are ultimately going to lead to the same destination and that is reversal of the armed career criminal act since because mr burris has prior conviction for texas simple robbery is not a violent felony it is no longer a violent felony because the a distinction between causing someone to suffer injury and using violent physical force against that person and because the elements clause of aca requires as an element the use of violence physical force crimes defined solely in terms of results do not satisfy that definition and this distinction between force and injury is a shorthand has become the lodestar for analyzing violent felonies and felony crimes of violence in the fifth circuit now the harder path advocated by the government here is to ignore the guidance of workers duran and mr byrd would still prevail without the fargus to read and rule but it would be a harder slog for the court and a harder slog for the parties and the good news judge graves is that the harder path is currently for closed to this panel court remains bound by vargas to rand and that's according to united states first rico here and more recently united states versus radius contrary so i do want to return to discussion of what i call the easy way now the distinction between force and injury eliminates both forms of texas simple robbery and remains binding law before the panel there are two ways of course to commit simple robbery in texas one is to cause bodily injury to one person during the course of a theft or in the immediate flight from a set and the second way is to threaten imminent bodily injury or to cause someone to be afraid that they're going to suffer imminent bodily injury now on the duran and certainly united states versus vegas hernandez are on all fours with this case texas assault doesn't satisfy the elements clause the only thing that simple robbery adds is that there have been to be a theft going on here completely controlled and they say even outright threats to cause someone injury do not have as an element the threatened use of physical force those aren't cases they aren't your honor but this court has consistently applied its precedents for felony crime of violence what the supreme court calls violent simpliciter with with one with one voice in other words it's the same language it's the same language used in the same context which is a felony definition of violence simpliciter and so i think that these cases under current law they control and i think that the united states versus sonti esteban hernandez which is a case we cite in our brief it really tells the court how to decide this case until the last changes and that says if the defendant if this case about hernandez focused on an identical elements clause the defendant would win because texas robbery is defined in terms of injury is not defined in terms of force so yes to run it is shows exactly how vargas duran dictates the result in this case that's why in two thousand and seven in united states versus davis where this court did consider this very offense under the arbor criminal act the court said this is a residual clause violent felony and now the residual cause has been struck down the natural result of that is this is no longer a violent felony now i anticipate that my opponent will advocate what i call the hard way in this case which is to tear again this passes for close to the panel right now but if we were to take this case up you know to some higher tribunals or if some intervening decision were overruled first bodily injury in texas is defined so broadly that something like a bruise or a pinch on the cheek would count as bodily injury however that would not count as force for purposes of the armed criminal act and that's assuming again that we eliminate the distinction between causing some sort of harm and using physical force the words from the curtis johnson case from the supreme court when you're defining a term like violent felony the word the supreme court used our extreme sudden furious severe and strong force now texas does not require any of those things to count as bodily injury so that would be a reason independent of what i call the lodestar for analysis we cast aside our history and that's one reason which would control against both forms of texas robbery because both of them incorporate that very broad definition of bodily injury typically associated with a misdemeanor battery in texas and elsewhere the second reason is if you can commit a crime by injuring someone while you're recklessly driving a car then that crime does not have the use of physical force against that person as an element and we cited decisions from other circuits that recognize that and they don't always use exactly the same analytical rubric some of them will say there's still a distinction between force and injury some of them will focus on the recklessness prong some of them it's the combination of causing this result and doing it with a reckless mental state but in each of these decisions you see a sort of i would say a growing consensus of courts who don't have the vargas duran rule sort of hovering over them and guiding them which way they go where they'll say that is not a use of physical force against a person and i think that's consistent with the supreme court's decision two thousand and four inlay ocal versus ashcroft that's five forty three us one i noticed last injuries and the court said you know this is not a use physical force against someone that was under section sixteen but i think by the same logic now i will agree that locale does not directly address the question of recklessness and i will also agree as i would expect my opponent to argue that this court has on occasion held that a crime satisfies and elements clause with a reckless mental state but to my knowledge this court has never held that a reckless crime without some definition of misdemeanor crime of domestic violence and if you look at the court's decision in castleman the court went to great pains to distinguish between that definition of violence and focusing specifically on the concepts of excuse me context of misdemeanor and domestic violence in other words the court didn't claim that it was writing what these words would mean in all contexts in fact the court distinguished that definition from the one discus curtis johnson which we're here to talk about today the violent felony