because its two thousand and two minnesota conviction for aiding and abetting simple robbery does not require the force necessary for that are her criminal act instead like robbery cases that the circuit has already held minnesota  really address the supreme court the supreme court rulings in johnson and councilman about what degree of force is really required for a violent felony and it emphasized that it is force capable of causing pain and it's not mere potential for can be defensible let me let me ask you so the one argument that i found most interesting that that was advanced by the government is the argument under minnesota law there what does it cases are somewhat if if the fifth degree assault is a lesser included in you look at some of the case it's one simple robbery it doesn't make sense because just the  cases involving the fake gun where nothing really happens right paul flies a simple robbery doesn't make sense well i think it does make sense if you look at minnesota supreme court law if you look at the authoritative sources where first you start with a minnesota statute and the statute says for sufficient and then you have the legislative advisory comments which have been adopted and approved by the minnesota supreme court and nash saying that if is snatched from the victim it's not but if there is any degree of struggle the struggle then it's robbery they're not requiring the element of intentional infliction of bodily harm or intent to inflict bodily harm as the standard for court has put forth to accept your view of the minnesota law that court of appeals decisions are not the law in minnesota or do we have to follow our own law which says that absence supreme court appeals cases are not authoritative unless adopted by the minnesota supreme court and you do have authority from the minnesota supreme court saying that simple force is sufficient and you have that in and in nash which is the minnesota supreme court case and that that was an instance of an individual taking money from a victim's purse without her knowledge they said that came very both are looking at very minor injuries and the seventh circuit focuses specifically on force capable of causing physical pain even if it results only in minor injuries such as scratches or red and skin or none at all and this is a different standard than the ninth circuit is applied such as and walton where the focus is on significance for similarly in pettis the eighth circuit is following its own precedent finding a very minimal amount of and then this court opinions are binding and tell the reversed by the supreme court we really don't know what the supreme court is going to do and struggling it may be that they've granted certain much like they did in johnson one to say that mistaken another version of the robbery statute that was an issue that me your honor that's a little bit different it's a little bit different i don't think this court has to rely on struggling i think the ninth circuit has been correctly interpreting supreme court law government would ask you to affirm the district court's ruling in this case denying mr ward his twenty to fifty five petition the reason that government is asking for you to affirm and that you can affirm is because the minnesota robbery statute and the cases interpreting it  require johnson level force and can be distinguished from this court's precedent involving other states cases and statutes i'd like to pick up where counsel addressed nash quite frankly because nash actually exhibits one reason the minnesota robbery is acceptable under johnson level force because nash has that's not robbery it's close but it's not and we're talking about individuals who reached into a purse the woman actually there was a little bit of a struggle and that's significant because there's cases from this court that say a struggle over a person just by itself with nothing else is not robbery and that's exactly what the violent force the court has said that it's not and minnesota has said that it's not sufficient for robbery but that more and that's why nash is so significant mr ward would like to rely on nelson heavily from minnesota state case law but nelson involves more than the simple grabbing of a jacket off a thirteen year old boy it involved two older adults basically who were following the little boy talking about getting him because they thought he had money they pursued him they arrested his jacket away from him and he fled it's not as simple as saying the use of force was limited to taking a little boy's jacket so that your position that's violent force threatened use of physical force capable of causing physical injury there is no requirement the actual injury result and that's significant because it's very easy to get caught up in the level of injury that results it's certainly helpful in a case with scratches let's say or broken bones significant bruising for example those certainly indicate the level of force used but those actual injuries are not required to comply with so if you see if you yank a if you're going to still take a woman's person you just pull away from deal with the with the but was it wasn't there one case where the young boys were taking a purse from a young girl and tossing it back and forth a few which case that was not qualify as simple robbery so this is not force or threat of force which is capable of causing an injury i don't believe there's any case law in from minnesota that's simply based on snatching of the purse with and with nothing would you address a difference in the analysis that we're supposed to use in the night circuit versus the analysis that was used in the pettus case my understanding from hearing this one government such as pettis is one of those case examples i don't know that they're inconsistent i'm afraid i don't have an answer to say their support completely different they have simply decided that they have looked at cases and found that the force used because it's capable of causing physical harm or pain and so forth that satisfies johnson this this circuit has focus a little bit more precisely and decided that minor whether if what this court calls minor injuries is going to take it out of the ambit of j and other than just saying it's completely two circuits looking at the same case and reasonable minds may differ i don't think i have a better analysis than that how does this court work with mine or how do we make that it how  cases from the circuit has has looked at johnson and then after johnson says it's force capable of causing physical pain or injury and and it can't be forced however slight this court has sided with approval other qualifications of example the alabama case one of the alabama case involved taking a person a couple times and yanking it off her arm that was not sufficient in missouri we're talking about someone who bumped the victim shoulder and yanked the person way in virginia the case another case from they talk about the defendant tapping the victim on the shoulder turning her around and pulling her shoulder was all insufficient those are all going to be insufficient in minnesota too that's the significance so walton can control simple robbery correct those cases usually involve at least something else besides just the snatching i mean you know there's resistance by the victim that's overcome by the polling  are examples to look at sneaky theft that sneaky when someone's reaching into the purse or their pickpocketing and no one's the wiser that's clearly not going to be violent force under johnson but if you're if you're fighting over someone's property off of their person they're well because it's so clearly on point weighs in favor of waiting the maximum penalty on mr ward's conviction was ten years and that ten years doesn't hit till twenty twenty two or thereabouts depending on his credit for time in there so it's not as if what if he's what it would have it's not good if he's not treated as a citation of the record that they're in the seventy's or eighty's months and so i defer to counsel on her calculation about when he would be due to released if he had a guideline sentence but in terms of legal and we're being worried about whether he's serving time over that legally authorized if he was not a career offender we're not in that situation and the fact that stalking is being argued today i mean at least it was on the calendar for today and less it's gotten moved it was i would anticipate a sooner decision rather than just waiting for it to be set for oral argument and then waiting for a decision b argument this morning i believe there's some arm with a not enough force to knock her off balance and there also is an example where the defendant pushed her shop someone into a corner in order to escape from the robbery this is very similar even more than some of the examples they have been upheld a simple robbery under sufficiency of the evidence challenges in minnesota such as getting off nick where the defendant grabbed a purse from the woman and she testified that he moved her arm in order to get the purse from her the ninth circuit and that he if he is if he is going to be re sentenced he's over serving that the guideline sentence and should be given that opportunity if you have no further questions i've used up my time your hon