thank you may it please the court federal defenders of new york on behalf of a marri du pree dupree's prior new york state conviction for attempted second degree robbery while aided by another is not a crime of violence under the guidelines the new york offense does not satisfy section four b one point two a one's elements clause as this court held in jones one new york robbery can be committed with a diminished force or indeed no force at all as by blocking the new york court of appeals decision in smith reviewing the history of the robbery statute squarely explains that new york robbery includes no such element no such element but does it matter that's my question  because generally speaking robbery is not that it's more than that it's taking a property and whether new york property in new york says personal property of another doesn't really make a difference  honor this court as explained in walker and again in jones two that the procedure for analyzing whether a state offense is an enumerated offense under the guidelines asks whether there's a substantial correspondence between the two that is we look at the elements of the state of fense and the elements of the federal predicate not only walker but a wealth of sources including the majority of state criminal codes the majority of the legal treatise that's language my assumption is that a person or or a president or  or person of another is implicit in every robbery whether or not it's spelled out no your honor i with respect i think both the court of appeals decision and smith which reviews the statutory history and explains  element is not required in new york law as well as a number of new york state cases side nor brief do you have robbery if you don't take property from another person just as described in your cases that are relevant to talking about how you it i'm talking about the person or property to the the person or presence of another not not a question we're not talking about violence now for c s we're just talking about how you how you accomplish robbery without taking the property from another zero in sloan the the appellate division held that the evidence was sufficient to support a robbery conviction where the defendant burglarized an unoccupied convenience store that was closed for the night took merchandise from the closed an empty store and on the way out used force to escape the tenant of an attached apartment who confronted him well isn't that an outlier you know well your honor it's not because we also have really peculiar set of facts i mean this is the courts not every now and then when the time that the mainstream this is second degree robbery or act it's forcibly stealing so you're on our soil and nobody there who you using song so your honor sloan held that force was used against the person who interrupted the robbers as they were escaping and it's it's not an out so let me let me say this your honor someone was there i was you can't use force against somebody who isn't there that's right but what what was not done was a taking from that person that is to say the property taken was unintended at the time of the taking and it's not an outlier that an arson or wrong became attendant i mean that person could  ignored it but somebody chose to defend the property of another so therefore the stuff was taken from that person your honor no i with respect i think that's not supported by additional new york cases including ghana way which concerned again the night time burglary of a closed restaurant followed by the handcuffing of the employees who arrived in the morning to open up and in a number of new york cases involving the shoplifting of unintended property followed by a they can't take it out of the store and take it home i mean nobody takes a garment from from a store for the for the purpose of walking into the door and being stopped so certainly i think we would say the statutory definition of robbery has been satisfied because the force must be used in in the course of a larceny but a larceny includes more than a taking under new york law includes the preparatory conduct that includes the taking i did includes the escape the reason that matters and we aren't just the reason it matters is we're trying to capture an element that elevates larceny to robbery as a generic matter and this how helping in the air are you i recognize that smith is under the two thousand and fifteen version of the guidelines of strictly speaking it doesn't govern in this case strictly speaking but the analysis is identical and so how can it be plain that is the sa obvious error several responses your honor first of course error can be plain in light of settled principles as well as precedence and here we have to square principles on the one hand walker requiring a taking from the person or presence of another and on the other hand new york law confirming that that element is not present in new york robbery smith says your honor no it was a residual clause decision but more important neither smith nor the district court below was presented with this precise argument and so if we're looking at smith reasoning we take the reasoning based on the argument that was presented and if we're going to credit the reasoning it seems anomalous to credit reasoning that wasn't responsive to a particular argument raised and again had smith been based on the commentary new guidelines because we know that robbery counts under the residual clause of the pre amendment guidelines so we're focused on the new guideline but the commission in amending the guideline and moving robbery to the text said it was not separately defining robbery because it was going to rely on existing case law for the definition of robbery that case law included this court's decision and walker the eleventh circuit's decision in lockley which adopted walker both of which articulated a person or presence requirement i believe the panel was judged the bronx judge carney and judge approach and they have three three issues in that case one is whether tempted second degree robbery is a crime of violence the second is whether all you should note that that is it seventeen acacia numbers seventeen nine five two might my only question again not having read the briefs would be whether the specific challenge to enumerated argument two  robbery that we've presented here with also made in parama gomez that was under yeah that was under to two thousand and fifteen version that under the two thousand and fifteen version of the guidelines so also residual costs and the right so then in that in that event then no i don't think that would dictate for they're looking at whether there's generic robbery they're looking at the generic question based upon the commentary here and again again i would i would say of course this is courts general practice is to respect the earlier submitted cases but if  specific challenge to a numerated robbery that we present here namely that new york robbery is non generic because it does not have a