case in which was argued by the government was missed that had to do with holding attempted murder of a crime of violence if it's going to possibly have a different outcome when you look at the elements of the statute at the fact that the case to determine whether or not that the underlying crime can be a predicate effect for my twenty four dollars c the court however did not give us a list of which crimes for which so we have to do the very now whether or not if and it's can be used as a predicate offense the government's we have to look at the least conduct that the government has to prove in order to get a conviction and be sent the situation with attempted actual action so when you're dealing with the elements clause it's a finding the filing date has an attack element the use attempted use or threaten use the physical force against the person or property of another and that includes the actual conduct of the individual not the conduct of a particular individual but at least conduct that is required to prove that someone have to act robbery does not go towards the south but all it's actually going to be substantial that's the element that we have to analyze if the government can prove and you have been someone can be convicted of attempted ho violence an attempt to commit offenses also kind of violent and then hubert basically also it also focused in on the intent of the end of the jewel to commit all the elements of the completed crime but the problem that needed to be proven in order for the defendant to be convicted here to take a substantial step there's been case numerous cases where the substantial stuff is found and taken when the offender did not actually do anything you know for instance there was a case on the st circuit talking about basically the defendant there was actually the similar situation where they were looking at robbing car the defendant gathered all the necessary weapons he planned the robbery jokes to the parking lot laden way and then many aboard the plane blew up minute and that still constituted substantial step but there's nothing violent about that and there's nothing that could be none of that conduct could be considered attempted violence or violence so because the government could come to you know they could prove somebody was guilty of attempted commit the act and that he took a substantial step with the financial step is actually more than mere preparation and he can't just prepare to do something and have to actually take the stansell step and there's the delineation of which is which  require a substantial step in their their conduct so taking all the evidence a life like most favorable to the government the list they provided in their brief that my client recruited duncan bush attended the initial planning meeting dropping duncan bush off at a hotel these acts are not do not rise to the level of the sample set up they do not go past mere preparation and it goes back to that case in the th circuit that i referenced earlier the courts normally when they're looking at cases involving robbery of armored cars they send out late and wait whether they were at the scene mr phillips never showed up to the scene at all you know whether or not he had been involved in some of the near preparation is possible and we're not conceding that but there's a definite the some of the evidence points that out but they didn't go past that into the taking a substantial step towards committing know there were two separate acts that occurred there was the st robbery that resulted in someone being shot and killed and then a nd attempt at robbery that that nothing happened there was no evidence introduced that he had anything to do with the  one so there was a case cortinas that involved twenty eight members of conspiracy with the drug related case that similar analogous here where some of the members were rife and shot at the house that killed a twelve case here phillips was prejudiced highly by the inflammatory and very violent acts that were you know brought in as evidence during the trial that he had absolutely nothing to do with there's no amount of limit evidence i'd like to go back to nine hundred and twenty four see if for whatever reason the courts at the time and arguments are not correct and they they deem it as a crime of violence there's not sufficient evidence to if convicted philip for the either  you know they advance knowledge is not a standard to whether or not someone can be held liable for a kind of violence or weapon knowledged alone is not sufficient they're actually have to prove that they have if they had access  murder cross reference issue on the nine hundred and twenty four c issue where i'm sure is very familiar with the categorical approach and least serious method of committing the office i would point the court's attention to the taylor decision out of the four circuit which i think analyzes the statute properly and correctly it's a clue it is a simple statutory construction off chance such as sitting in a parking lot with a note that you're planning on passing bank which would constitute a threat and sitting in the parking lot about you know to enter or considering the simple definition a nine hundred and twenty four c does not allow for attempted threats force but you can be convicted in the least serious manner leaser is way of committing attempted object robbery of attempted threat of force reason the nine hundred and twenty four dollars c conviction for mr scott should be reversed if the court has any any questions on that issue i'd be happy to address them now or i can proceed to the preserved and the government asserts that it was not we assert that it was on the