good morning your honor please the court my name is keith ellison dr i'm from the federal public defender's office in phoenix arizona and i represent the petitioners in these cases larry rady and rick jones i'm going to watch the clock and try and violent felony for under the arm career criminal act arizona law is clear about two things the first is that robbery does not require the use of violent force but merely force sufficient to overcome any resistance by the victim the second thing is that armed robbery does not require the perpetrator to brandish a firearm or other deadly weapon but simply that the firearm or other deadly weapon is available for the the perpetrator to use and so because of those two features of arizona law under last years decisions in the parnell and world cases and this year's decision in the geos of case i think this court is bound to conclude that arizona's robbery and armed robbery statutes don't define a violent felony and therefore the courts verse the district court in both of these cases and remand with instructions to grant the twenty to fifty five counts let me just be sure we're talking about the same statute just for the record i show a r s thirteen six forty one and thirteen six forty three and on january first of one thousand seventy eight so that's why in the briefing i referred to the nine hundred seventy eight pre and post before nine hundred seventy eight the robbery was defined at thirteen deaths six forty one the armed robbery sentencing  that were set forth in the in the case law the night of the post nine hundred seventy eight version changed the language of the statutes but for our purposes here they're they're essentially the same because the arizona supreme court decided that case law interpreting the pre nine hundred seventy eight versions of the statutes would apply to the post nine hundred seventy versions of the statutes i understand that's why i was a little surprised it seemed to me that the that you made you found someone different briefs in the two cases and you made slightly different arguments and i wondered if you like what you made of the differences between in the time for your two clients here well your honor i think that version but even made it a little bit weaker both both both sets of case law referred to force as meaning any physical act that causes the victim to part with their property but it seems that it is in reading in reading the pre nine hundred seventy eight case law it's not so clear that they really do mean any physical act because there are those cases where there has to be just some physical act that requires enough force to overcome the overcome victim's resistance with the post nine hundred seventy eight version of the statute your honor any physical act literally does mean any physical act and that is how the state courts interpret it does that does that answer your question i guess does we have the other part of your argument which is it being our right right and you argue that in arizona you can be convicted of armed robbery without displaying a weapon that's correct is there any case law the whole time yes there is there's a case in which that happened i didn't i don't think there's one sided in your pain so they're they're talk right so every time the court the arizona supreme court says what what you need to do to commit armed robbery they it consistently says that all the weapon has to has to be is available for the defendant to use and he can be carrying it on his person he doesn't have to brandish it the pre one nine hundred seventy eight case law that says this is her stand and barnett and the post nine hundred seventy eight sort of facts in which the defendant merely had the weapon on his person i think that case is i'm sorry it's not coming to me off the top you think there is such i think there is such a case and i will file a twenty  if if i don't want to i don't want spend among a bunch of time lecturing to the kids of the court about how the house state law works and if there are more questions i guess the only thing i the reason i ask you specifically about that which statutes we're about is because if we end up agreeing with you this is something needs to be published so that it's clear going forward and i want to be sure that we have the right statutes in the right cases that we're talking about here so you've told us what the  what the statutes are post one thousand nine hundred seventy eight i believe and i do you believe that your briefs make clear which are the best arizona cases that construe the meaning of these statutes in such a way that they would not create a problem for your clients in terms of the the federal statute that issue here i think i think that the and with with that i will use the one that you pointed out or maybe it was opposing counsel i don't know whose twenty eight j let it was that another panel is taking a look at this issue in the context of the sentencing guidelines there's no analytical distinction between what we're tempting to answer here and that panel is that your understanding yes the the reason that the even though that cases the guidelines in this case involve the arc or a criminal act the reason that there's no analytical difference is that other case called molen are involves the same definition the same force clause that says if that's at issue here and there's plenty of case law from this court that says case law enter in curbing the force clause under the guidelines shepherd for the guidelines equally applies to cases involving york or criminal act this intercourse when the supreme court finds that the guidelines are not unconstitutional with respect to vagueness and one portion that seemed identical to what one is left with wondering what all those case law from all those circuits means well but but that was only a big challenge i understand that really doesn't want to give a lot of the fact that the case is interpreting one help you interpret the other because they certainly didn't in that