good morning may it please the court assistant united states attorney nicole mary any on behalf of the united states the outcome of this case is controlled by this court's binding precedent united states versus fritz was that florida robbery including florida robbery before the year two thousand is categorically a violent felony under the armed career criminal acts elements costs according to the district court to grant of least twenty to fifty five motion which is based on its determination to saying it also means bound by is united states versus lawfully that's a two thousand and eleven case that a two thousand and one florida robbery conviction was a crime of violence under the sentencing guidelines that's cos likely under such a formal categorical approach and examined at the about how much violence was necessary did it did not work what fritz did hold in state was that so much my question is fritz did is there other precedent that you can point us to where we are the eleventh circuit has a violent force and along those lines but i don't think i disagree with you with regards to the state of our case law but but my question to you is if we were writing and it may not matter to the ultimate outcome of this case but it matters at least to some members of the panel there are florida cases both pre and post one nine hundred ninety nine the break when florida created a separate statute for sudden snatching which sustain robbery convictions with almost no show of force whatsoever not under the sudden snatching scenario but under air other scenarios for example a defendant who opens a door to a car sits in the car for a couple of minutes seconds and then takes a person gets out of the car a person who walks into a bank without a gun says give me your money teller tries to give him bait money shakes his head and says no gets real money and leaves i mean you've got those sorts of cases where it seems like it's far removed from what the aka is intended to reach what's your thought on that i mean my thought on that is what you're seeing are some florida intermediate court decisions and whether or not they are correctly applying the law before supreme court is a question that is not really relevant to this analysis that's a question and certainly if the intermediate appellate courts are incorrectly applying for a supreme court actually remedy seven sort of explaining that we need more the minimal force to differentiate a robbery from a larceny and i think some of those question cases are probably getting the law wrong but again our concern is with what the florida supreme court said or the florida supreme court law what's required is this active physical struggle between the perpetrator and the victim or the perpetrator uses where the victim gives resistance and the perpetrator uses overcoming an opposing force to overcome that resistance if the people who should be involved in a physical struggle a physical combat are you aware the perpetrator comes in with sort of superior force and aggression and strength to take an item away from the victim's person i think that's akin to the slap referenced in johnson and so if the florida courts are correctly applying florida supreme court law and we are we shouldn't be running into this situation we should be running into a situation where force capable of causing physical pain to the victim or physical injury is being and i think another thing to look at i mean we point out in her case some other state robbery statutes that have been analyzed by other circuits and i think that actually can help give this court a little bit more comfort with the direction of where the eleventh circuit law has gone all those cases snatching count as a robbery accidental force counts as a robbery whereas all the other circuits and it's some of the same circuit study found that other state robbery laws are violent categorical via phone a's and those would be colorado michigan south carolina indiana maryland and hennessey all of those state robbery statutes as does florida follow the common law definition of robbery which differentiates robbery and larceny with the use of force the florida supreme court has been clear that it follows the common law definition of robbery and that larceny is a lesser included offense and that the difference between larceny and robbery is this use of physical contact sufficient to overcome the resistance of the victim which is why i think florida law if the morning good morning please the court for nothing assistant federal public defender for michael e the pertinent question that the government misstates that really controls this case is when the government says that this court as part of its mode of analysis must defer to the florida supreme court's interpretation of the law at the time it ignores the supreme court's mandate in mcneil from twenty eleven and this court's mandate in rosol and twelve that the reviewing court must actually look at the law for under which the defendant was actually convicted of and that requires not only looking at the date of the conviction but the dca in which the defendant was convicted the reason why fritz does not control that before you get to fred smith john yes your honor i'm sympathetic to your position but you've got united states versus dowd which stated and archer says that subsequent panels are bound by a decision unless it is undermined or overruled by this court sitting on or the supreme court but what the archer rule holds is that unless and until intervening superseding supreme court precedent comes in which changes the framework by which this court evaluates and interprets a case it is binding precedent for that reason do not control as the court noted in its colloquy with government counsel dowd relies on one conclusory statement masquerading as analysis moreover doubt considered shepherd documents which is inappropriate and not part of the strict categorical analysis mandated by date comp and certainly by mathis referral to shop when you have post the comp cases coming to the same conclusion in welsh which welsh as the unanimous panel pinion of this court predates fritz and represents a separate carve out for fritz that this court can use to distinguish threats and to travel upon to grant stash snatching but not mr lockley who was convicted in two thousand and one as that was post statute post robinson that was because crucial to walsh's mode of analysis and it hundred six pre robinson conviction it's thought to distinguish lockley which was a post robinson conviction right but then it comes to the conclusion that i pre robinson conviction counts it held that it counted under the residual clause the supreme court henri mand in two thousand and six addressed the question of whether this circuit eroni asli tonight a certificate of appeal ability to challenge his a c c a conviction on the grounds that the residual clause was a constitutionally vague and it said on the present record reasonable jurists at least could debate whether welch is entitle to relief it remained to the eleventh circuit and that case is still active on remand to specifically resolve the elements clause question left open on direct appeal if as your honor is suggesting that the issue were as clear cut and settled that lochley was dispositive of anything beyond a two thousand and one robbery there would have been no need for the supreme court to remain and welch's case to the eleventh circuit to answer that open question in the first suggestion to you is that if you are even if you are right about that that just leaves welch as a zero for now it doesn't upset the law it doesn't change the law doesn't modify the law because it was only a residual cla holing and didn't address the elements clause and so the elements clause is still pending so welch says nothing one way or another at least for us right now correct i understand your point our position is that welch does say something well it stands for the proposition that there is