texas burglary conviction and neither often says now a violent felony after the supreme court's decisions and samuel johnson and either the robbery or burglary inquiry would be dispositive because mr campbell has two of each and for the a c c and his men there must be three predicate often said and i will first address the robbery off and say now this was it under a former version of the texas robbery statute article fourteen zero eight and that is different than the current texas penal code twenty nine point zero one that the courts from know your with from various cases including the recent decision and burks the current statute requires causing bodily injury or threatening or placing  fear of bodily injury but that is not an element of article fourteen zero eight robbery the basis for mr campbell's conviction that statute defines one off and said robbery that can be committed in three different ways the taking from the person or possession of another any property with the intent to appropriate to his own use by insult or violence or by putting in fear of life or bodily injury and the texas  to determine whether that minimum harm down necessarily has a force and the answer in this case is no assault one of the ways that the robbery can be committed is defined in the texas statute as any unlawful violence upon the person of another with intent to injure him whatever be the means or the degree of the violence used and that injury could be bodily pain but it could also by statute be constraint a sense of shame or other disagreeable emotion of the mind and it can be committed by a body part but also by anything else capable of inflicting the slightest injury or by any names such as spitting in the face and so this type of minimal force is not what is contemplated by the arm career criminal act physical force element which requires violent force capable of causing physical pain or injury to another person this court has not that spitting on someone does not require violent force as contemplated by the bases and texas case law also not only regenerates it can be a slight injury and it can be any degree of force but it has example that demonstrate that through some pickpocketing cases where the amount of force is a essentially offensive touching putting a hand in the victim's pocket reaching around the victim in some instances  another person holds the victim all at the other neither party takes the money out of the pocket and so those cases do not rise to a slap in the face do not constitute physical the a c c enhancement makes it fifteen year min mandatory minimum if that hadn't been imposed a statutory max of the painting years and when did that ten years expire probably three years ago three or four years ago mr campbell for a for committing crime during this a barrage period i don't believe that the court will not be able to impose prison at that time and we had a similar case on monday correct right and  the government raises a timeliness argument on the bribery robbery claim i'll just address that briefly mr campbell filed his motion for authorization within a year of johnson the claim clearly relies on johnson and  to the current supreme court law either on the categorical approach or on the physical force definition is completely proper and doesn't render the claim on untimely those cases interpreted the statute that's what the statute has has always meant there old roles that should apply on the merits and the supreme court has applied current case law to for example the prejudice problem of the strickland inquiry it's no if there are no other questions on robbery i'll turn to burglary again mr campbell can get relief simply on the burglary or sorry on the on either but certainly on the robbery inquiry the burglary has some more procedural hoops that ha been criticized by the government and some other courts of appeals this court on bunk recently held that texas burglary is no longer and generic burglary oftens so if mr campbell w sentenced today it wouldn't qualify now the question is does the court have jurisdiction to consider that claim since this is a success if twenty to fifty five mr campbell has to pass through two dates in ing court did specifically say that and so that gets to the next it's just in korea of whether or not mr campbell's claim relies on johnson when the sentencing court at the time of sentencing said numerated office and our position that is that the claim does rely on johnson first because he wouldn't have any relief if johnson didn't exist even if the fifth circuit decided harold if the residual clause was still constitutional he would be well absent the robbery but those burglary convictions would be violent felonies under the residual clause and so johnson is a necessary part of his claim to that the burglar convictions are no longer support burglary convictions is it too correct he has to burglary convictions and so the twenty to fifty five statute and twenty to forty four require that he the claimant relies on johnson but it doesn't require exclusively relying on johnson that that only that it's a part of the necessary part of the claim and it certainly is for mr johnson and will leave the burden that mr campbell has to show up because it is his burden on the twenty to fifty five is that the residual clause supported the violent silently determination at the time of sentencing and it did the sentencing court specifically said the numerated clause does but that the court didn't find that the residual clause didn't and the fifth circuit case law at the time of mr campbell's two thousand and seven sentencing certainly supported a finding that the texas burglary was a violent felony under the residual clause often and those cases first start with your dart oh nineteen ninety four there might be an earlier one also but in your dart of addressing sixteen be residual clause the court explained that whenever a private residence is broken into there's always a substantial risk that force will be used and then a few years later in one thousand nine hundred eight the fifth circuit held in claiborne's that in this was for an unauthorized entry off and that that was a residual clause of our sense under the career fender the four b one point two the definition of crime of violence which is the same residual cause at issue in a c c a and explained homeowner surprise confrontation with an intruder is laced with the potential for regardless of whether the intruder is a burglar or merely an authorised entrance andrew and then just a few months before mr campbell was sentenced the supreme court decided james which addressed another robbery six accused me burglary conviction and said that the main risk of burglary arises from the possibility that an innocent person might appear while the crime is in progress and so in that case law supports that mr campbell's burglary often says at the time of his sentencing were violent felonies under the residual clause and i would submit that it would be unfair and a certainly not required by the statute to hi access to relief simply on what the district court said or did not say at the time of sentencing and that's because it's not necessary first of all for the district court to specify not using that research will true but why should it matter what the district court said particularly when this is in the context of the entire life of a case which includes appellate review and for residual costs and then then he appealed and the appellate court said we think it is residual cost and they didn't address the other definitional clause they just said it is residual clause so in the end for  pass through those gates because of what the appellate court found and i know district courts work very hard to get answers right but they don't always get answers right and that's evident actually in the lawrence taylor case that the this where this court addressed what standard to apply and decided not to formally adopt a standard yet in that case that the sentencing court was not specific at the time of sentencing but at the time of the twenty two fifty five said i didn't rely on the residual clause and this court still held that