basis of the defendant objected in writing at the hearing to application of the murder cross reference that sufficient under the supreme court's case of ogun hernandez to ask the court to not apply the murder across reference as sufficient to preserve that error under rule fifty two dollars additionally as we argued in our reply brief  the supreme court has for a long time complied what they call the mere large doctrine which so long as they claim is made in the lower court in the court below which here it was that the murder crossreference not be applied you can raise additional arguments in support of that claim on appeal and the that is a preserve claim you're allowed to arguments and that's what we've done here you just raise an additional argument in support of the basic claim which is that the murder cross reference should not be applied to mr scott else will i agree statutory cap would be twenty years and therefore i don't think in that situation it would be harmless error but regarding the substance of law on the murder cross reference as we pointed out in our brief  reasons we argued in the brief is the common law rule is the rule that was applied in the treatises that we cite in east hearkens blackstone i pointed out to the court believe it was in the east treat in appendix a of our brief that this exact issue was addressed in the common law hundreds of years ago in the dueling context where a person who was the nd of the party part council with respect to this issue is there a distinction between good machine generated list of numbers which is i understand of tens of thousands of pages thousands of pages is is that this is a celebrate device that is you know this this requires extreme training and that's why i've called out letter the twenty eight a letter stating the training that's required for the celebrate it's similar to the training that's or prior to for the search context in another case that does it spit out west of numbers i mean i've gotten your record in west's you know the party the time time stamps status message is that what right but there is no ever evidence in the record on appeal on how that extracts her or was generated using the celebrate machines i don't think the government has proved that this was a machine generated report simply raw data the celebrate machine requires the analysts to determine a way test are right and that output of that celebrate can be modified by the analysts so we don't know if you modify the results before that and they can also be condensed into a error messages we don't know if they had to happen to the phone or whether or not they had the passwords for the found which we don't have evidence about whether or not that that altered the image the zone and there's just a lot of information that was not presented because we didn't have the person i understand your argument is use not the one who you know who ran the extraction from sheen but didn't he well i guess two questions is there are are you saying that this another analyst testifying coughing testifying regarding the extraction reports i think that's an argument that was covered by people coming where they had another expert testify and instead of the expert that conducted the client jacked it to the fact that his wife was removed from the courtroom and the court did tell him to desist from that behavior and to limit extent he did not and so i would concede that however i would point out st of all with respect to that disruption i would say it was not sufficient to warrant either determination of his right to suffer predation or is removed firstly i would contend it was an emotional impulsive response in one very stressful trial by this man and the other factors the court might consider in whether or not a court acted prematurely with respect to both issues is my cat has shown no prior man it was the prior manifestation of any disruption or lack of cooperation stuff representation no harm need be shoved now a very important thing in this case is that my client did have stand by counsel and the court did not u would abide by protocol that didn't happen so standby counsel was not used by this court in attempt to deal with the situation if fact after the denial had be before the denial of his representation things would have been ok now point is that this was an isolated incident it was an emotional response by a client whose though he's held to the standards of an attorney not under less is not an attorney and was under tremendous amount of pressure that said the court did not have to do too much because when i think the court did and i say with respect is a fine drowned judge the court didn't i don't think gave enough weight put enough weight and to the challenges and objections that arose before trial during the st trial during the nd trial and finally at sentencing at each step of the way the experienced district judge  ably handled each of these challenges and objections and he ensured that the defendants god what the supreme court has repeatedly stated the constitution guarantees not a perfect trial but a fair trial the district court's judgment should be affirmed your honor it's as you're aware there are eleven issues in numerous sub issues and i don't intend to address each of them during my time instead i'm going to address of those that came up most heavily during the appellant's presentation of course that the court has any question about any of the issues at any time please interrupt me and i'm happy to discuss them  that's supposed to work less yes your honor and i think there is a bit of confusion about the facts and this relates to our timeliness argument and why we have argued that the confrontation