definition curtis johnson dealt with violent felony and use that context to provide a more limited definition whereas kathman looked at a broader definition and now on  specific question of whether or not the analysis from castleman might leak out of the context of misdemeanor crime of domestic violence to be applied elsewhere this court has said no this court said no and united states versus rico me here the government protested move for panel rehearing in rio hero and said you know no castleman changes the answer in this case and the rico may have panel reissued the opinion continue to reject the argument cast and so one panel of this court in a published opinion has rejected that more recently as the government has argued not withstanding that one very clear answer from the court prior decisions were inconsistent with that another panel which we cited in the reply brief ray is contrary i said no  controls as to whether or not castleman overrules forrester in so but if you took both of those cases away from me i recognize that the government's asked for an extension of the rehearing time and as contrary as take both of those cases away from me i'll return to the fifth circuit's classic rule of orderliness and that is when a panel decide the case and he published a presidential decision that is the law of the circuit unless and until it is unequivocally overrule to distinguish the context of that analysis misdemeanor crime of domestic violence from curtis johnson from the definition of violent felony in other words the supreme court ran as far away from over it could so you can't say that it's unequivocal so that's why i say the easy path is the one would be easiest for this panel at this point is to recognize there is a distinction between force and injury that distinction is borne out in texas cases there's a case called landry in versus state dealing with aggravated assault where the court says as far as texas is concerned hitting someone over the head with a beer bottle is no different than recklessly tossing a beer bottle up in the air and it falls on hits in a piece of it hurt someone else right those two things one of them is more culpable than the other one but that one night that one defendant is no more or less guilty than the other and i'd also submit to you that recklessly tossing a bottle in the air while a foolish and a dangerous act is not a use of physical force against someone and that is why texas is result oriented crimes such as robbery and assault i'm talking it is certainly the simple level they no longer count as violent felonies now congress at least attempted to include offenses that did not have the use of physical force as an element in the armed criminal act unfortunately the language that they chose to do that was unconstitutional even so if the government has a complaint right there is sort of an intuitive injustice that permeates the discussions of saying well certainly robbery must be considered a violent felony the way to solve that is with congress congress could be numerate robbery that's what the sentencing commission has done and it's comparable guidelines for b one point to congress could sort of take another stab at the residual clause if you will and try to capture offenses like this without catching ones like evading arrest but there was a prong for dangerous crimes that was struck down with this prong deals with is an element that is a term of art in law that students would learn in first year criminal law element is something that has to be proven in every case i want to touch on something in a side that we've dealt with a little bit in the case as to whether or not we have to standard doesn't apply when the question is whether or not something is an element because an element has to be proven in every case an element you can usually find in a list of jury instructions and so if you can think of a way to is it's an alternative means a really that it's not even a separate means in other words texas has decided unlike most states defining robbery texas has defined has decided that the difference between a theft and a robbery is injury it's causing injury or causing someone to fear injury you don't have to be present it doesn't have to be that the person you know that was the victim of the theft doesn't have to be the one who did it and i think if you look at the situation it was in vegas hernandez which was what could have been a reckless assault against  officer this court said that doesn't satisfy the elements costs and if the only fact you added to that was that mr vegas amanda's was running away from a botched attempt at shoplifting that becomes robbery or texas law may please the court will hear we're coming after the united states now there is an easy way to resolve this case i would submit and probably not surprising it comes to the opposite result it comes to a firm and here setting aside c said setting aside whether or not castleman overrides he gets hernandez texas robbery is still a violent felony under the act of force clause because one texas case law establishes that it is a violent offense that requires the use or threat of violent force to burst fails to show a reasonable probability that texas would ever apply the statue in a case where there wasn't the use or threat of violent force and three the most and now it is case law supports finding texas robbery to be a violent felony under the force clause turning first to texas case law texas courts have held that robbery is a felony that involves violence or threatened violence as a mat against  now burris argues that chris johnson require something more than just simply force capable of causing physical pain or injury that it requires severe or extreme force but that is undermined by the the wording of curtis johnson itself which specifically defined physical force is only that force that is capable of causing physical pain or injury and it further suggested that a slap in the face would suffice moreover the argument that chris johnson can be read to require something more some strong force has been rejected by multiple circuits including the seventh the third the second and the tenth and most notably the seventh rejected the very argument that burris raises citing flores be ask rob that provide that suggest that christi and requires anything more than simply force capable of causing physical pain