eleven six thirty to have third twelve o three and in that case we said two things of note here the first thing we said was a guilty plea does not waive jurisdictional defect you don't dispute that do you know you aren't ok the second observation that was made there i'm talking about in sac was that a defendant claim that the indictment failed to charge a legitimate offense is jurisdictional is that not exactly what a pound is raising here  claim that the indictment failed to charge a legitimate offense that the nine twenty four c count was no good it was defective it was void because it was tied to a hob robbery that was not and could not be a crime of violence and therefore it's failed to charge a legitimate offense vos it's jurisdictional and not waive isn't that what's being said they are alleging that yes why doesn't sack tell me that i'm obliged to agree with them even though at least for circuits by my count have said that's just plain wrong all you're talking about is the failure to state a claim and that's not the stuff of the jurisdiction that's the stuff of a marriage determination of a statute and you might be right and those circuits might be right but we've got case law out there that seems to me to say something that's very different and i want to know how i get around that well because i if by your lights i have to otherwise i go to the merits here well in this case your honor i think what we have to remember is that there's nothing out there that is that the face of this indictment has a problem so if anytime a defendant alleges that there's a problem with the indictment without any sort of a kind of defect in the indictment that is to say the indictment itself didn't charge a legitimate offense that's jurisdictional they say why isn't that kind of claim based upon peters and sock a jurisdictional matter that we are obliged to address because i think that without because i think in this case you have to get past the face of the  and i think that in this case there's no like i said in peter there was an intervening supreme court decision that meet it clear that there was a problem on the face of the indictment in this case not only do we have cases that say the opposite but even back and say there is no jurisdictional defect or there you have to you have to rewind here and go back into the indictment in order to do that let me ask a different question assume language was and it's broad it's necessarily grounded in the circumstances in which it arose and that happened to be a collateral attack second of successive petition issue rather than a direct appeal and that therefore it could do no more than hold in a collateral attack one precedent is binding on the next issue  arising procedurally in the same collateral attack thus what they said could be read as no more than dick but that's her argument i don't agree with that your  believe that that decision is dispositive of the issue and therefore the court is providing is putting in their own reasoning into deciding what the issue should be whether in this instance hob robbery qualifies as a crime of violence under the use of force clause and in fact i would note that other circuits throughout the country have actually also cited in reflow or as binding authority believe the fifth circuit the ninth sort of a correct do you agree that whether this is a crime of violence or not is really just a matter of statutory interpretation because you have the elements clause look at the elements offense i just look back at peter the problem in the indictment as peter was she talked about the language of the indictment there goes just something that term that's not even in the statute whereas here the crime of violence term is in the statute so it this this indictment tracks this statute that's just got an underlying issue as to whether or not the crime of violence they charge is truly a crime a violent correct you're on you're saying under the law at the time he pled it was a crime of violence in fact you say still a crime of violence but we don't do that whereas peter had a intervening spring court case that said it no longer sight to crime discredit sweeps to broad like i  all of that like sat where in a non published case we said you wave it and that she recipe aguilar one and six federal appendix eight three seven so what we've got two cases and very one you know my question is whether peter's consistent with precedent part of peter i've got to study that but in any advance can you help me with why when you have seven robberies you know this issue's after here on hobbs that robbery  you just if you please to to hobbs that robberies which he has to admit plead to the ninety four say you gotta admit to to have that robberies and then you don't have this because under the guidelines you can get a twenty years i mean big time senate speculate since i wasn't the trial you would say but i would i would speculate that the reason was probably in order to limit what could have to actually have given the defendant a benefit ironically into limit the sentence to the man  thirty two years where my understanding is both parties agreed to that mean man of thirty two years as opposed to per hour i think sometimes the governments do it to give the defendant the benefit actually to a lesser sentence and the man  in documentary thirty nine on page five and then it was also it does say you could mention it but you've got to have a statement or do you want to standing you're waving your right to appear you've got to say something  it said i'm sorry if i may finish or you could have been on page five the court noted when you plead guilty you give up the right to trial by jury trial before a judge right to appeal so on the defendant agrees to that and then  one moment i believe there's another reference to the appeal waiver as well sixteen of docket entry thirty nine in