objection was untimely mr polk just suggested that to you all that there was almost it sounded to me like a detailed objection about reliability and would like to research my objection as to the extraction report on confrontation cause cause grounds and this is not the appropriate it is for the extraction report the court said do you want to respond to that that's already been ruled on i said i think so i can represent to the court it actually never had been objected to i've gone through the record numerous times this has never been objected to if the prosecutor says i think so the court says but in any event what's your response the prosecutor says in any event the agent took the extraction report compared it to the telephones to make sure that was in the telephone was on the extraction report the court says ok further objection and mr polk's counsel says no your honor and that said and i think this is why we've we've argued vigorously at the beginning of our brief not that were afraid to defend it on the merits were happy defending the confrontation issue on the merits but why it's important to understand the lack of timeliness in the southern district of texas local fifty five point two requires objections to come seven days in writing before trial we disclosed in our st exhibit west before the st trial and this is that our away five hundred and seventy four dollars seventy five cents that we were only introducing the excerpted extraction reports the reports were never introduced into evidence they were given to the defendants as part of discovery and you can see that at our away three hundred and fifty three thousand and eight where mr scott's counsel confirms as much but the only the excerpt of reports were object he asked the attorneys to come one hour before bordighera begins to go through the objections and he says those that aren't objected to will come and those that are will be addressed at trial there was never any objection holcombe his reply prefers to how judge hitler says of our away twenty to sixty five that all the courts former rulings remain in place well that's just it that's just a court saying what judge were one had already said which was bring your objections beforehand now it's true that at the beginning of trial when the government introduced its st exhibit the government moved to introduce an exhibit and this is that or away tw and twenty nine the court says i know there are no objections about local rule fifty five point two but what i'll do is if there is not in a jack and you can assume it's and if there's objection i'll handle it at that time but respectfully that's not a license to sandbag the government had we known that there was any objection to the excerpted reports we could have taken appropriate action we could brought the original analyst who just plugs in the phone to the to the seller bright report we could've sought a stipulation we could have done any of these things and you know there is this talk of authenticity  reliability you know what's interesting is that during mr polk's cross examination of agent kaufman who was there to testify about the record he created the excerpt of report not once not once has or any question about the reliability or the authenticity of the extraction reports and they can say well that's because he didn't create it but that's not to stop them from asking him the question about it only mr scott's counsel was the one who asked questions about the how the process of creating the excerpt extract reports at three hundred million five hundred and twenty three thousand they argue is that this objection is untimely but again we're happy defending it on the merits for two reasons first it now i understand for the st time their objection seems to be to the original extraction report the full expression report well that wasn't introduced into evidence the jury never got it it but in any event even if the full extraction reports were in the record you know this goes to the questions that mr hawks house was having with judge duncan these are truly just machine generated material all it requires is it's yes it's a cell upright a process of plugging in the phone to the celebrant extraction machine and it runs a report the cases that are cited in the forty eight in footnote twelve this is from the st circuit in two thousand and twenty it's a published opinion and they're the st circuit says this isn't something that needs to be expert opinion but ultimately this is beside the point because even if for example i'm the one testifying at trial about the extraction report i'm not an expert but to say an agent tells me here is what you do you just plug it into the phone  it spits out the report right well what the report spits out is still machine generated yes you can say well mr gould he doesn't know how to do it and so it's unreliable but actually that argument harkens back to the pre crawford ohio versus roberts days of judging confrontation by reliability which is what crawford explicitly overruled you know crawford the focus is on is this a testimonial statement a machine generated statement whether it's accurate or in or an accurate it's still the machine generated statement and so it doesn't fall within the ambit of the confrontation call now when you will how does the what is generated from  chromatography analysis but the report had to excuse me the the analyst had to certify to an ultimate conclusion the drug is coquet so the analyst was making a conclusion in fact there actually had to be a certification that i believe was notarized in their certifying as to the analysts conclusion bowl coming similar d w i and it had to do with the defendant's