defendant is on trial and therefore you shouldn't use a categorical approach but rather the underlying conduct approach that same logic applies to the the risk of force cla under a one and therefore in this case there should be a reversal because the court there rect that a verdict for the government on this element is your argument that the categorical approach does not survive their it at all that's the logic yes that would be the logic of the and it's really the government makes this argument page sixty five of their brief where they say that when a statue uses the term offense they  versus holder that such a a language in the statute requires an underlying conduct approach which is and that's really nine twenty four c talks about such an offense so i mean while u ltimately i know yesterday i received an order in a bunch of cases from this court staying all of them in light of the fact that the likely to be supreme court review in hill and barrett i know there is a certain position pending by the filed by the government from the first circuit case so ultimately i think this is all going to go up and the supreme court is going to decide it but i just focusing on the holding of barrett i think the logic is that it should apply to a one and therefore in this in this case if there was a reset and then the defendant mr appellant was sentenced to thirty years there we had originally raised the beccles issue alternately now that the supreme court held vagueness doesn't apply to the sentencing guidelines but subsequently the sentencing guidelines were amended and i think if now if mr hendricks appeared for certain we sentencing that i don't think he would get and i think the thirty year sentence that he did get which is with the gun i think from every i think from all the testimony it's clear that the two brothers cycle on the client where the ones who were planning this robbery you know one of them did and i think that the significance is he also identified robinson as a participant in the jury acquitted him robinson was the driver of the right but he was a driver outside a mentally there was less evidence but the point is testimony was that he one identified him when there everybody was first question about him nobody identified hendricks as the participant at the time were closest to the event and i think it's significant in light of the fact that they say that he had certain facial features that anyone on the stand i had healing it was in the courtroom it was admitted subject to connection and but ultimately it was not shown to the jury the jury during deliberations asked for the picture but they were the night and the government wants to the the sentencing of the defendant and that question doesn't make much difference ultimately that we decide in your favor on the  question does that really how important is that when the defense if we assume the affirm instead of the conviction the judge will be free to use his discretion after he's gone through this kabuki theater of the guidelines but as a practical matter a good district judge will know how to say that he's right he's considered x y and z but he's i if i understand the question properly i think trix fermenters to pursue perspective he would be very happy with the reason because i think objectively speaking when you look at the facts even of the nine twenty four as the word of survive i think this sentence was excessive and i think if we had the opportunity before be before the judge and like i say particularly since the guidelines have been amended i don't think he would get the same sentence government's you know admitted highly prejudicial and testimony i think it was deliberate and it was highly inappropriate sandra reader this is a date sixty five test was permitted to testify if i walk around this is her feelings of what the effect the robbery had on her if i walk around there's a group of black men it bothers me a little bit i would avoid if they were like standing in front of the store i would avoid going into that store that's highly inappropriate testimony and this is my understanding is it's ice it's not in the record because i base it on a conversation with counsel but his recollection was that it was overwhelmingly a white jury he said he had a recollection that they may have even been a baton charge during the charge conference i just i don't have that if the court wants supplemental and then i could get it because not yet it was objected to it was objected to and the cases th t the government relies on are no support for the government and one of them the whole issue was whether there was intimidation that was not the defense here the defense was this was mistaken of the identity the other case it was a plane that really had to prove the right i'm sorry  it was an element that they had to prove and if they had no objection to testimony during the robbery were you intimidated even though that itself is you know that's an objective questions of whether subjective evidence should be relevant but if there is some relevance to that but to then all of them so i think between i see i'm way over but those two evidentiary issues i think putting aside the the the the johnson issue is enough to require reversal here let me  take you back again just a moment to the guidelines question you didn't respond to the government's arguments regarding their career and the guidelines in the reply brief are you abandoning that argument also in the initiation of the robbery was shaquille testified he was the one who decided let's go to camden first let's go up that one out let's go to i know another one in utica in rome so this he was that he was  fact is that he was he was deeply involved in this he was not one of the armed robbers the other guy chambered around right turning to the question of barrett i i don't think there's  any validity to the idea that barrett would allow would that the the the ruling on nine twenty forced c three b the residual clause would bleed over to the elements clause i think barrett was very clear that there is and  the fact that statutes can be interpreted to have two different modes of proof one for that one question is for the jury one question is for the judge so i don't think the idea that you can import the the case t septic approach and barack obama into the elements clause is supported by barrett at all i think it's precluded by that and also the idea here that the judge directed a verdict as to one element if you look at the neither case need or came very close to that same situation it wasn't just it's often in a going back in the case lots often interpreted as saying well if the judge element but what happened here is actually that the judge told them you do not need to consider this element and effectively withdrew the element from the jury and it's it's clear if you look at the hedged path versus police the case which is five five five s fifty seven at sixty to sixty one what it says is that neither makes clear that harmless error analysis applies to instructional errors so long as the error at issue does not categorically this shit all the jury's findings and  it's contrast thing the sullivan case where a judge made a mistake as the instructions on reasonable doubt and that affected all the juries find things when it went to air or affects just one element a jury's finding a one element  it's still subject to harmless error so the notion that this