but he wasn't he was charged with assault with intent to rob and the enhanced penalty as some very good advice i received yesterday at the appellate seminar might suggest   standard and because the residual clause is now gone from nine dollars to twenty four dollars c and it's the assault with intent to rob versus the robbery offense but as it's a legal question you if you the assault itself can be accomplished by a mere battery assault is not defined and code and so you look to the common law and the under the common law you can accomplish and solve a battery the question then becomes whether with the intent to rob steal or pro war in terms somehow elevates that fully correct and i wonder i've looked for cases about stealing your promoting versus robbing and that there's not a lot out there but that the courts seem in talking about the history of th the supreme court garcia d c circuit and spears our current kostner we've talked about it absent an attempted robbery with an assault arrest salt with attempt to rob and even before this extra  mean very different thing then and rob and and congressman about when they wrote bad and eighteen whatever when they had this version of the statute i think if you equate assault an attempt to rob you you conflate the two and you read the assault portion of the statute completely out of the statute can you about that the nd the aggravating factors after the had i don't know the answer to your question my position would be that because the is the word assault does not appear after the semi colon if it can to a different interpretation it's just it's tricky right when they add the attempt the general attempt language i made in ninety four dollars it would lead you to read it one way but knowing that affecting or attempting to effect was in there before ninety four might lead you to read it on point the problem is is that in that case mr knight was indicted for assault and robbery and so you know there's no actual discussion of the issue we have here which was mr bryant was indicted for and saw with intent to rob and there also is no discussion of the common law meeting of assault being completed by a battery you only use a modified category call pro choice to determine obviously it's divisible at semi colon and i think the government would agree as they did in their brief that the st part of the before the semi colon under the ten year penalty you have assault with intent to rob robbery or attempted robbery and so those are three different offenses my position is that assault with intent to rob is not the whole phrase it's assault with intent to rob steal or paroling and that phrase isn't divisible and covers are broader and it was an eight was a inmate who was a child be positive and he spit and bit the guard and so his teeth and saliva became a dangerous weapon position would be if i were to batter someone by spitting on them and being asian i'd be positive that that should not qualify to bring this within the scope of a crime of violence and there would be a more than a theoretical possibility that that sort of thing would be covered and so therefore would be overbroad and  would not qualify that would be in opposition to theft with spitting yes but if i have hiv right right you know life in jeopardy right dangerously right because this court has held that the interchangeably the writers want to make sure we were in the bunkers planned out that judge rushing you raise a very interesting point and i want to address the questions in the concerns that i think that you had you mentioned the genesis of this statute and you also mentioned that added they rule of construction of this is in footnote thirty eight of spears is that when congress consolidates or revises a statute the intent is continuity not to make any substantive changes in the law absent compelling evidence to the contrary and while kind of crime we have in the federal courts by federal statute position is congress had assault with a dangerous weapon in the books before one thousand nine hundred and nine they combined all the male robbery statutes together and so now you have a statute yes it's defined in terms of semi calling and yes the term assault with intent to rob doesn't appear after the semicolon but as a judge rushing pointed out in prior versions of the statute affecting such robbery man included assault with a dangerous weapon so it's our position that when you look at the statute as a whole and you could align home and i'm code it's very clear that assault with a dangerous weapon is a specific independent offense under that statute and i mean it's charging  assault with a dangerous weapon or with wounding has been used frequently it's used in the garcia case it's used in the white case which is the one specific case in which a court of appeals has hailed that assault with a i would just say a couple of things in response the st is regarding the walk case that mr booth cited the th circuit in that case did satisfies the elements clause without any analysis that would be required and there was something else that mr booth said that i wrote down the words categor approach and i cannot remember what it was he was saying