good morning your honor is in may it please the court melissa lou representing the united states the only issue in this appeal is whether or not counts as a crime of violence under four b one point two of and fifteen sentencing guidelines and it does under the enumerated offenses analysis where courts apply taylor and compare the crime of conviction to the generic definition of the enumerated offense to figure out whether there's a categorical match in basara lopez this court did just that with california robbery which is facially identical to idaho robbery and concluded that california robbery was a crime of violence under two well one point two which is an analogous guideline to four b one point two issue in this case now importantly both guidelines and numerate robbery and extortion as crimes of violence so if we look at the idaho robbery statute it's a match for the definition of generic robbery except that it does criminalize conduct involving entering and threats to property now similar to what the we can look at both robbery and extortion and so that piece of idaho robbery that's too broad for just generic robbery does fall within generic extortion isn't that why we should be concerned about the change to the definition of extortion that changed the definition of extortion was promulgated in the twenty six team guidelines which are not at issue in this very not at issue because the district court sentenced the defendant under the twenty fifteen guidelines and i mean i struggled i've looked at this among other things the district court adopted the pre sentencing report which used the twenty sixteen guidelines and ordinarily used the guidelines in effect at the time of sentencing unless there is an ex post facto effect i understand there was a lot of discussion about the two thousand and fifteen guidelines and there are reasons why defendant might have encourage that because it might have given a legal argument but in the end as i've gone through it and as the district court really tried to struggle with this issue i didn't come out of the end having a clearing sickler sense of which set of guidelines was actually applied can you point me to something that answers that question yes well i think the clearest indication that the district court applied twenty fifteen and not twenty sixteen is that the court did not consider that amended it would have looked at that amended definition well if somebody had pointed out i sense was that nobody in the room was conscious of that particular change i can't speak for what the court was but you know if not to be in the room we certainly we certainly missed statutes of course they're identical they're verbatim of the district court was concerned that maybe idaho would interpret it differently anyway and i think you have a strong argument on on that point yes but but there's still this concern about twenty fifteen or twenty sixteen he i think the district court does pretty clearly adopt the amended p s r and that relies on twenty sixteen right yes but i do think the strongest indication that the court didn't actually apply to any sixteen is that the court did not consider that new extortion definition that only appeared if you weren't aware of it why should be so confident that the court was so where of it i mean i i'm willing to stipulate the judges kno every i mean it was never mentioned it's something that likely would have been brought up if people were conscious of it so why does that really tell us that the judge was mindful when  decided no i'm going to disregard that and apply twenty fifteen well i think if you look at the fact that the court didn't consider it that amended extortion definition along with what the court said in the record where it basically said you know yes i do think there is an ex post facto problem potentially and bought into the defendant's argument that the two thousand and fifteen guidelines should apply i think those two things combined really indicate where the district court was thinking and the district court was sentencing the defendant under the two thousand and fifteen guidelines in fact what what if what if we can't tell or i guess more to the point what what if we disagree what if we think it's more likely he was so i don't know we wouldn't expect him to be clairvoyant to know that there had been this change was a very significant change particularly given that it's verbatim going to match up with california that that's an effect an awful lot of cases it is it is and yes i think if the court were to disagree with our position and indeed i think defendant's position is that he was sentenced under twenty fifteen as well if the court were to be unclear on that the fact still remains that the district court did not consider this amended extortion definition under the twenty six thousand guidelines so i think in either instance the appropriate course would be to reverse and remained free sentencing in which case the district court to have the benefit of briefing and really have the opportunity to really look at this issue which is an issue of first impression in the district of idaho if we decide that it was a two thousand and fifteen guideline that he was relying upon then your argument is then my argument is that the district court got it wrong because  robbery is categorically a crime of violence under the two thousand and fifteen guidelines and i think where the district court went wrong is when it agreed with the defendant that idaho case law had interpreted idaho robbery in a way that made it broader than california robbery and no longer a crime of violence or i don't know how to pronounce it i c b but that case if you think you can just read that incorrectly i think so yes your honor because he explicitly says idaho robbery requires intent to use force or fear to overcome the will of the victim now b p did not dispense with that in type into requirement what the court did was it said there's sufficient evidence in the record to affirm the jury's finding that the defendant had the requisite intent in that case counsel how about the language in the case that fear in the force the fear may be created not merely by threatening words or gestures but also by threatening circumstances doesn't that go beyond what the california courts have interpreted under the robbers it does not because if we look at the generic definitions of robbery and extortion which is the starting point for this analysis generic robbery is defined as aggravated larceny containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person in generic extortion is obtaining something