personal present element if that argument was not pressed and pereira gomez i think this court would be free to examine that that's true even if saying smith the issue had risen under the two thousand and sixteen guidelines simply because the argument wasn't right well i think it would it would certainly be a tougher claim for us to make what we have is the i mean there's a lot of times the supreme court decides issues and that you know that they decide the issue and you read the opinions to yourself but what about this argument they and nobody had ever raised that argument and so but they still decided the issue right so i think what i what i would say is the following it would be a tougher argument no question john shea what we have however is the express limitation of smith's holding to preeminent cases and we also have a we would have to depart from the analysis in smith and we would have to in effect say they got it wrong in the snow but this court has said that when an issue merely lurks in the background of a case and it's not squarely presented by the parties and it's not squarely addressed by this court no disrespect to the prior panel is let me just try and understand your argument one more time if you if a person takes takes the property without her who is in a store and is confronted by the owner of the store on the way out the door  then at that point i think you would agree that that would satisfy robbery would satisfy it certainly would satisfy new york rob york robbery that but but but if the person is not confronted by the owner of the store but is confronted by another customer in the store you would say that is not robbery no i think new york i think that's i think that slow slow involved a confrontation with the tenant of an attached apartment who does not appear from the opinion that own the property is now would be robbery  new york law but not federal would not write the fact and again let me judge walker let me make my point as precise as possible the argument is actually quite straightforward putting aside quantum of force ownership of property timing of the use of force generic or robbery requires that the property be taken from the person of another or his immediate presence new york does not new york criminalizes the taking of unintended property followed by use of force essence you see that the inventory of a shop is unintended property because the shop is empty your honor in sloane and dan away the property was taken from empty shops that huge worker just gave you the shop not empty the owner's there so of course  are that you at the generic are as well if it's the owner of the store i think i was trying to draw a distinction between the owner of the store and a good samaritan who wants to stop the stop a crime let me address both i think judge jacobs if the store owner is observing the property and observes the theft take place yes i would say that that property is essentially within the store owner's immediate presence of seeing and judge but you said observe the theft take place or do you mean taking from the person or immediate presence of another we mean the store either the property is removed from the victim's person literally or immediate presence that is the store keeper observes you know the the theft the the thief take the property which is his property from his immediate presence that is from across the counter or from behind the counter but let me say two other things number one judge jacobs when applying the categorical approach the supreme court has told us in moncrief we consider the minimum conduct and we know that the minimum conduct under new york law is the theft of property that no one has seen taken and that was not in anyone's immediate presence that sloan and gan it's being taken i would say from his person or immediate presence i think it's a trickier question and that's different from the tenant scenario because the tenant what comes down later after the physically remove the property but haven't left the building yet i think it's different from the tenants in area because again what the generic definition of robbery is training on is the immediate danger that arises when the owner or the good samaritan is capable of stopping th taking as it's taking place such that force is used to overcome resistance to the taking or to compel the property owner or the good samaritan to part with the property when an it's got to skateboard you know in knapsack it's all packed up these ready to go is about to go out the door the tenant comes in and says what are you doing and then he uses force that's that's ok that's new york robbery but that's not federal rob and i would say it certainly new york robbery and i would say what it is is a matter of federal law if we're talking about generic federal offenses is most likely a burglary plus an assault and we know that those but that would not qualify as a guidelines crime of violence because the guidelines no longer include burglary as an enumerated offense transaction it's really it seems to be maybe there's a difference between that and just a separate programs i mean it's all part of this part of the same thing he's prepared to use violence when a person shows up it doesn't happen to be the owner it's somebody else and he the he then uses that and that person wants to stop the robbery and and therefore presumably take possession of the property but the owners of the robber is is taking is taking the property and using force to do that i mean i'm just seems to be like we're kind of splitting hairs here well again let me let me say one thing i say we know that that can satisfy new york law because we have a provision in the new york definition of robbery that includes the use of force for the purpose of so i think that maybe retaining property after the taking the waiter for us to look at it is to take all of the case all of the states and i don't know how many there are that specify personal property of another and see how they've actually applied it to come up with  generic to see it's a generic is broad enough to cover this this instance so your honor the do prehaps as has at least canvassed state statutory and case law and concluded that thirty one out of fifty one domestic jurisdictions include a personal presence requirement as the but i'm talking about the case law itself as opposed to what the statute says i understand the government in its response brief questions two of those states oklahoma and washington it does what your hon government was unable to elicit from those cases a principle that would also encompasses new york law that some of those statutes a person or custody or person or control which is a little arguably broader than person or immediate presence right i think as as judge jacobs you know was suggesting with the the store owner hypothetical yes i think custody can certainly be broader than presents custody could encompass property that the store owner one the example discussed on page thirty eight of your book