now burris ignores texas case law and how it defines the nature of robbery and instead he relies on vegas hernandez which looked at the texas assault statute and held that subtle and indirect applications of force such as tricking someone into drinking poison or tricking someone to walk off a cliff does not qualify as but use violent force but if you get hernandez and those scenarios have n application in the context of a robbery as this court stated in brewer this court's most analogous case which address federal bank robbery it is hard to imagine any successful robbery accomplished by threatening them far removed reprisal that does not involve physical force and that's because robbery is not just an assault standing alone it's an assault committed in the course of committing at that or as santa esteban said it in the midst appropriation of property under circumstances involving immediate danger to the person in other words a robber causes bodily injury or threatens imminent bodily injury or death in the course of affecting an immediate taking from a person who otherwise would not give them the property or in the course of defined at the elements of texas robbery it is under circumstances involving immediate danger to the person so that's where immediate comes from it comes from the elements of robbery as defined by santa esteban in addition to the defined robbery including tax and robbery as immediate danger as and as your question about robbery with committing poison and so a robber is not going to cause bodily injury in the course of committing a theft that nexus requirement by making available poison drink to the victim assuring the victim it's safe to drink waiting for the victim to drink it waiting for the poison to have its destructive effect because it doesn't satisfy the me esteban which says that that's an element of robbery and if it's too far removed from the in the course of committing a theft similarly a robber is not going to compel a person to part with their property by threatening to someday poison  trick them into drinking poison or someday tricked them into walking into traffic or off a cliff by statute the threat must be of imminent bodily injury not future injury and underscoring this fact is the fact that burst cannot point to a single  the arresting officer in the chest with his elbow monologue where the defendant hit the officer with his car as the officer approached him on foot and then struck another officer's car after a twenty mile chase he said howard where the defendant entered a convenience store late at night with his face concealed and aggressively brandished a rifle in all of these cases the use or threat of force was of direct physical force if not the subtle and indirect applications that vegas hernandez was concerned about and  other approach the government cements and it continues to stand by its argument castleman over rules is hernandez idea that the use of poison doesn't constitute violent force every circuit has rejected that idea and it has applied castleman to the violent cow which is a violent force case and it reasoned from a violent force example pulling the trigger of a gun it also uses defined use consistently with the dictionary definition of what use means to include and direct applications and there's no reason it means the act of employing something so employing poison as a destructive device device would accord with the dictionary definition of use and there is no reason to believe that another definition would apply in the context of violent force contact versus a domestic violence context especially considering as noted the supreme court noted in footnote three that the supreme court has consistently use the dictionary definition of used in multiple cont now burris tries to get around going back to that that may be the easier way he tries to get around the reasonable probability test by arguing that it doesn't apply to the force clause but he cites no case standing for that proposition he cites vargas to duran which w defining what an element was but harvester and never said that theoretical possibilities or mere legal imagination can take a crime outside of achatz coverage and the case law makes clear that the reasonable probability test is part of the categorical approach elements and you compare those elements to the convicted crime it's just similar with the elements clause except for you just have one element the use right and use of force or attempted use of force and you compare that to the conviction so there's no reason why it wouldn't apply apply the realistic probability test the force clause in addition to all this the most analogous case law and act as legislative history further support finding texas robbery to be a violent felony under the fourth clause in brewer this court's most analogous case addressing federal bank robbery this court looked to the case law and said that it doesn't support the poisoning hypotheticals because the case law shows that threats in the bank robbery context inherently are tied to the threatened use of direct physical force the court reason that the kind of threat that suffices to put a victim in fear of bodily injury during the course of a bank robbery and which in turn allow a defendant to complete such a robbery is the very sort of threat of immediate direct and destructive force that is required to satisfy the crime of violence definition which is analogous to the aca violent felony definition and because the appellant in that case had failed to present any case where a bank robber had committed the crime using some subtle earned direct use of force the court held that bank robbery satisfies the force clause the same reasoning applies here with texas robbery in addition the eighth circuit has also recently held in the only published circuit court addressing this statute and this issue that texas robbery categorically qualifies as an act of violent felony under the force clause and finally the legislative history of aca makes clear that congress has always intended robbery to count as an actor predicate and contrary to bersih suggestion texas robbery is not some robbery outlier statute it reflects the model penal code and as this court is provably held it is generic and involves the misappropriation of property under circumstances involving immediate danger to the person moreover the fact that congress