particular aspect write it with respect to the residual i mean you couldn't take anything from the fact that apparently that the i don't want to take up all your time that the the statute was on it's residual clause was unconstitutional that might lead you think that the residual cause in the guidelines was unconstitutional but that would be and all the case law interpreted the fact that's wrong i was surprised that with result of that i'm as you're are but i'm not really going there i'm just saying doesn't it maybe suggest that all of us have been wrong in saying that the two are to be interpreted the same way i leave that to the wisdom of the court thank you let me just be sure i understand most likely as a raise an issue on the one hand is it your position that we need to await the decision of the panel considering the my suggestion to the court of my twentieth a letter was based on this court's general orders where it seems to me reading that general order that this panel should confer with that other panel and decide who would publish first that seems to be the court's internal operating procedure but that as i understood from the twenty eight a letter that that case had not been really argued or not is going to be reargued i would i would imagine it will not be re argued i thousand seem to be this court's practice ok has not resubmitted for decision and the so that was the answer that question with respect to the de my case i don't think that the my case applies here because we already have the two johnson cases that interpret the we'll hear from the other half of the government distilled this case down to as a single issue the question of whether or not arizona's law with respect to the application of violent force is similar or greater requires a greater level of force than the federal case before you before you get there is the government conceded that the statutes in question are not divisible for purposes of the comp analysis yesterday ok and let's just we also say  the question came up with respect to the are bribery we cited in our nine twenty two eight hundred twenty eight j letter of the spencer case and i think while though although in spencer the question was not decided the court was very clear that any case if the defendant simply had access and control the weapon and didn't display it that would be sufficient and we've we've acknowledged that to the court and i credit you for filing well i mean this is i've seen more twenty eight j letters in this i've been before this the ninth circuit for over twenty years i've had more twenty nine twenty j letters in this case in all my other cases so we've been the parties have been distilling the issues and here we are i we're trying to sort it out ourselves absolutely and that's exactly what is your best argument on the definition of force because for sufficient to overpower the victim may or may not be the same and it's the government's position that force to overpower a victim is greater than force to overcome the victim council also seem to argue that any amount why is that council well i think what we need to do is we need to look to the case law and see how arizona has applied it and then arizona has a case law going back over one hundred years and i think we would agree that basically the case law is consistent the arizona supreme court over one thousand nine hundred seventy eight cases are important in our analysis yes in the walk down the history of arizona armed robbery cases nineteen zero five ramirez or versus territory simple pickpocketing insufficient force one nine hundred thirteen runnels versus state reaching into the pocket of a drunk drunk person insufficient force one thousand nine hundred twenty eight brown vs state sufficient force we have a bootlegger who sells liquor to two individuals who pretend pretend to be liquor control officers they tell her they're good they're going to take her in she thinks she's about to be arrested they started towards the door we all know when you're being arrested it's not negotiable whatever force is going to be whatever force is necessary is go take you to jail that was the use of sufficient force she bought her way out of not having to go to jail in that case one thousand nine hundred thirty one lear simply grabbing silver from the hand of a clerk in a store insufficient force one thousand nine hundred thirty five by hour a seventy eight year old man on the street in prescott arizona a woman comes up to him tries to grab his purse they're struggling over the purse a male then comes up quote unquote sporting woman and your claim that he had he had she had he had a debt to her first certain favors so he was the individual with the purse there struggling over the purse her accomplices comes up grabs the man tears his coat punches him he gets knocked from quote the gutter up onto the sidewalk and then he loses his purse that was sufficient force and then  forty seven case of steven's a hitchhiker thumbs a ride in tucson gets in a car he's in the back seat there's three people in the front seat and it appears that the two younger males in the middle in the passenger seat are robbing the driver they they force the driver to give him some of their cigarettes the passenger doesn't like what's going on and he says hey you know guys do you mind if i just just let me off and they're like no we're not going to let you out we'll let you out when we decide to let you out he's now being kidnapped he's you know when we say the application of physical force and that well that's the threat of physical force in that situation he's in the car and he sees these people that he believes are robbing the driver he thinks they may have a gun they tell him hey give us your cigarettes and they start telling the driver where they want him to drive so they're commanding the driver and he's thinking i want out this and then he says he asked to get out and they tell they refused to let him out so at this point in time they in a sense abducted him so