and mentioned by the law reform commission about the defendant forcing the victim to phone his office and direct an employee to take money from the safe and deliver it to the defendant's agent no that's an example that does show the outer limits arguably of eliminating the presence requirement but there's not been no case like that no that's that's true your honor the the cases that we've identified as supporting our interpretation are principally sloan again away a number of appellate division decisions holding that larceny from the person is not a lesser included offense of robbery because robbery does not include the person or presence element  example that you gave earlier you said that this federal offense the there would be two federal offenses one would be a burglary and the other would be assault but it seems to me that if it was charged that way and it was a conviction on both and the judge in sentencing decided to stack the sentences they'd be really good argument that can't be done because we're breaking offenses that way i don't think people who commit crimes through their fences that way again your honor it's because the i think that's right and let me pick up on the last sentence of what your honor said in the case of for example sloan i think the intent to use force could have been formed and in fact most likely was formed after the taking was complete it seems apparent that the robbers and sloan thought they were burglarizing  occupied store and only used force when they were confronted on the way down so in that sense there is a rationale to segmenting the offense in the manner that i've discussed and let me take a step back and say this what we're proposing is not only respectful of the sentencing commission's manifest intent to incorporate the existing definitions of robbery but it's also respectful of federalism concerns in the following way the new york judiciary and the new york legislature have made a conscious choice to broaden the definition of robbery to encompass conduct that would not satisfy the generic meaning of that term they've done that for domestic concerns presumably to make it easier to prosecute offenses like these as robberies this court however is confronted with a distinct question this court is confronted with the question whether when applying a provision of federal law designed to capture the most violent recidivist offenders it's logical to sweep into that group those convicted under broad state laws broadened by the branches of state government for a distinct domestic purpose well here you  honor may please the court in richardson for the united states judge i have like to start with the comment that you made and that goes to the effective smith on this decision as the court knows from the government's march fourteenth twenty  letter this court in smith recently decided that new york robbery and second degree it is a crime of violence under the enumerated offense clause definition the defendant is asking this course to this this panel of the court to answer the same question answered in smith but to do it differently this court isn't this panel is not permitted to do that absent a change in interest in intervening changing long because the three no three with that is because if in a presidential opinion this court applies an analysis that directly applies to the same question i don't think that another panel of this court is your maid and that the panel that issued the opinion said in the  our holding let me read it are holding us applies only to sentencing decisions made under the guidelines in effect before that date namely august first two thousand and sixty eight did not restrict its analysis though we did not restrict the  analysis by anything but i'm not sure that's correct i think judge that while it recognized that the only issue i think i understand that footnote to say is that the court recognized that the only version of the guidelines before it was one preceded it and then meant it did not have occasion to decide whether there are a change in the amendment whether that minute affected a change that would have affected the analysis now i hear what you're saying w substance we would have to reject the announce lawyers usually happier explaining that a court shouldn't do something than explaining that they can't do it i think that i think that's right you wasn't there also an alternative  basis so i as i understood the court's decision in smith the court relied on your decision judge walker in jones and in in specifically the language in jones that said that it was the forcible stealing element of new york robbery that sufficed to subsist establish a substantial correspondence between the new york offense of robbery in the generic offense of robbery that is an application of the numerated offense clause in the amended guideline has taken the enumerated offense clause from the current guidelines commentary in the two thousand and fifteen version of the guideline and the two thousand and sixteen version guideline that to the text now the defendant does not argue that that should result in a different analysis in fact quite to the contrary he in his reply page twenty four points out the sentencing commission made clear that he did not intend to effect a change in the analysis that by moving it from the guidelines commentary to the text the sentencing commission intended the previous cases interpret in the numerator defense cause to continue to apply this argument  listen smith or jones far as you can tell is far as i can tell it was not but i'm not sure that that matters for the point you raised earlier which is that courts appellate courts including the supreme court in this court frequently decide questions provide an answer to a question but don't necessarily have every single argument that could potentially be raised in front of them that doesn't mean though that that conclusion the court reached in smith doesn't bind future panels with the defendant is asking this court to do is a the same question conduct the same analysis but come up with a different answer to the question and i would submit that this court precedent doesn't allow doesn't permit this panel to do it unless the defendant identified an intervening change  that matters and he does not he explicitly does not he says the same analysis applies so i think that the initial question here is can this court decide the question differently  need to take from the person of another so i think there's another so i meet our surroundings so you know this is an interesting question that the new york legislature attempted to answer in the  and that was instead of drawing the same fine distinctions that judge walker you for two his hair splitting it at it it did away with the person or immediate presence requirement as an element of the statute to make clear that it was slightly that and the understanding of robbery was slightly broader than that and now the defendant has pointed out that the person or presence