not just his blood alcohol content but whether any of the materials had been tampered with and chain of custody issues and again the the analyst had to certify as to those that is a far cry from a celebrate extraction of report a celebrate extraction report is just like a g p s it's just like a g p s report you know like a tower dump it's like any of these purely machine generated things there is no independent analysis you can you can question whether the the person conducted the celebrate extraction accurately but even then melendez diaz says and i'm going to quote it is not the case that anyone whose testimony may be relevant in establishing the chain of custody authenticity of the sample or accuracy of the testing device must appear in person as part of the prosecution's case so we if i understand your question judge dennis again that just goes back to that we never thought this was an issue and i would direct the court to our away twenty eight million four hundred and eighty three thousand and five these are two instances in which mr scot itself could we have done that sure and now seeing what's happened in briefing and kind of all the arguments that have come up about almost casting aspersions on our conduct even though we don't think there's any confrontation error we probably would have done this i would point out that crawford in a footnote points out enough in a footnote how it is seems that defense counsel aren't watching these objections and bad faith that they're doing so because they have legitimate questions about the reliability and authenticity authenticity and which they were never questioned that coffin got zero questions about it at trial and again yes you can say well he wasn't he wasn't the one who did the device but he was there and they could have said well how do you know it's for a while how do you know it's accurate what do you know about cell or bright yada yada yada it never came up it's coming up now really for the st time on appeal and so again i agree with you  reversible error under hangs which is cited in the government's brief and this goes to the issue of whether his agent kaufman's interpretation of the code words like commissary savage mode etc were within the permissible bounds of the rule seven no one and we've cited time and again this court has held staggers hanes etc that it is permissible for an agent to bring his knowledge based on his extensive experience on a case to interpret certain terms and it's unquestioned here coffins extensive experience we don't how to get back to your question i don't think that the term for necessarily arcane i mean there are specific to these individual criminal defendants but again how do we move to certify him in as an expert that would have been the problem that led to this court finding error in hades where the government certified the agent both as a lay witness to kind of testify about his knowledge of the case and then as an expert witness to say well i know that these terms mean this in drug terminology that can what haynes said is that gives the in premature that actually that gives the age a kind of the emperor mature of you know i know everything about these code words and in fact the district court here are still gave an instruction to the jury which was you've heard you know you hear the language and it's up to you to interpret what that was so we don't there was no error and respectfully we believe that it would have actually been error to you know i'm not saying that they waived the issue but they certainly forfeited it which would rip make it reviewable for plain error it's true we've pointed out that there was an objection bow by mr scott i believe but his objection was to the government's method of interrogation which was what we were doing at trial was we were playing an excerpt we were happier stopping at having a cough and say you know based on your investigation what does this mean and then he would answer what that was and what mr scott want to was for us to just play the entirety of the tape at once and then do that so there was an object even if the other defendants who raise this issue below could benefit from that objection it wasn't on this basis but again even if it were raised staggers haynes elma saying the case cited in the government's brief show that there was no error whatsoever in coffins interpretation i'm going to move with the court's permission to the sentencing issue and let's talk about the nine  necessarily dictates that attempted hobbs act robbery is a crime of violence and if the defendants disagree which they clearly do then they are free to file a petition for on bank rehearing or to seek supreme court review to explain why smith was wrongly decided the defendants are absolutely correct smith didn't deal with attempted hobbs act robbery it dealt with attempted murder but what at the cases that smith quoted and robbery hill from the th circuit was about illinois attempted murder but and we've cited this case in the government's brief engram from two thousand and twenty the th circuit extended its rationale and hill attempted act robbery the rationale in these cases is that if and attempt excuse me if a substantive oftens is a crime of violence then an attempt to commit that often is equally a crime of violence what i heard in my friend's presentation was disagreement about well the attempt it's excuse me the substantial step doesn't have to be a violent act or that it can't be a nonviolent act will smith itself recognizes that means smith says explicitly says and here it's following domain guys in st hubert that the the substantial step doesn't need to be nonviolent mean that makes sense after all