to require a level of force that strong violence and extreme people produce capable of producing yes yes but violent force the emphasis is on violence and in castleman the court physical force but the question is whether to commit a new york robbery to commit its baseline robbery office the physical force required in new york necessarily require that level of force you because  compel someone to deliver property to you or to overcome resistance why isn't that enough well one thing first off miller concerned whether or the court only mentioned the elements clause that just this was just only mentioned almost class in two thousand and five and two thousand and eight what are we supposed to do are we supposed to say that maybe in the back of his mind he was also thinking of the residual clause now he says never have a litigator this twenty thousand johnson decision because the first second or successive petition he would need to show a constitutional right twenty thousand johnson is a statutory right but if it had been his first twenty to fifty five in twenty found is that reliance under the statute means what does he need to way to when his challenge his robbery conviction is an act of predicate he needs to he's twenty ten johnson to an idea of this clause and he needs twenty fifteen man who then brings the twenty to fifty five on a separate matter an ineffective assistance of counsel can then get a twenty two fifty five under johnson to alleging that he could have brought a johnson one when it clearly he would have conviction wasn't in a predicate but your merits argument doesn't depend at all on johnson to correct it depends entirely on johnson one and i'm not even sure you cite johnson two in your marriage discussion correct yes or no clause was never mentioned that sentencing or even in post conviction litigation it just it played no role in his sentence it may have been in the background in the sense that the court could have relied on it in the event that johnson had happened before sentencing but but he didn't in other words i think the concern is if we let you in the front door on the basis of johnson to to make an argument about jones and one isn't that essentially just back during a statutory argument when congress has been very clear that you're only entitled to bring this petition if there's a new constitutional rule that you're relying on i guess you're not you're not actually relying on that yes we are relying on it because you have a statute that has three criteria and he has to knock out all three and there's nothing in the record suggesting that the court ever relied on the residual clause you're assuming you're assuming the judge probably would have been right in the absence of the elements clause that's right but how but he could not win a petition in twenty twelve so let's say that was his first petition  there's a statutory construction of a statute it's assumed that that the correct reading was that the correct reading at the time of the decision was always a my name is one should and i'm an assistant u s attorney in the southern district of new york and i represent the united states in the subpoena your honor defense counsel's concession that judge pauley at sentencing relied solely on the force enhancement is dispositive in this case let me ask you you you cite the standard in your brief from henry case that claim quote unquote relies on a new constitutional rule if the applicant quote would benefit from the new rule he seeks to invoke in the petition he benefits from johnson to no i mean but for johnson to i think the point is that any any relief would be foreclosed by the residual clause it's only with the arrival of johnson to that he can get any relief so in that sense he benefits from and on your own standard he's therefore relying on a constitutional rule correct respectfully your honor no because judge pauley in this  case did not rely on the residual clause there's absolutely nothing in the record to indicate that he was even thinking about the residual clause the government and its sentencing submission relied soley on the force clause to argue for the enhancement in light of the clear record in this case there is no reason to believe that the defendant would benefit from johnson to and your honor i believe that particularly instructive is the first circuits recent decision in demography united one of poly poly had said he's qualifies under both the elements clause and the residual clause or had been silent what then if the record was not clear your honor the government's position is that in light of petitioners burden to show entitlements or relief not something i respectfully honor this court should defer to judge pollies factual determination about what actually happened on the record of the sentencing and on that he was clear that it was there was no doubt that he relied solely on the force clause  that's exactly my point your honor is that after finding that he had relied solely on the force clause judge holly then went on to say in light of concern in light of concern about whether the petitioner would ever be able to bring a johnson won claim he would interpret the twenty two fifty five requirements in a way that would permit the claim to go forward and for him to rejoin the merits that was a legal interpretation that we respectfully disagree with and that in this court the the language of twenty two fifty five is clear the petitioner must rely on a new constitutional rule that has been made retroactive and again your honor several circuit courts including most recently the demat case have issued instructive decisions about when a petitioner actually asking johnson johnson it's unfortunate they're both called i think it is your honor at the cases we've cited in our brief do not squarely reach those holdings because they were necessary however geos us for example the ninth circuit case that permitted a claim to go forward in those circumstances and the facts of that case it recognized that if a district court relied solely on the force clause a johnson to claim would not be cannot be used to bootstrap in a johnson one claim similarly the douglas case out of the seventh circuit on the first section twenty two of two fifty five motion said that the petition would have been on timely because it actually was relying on johnson one and not johnson to however the court there accepted the government's waiver of that of that statue intentions defense and why did that seems troubling that the department of justice would waive in that case but not in other words or is there a policy with respect to when the government