agreement and not original plea agreement to the upward departure to three hundred months the maximum he could have received in that original plea agreement based on circuit looked at the elements of new york robbery and explicitly found that it lacked the element that the robbery be from the person or presence of another and that's critical in this case because the government and its briefing relies on th court's prior decision in jones versus united states and says that each of those three offenses each one twenty one eleven twenty one thirteen and twenty one eighteen has asked an element that the robbery be on the person or in the presence of understanding right your client wasn't sentenced under the statute and the only reason the statute is relevant is because it was part of the sort of strategic context under which your client pled guilty that's correct on and it strikes me that as long as there's even like a color claim that he could have come within this federal streatch strike statute he got the benefit of the bargain with his plea bargain he bargained to remove that risk and he got the benefit of the bargain the government couldn't charge him today you know refile an information and it's not doing that and so i guess i i mean it seems odd to me that we would actually decide whether this defendant could be sentenced under statute under which he was not sentenced why isn't it enough that he bargained to get that risk off the table he got the benefit of the bargain and so he can you know the court can take that into account on re sentencing the supreme court just held out in houston even if the guidelines rings changes and you are eligible for recent unsing if the district court thinks you got the benefit of the bargain the first time they can give you the same sentence well to responses your honor i certainly agree that the precision posture of this case is awkward and yet we have the fact that the district court made a legal finding may have been unnecessary to the decision it may have completely undermined by it the series of mutual mistakes contained within that agreement such that human eye at least as i read it it made pretty clear that that the the inducement for pleading guilty here was getting this three strikes law off the table well that certainly one of the things referenced in the plea agreement but i think it's important for the court to consider that the guideline range as i argued in the briefing was mandatory at the time and the defendant agreed to a sentence within a manager i got my range that was entirely based on the career offender where the main issue was trying to avoid the risk of that three hundred of that wife imprisonment well your honor i would suggest that what's important in this case is that the district court found it critical to his analysis of what a new sentence and this for mr johnson would be that he would be subject under thirty five fifty nine still today and so for that reason he's still getting the benefit of his original are going to the government should get the benefit of the federal fences and with respect to your question about of course the district court could consider under the thirty five fifty three factors anything that the short wanted to consider but the fact that he made an erroneous determination about thirty five fifty nine and relied on that primary reason to reimpose a sentence that's double the guideline range that's important in the district court on remand under this court's decision aventura could give the same sentence he could just say well forget the whole scene agreement i was going to look at this guy's criminal history which of course is not great i'm just going to look at the fact that maybe he would have been subject to mandatory life and if he cuts out all the benefit of the bargain language frankly i don't think that he meant any grounds for an appeal he used the thirty five fifty three factors i'm judicial territory of the united states and that essentially creates a generic robbery just taking what happens and i force or intimidation let me read push back a little ever committed within the special maritime jurisdiction of the united states of other words it would it was  language wherever committed and you and you take the implausibility the congress the two one one eight to be essentially useless in terms of in understand the court's concern and if that is the court's i'm concerned i would refer you back to that prayer gomez decision because it is uncontested that an element of twenty one eleven that special jurisdictional territory robbery is that the  in the presence of another another person or in the presence of another and new york robbery lacks that so even assuming we take out the jurisdictional element there's not a categorical match here i just want to go back to judge quote of his question where you say that new york robbery lacks that element but it does require the use of physical force upon another person so why is that not sufficient to show the match with this with numerators robberies because because the robbery that part of the match as one of the elements that matches what the other out there the fact that it doesn't have to be done from actual shaking as not to be from a person a real time the second circuit and analyzing york robbery gave the example that you could basically threaten somebody say meet you back here tomorrow and give me the property or the money and that would still qualify under new york robbery because of the absence of that presence element so the force clause was down to be matched by the pereira gomez but the other part of the president is lacking and so morning jennifer of course for the united states your honors the key to this case and the issue that's really before the court is whether the district court clearly aaron and relying upon the factual determination that it could still consider the plea agreement and the agreed upon sentence in the plea agreement and in determining what is the appropriate sentence in this case i think the argument to to up to now even demonstrates that there's there's the district court just did not clearly err regardless of how you all to come down on thirty five fifty nine if you were deciding in a case in which thirty five fifty nine had been imposed and a mandatory life sentence had been imposed regardless of the outcome it's close and at the very least it's a close call there are mountains of reasons for why the thirty five fifty nine still applies and what are the male is of reason is that the so the three federal statute were no parallel each other congress intended them to parallel each other supreme court explain that in jones and they cited the legislative history in drafting twenty one eighteen the congress recognizes that and twenty one thirteen one parallel statute and they intended the next robbery statute they wrote to parallel those so those are and a world unto itself and when they drafted thirty five fifty nine and sent a federal or state offense were ever language from the north new york state so when when new york expanded their statute they were intending to include a type of robbery where the robber and the person upon whom the force is being used is in one place and the thing being stolen is in another place and i'm sorry we're in the last two days i didn't think of that this argument early enough to do the research myself but i expect that if you look at  what in the present means in federal law it encompasses that same conduct if a person were to walk into a bank and take hostage a customer in order to compel the manager to go get the money out of the vault and bring it back i think that is still room or another location you know act and get them get the items being stolen so i think that when you