in the relevant legal context of the time it was indicating that really that oftentimes i think those texas injury to a child is only going to be a violent felony under the residual clause so that the district court was was incorrect but that doesn't mean it necessarily is going to change the defendant's ability to get relief and a rule like that would result in similarly situated defendants having different access to this this relief to their unconstitutional sentences successive twenty to fifty five postures and so we believe that the correct standard is what has been laid out by the fourth circuit judge could may have the conviction relied on the residual clause looking at the law not necessarily looking at what a district court sad or had in his or her mind at the time of sentencing and and with that that's how mr campbell meets his burden on that to pass through those two gates relying on the new constitutional role made retroactive and then ultimately getting to the merits which you know with harold's interpretation of the categorical approach now being applied to texas burglary means that there those offices as well are not violent felonies i understand the government is asking this we're waiting also so on the eve of this oral argument on june eighteenth a pinion issues from a panel of this court basically undercutting texas robbery to the extent that i don't see much of a way to distinguish it although the government strongly disagrees with the reasoning in bursts and august third is going to be filing a petition for rehearing in that case  there is a dissent from judge ho that's mentioned in the opinion that has not been issued so we're not even exactly sure what the presidential landscapes going to look like and so at the end of the day we are once again in a position where we're essentially fighting a changing landscape in this case i believe limit you are correct that if in fact robbery is dispositive i do not believe you will have to address the lengthy analysis of whether the mathis to camps  even though it's a different version of the statute well i believe that's to the extent that you find that you are bound as i mentioned curtis johnson the quantum of force analysis employed by the panel in b s i believe would be equally applicable to the one nine hundred twenty five statute as it is to present a statute i don't see a meaningful believe me i've looked and tried but i don't see a meaningful to circle navigate around that quantum of force analysis i do want to stress that we disagree with that analysis and we stick by the briefing that we have already filed in this case but i do believe that we have  this problem and maybe at some point you can you know what the dissent looks like and what this panel decides maybe having the parties an opportunity to even discuss this new case and do the analysis would be appropriate  but at this point if it stays the way it is i have trouble viewing curtis burris as not being an obstacle for us in this robbery context and  again for some sort of new bands at least until we see what happens with burress as far as what the dissent perhaps says maybe that changes our view of the case but certainly this court i think in a difficult procedural posture with purpose if it's controlling presidential authority and we find that it is i do believe that at that point a remain for re sentencing would be appropriate i don't believe the served roughly sixteen years of a seventeen and a half year sentence and if logically if this were to take its normal course even if we get on bond in burress it would be set sometime this fall resolve sometime of linked together maybe five one case that was set this week with stewart but it was an initial twenty two fifty five was not a success even so the analysis differs there but we have we saw this case campbell and another brief that's been that wasn't set for argument this term this week was a case called rics and all of them are going to be looking at this gate keeping function that this court has regarding what we call the mathis to camp s claims herald this clearly based on math this indeed and the gate keeping function and so in those cases that analysis is very important here i think that robbery this is the only case that presents this particular wrinkle in the sense that there is an alternative problem in the case in other words it's for example we saw was just pure burglary there were no other convictions and so therefore the issue was squarely presented in our case we have burglary and robbery and so therefore it's a bit more complicated but at the end of the day we have argued in our brief i think quite persuasively that the timeliness function and the gate keeping function of successive twenty to fifty requires that  e right being asserted fall under a retroactively applicable case harold is not that case de camp is not the case and matt this is not the and so therefore we believe that at the time of sentencing and you are and i would like to say that this case is also somewhat unique because the district court judge specifically says i find robbery under the residual clause making that very clear any fines burglary under the you numerated clause and so it was  t unlike some of the other cases where there is ambiguity in this case it is very clear and so at the end of the day i think that we are in a situation where precedent has outstripped the briefing and we are at this  point going to rely on the briefing that we have in place although as to burris it may be incomplete and so should we stay this case until our issues resolved either reconsider its entire castleman doctrine in september when bonk and we asked for a stay in that case as well because that has huge implications for the now says of robbery also assuming th there's there's definitely all of this is so at this point we believe number one that the burglary herold based challenges are not before this court in the twenty to fifty successive twenty two fifty five we believe the robbery claims are to be quite frank the district court stated they were under the residual clause and therefore they are specifically with the causing bodily injury element of the robbery statute that's not even an element of fourteen zero eight it hasn't doesn't require the causing a bodily injury it requires the direct application of force or at least can be violated that way through the assault or the violence ways of committing robbery and the force that's required is is minimal and that is clear under curtis johnson and it's clear under castleman and burris doesn't change the quantum of force that this court has been applying it says castleman didn't change it but the government actually said in its petition for a hearing  castleman doesn't change the degree of force that is required there are two different issues the degree of force and there's the indirect versus direct application of force and the indirect versus direct application of force is what this court is going to consider in reus contrarians on bog but that as i argued in my opposition to the stay based on race contrasts does not come into play for mr campbell in his article fourteen zero eight robbery conviction so burress and the texas penal code twenty nine point zero one are materially different and you know  court if the government files a stable certainly oppose that but don't think that a stay is required under  the government also tries to wreak eric to rise mr campbell's burglary claim as mathis or to comp claim i explained that the claim necessarily depends on  on johnson and that is an essential part of him obtaining relief and mr campbell has received good time credit to his office office was in february two thousand and four so he's been in  custody for that amount of time low over fourteen years and any amount of prison time is significant and the supreme court has recognized that even changing sentence the possibility of chang sentences by days matter and in this court should not delay addressing mr campbell's twenty two fifty five and we ask that the court exercise it authority to vacate and also to reform the judgment and have his immediate release thank you thank you