clear that simple assault under the i was statute is not a from violence it doesn't have as an element the use of force so the question is when a person just plays a dangerous weapon in connection with  transform it does that make as an element threaten to use of force the government in its brief lays out the elements of this crime and they don't do not include the threatened  force the most that the government can say is that there's an implied use and i think the court t v decision that just came out from this court is instructive on that categorical approach under section forty one point two deals with elements implied facts under iowa law to display a dangerous weapon simply means to hold it and in a manner that can be seen by others it doesn't mean to actually use it to threaten somebody there's actually a difference in language so under the simple assault statute you can commit an assault by displaying a dangerous weapon in a threatening manner but for the aggravation statute all you need to do is just play a dangerous weapon you do not need to display it in a threatening manner and so i think you you see this especially in the mob case of the court of appeals in iowa where the defendant did not threaten the victim with the knife he displayed the knife but we have direct testimony from the victim saying no he didn't then directed towards me he didn't threaten me i was scared and that's again as more to discuss there's a sensible reason why iowa would increase the penalties for somebody who displays a dangerous weapon even if they are not threatening enough well the statute and this subsection  statute requires a display in a threatening manner and not just any display but a display in a threatening matter that's the alternative in subsidy with intentionally points well you know we may have a divisibility question but we've got two ways to commit the subsea offense if you know a b and c are divisible right let's focus on subsea because that's the focus of this case there are two ways intentionally pointing a fire toward another or displaying in a threatening manner any dangerous weapon so so let me be very clear with numbers mr smith was committed of committing an assault under section seven hundred and eight point one and it was an aggravated assault under section seven in late twenty two three and so we do not know how he committed an assault under section seventy one dollars so we don't know which form of simple assault he committed correct although there's sort of a disconnect between the subsea simple assaults and the aggravator in the penalty section for there is a correlation i displays that's exactly the offender can commit a subway or sub b assaults under the basic assault statute and be kilty of the aggravated misdemeanor if he's holding a visible holding a knife weapon or a dangerous weapon exactly and doesn't the connection with the threat of an armed warning touching you know when you have the assault make the just play  no and there are two parts to that answer one is i think again to look at the mob case we have a victim testify so the defendant was stabbing papers and adding machine with a knife in the end the victim said i didn't think he was threatening me i didn't think he was you know using the knife to threaten me but i was scared out of the machine you feel exactly and under section so under section four b one dollar it's about the threat of use of force towards a person there are other federal statutes as a person or property in which case maybe this is a different answer but the other thing too as we noted in our brief the categorical approach is about elements  we know what the elements of this offense are and it's not the threatened use of force it's the display of of the weapon and implying elements based on what we think the facts usually involved in the ordinary case is just inconsistent with the categorical approach it comes from the old residual claw back in james horses united states etc that was jettisoned and johnson and so we're no longer concerned with that we're concerned only about the  let me just say a report about the domestic abuse assault statute because we're sort of ships passing in the night on this one we're not complaining that this statute are contending that it doesn't require the amount of force required we're saying that the defendant convicted of domestic abuse assault doesn't have to use any force at all again it's the simple assault you can commit a simple assault and if that assault causes bodily injury and it's aggravated and the court said as recently as twenty two thousand and seventeen in the united states versus bennett there's a difference between intending to batter somebody for example and your battery results in a bo you've used force so for example in florida versus ask the examples if you get into a domestic dispute and you're you're annoying your partner you're tickling them with a feather you're poking them some sort of offensive contact and they fall and bruise there are you haven't used force that's not the use of force or the threatened use of force it doesn't it caused a bodily injury but as recently again as recently as bennett that was when you placed under arrest in your resisting you're not trying to neither of these convictions should have counted as crimes of violence and i'll save the minute i have left  please the court famous kevin knight i represent the united states and i think the court should know that brennan smith is a violent person with a violent history and his sentence reflects that violence more specifically it reflects that he committed to read in its entirety i'll direct your honor to our appendix page one requires intentionally point a firearm towards another or displaying it in a threatening manner and i think that that caviar display in a in a threatening manner  didn't advance that argument today because we don't have based on the shepherd documents available to us any indication as to which subsection of the statute he would be a circuit authority that we discussed goes in both directions in some cases specifically mcgee the court seems to assume that the statute is not divisible i think that a better read is that it is but in this case that that should drive the court's decision because as i say the shepherd documents don't indicate which subsection he did under well if we don't know situation the appropriate thing is to look at the least culpable conduct criminalized under seventy eight dollars and then join up that conduct with the subsection of seventy eight twenty three that we know the defendant committed so both the defendant's opening brief and our response brief we characterize the least couple conduct under seventy dollars as an act without justification intended to place another person in fear of immediate physical to conduct which would be painful and you take that sub b section the least couple section and you marry it up with the use or display of a dangerous weapon in connection with that conduct under sub b and it's when you marry those two things up that you see that a threat is necessarily inherent judge of and i think your questions to my friend on the other side illustrated that point perfectly right it's the nexus between the use of display of a dangerous weapon in connection with the assault and the assault the necessarily communicates threat does the jury have as explains an assault while the perp while the defendant user displays a dangerous weapon in connection with that is right but does that require the jury to find the use or threat of physical needed and the intent requirements in the idea that when someone that's an ordinary case kind of analysis nine elements analysis and i think it's important to know how the jury would be instructed and whether it would necessarily have to find unanimously beyond a reasonable doubt that there was a you sort of force physical force so i think that port's has actually instructive on this point a threat it is not possible to commit an aggravated assault under iowa law while using a displaying a dangerous weapon without at least implicitly connote in the message that you intend to injure your the  disclaimed still requires more than simply list looking at the jury instruction and seeing if there's a through were this court authorized to do more it's authorized to ask if there's ever been a case under iowa law in which a victim wasn't threatened and yet the person was convicted that defendants cite similar to my underscore that point we have thomas we have harris similarly those involved an individual respectively charging into an apartment with a handgun drawn and an individual holding his firearm in the port arms position think that similar are going to be made here with respect to the i was that you again i don't want to wave wave or defend it has never made that argument there only argument with respect to the domestic assault causing bodily injury is that there is an intent requirement with respect to the thousand supreme court where in the court explained that the force used need not be reasonably expected to cause pain or injury that stokeley if the force used doesn't need to be reasonably expected to cause pain or injury it certainly isn't the case that the defendant needs to intend to cause that for i think that there was a telling exchange judge reporter call from the carter oral arguments where and i believe is judge hamilton asked my colleague whether it was possible to find that the domestic statute he has to play somebody in fear of an imminent battery place somebody in fear contact which will be insulting or offensive and if the result of placing that person and fear results in a bodily injury he is responsible for this aggravated offense so if you scare somebody doesn't touch them doesn't use force whatsoever they fall backwards in their head and sustain an injury that's an aggravated assault the defendant hasn't used any force at