is waiving on this issue as opposed to pressing it it seems a little troubling that mr douglas is permitted to proceed when mr massey may not be permitted to proceed your honor i don't know why the government in douglas  statute of limitations defense i can speak to the current policy of the department of justice which is that in circumstances like these when it is absolutely clear that a defendant was convicted solely on the basis of the force clause and therefore would not benefit from johnson to that the government is permitted to assert its procedural defenses and that's all it said i quote on one hand this court on equivocally found that massey's park and nations were and he says he's troubled by the fact of the possibility of the instant petition being denied on procedural grounds well i can understand and i can appreciate his concern but his his opinion itself states he used the word even the remotest possibility that johnson two applies case no your honor because because judge pauley was crystal clear both at the time of sentencing and in reviewing the first section twenty two fifty five motion and in the decision below on the sex and second section twenty two fifty five motion that you relied solely on the fourth clause and with respect to my correct if if he had filed a petition in twenty twelve the government's position would have been one this is not a constitutional rule two even if he benefits from johnson one his he would still qualify under the residual clause correct ike i don't know your hon my understanding is that at the time of that is because of the one thousand nine hundred five brown decision that held that new york of all degrees of new york robbery are violent felonies under the fourth clause i don't believe that there wasn't the governments are going to be one not a constitutional role to even if it isn't even if you can benefit from johnson one brown etc you know those precedents survive johnson one and three even if they don't he would still qualify under the residual clause that  well have been the government's doesn't he benefit from johnson to in the sense that it cuts off that third argument even if it's not dispositive he still needs to only in a theoretical sense your honor he would still be he would still be limited to  law meets the definition of violent force violent physical force set forth and johnson won by the supreme court as in as you referenced people v miller explicitly relies on the plain text of the new york robbery statute and the definition of forcible stealing to say that robbery requires force to overcome resistance to permanently deprive the victim of property by compelling the victim to give a property i'm aquash ing any resistance to that act and interpret the plain text of the statute to require that force and although counsel counsel reference this language in the decision about where the where miller recognized that robbery inherently poses a danger not only to property but to the person he calls that a residual claim type of argument but it's actually the core of the new york court of appeals recognizing that the force under new york robbery has to be sufficient to create that danger and that necessarily means that it is capable of causing physical pain or injury to another person how do you square that with the bennett decision which seems to contemplate that one could be convicted without force i understand in your brief you seem to try and construe it as a threat of force but the court in bennett doesn't out arguments in our brief for why the appellate division decisions decided but cited by the defense are actually properly understood to require the requisite degree of force but ultimately this court's task is to predict what the new york court of appeals would say to rely on what the new york  appeals has said in the past and on that bridge in that respect miller and jerkins are both clear the force required under the robbery statute needs to be enough to permanently deprive and compel the victim to turn over property that's in the plain text of the robbery statute and in jurgens the court of appeals agreed with the parties in saying that mere snatching pickpocketing or jostling is is not sufficient so in light of those two decisions which clearly lay out that new york robbery a degree of force sufficient to actually pose a danger to the victim the court this court's better prediction would be that the court of appeals ultimately if it were to decide this case in the future would agree that the standard is courts seems to me we stick to the elements explain to us by the final arbiter of what the elements are and not get into the weeds with regard to the facts of lower court interpretations or misinterpretations what the statu i agree your honor particularly in light of the fact that the intermediate appellate decisions often describe the facts in only a sentence or two and so it's difficult to draw conclusive inferences based on that what the court should follow is the clear language of bo so why is that when there isn't a new york court of appeals decision on particular question that the decisions of the appellate divisions are helpful indicators for after training how the new york court of appeals would rule and this court cannot disregard decide otherwise in the jones court concluded that there is a curious position looking at the back of this particular case saying all these facts are the facts of what the new york feels deciding it's what force means robbery not the threat yes i know that you are you want to and but they are public courts they give you the facts necessary for the first of all there is a jones court pointed out the examples i like of sapphire where the only force is that finn is pulling his hand away from the grasp of the clerk the amount of force needed is not the violent force that was defined in twenty ten into we're back into looking at specific factual interpretations of a statute from a lower court and suddenly saying well that's the universal law of new york when the when the new yorker appeals court or that they want to do this that's wrong but they chose not to do so i mean for some reason or another but this is the problem all of a sudden now we're doing factual analysis of new york law i understand you want to do that but i'm reluctant to do that your honor is just the kind of corporate approach requires that it be shown that hurtle approach at all it is the categorical approach i believe you're out of it we must necessarily require the level of force discussed in twenty ten johnson and in the majority opinion in counseling and that level of