of value from another with his consent by the wrongful use of force fear and threats so nothing in the language of those generic definitions places a limit on how the force or the fear can be created or what types of force or fear carol and i think tellingly if we look at the molinaro case in which judge kristen was a panel member recently the court noted that putting in fear can be achieved by words acts or circumstances and so that language and b does not actually make idaho robbery broader than california robbery or broader than the the threatening words or gestures language yes i think the need case is actually helpful to us because what happens there was again they were reviewing a jury conviction and they found that there was sufficient evidence in the record for the for the jury to find that the defendant had in fact used fear so need also doesn't dispense with this requirement and idaho robbery that the defendant needs to intend to use force or fear now compare that with california only injury of violence as opposed to fear of damage reputation or fear of it is that your argument no i think i think any i think both count because we're looking at both generically case or as in that case where the reviewing the jury verdict is it's quite specific to the evidence that the jury heard and if it is as good summarized yes yes that's correct and compare that to california robbery which pretty clearly doesn't require intent to use force or fear as made clear in the andersen case i would submit that the district court simply got it backwards and that robberies actually narrower than california robbery and generic robbery and extortion because it does require that intent to use force or fear now even assuming that the district court was right and even assuming that b b somehow dispensed with that intent requirement which i don't think it did because it says clearly in there that requires intent to use force or fear that would make idaho robbery identical to california robbery which also doesn't require intent to use force or fear and it would still be a categorical crime of twenty six thousand guidelines but again the issue that we have raised in this appeal is whether the district court got it right in the twenty fifteen guidelines is nichols involved california stepped in it to us yes the current status of nichols i'm not aware i don't believe there's been a decision and i admit i don't know if oral argument has been held or not thank you and i thank you good morning may it please the court ruling from the federal defenders on behalf of mr powell before i forget nichols i believe is scheduled for all argument on the on the eighteenth mid month this month but we didn't make this easy for the district court but the district court ended up ruling that mr powell did not have a conviction for a crime of violence on his record the government in this appeal doesn't have an argument that the district court got that fundamental ruling wrong and we agree with what the government said in an earlier appeal that this court is reviewing the ruling not the reasoning it's not a it's not grading the district court's homework assignment and so that the government's claim that there's some sort of more exacting standard of review applied to this amendment seventy amendment seven nine eight argument is not correct that this this court can affirm for any basis in the record that's the difference between being the appellant and being lucky enough to be a tele you're not used to being on that side of the me over there i'm enjoying it and this circumstance because i i frequently i'm in the position where the government has the opportunity to refine or improve their arguments on appeal and the in this court is allowed to consider that as long as that argument supports the ruling lenity right because it's a yeah it's a categorical approach it's just a question of whether the conduct criminalized by the state of iowa extends beyond not relying on that here i'm not i didn't invoke i didn't cite it in any of my oh no i don't think i'm relying on it i don't think i need to rely on it for this court to get where it's going which set of guidelines to the district court reliant county i don't think the district court specified because it wasn't material to the base it's for its ruling i think  the i have to say that the government's argument that we cab and our argument to the two thousand and fifteen guidelines is incorrect the second argument that we made this threatening circumstances argument we viewed it and stated explicitly that that didn't depend on which version of the guidelines that they accept i point the court to your one twelve which is the conclusion of our first response to the government's objection and i'm quoting idaho robbery does not categorically qualify as a crime of violence that is true under the two thousand and sixteen guidelines because and then i'm excerpting and then resuming quotation this is even more true under the two thousand and fifteen guidelines duff and so we were making two arguments one was this convoluted arguments argument there was an ex post facto issue under the two thousand and fifteen guidelines because robbery was an enumerated it depended on the residual clause johnson had invalidated the residual clause the district court rejected that argument it said it was confident that the sarah lopez applied which it made that statement meant that it was considering both robbery in the in the commentary note and it and extortion actually list so it didn't buy that argument instead it bought her other argument which here we said applied regardless of which version of the guidelines up in another can't tell scuse me for interrupting counsel but if we can't tell which version given the number of cases like tilly to be affected and the fact that under the new guideline there's this new definition of extortion how do we go forward i mean this wasn't even briefed to the district court well i think the district court correctly ruled in this court that affirm and he didn't he but he did have this argument as far as we can tell the district court didn't have this argument to consider about the new definition of extortion well it's a purely legal argument we presented it on appeal as a reason to affirm in the here the government chose not to engage with it and typically this court requires a party to specifically indistinctly make an argument in order to adopt it and so the government wrote in their brief that there should be an opportunity for further factual to the development of the record but this isn't a factual question it's i