is somehow a structural error is just not supported by the case law and this court's decision in the united states is versus needham six zero four f third six seventy three that was abrogated other grounds but it applied plain error to where a judge required instructed the jury that drug trafficking necessarily involves interstate commerce for the purposes argument here is that the mens rea requirement under twenty one thirteen a it encompasses negligent and accidental intimidation and this this is not consistent with the supreme court's decision in carter which said that the actus reus element has to be knowing the ninth circuit has rejected the very same arguments been made here we cite that in page fifty four of our brief and this court has decided this the same  on the elements issue right well i think i think you i mean there's barrett which would provide a precedent but to be perfectly frank i mean there to the extent there is any potential litigation risk down the line for that decision and we would prefer that it be decided on both grounds at least just because i think it's solid under the elements clause turning to the concerns about the testimony  the after effects of the robbery as as we argue this is a rule for three determination judges are entitled to great deference when it comes to those decisions there's case law that makes clear that subjective testimony about a victim's fear during a robbery is relevant to showing the objective element with that it's with this testimony to the aftereffects in their life after the robbery right highly prejudicial have to prove any any element of guilt i would i would disagree your honor the defendant here did not stipulate to this element the government had so i had to prove it and i still think it's relevant we cite the muhammad case in our brief that that it's relevant it's what it shows is it shows both the severity intimidation it also shows causation what we what the government has to show is that the intimidation caused the turning over of the money many banks have policies that say do not resist no matter how slight this risk is turn over your money so here talking about the severity of intimidation does have probative value to show that what they were they were acting under fear  testimony here it was from three people two of them testified that they couldn't go back to work at a bank because they were afraid so what that shows of the situation that reminds them of this robbery is still so raw that the situation the experience that they had was so intense that they still have this feeling that does show that they were that their subjective belief that they were acting under incredible fear and that it's the memory of that fear that continues with them your honor for all of this your you rely primarily or almost exclusively on us against muhammad which is a summary time intimidation element but afterwards is relevant i think for sentencing not for proving guilt or innocence but i think it does i think it does still show fear at the time to say that that you have this continuing fear this is situations that remind you of that event continue to i mean it's your own i understand your skepticism but you know we would also make a an argument here that looking at the trial and total that the error any error here would be harmless given the extensive evidence and i don't think that the evidence here was a week you mentioned the testimony about the three kids running out of the bank that was from someone who was walking in the parking lot who saw them across the parking lot running out of the bank there was testimony from robert that he borrowed the clothes of take wanna frequently he was so that shows he's about the same size he's wearing similar clothing and he's running from across a parking lot it's you know you see someone in relatively if you look at the video they're wearing relatively youthful clothing it's not an unreasonable believe to think those are three kids and two of them were young men just in the moment to say that see them coming at you i don't think it vitiates the government's case to say that he that's the way he testified there's also the testimony direct testimony from shaquille robert was the one who did it the fact that the jury acquitted mr robinson the getaway driver we have no idea why they did that your honor of the it could have been straight sympathy here that he was not the person he  never went into the bank he didn't he didn't have a gun the jury could have just simply said we don't want to acquit him that also undercuts the idea that this is somehow this verdict was somehow tainted by racial bias and speaking of that your honor i you know it whenever race issues of race come up in a trial you know there's does for car particular sensitivity but here i i don't think it's being unrealistic or pollyanna to say that her testimony may not have about the turning a store and seeing for a black man i don't i don't think it's unrealistic to to wonder whether that actually undercut her testimony somewhat in the jury's eyes is not necessarily helpful to the government the government never return to that testimony  it never made mention of it again it was in response to a very open ended question about how this affected you and she went into this the government didn't press the matter it was after the fact of  testimony after the after she testified after she said those things that there was an objection and the the defense counsel had been objecting to this that the testimony about the after effects  time just on the point of reader's testimony there was an objection before the question was this is that eight sixty five how did this experience affect you answer judge well judge i object that's a relevant overruled can i answer that i think the guy is a fair inference the government knew exactly what she was going to testify to that's why they asked the question and the a usa has a lot of faith in the jury that as to how they're going to view th s unfortunately i'm not sure i have that faith live like to think that it would have turned off the jurors i think i think that's unfortunately i think that's too much to ask judge  ronnie i don't know where my head was but yes i agree with the government that there was the standards that have a gun i would know that there was a he was he did not receive any enhancement for all the argument will always was i think fair inference of the testimony that it was the two brothers that were planning this robbery and they drew in they drew in robert as just another could the testimony from rusty was not that there were three kids it was two kids shaquille had already left the bank so it was just robert and take on that or that we're running out and i think that's why that's the significance of the picture i had the jury you know the government says oh there was no testimony there was no evidence as to how old was the picture would have been sort of the best evidence i think it would if it would have been admitted you would have seen that he was a kid it would have seen that it was a kid it would have been consistent and we're not talking about some random person we're not talking about a situation where somebody finds a picture of someone similar to looking to what's you know the appearance of people on the video and he says i want to admit this this was somebody who by all accounts even the govern and says he certainly was around