it's an attempt incomplete often it's really at the end of the day the defendants simply disagree with smith and they agree with taylor which is the case going in the other direction that does support my friend's argument  and they agree with the dissent judge when's dissent from the one thousand domain guys and those cases agreeing with the defendant's arguments here that attempted hobbs act robbery is not a crime of violence and our position is simply that it's under smith which this panel must follow that ends the issue and and so again they are free to seek further review of smith and argue to the on bank court why it should overrule smith and why it should follow taylor and the panel and domingo's but aside from that there's nothing more for this panel to do on that issue if there are no further questions on the nine hundred and twenty four c issue let me turn to the murder cross reference and it was conceded early on that that if that this judge hit her here you know said the quote unquote the magic words if you will from shatter this court's opinion and shepherd making clear that even if he had applied the cross reference in error this would still be the same sentence he was still is he quote a victim within the meaning of to be three dollars c then the nd question is even if he is a victim within the meaning of the guideline does his killing cost murder under eighteen u s c a weapon a weapon and that would require to determine that that would require this court to be the st among any federal circuit courts and so far as i can tell any federal court whatsoever to determine whether eighteen grounds and we also don't think separately you need to reach it because of plain error we respectfully disagree with the defendants that this separate issue was preserved without question there is no question that the defendant objected to the application of the murder cross reference but they did so on the distinct st argument below which was is rhetoric but he's a victim under to be three point one c they never raise a separate argument about felony murder agency theory proximate cause ation in under this court's precedents such as near as garcia objecting on a guideline application on one distinct argument does not preserve another completely separate theory for review hold when hernandez is doesn't help the defendants hogan hernandez is the supreme court's decision about what it takes to adequately preserve a substantive reasonableness of jackson well obviously when a defendant objects below and or excuse me when not when to defend objects when a defendant's counsel says your honor ok calculate the guidelines i think the sentence should be thirty six months because my defendants he's a good guy he's got a good family this was his st time it cetera et cetera well then when it goes up on appeal you don't need to object again after the court has ruled because you've already implicitly maybe argument that the three thousand five hundred and fifty three a factor support that and that's quite different from a distinct legal objection which was never pressed upon below and hogan hernandez is clear to distinguish between substantive reasonableness and procedural reasonableness which this falls under the mere animal argument doctrine i'd encourage the court to read those cases  closely so far as the government can tell them you're a marshman doctrine it's a supreme court specific preventable doctrine that relates to when a question is properly presented before the supreme court when the court itself will consider an argument for it it doesn't bind lower courts and the defendants in the reply briefs have cited a host of to circuit cases where they say this court has applied the mirror and large meant doctrine with one exception that's not true in all but one of those cases they cite these the cases the mira marginal cases are cited for a completely different proposition the one exception is lampton versus diaz where in a footnote in a footnote in a civil case this court referred to the mere enlargement doctrine but it was in the context of whether the defendant has waived versus forfeited an argument and that's what we're saying here it's that we're saying the further questions on the murder cross reference let me address mr philips arguments about the sufficiency of the evidence this crime could not have taken place without mr phillips his involvement mr phillips played a key role in this and his job was done by the night before the robbery his job was to recruit mr duncan bush the person who was supposed to get out of the car and grab the bag from the messenger who would be shot by mr battista but for mr duncan bush this property cannot take place so it requires somebody to recruit him and again that was mr phillips and mr phillips counsel accurately listed all of the many substantial steps we we went through that's enough i mean that goes a while when you suggesting is that this court adopt a rule that for an attempt officer maybe it's just for attempted hobbs act robbery the defendant has to be found in the area the day with the rest of the crew and that's simply not the case again his job was done it already committed the substantial steps but for mr phillips there is no mr duncan bush but for mr duncan bush there can be no robbery as to the nine twenty four c count the right that the defendant has to have knowledge that a firearm would be used and we pointed to three we pointed to a few things i mean st of all this is an armored car robbery after all so there's just a common sense that somebody would probably be bringing a gun to it but then we have mr brasil's jailhouse testimony where mr phillips told him explicitly that the