agree it's not a factual question but it's a really important legal issue that would be presidential if we decide how this and it would have been decided without the benefit of briefing well i disagree that it's decided that the benefit of briefing we briefed at the government chose not to engage and i think that if this court rules on it it's it should do so or or would it be appropriate to do so in a way that's not presidential you know in this case this is just a matter of which argument doesn't work well the government the government doesn't work for us for this case only because if we make a ruling that's a matter of law is the law of the sun well the ruling would be that the government did not choose to make the argument that under the two thousand and sixteen guidelines idaho robbery remains a crime of i brief instead of making a similar argument they just put in a footnote that they're not conceding the argument but they also didn't make the argument so why should they get credit for that so you think we could cabane this ruling just that the government hasn't engaged the government hasn't it reading precedent  court didn't have the benefit of the briefing it's not a rule yeah it's not a ruling on the merits as litigator because it's not litigated it's just a it's just a concession and of course this this court could do an unpublished disposition as well which doesn't have a presidential effect but  i know the district didn't specify counsel but i'm just asking you what is your position i understand he didn't articulate it but i guess my position is that it appeared that he was ruling under the two thousand and sixteen guidelines because he didn't view there being an ex post facto issue with respect to which version of the guidelines applied so he applied the law which is you use the current version of the guidelines unless there is an ex post facto issue after dismissing your argument that there was an x that there was an ex post facto issue he made his ruling without talking about the version of the guy i think i would assume honor just two points first of all what version of the guidelines the district court applied is not at issue in this appeal the defendant did not appeal that and neither did we brief he says the district court ruled idaho robbery was not a crime of violence as that term was defined by section four b one point two prior to amendment seven ninety eight which essentially means the just the defendant is saying the district court applied the guidelines the twenty fifteen guidelines saying that we went under the twenty fifteen guidelines i don't think he's necessarily locking himself a new position that depends upon the twenty fifteen guidelines  honor and also i'd like to touch just on the defendant's proposal of the standard affirming on any ground in the record that i believe is a civil standard we would actually love for it to be criminal because in most cases we are the actually and that would help us out quite a bit but the reason why i think it's civil is if we look at cortez arias which is the case the defendant cites for that standard the court quotes the standard in a footnote but really what the court does in court has arias that reviews don't know of whether a crime of conviction is actually a crime of violence you know i traced the citation that the cortez arias case gave for that standard back for cases and each of those cases is in fact a civil case and i found that to be the case with other cases in the circuit where that standard has crept into criminal cases it seems that the court cites a civil case for the standard but really goes on to apply the relevant criminal standard and so i submit that that's actually a civil standard and not the political here even if it were the correct standard your honor there's no ground in the record for this court to affirm because there's no evidence that the district court considered the two thousand and sixteen guidelines and specifically amendment seven ninety eight there's no there's no evidence in the record have wouldn't we consider the amendment as purely a legal question isn't it is but again like i mentioned just a court was kind of begging for guidance from the court of appeals here we are yeah well i think it's because that affirm on any ground in the record really is a civil standard and is not a political here although we would love for it to be applied in criminal element but that aside if if our interpretation of the law is the as it stands now or into the twenty sixteen guidelines since no twenty eight under the twenty six thousand guidelines and i think continuing the definition of extortion has changed and we are capable of saying as a matter of law that because this definition isn't a categorical match to this definition you don't have the predicate of is what is what could the district court add to that there's no factual findings to made here are there well i think it's appropriate to send back to the door and i'm fine i'm happy to let him do the heavy lifting but i'm i don't know what it is he would decide that isn't going to be promptly appealed to us so maybe we can make three of our colleagues deal with this question in a year but but how does the question change and if if you tell me as best as we know and i don't know and i'm not trying to put words in your mouth but if our court's going to consider that in a brief fashion in nicole's rather than send it back to the district court why would we just sit here and wait for nichols to tell us if this is a categorical match or not well i think it's important to reverse the sentence in this case because i think the district court very clearly got it wrong under the twenty fifth i think it clearly got it wrong under the twenty fifth amendment and even who would agree with you on that if we know this other issue here is going to impact on the sentence i mean i'm really trying to figure out if there's a reason why we should send it back as opposed to either decide ourselves or let our colleagues in nichols decide this other issue because if that's going to control the sentence or really doesn't help anybody recycle the case again does that i mean is there something if there's something the district court can add to that i'd like to know it but i don't i don't see it yet well i think the district court can add clarity and make a clear determination as to which first the guidelines it's applying and then make a decision whether it counts a crime of violence under those guidelines i'm so i would ask the court reversed remained for the sentencing counsel thank you both counsel for your he