included as a predicate offense extortion and aca further supports that it obviously want to include robbery because it makes no sense that extortion would qualify but not robbery which is  serious and violent crime now for us also raises for the first time in his reply brief that the court cannot look to the indictment to determine the subsection of his conviction but as discussed sex robbery statute categorically qualifies as a crime of violence i mean as a violent felony under the fourth clause so this issue need not be addressed but if the court wants to go there the court can look to the indictment arguably the issue has been break waived since and his initial brief the court can look to the indictment because the indictment alleges the statutory language of the lesser included offense and the judgment refers back to the indictment and the simple robbery statute or conviction contained therein this is not a case where the court is looking to the indictment the of chris johnson doesn't require extreme or interview him and her strong force of bruises enough physical pain is enough under chris johnson's explicit definition of what physical force means in the context that after it means force capable of causing physical pain or injury in that context a bruise is bruised capillaries it's a physical injury and it's exegete us in both of the cases where texas courts were looking at whether the evidence was sufficient to so show bodily injury the victim testified in addition to the bruises they had physical pain which under curtis johnson is enough and all the circuits to say explicitly address this argument have health chris johnson requires no more first fails to show a reasonable probability that texas would apply the statute where there wasn't a use or threatened use of violent force three under the reasoning of brewer this case is this court's most analogous case texas robbery would qualify for the only published circuit court case to address the issue has held that it qualifies under the aca force clause and five the legislative history makes clear that congress always intended to cover robbery prosecutors have charged a theory that the defendant sent a flashing tweet to the victim who suffered a seizure now that is plainly within the text of the statute i'm sure the defendant in that case would love to have an opinion from the fifth circuit saying that could never be but that's a pending prosecution right now so if we did have to show a reasonable probability that texas applies this result oriented language in unusual ways that's one it's not a robbery case but it's also not a case involving physical force under any definition second counsel cites the case of brewer and says it's the most analogous but there's two things about the federal bank robbery statute that are very important to distinguish it from texas robbery first federal bank robbery the taking has to be by intimidation in other words that is the means that the defendant used the key that he uses to open the door to get the property from the victim whereas texas courts have been very clear under the current definition that's not required at all it could be a completely different person so long as it happens during the course of fleeing from a theft or attempted that second thing that's different about texas texas simple robbery from federal bank robbery is this causing bodily injury which is the one of the government argues the only version you should look at there's not one of those in federal law one that just happened to cause injury recklessly no one was in and while in the course of a theft that is not a promise in federal bank robbery and so that argument wasn't even addressed in brewer so that case is distinguishable i would agree again the government wants to play on the traditional notion of robbery but in one of the cases that both parties cites on the esteban hernandez this court recognized texas isn't like most states the so called immediate danger part of generic robbery it's defined that way because most of the states say force texas and a handful of other states a injury in that sense this is not a traditional robbery statute even if it's within the broader generic definition the hypothetical from a previous case where we'd argue that the united states versus financial that case is unpublished it doesn't tiger has escaped from the audubon zoo it will be here in moments we're all going to die and all the students fled and then i took the empty room and took all of the laptops and valuables that they left behind there's no question that's robbery under texas law of cause someone to fear immediate bodily injury during the course of a theft assault of threatened use of force i'm not saying i'm going to sic my pet tiger on you right it is causing someone to fear injury during the course of a theft same thing about a reckless causing injury so i'm recklessly driving to get away from the job and i've run into a police car that spins out having used force against the police officer not used force against the police officer within the definition however i have engaged in what you might broadly call violence under a different definition  one that included the residual clause that included danger the regarding the separate provisions and whether the guideline provisions control there are lots of cases that say you know we apply one in one context and you know we pile them across but also the definition of crime of violence and for b one point two is derived from the arm career criminal acts definition of violent felony in other words it was a copy and paste job and they were trying to get at that same idea the older version of it the twenty twenty fifteen version the elements clauses copy directly from the statutory text and it's course always applied to the provisions that deal to one point two the old four b one point two in the current arc or a criminal act is what i call felony violence definition for violence simpliciter to use the supreme court's definition to distinguish it from misdemeanor crime of domestic violence and in terms of buenos alvarez if we did need to satisfy at the decision harold says there's nothing speculative about saying we apply the state's statutory text the text is what matters for purposes of the elements and there is nothing speculative about saying texas permits conviction for robbery based on the causation