these cases are a wonderful portrayal of life in arizona but i wonder what far left and then you have the cases in the middle and then we have obviously the johnson requiring threat either injury or threat of pain and it's up to this court to decide where does your note arizona fall well in the case that you just talked about that stevens case i mean i thought maybe you were going to skip over it it seems to me it's pretty devastating to your cause well if the stevens case the is the height is the hitchhiker correct right right specifically know that robbery statute provides a crime he may be committed by means of force or fear and it makes no difference how the fear is engendered feel if you do it just by scaring somebody not by to scare him for what i mean what's what is the what is the fear here so the fear in that case is this person is being abducted and i think when you're being abducted and you've lost control of your person and you're being taken to a place where you don't know where i would say that that's that's that's a pretty significant fear perceive that when you may think that that in the arizona supreme court hold there that force was unnecessary to commit robbery i don't  so i don't believe so maybe i missed mary was there hypothetically that in the run of the cases not necessarily just the ones you talked about that you're the supreme court seems to have done the very thing that my colleague just if there's a case where there's no there's no injury and there's no threat of force that will cause the person to be overpowered yes they will face you well know what we're dealing with here under the taylor analysis is  divisible which you've indicated under de my we can't go to the modify categorical analysis we have to see whether the statute fits the same definition as the federal statute in all circumstances if it doesn't then it doesn't it's not a and by your very interesting recitation of a number of cases and my colleagues comment about for example a kidnapping case doesn't it seem pretty clear  in a number of the situations where these statutes have been applying force was physical for like a gun or a knife was not necessary as you point out the fear like of the woman or man or woman the agent she thought she was being arrested by agents they didn't pull a gun but she was fearful and they found yes that was violated so doesn't that undermine your case well i think that this that's the position of the government is it's the or else in other words give us what you want or else in other words it's it doesn't it has to be the threat of the use of force and i think we even if you just take that even if you just say that you know it could be a either or the reality is it doesn't match the requirements of the federal statute in the if something less than the level of force required by the federal statute is there then it's not a categorical matches it that's correct and i think that's the position of the government though is that when you look in the app application of the force in all of these cases the application that the when the when the robbery convictions were firm there was the threat of force that would have but it's not just the threat of force it's threat of force capable of causing physical pain or injury so i say well i want to use your cell phone you don't want to give it to me you're running late now lock the door won't let you out there may be some implicit threat that i'm not going to open the door but not necessarily rising to the level of physical force  causing pain or injury it just seems to me that your argument is in these situations where somebody feels that they've just essentially lost the power and control there's an implicit threat there that if you run out the door i'm going to block the door and prevent you from doing so but that doesn't necessarily equate with force capable of causing injury doesn't i think i think it is because in that situation and if you're going to resist i mean if you don't wan abducted if you don't want your hand you're have to fight your way out and it otherwise you just you know you're given an option to fight your way out to protect yourself or become a sheik so i mean there's different ways of looking at it i think the government looks at it is if you're in a car and somebody is told you're not getting out to we're telling you get your get in out you have an you know that's a significant threat to your person or you're going up to fight your way out jump out of the car that's stops and that you have there get your analogy i wear it where the statute can be construed in different ways one of which doesn't involve a possible pain or something of that nature i don't see  it doesn't fit the categorical analysis you can see to the statutes are not divisible so it isn't that the end of the government just part of the government's case except that i haven't seen a case in our reading of the cases where it has been construed that way but all i can say it wasn't the only it in i suppose you could argue that somebody was really really attached to their cell phone in the analysis  colleagues gave that could produce real pain but other than that i don't see where you're here at alice's well i guess you have to ask yourself if you're being kidnapped then you're being held against your will what you know you have given an option i agreed to be kidnapped or i fight my way out if i have to fight my way out i risk physical injury or pain to any questions i call you course you have more course i'll answer any other questions that the panel may have but i do want to specifically address judge motss question about is there an arizona case with that that there was no brandishing and in reviewing my briefing in the jones case i see that i cited a case called state versus yarbrough in which the defendant is charged with armed robbery and the facts do not seem to indicate that there was any brandishing of a firearm or a deadly weapon and they affirmed the conviction  consolidated cases are