section one twenty four see title eighteen our primary argument is that in light of the two thousand and ten johnson decision a violation of twenty one thirteenth through intimidation i want to be very clear through intimidation does not qualify as a crime of that given the specific way that district courts in our federal system have criminal jurisdiction it stems from the offense itself it stems from thirty two thirty one which says a district court has jurisdiction over all offenses against the united states so i'm going to say if you're i thought this is what you were saying your brief if your argument is that this question is jurisdictional you are really swimming upstream because it really simply requires us to construe the statute to decide what behavior is in it what behavior is outside it and that's not a jurisdictional act the court has the authority to do that the court can read the statute and come to the kind different way eighteen u s c thirty two thirty one which you've already mentioned gives district court subject matter jurisdiction in all federal criminal prosecutions that's the only thing that's needed for jurisdiction if the evidence doesn't prove a crime the judge enters a decision of a for judgment of acquittal he doesn't dismiss the case for lack of jurisdiction after the supreme court decided johnson it didn't remand with instructions to dismiss for you think that if the prosecution doesn't prove its claims the case should be dismissed for want of jurisdiction rather than an acquittal entered on the merits your honor i believe that when the underlying offense that is necessary for the predi decides this indictment actually fails to to state a criminal offense and so the judge enters a judgment dismissing the prosecution altogether you're saying that that is something that the that the judge is doing as a jurisdictional matter instead of as an acquittal yes you are mine i don't see where there's not a single case i can think out there were like hordes of cases after johnson where was a legal determination did this offense fall within the residual clause if so then it was no good and you couldn't go forward with it if not then you know sometimes there were other offenses criminal offenses such as drug about a separate offense well that's why i mentioned bailey because back in the day you know in one thousand nine hundred five before section nine twenty four was amended the supreme court decided that merely possessing a firearm you know to make you feel good that somebody wasn't going to attack you wasn't the same thing as using a firearm it was then there were a bunch of carry cases but let's focus on using so they did exactly what we're talking about here they read the statute they said this set of facts just doesn't describe an offense under this statute there was no factual dispute going on it was about the scope of the statute and i think that's what you're arguing about the scope of the statute your argument is i think it's not dissimilar but i think it's a little bit different than you're looking at when you make the initial charging decision with a nine twenty four so you have to have an appropriate predicate offense that is either a crime that was a crime of violence when we write or i think it would be it would be similar as if i was thinking about this the ninety percent statute requires that it be a felony it would be similar as if the government indicted nine twenty four c attached to a misdemeanor offense we would go in there and say your honor you have no power to hear this case because they have not charged it appropriately is it is not an offense i want instead of saying no power to hear this case you say your honor we win you know my client is entitled to a judgment understand that there's a problem is if this is not jurisdictional and i'm very skeptical about that then there's the waiver of appellate rights and your client is i mean your client presumably one hopes got some advantage for that waiver i don't know understand your points here on that again our point is simply that because the nine twenty four seem to be an offense y your attorney to kind of the the meat of our argument i just want to get it out there ok and so you thought by the way what do you think the effect of lynch against to my eye is on your argument i was going to know that your honor so we if this decision turns on the residual clause then i think it's obviously appropriate for this court to wait and see how that search turns out if a court rules on just going on a waiver basis obviously that's not an issue if the court rules against our position on the force because obviously that's not an issue but if the ninth circuit where they granted cert and our position is that it's you know exactly the same decision as the usa all of which informs our position on the residual clause so if this court's decision turns on the residual clause that we think would be appropriate for this court to kind of take this decision and table it for a while and see what happens in the spirit happens and to my own with regard to the first boss argument simply is that the way this court has defined intimidation under twenty one thirteen eight has not ban to require a threat of violence physical force which given the first johnson says and the fourth cause under nine twenty four see no wires i think and that makes sense i think if you look at the statute the force and violence language that's those are certainly types of offenses that is the way you could rob a bank through force  violence that would fit the force clause but the intimidation statute really seems like something that was a better fit under the residual clause where you have people you know robbing banks with no it's not making any threatening gestures not not saying this is robert same