plan was to kill the cash carrier and grab the money well you kill the cash here with the gun he knew there was a gun and really the sufficiency argument is really asking this court to view the why to view the evidence in the white most favorable to him and not him what the jury heard  the final issues that were addressed were by mr hill which were remove all and the revocation of his pro se status and here i briefly just say the district court did everything in line with what the supreme court has stated he should have done in illinois vs allen mr hill's argument mirrors in many ways the defendant's arguments from united states vs been a bay this is a th circuit case cited in the government's brief where the defendants basically said there you know it wasn't that our behavior wasn't that disruptive but even if it was there's a quote hierarchy of remedies that the district court must follow before ultimately chooses removal from the court room and that's simply that's not the case alan explicitly holds that we are giving district courts flexibility and how to handle what discord can read the record for itself the hill and we've said this in the response besides i don't mean to be repetitive but mr hill has said that while my standby counsel should have intervened well that's true history and by counsel didn't  scott's counsel intervened because judge hitler had ordered mr hill removed and mr scott's counsel intervened and said can i talk to him for a minute and he dead and mr hill got to stay in the courtroom and then the next thing is will there should have been ordered removed before the jury came in based on he was badgering the district court telling the district court to identify the u s marshal who found his wife with a razor blade and the district court refused to do so which led mr hill to curse at the district court that's when judge dinner initially ordered him removed but he wasn't removed at that time the jury came back in and he started to address the jury and the court again warned him said please you know you're going to get time during cross examination but he disregarded it there was no error even conceding if mr hill is right that it was an impuls and emotional outburst by him that still doesn't justify his behavior and that still doesn't mean the district court abused its discretion in ordering him removed and then when it ordered him or miro ved it could revoke his pro se status again and that's what our illinois versus allen envisions again i've only addressed i believe six of the issues by my count but the government's happy to rest on the briefs unless this court has any further questions that i can answer area insufficiency of the evidence i couldn't find a sister to case that would support the conclusion that just recruiting duncan bush would constitute a substantial step to committing robbery and the testimonies doesn't indicate that he did take a substantial step when he recruit the time when duncan bush testified he said that philip asked him if he wanted to make some money but there was no indication of what with that was for the time that's on are similarly defined in the dictionary planning meeting the profit plan for something preparation something done to get ready for an eventual undertaking also knowledge that a potential crime might occur does not prove the defendant had intent to require the government to prove a test it only requires they prove the intent and the mental state cannot be biased i mean there's absolutely no way you can say to i also believe that myth is not that a statement and smith saying that all attempted crimes yes your i'd like to address i think too many issues on the confrontation claimed the government continues to argue that the data extractions from these phones are just purely machine generated and i think both coming particularly in footnote one where the supreme court in bold coming said that gas from at chromatography requires expertise requires following proper protocols even though a machine is used in that case the gas chromatograph that that is subject to confrontation because the procedures can be improperly performed they can be expertise it is not something any common layman can perform it's not like typing into a calculator where you would hit five times five equals and you would always get twenty five it requires expertise and training to perform properly and that should time that's how the parties proceeded they did that under that understanding and they made their objections at trial so it was allowed by the court at the time the court government made no local rule co counsel we do not believe smith is controlling because the taylor argument was not made in smith was not ruled on and smith smith is a murderous attempted murder case and not an attempt to object robbery so this argument has never been raised as we pointed out in our reply brief we cited two number supreme court cases that stage additional decisions not stand is binding precedent president points that were not raised and argued and hence not analyzing not analyzed studying durgo as us the l a trucker tucker truck lines and that's in our reply brief eighteen so this is you just hasn't been raised or presented in the lower cases bit now as far as the whole down accusation it's not even clear in this one case that it was confident that did pull down his report that case so for preservation should be denied but in this case it didn't even breach not even the halfway point more significantly in that case the judge allowed a lot ultimately it was but it was voluntary could have been but at that point that he was removed even for a short period of time apparently his behavior subsided