this carve out for d c a pre rob quote be it ever so little or in mims that the force in that case if the victim resists in any degree and that resistance is overcome it's robbery does while it satisfies the florida robbery statute does not qualify for the sort of curtis johnson level of violent physical force the statute or any other in which the date of the conviction determines the the the inter with which interpretation of the law applies think what this court must do when we apply the rule in mcneil as interpreted through was all us bruno is if the florida supreme court cases your honor is referencing is six the florida supreme court says any degree of force suffices to come for larceny robbery so long as the taking us not by stealth in that case focusing on the need for victim awareness what happens after that there  court speaks in macleod the third dca admins says if the victim resists in any degree and that resistance it's over common is and that resistance is overcome it is robbery what's notable about mims is it's the year after macleod is decided mens then later is cited by the florida supreme court in one nine hundred ninety seven and robinson and it is cited with approval as to the pre robinson state of the law in the third dca as to what the third dca is understanding and interpretation of that law was then we fast forward six years in the third d instead you're applying planning an answer to it the question is whether under the florida supreme court's approach to questions of the sort whether it looks to the date of the conviction in order to determine which interpretation of law applies so that it might have before it on the same day two cases that arose from convictions at different times under different interpretations of the law would it decides them differently i think that question can be answered as to whether or not it's pretty robinson or post robinson you're saying the answer is yes they would look to whether to what was the prevailing view of the law when the conviction occurred yes and i think it would also it's not doesn't that strike you as a bit peculiar to have two cases on the same day the convictions arose under different interpretations they had changed their interpretation or clarified the interpretation instead of saying look this is what the law means it's always meant this and let the chips fall where they may i can understand why that would be an attractive proposition however the difficulty with that is taking a step back to the evolution of the strict  kock came out or mathis came out the supreme court said this is what we have always meant going all the way back to taylor but what had happened during those twenty or thirty years is federal circuit courts applied what they thought the supreme court meant for them to do and the supreme court had to step in and say no no no this is what we really want you to do this is what we really mean and that was in which case in de comp and in math as i was just drawing an analogy that it's a similar sort of evolution here where sometimes the florida supreme court can believe that it has been clear and it has always been clear as to what the law is but interlocking about the practical realities on the ground yes you're right so the supreme court comes up with test one in case  doesn't address the issue again for seven or eight years the circuits are all over the place on what test one means seven years later the supreme court comes up with case y and they say oh test one really means tax one plus two and we meant this all along and that's what you should have been applying that another seventy years process in case z comes along and they say oh test number two is really one plus two minus you know half and that's what you should have been applying all along and in the meantime although the supreme court the ultimate organ of the law is telling you what the law should have been and what it meant on the ground the lower courts have been dealing with individuals and with the government under a misapprehension of what the law was and people have been convicted and sentenced accordingly with that misapprehension right that's the reality you're trying to get at yes your honor and it's like a situation moving on this this court can and should apply the carve out in welsh to mr hadley situation just as the fourth circuit perhaps was laboring under a  misapprehension of what the florida supreme court perhaps really meant which is not a concession that we are making but for purposes of argument if that is true so too was the third dca at the time of mr at least conviction such that for the same reasons articulated in welsh for the same mode of analysis that applies for its same formulation of florida case law and what the court is required time under a robbery statute that did not require the sort of injury causing pain provoking physical force that curtis johnson requires to uphold an a what do you tell someone and i think you're right miss mary any but what do you tell someone who was convicted of robbery by sudden snatching in a dca where that theory was prevailing and is now serving a minimum aka because he purportedly committed violent felonies what do you tell that person sorry no i mean that that is a that's a horrible situation if they were wrongly convicted under florida law for a florida crime and now they're being in now they're being punished under federal law under one way of looking at it from or having committed a violent felony a felony nonetheless but maybe a felony that wasn't violent right and i mean i wish there was more i could do for that person under this law but given the state of our loss of the remedy is available to them we're a direct appeal or a lable have been used and the florida supreme court denied discretionary review in any post conviction motion gets goes up to the same dca that had the same view of the robbery statute then that person's out luck he or she did everything possible and then they then they try to get pay federal relief and the federal court says you know whether or not you were convicted of this or that is a matter of state along the not a matter of federal due process and that's the way the florida courts are interpreting that statute that's not a matter for a federal court to be involved in and so they've done everything they possibly can and now they've got a fifteen year minimum sentence  but then i'm not i'm not sure how we could then have a remedy in this court without every looking at every twenty to fifty five and i even every sentencing raising for a robbery and sort of trying to go behind the curtain of what the florida supreme court has said the elements of that crime i'm looking at each individual conviction seeing did the facts really proof florida robbery as it's properly defined and that sort of analysis is going far beyond what we've been permitted to do in determining whether or not under the formal categorical approach a crime is or is not a violent felony under the elements costs and one last thing i'd just like to point out is since sort of talking about this carve out that michigan is proposing since france has been decided this court has held in fifteen publish conviction because because under for it every florida robbery is a violent felony in fact two of those cases right dentical to the present case it's pace and jackson were both similar twenty to fifty five cases and in both of those cases this court reversed that granted to twenty to fifty five based on a finding that florida robbery was not a violent felony and reinstated the defendant's a c c i and a mandatory minimum sentence which is why sort of if in the sake of  i mean for lack of better it's a no there are certain sort of some fundamental i fairness it is your honor see in the scenario but for the sake of being comprehensive it sort of treating everyone the same that's why in this case where the statement was also convicted of a four robbery means to reverse the grant of the twenty to