fill in my bag no diet backs and then you know if they're rebuffs kind of walking off those are the kinds of offenses that were simply meant to be bank robberies and it's certainly appropriate to challenge them but they are not crimes of violence if you have a force costs that are really something that falls b the court my name is elizabeth michaels and i'm an assistant united states attorney and i'm appearing for the united states of america i think you will get right to the heart of it is the issue of waiver and that the appellant here has waived his right to a ellate review in this case of the district court's decision denying his motion to dismiss two dismissed because he entered an unconditional guilty plea and that his issue that he presents does not affect the court's subject matter stiction so the issue presented whether armed bank robbery qualifies as a crime of violence does simply just does not concern the court's power to adjudicate or hear the case not to the extent the appellant is focusing on all the time to decide issues of statutory interpretation and that simply is not something of subject matter jurisdiction no i think where he's trying to argue that it is an issue of jurisdiction is where his argue his argument is that this isn't in the statute is unconstitutional and to the extent that he's arguing that the statute or at least the residual clause of one twenty four c is unconstitutional that we would simply disagree that it a challenge to the constitutionality of the statute as indicated in johnson simply does not extinguish the court's jurisdiction under eighteen united states code section thirty two thirty one and i think what's most telling in this case your honor the first is it's understated that issues of subject matter jurisdiction can never be waived they can never be forfeited now i say to two cases in my brief under the fourth circuit and the six circuit they routinely do conditional pleas in our district but it's not unheard of mr mitchell in this case did not approach and ask for a conditional plea so therefore by waiving all his pretrial issues he has waived this issue on appeal your honour's moving on to the merits of the case i think it's important to not forget that this is a twenty one thirteen subsection d case where mr mitchell pled guilty to an armed bank robbery he didn't ask for a conditional waiver and to hold that armed bank robbery does not serve as a predicate offense under subsection under section nine twenty four  simply contrary to logic common sense precedent subsection d provides that whoever in committing bank robbery assaults another person or puts another person's life in jeopardy  there is no dole no doubt that assaulting another person and putting another person's life at risk of death involves the use attempted use or threatened use of physical force against that person now i realize the standard is a little bit different but this court has recently come out with orders that are denying applications for question section twenty two fifty five petitions where in there stating that conviction should be overturned based on johnson this court has held that the classification of federal bank robbery is a crime of violence has been unaffected by johnson because bank robbery qualifies as a crime of violence under the elements plus other circuits that have looked at this issue namely the fourth six nine eleven circuit i do realize some of these cases are published but it are holding that face bribery still remains a crime of violence even after johnson has been decided not if there were no waiver issue would this be a suitable case to hold for  it's not a waiver issue your honour's i think it's appropriate to focus on the elements of the force which was in this case you you might discuss whether there is a difference for this purpose between the i want waiver and the guilty plea it's help as a waiver under united states against in answering the question to distinguish between the effect of the appellate waiver and the effect of the guilty plea as a waiver in considering the relation between this case and lynch against him iow that that was my observation well there's know well we're still going to appeal our suppression motion or something but normally the guilty plea wipes out all of the other arguments that one might have made to have the case gone to trial that's the the burros approach how do you pronounce it  correct your honor so i think that case can be easily decided on the waiver in this case because there there was an appellate waiver of his pretrial motions in this case i think if the waiver were not found in many instances those guilty pleas that include up waivers of appellate rights would ring hollow i mean that there's a reason why those are in place in the first place now if this part court to find waiver i think we can move on to  and actually that brady against united states holds that the unconstitutionality of the federal statute is not a jurisdictional defect so there's there's a problem with mitchell's argument it's not simply the lack of authority it's  frame court has already rejected so i'm puzzled by why you're not relying on brodie and brady so in other words even if there were an appeal and there were some how you got past the appellate waiver what would we be looking at we're looking at a guilty plea and that guilty plea waives non jurisdictional defects i think that's what judges are trying to spell out i think that's exactly right your honor to the extent that i didn't cite those cases in my brief i do apologize i think that the focus idea i don't think that that the grant of start in that case has any effect in this case because there's a waiver first of all and second of all looking strictly at the elements clause in this case it's clear that armed bank robbery