look at what that element means under federal law you find they still paramount let me ask a follow up to that assume hypothetically we disagree with and we think the second circuit case makes the new york statute broader then the generic robbery  what's the government's position does the government from consideration of the force calls or the other calls is there an argument that the governor has that the senate should not be vacated like to retract our footnote i think the footnote saying it needs to concede and i can explain why we wrote that footnote but i think that actually the force toss does settle because even if it isn't a and maybe the answer is the court doesn't even need to reach after all the question of whether the element parallel the federal robbery statutes because the second circuit and the four circuit have now and that new york robberies of course ca and in the person presence of another is broad enough to encompass that situation where the force is being used on the victim here in order to get the property and in another location  i think i heard you say just before that that the for the new york statute would meet the force calls and that was a secondary issue i guess  i got two things i'd like for you to address before you get to the four squalls what's your position about the role of that upon another person that language in the robbery statute and whether that it if you could respond to the defendant's position i'm in i'm talking about one six point zero and the question is even if in the presence of is removed you still in the robbery statute have the language on a pun upon another person and does that imply in a separate place presence so that's one question in the not and  second one with respect to the force calls the have a problem with the seven years under the third degree third degree what's listed the second one first the force calls you say you think plazas understand the force calls you have to have a felony of the sense of which is ten years or more and the district court i think assume third degree robbery which i understand may be the maximum sentence of seven years so how do you mate the force calls if you don't have the ten years you have a position on that what she said is that there's a difference that you could threaten one day and go back in rob the next what your position or sponsor to the my understanding of new york robbery is that the force needs to be employed in the context of actually getting proper it somehow still part of the actual robbery being committed ye and then and ultimately and all all of this comes back to the underlying issue which is room whether the district court clearly erred in determining that the plea agreement should be given statues that have a pretty encompassing if you of robbers and the essence i mean we can always find some little tweaky errol there but the essence of th don't actually have to take it you can simply i mean you know i have to actually apply have a force you can simply threaten and intimidate and that would be what the federal statutes are getting out and the new york law has that basic concept in money and threatens uses or threatens physical force upon the person for the purpose of taking property or something of value and you say well what did congress actually mean together out with this with this statute and  wanted forcible robbery you go through the actual application of force or through the intimidation and threatened use of force it wanted those to count and it would be hard to see in light of what congress was trying to accomplish that this new york penal law it didn't didn't that person's wishes that's classic well robert that's what these three statutes express that's what the new york penal law expresses and it seems to me the common sense of it all was yeah this is exactly what congress is any many of us are and that is what the government's position i mean that that it when you boil it down to no i well obviously i think the numerator causes the ultimate answer but the still cling decision may actually hopefully be illuminating in the respect that if the supreme court does go down the route of trying to clarify that the court in applying a categorical approach still need to be giving effect to what congress congress clearly intended which is i think what everyone hopes that they're going to clarify and that may actually ultimately resolve the issue both under  have that askey fell so that even if you fall within one of these earlier kind of generic definitions if it turns out yours was really nonviolent the statute isn't going to apply which makes me think you know congress may actually have intended to write a little more broadly on the front end because it had this exception in a way it doesn't under the c c a so i totally agree that we should do nothing under the forced causal stokely is out there but it also does seem to me that we should be careful not to import every little congress was careful and clear on the types of offenses that they meant for the statute to apply to  d i wanted to also just take a few minutes if i could to point out in the context of the clearer just how clear the plea agreement is in the fact that it is an exchange the crew friend or provision is mentioned as applying only in the context we get to refile the fifty one information if it's required under the arm for criminal status is mentioned in the plea agreement only in terms of this is the maximum penalties that you face and whereas most of the cases regarding mutual mistake make the comment poorly drafted this one is extremely clear that it is the agreement is in exchange for the removal of the risk of life imprisonment and that all gives additional basis for year as the judge correctly cited and so i'm in addition to whatever or if the government's no longer waving or basically agreeing that that should be we should remain in a rented offense and apply we know that the other two clauses can a five for that simple reason i am happy to just talk about two on one one and that the element of q one one one according to the supreme court and jones and what the government has relied upon is that it includes the robbery happened and then from the personal presence of another and we  decision we now have a second circuit directly comparing new york robbery to generic robbery and elements they found for generic robbery was that it had to be taking from the person or presence of another and when they compared t two second circuit is that no new york robbery is different it doesn't meet that and specifically they found that new york robbery can be committed to the use or threat of force to compel another to deliver up property not must present or simply  engage in other conduct which aids and the commission of a larceny and that made it broader on an overbroad as compared to generic robbery which require that presence element and so for that reason alone this court can avoid the other issues in this case and just say in a district court which relied on snipes which relied on the second circuit's prior decision to define new york robbery this is different the district court didn't have the benefit of this decision and should be able to reconsider to the extent that it was the language that mr johnson agreed that he would quote be sentenced three or offender there was no question what that meant that no criminal history category of six that offense level thirty four that met the guideline range that the pre sentence report determine which three hundred months was squarely in the middle of so this wasn't a case where it was a surprise that everyone agreed language is clear he was a career offender and he would be sentenced that way and so that wasn't what was not a surprise that the parties so i think