the court your honors you can read the plea colloquy for yourself it's only seventeen pages but the page that my opposing counsel cited this was before the judge even knew there was a plea agreement and his statement to the parties was when you plead guilty you give up your right to fight the case no trial no appeal no witnesses do you understand that that's before he even looked at the plea agreement he later asked is there a plea agreement can i see it and of course at the end of the case he asked the defendant if he wished to appeal his sentence and all the while in between there is no mention at all directing him to the sentence appeal waiver in what it means or whether or not it would effect the argument that he just mention very closely the merits of this case because your honor did mention other i am not aware of other courts in the country that have cited in re sent flur as even persuasive in a direct appeal and you mentioned that there was independent analysis and let me just discuss in this case which i would urge you to do if you were to reach the issue to resolve this case on the merits floor my position is could only be persuasive authority it's not persuasive for the reasons we have cited in the brief but the reasons that there are three reasons that have not been discussed by and in any of the cases that were cited by the government as to why hobbs act robbery does not categorically qualify as a crime of violence i understand that every right in the country today i have another case was sent for and just straight up direct robbery and i found for the circuits that's the reason i know about it because we have so many of these cases right your honor ok i'm sorry i'm not aware of those but it is a question of first impression in this court if senate floor is not controlling precedent in only persuasive in let me mention the reasons why these are certainly reasons that were not considered in sent floor first of all the language is this a substantive hobbs act robbery he pled may be correct and so you you have in your briefs have made no distinction between the substantive corroborate and the attempted hi i don't think there is a distinction your honor i think that the threshold issue is whether hobbs sack robbery qualifies if you're if the court finds that it does then i then there is an issue as to whether attempted hugs that have not fifty one there are three major reasons why of sack robbery does not categorically qualify the first is the language of the statute itself it says force or violence or fear of injury if force meant violence and congress would not have said force or of violence there is a canon against surplusage every word has to have an independent meaning force cannot mean violence because both ar secondly if there is any ambiguity as to whether force means violent force or not then in that case the court needs to look at the legislative history of the hobbs act in this is raised in our reply brief that many courts in the country have recognised that the hobbs act was models a new york robbery and new york robbery is a minimal force robbery statute there is a term in new york robbery or an element called forcible stealing and as construed by  as imported into the hog sack this body of law construing the word force to mean nonviolent force and so that is one way of committing a hobbs act robbery we know these are means this is an indivisible approach we have to go to look at any possible way and certainly and we're looking back at state crimes but why when you've got a contemporaneous charge here companion charge hypothetical or and look at it but that's another case where you have a federal court looking back at a state court statute ok that's got all kinds of across fifty states why would you not when it's a contemporaneous companion and dykeman be not be able to consider the indictment as to the underlying predicate charges and i guess is a is kind of a peek at the indictment that has been some precedent saying you could make even the supreme court said in math as you could make a peek at the end to help you resolve it are you familiar with the masses and i'm familiar with you know i is i think you don't get to the peak under the categorical approach which we have a precedent of the circuit mcguire which requires the court not to consider this is a contemporaneous crime or what the are alleged at all mcguire says that the categorical approach applies both to the elements clause and the residual clause of nine twenty four c based on the language and that's why that really doesn't matter that it's a contemporaneous crime or whatever was charged if they change the language you have to look even though they're not the proffer right they are there's nothing about as nothing none of the i guess contingencies none of the ambiguities are there because it's all right  therefore doesn't know it doesn't matter no difference whatsoever it makes no difference whatsoever and my third reason for why corroboree does not qualify and i see i'm over my time so i'll bring my comments to a close in that is the fear of injury and right smack in the jury instruction approved by this court for hub sac robbery fear of injury is defined as economic harm harm to intangible rights like the stock something that cannot occur through violent force for that reason in addition to the others or independently and that's not hypothetical that's in the jury instruction that was recognized by this court years instead of thirty two but the intent here was to allow him to appeal this pretrial argument ruling a question of law whether object robbery is a crime of violence is a question of law the court recognized in mcguire that it is a legal determination to be made pretrial and that was the intent behind this plea of the way that it was decided to have a conditional period because the government would not agree