mourning your honour's it may please the court my name is john of the now we're in them and united states attorney in the east and just in new york represent the united states in this appeal and do so as well below in the district court this court should reverse the district court's order below reference to internal process within the nd circuit where they're waiting on the initial panel for that and i believe in in other in subsequent briefing after us there so that's really the question understood your honor i don't think that there's any difference because when we applaud when going through the categorical approach as well as within whether it's a crime of violence this issue has been already briefed in the same manner the cases are well you know well established in the same points what i was going to address briefly though is that there is the th circuit case in taylor that  that is runs counter to the other circuits that have found that attempted have that robbery is a crime of violence and i would just like the point that that case is in contravention of this circuit force for example attempting to use a threatening note itself constitutes a threatened use of physical force that's actually the holding in taylor runs completely counter to that and so i think when you look across the circuits attempt decisions regarding crimes of violence although they haven't addressed it within the attempt in federal law when you look at the the cases in attempted state law in each i believe in all of them they find that when the when the substance of the crime is a crime of violence the attempt to commit that crime that that subset of the act is also a crime of violence firearm to rob to rob a drug dealer and then is stopped actually by the coconspirator in advance they get into a fight where the cops arrest him there is no actual violent act that happens but it was  is wronged by a woman supposedly by the shotgun drives down the street of her street parks gets out of a nine hundred and eleven call from a neighbor sees her sees him and he's arrested in the vicinity of her driveway again no violent act and shotguns on the snowbank and you juxtapose that with the cases that the defendant cites and that all that all the fun in sight in these types of cases where themselves but by mask and gloves and are afforded by the police right before in the vicinity of the banquet before that and so when you just oppose those you clearly see that again those are cases that have been found crimes of violence in this circuit but yet don't have the actual violent act and so we would rely primarily on our brief and the fifty seven thousand and eleven circuits decisions and i'm happy to answer any further questions of your hon i'm also arguing on behalf of all of the abilities in this appeal i think i want to start st by addressing the question of whether this panel should should address this appeal and i think the answer is yes if this case is different and it perhaps not because the arguments or the question to be decided is different but because this is the only one that presents this sole issue on appeal the other cases are more complex and in many of the cases may very well be decided on other grounds without even addressing this question another part of our lives we don't know that and if we go ahead and rule on this issue then we would so we now we have a case where there are eleven defendants who you know many of them including my client who's been in in pretrial detention you know for three years ringback their cases effectively stayed until the circuit addresses this issue so essentially what's at stake here is the seven year mandatory minimum sentence otherwise he's facing what he's facing in the guideline sentence for attempted object robbery without the the mandatory consecutive seven years ok can't put very simply if you were to prevail on this appeal would somebody therefore be able to walk out of the prison at that point no no there but their cases would be i would not i'm asking that because the notion that would break be a very different yes circumstance if we would if we were holding somebody at and we see this with some frequency that where they say hey you know if we're right  our client gets out of a covert laced prison then and please don't let him sit there while you're waiting for something else to happen i take it this is not that kind of a case that's correct that is not the case robbery does not have to use the statutes language as an element the use attempted use or threatened use of force and it therefore cannot be a ninety four dollars c predicate and the easiest way to prove that is to simply look at the definition of an element which in black's law dictionary is the constituent part of a crime which must be proved by the prosecution to sustain a conviction and we don't think there can be a serious  argument that the government won't you know i think there can be serious argument but for circuits upon that none of the circuits that have gone the other way have actually applied the categorical approach the way davis says you must the categorical approach what was simply what those cases have said is that if you intend to commit a crime that has as an element the use of force and you take a substantial step ringback to complete that crime then you therefore have attempted to use force even if that substantial step involves no force at all but but with all respect to those cases intent and attempt  synonyms and that argument just cannot be squared with the categorical approach which tells the court to look at the minimum conduct necessary to sustain a conviction and i think what can't be argued is that the government to prove attempted gobseck robbery the minimum amount of conduct the government must prove does not include an attempt to use force the model penal code says this clearly and the is which we cited i will repeat our legion on this point there are you know scores of cases where defendants have been convicted of attempted hobbs act robbery having never lifted a finger or committed any act of force but they've case the location they've procured robbery tools etc the cases have been cited by us and others i think the clearest proof of this is if you imagine a case where a defendant is prosecuted for attempted object robbery let's assume he was going to rob a jewelry store and made all the preparations and and purchased the gun and tools but but as he pulls into the parking lot of the jewelry store the police arrest him and prevent him from completing the crime imagine if the defense counsel were to argue to the court that the jury instructions must include a requirement an element that the government prove that that defend who's force we know what the government would say there the government would object strenuously and they'd be right because that's not the law it was happening here the government is trying to have it both ways having benefited for decades from the jurisprudence on the temple and the substantial step standard the government now can't argue that attempted crimes of violence in fact had as an element the use or attempted use of violence or to ignore the plain meaning of nine hundred and twenty four c three i say and read it instead to say something that it doesn't say the government wants the court to read nine hundred and twenty four see to say that it applies to crimes of violence and attempted crimes of violence but that's not what the text of the statute says it would have been very easy to draft a statute that way what nine hundred and twenty four dollars c says is that it only crimes of violence which are defined based on their elements and again attempted hadzic robbery does not have as an element the use attempted use or threatened use of force but the government has argued now following davis and barrett that attempt and conspiracy are very different there you know to two separate theories of charging but that wasn't the position before and in fact there is no meaningful distinction between a conspiracy to commit hijack robbery where you have all the same intent plus an overt act from an intent hobbs act robbery plus a substantial step there were both in court caught crimes and both can be completed without any force at all attempted or otherwise so the logic of davis which of course applies to conspiracy and barrett must apply with equal force to attempt because they are essentially equivalent now the government has raised the devas the taylor case from the th circuit  i would submit that taylor very clearly applies the categorical approach and rules in our favor it then goes on to address you know an argument from the government  basis to ignore the plain meaning of nine hundred and twenty four dollars see where the clear directive of the davis case and how the categorical approach must be applied every court that has done that faithfully has found that attempted object of those issues in our brief thing and something if your honour's have any questions regarding those issues we we well address those both in our opening brief as well as in our supply i think just quickly in kuwait offenses i mean that that argument as we've argued in our briefs would really run contrary to all of the attempted cases in the circuit you know we can just look at thrower for instance that that somehow now judge ca honor i'm not positive but we can but i think the majority of the arguments are but i'm not sure about that specific