requirement exists in the statutory law of a number of different states but as we pointed out and our brief and a review  case law of many of those states reveals that there are in fact different applications that are more consistent with new york law even in states that have the person or presence requirement there are state courts that have interpreted their own state statutes to avoid the hairsplitting that that judge walker you commented on but obviously the new york legislature did consider it airs because if they did they wouldn't have gone to the trouble to make this change right in fact they the commission came up with specific examples one of which i read from page thirty eight of the brief and said we we want to capture those and we can't now so it's a it's a substantive change right i think it's a  when you considering state law in effect state offensive states have a couple of different ways of avoiding of ensuring that their fences cover the conduct that they want to criminalize they can do it through legislation they can have the courts apply a definition that is perhaps not one that other courts would necessarily have reached from reading the text of the statute but state supreme courts are not so burdened they can interpret state laws in a way they get makes them broader with the defendant did in his brief in his opening brief was identify state statutory law that included this text but he didn't do is he didn't go state by state and identify and determine how the state supreme courts and the highest courts of in those states had chosen to interpret it and that's significant because we pointed out in our brief just with two examples oklahoma and washington they have personal presence requirements yet they the highest courts in those states interpreted their statutes to achieve a result remarkably similar to what new york had chosen to do through legislation so yes you're correct new york was trying to achieve a substantive result in the same way that the state supreme court in the highest courts of other states chose to achieve the result and i'll point out that  government didn't attempt to exhaustively go through all fifty states and see how the state supreme courts in each of these states addressed that this argument has been raised and additional appeals for example in the united states  johnson which is going to be argued next month with the government in that case identical data more exhaustive analysis of all the different state statutes i'm not sure that that's something i think initially on plane air review it's the defendant's burden to do that in the first instance and so i'm not sure that it's a it's a problem that we didn't do it in our appellate brief but if the court's interested there are other briefs in other cases where this issue has been raised that address the number of different states that have chosen that the use of threat of force upon another person in the course of committing a larceny for the purpose of either preventing or overcoming a resistance to the taking of the property or the retention of the property immediately after the taking at there's another part to it's its legislative i take it that the generic term compass is that it does your honor and i would defend it made a slightly different argument about what generic robbery included in the district court and to the district court had occasion to think about what is essential to generic robbery which he pointed out is the generic robber judge ross pointed out below is that what distinguishes generic robbery from other types of theft offenses is the immediate danger to another person now the defendant is saying that person has to be a person with property in his hands or at least extremely close by but given or or or or or has has some interest and you're saying that it would have to be a interested i'm not sure and i have to i think i have to agree with the defense here i'm not sure it's significant to the person in fact it holds of an ownership interest in a property for this if you are for example someone who has been tasked to mind a store if you were a store detective or something like that you don't have an ownership interest in that property yet if someone were to use force or but he's drawing a distinction by trying to look at the tenet of a nearby building or a pacifier a good samaritan or a customer in the store who wants to wants to stop crime something like that what would you say to those people i think that if in a defendant uses force while attempting to flee with property against those people that is robbery it is it is sufficient under the generic offense of robbery comes up to him and says wait a minute you can't be taking this property as a customer you know maybe you retired policeman or something like that and the defendant punches in the to telephone his office and direct an employee to take money from the safe delivery to and he of the defendant that that is that must be new york robbery at least the commission thought so he felt more robbery i think that's an interesting question i  not sure on that point and frankly your honor that is that is a little bit different than a lot of the other types of robbery offenses that other states have have criminalized both with or without a person or presence requirement so i i'm not confident that that's the case but i think to that point the fact that new york hasn't decided the case like that as robbery is significant obviously the commission's sort of intention is is provide some evidence of what the content of new york robbery is  but i'm not sure given that that was fifty years ago and there has not been a case that anyone can find that is consistent with those facts i think that suggests strongly that that's not actually what new york robbery is sure that that's it's the banks partly i think it certainly is someone's property and i agree that my inclination would be that using force on someone else and attempting to extract property would be indirect cost you see example for example or use of violent force but i think the court court's approach has been to overlook that sort of hair splitting and look to what's really happening there and if there is a threat of force completed in effect and that doesn't make it not robbery and thank you thank you your honor sir first i think as both judge shay and judge jacobs have indicated smith poses no binding obstacle to review of the question presented in this case nor does it pose a preventable obstacle for the simple reason that the smith court was not presented with this argument this court is free to apply do novo review and consider the question afresh judge jacobs you hit the nail on the head person from your person that's what generic robbery requires that's what this court said and walker that was a definition reiterated by this court in jones to it was that were present it was the definition proposed by the government below and applied by judge ross below and as the as the questioning in the new york case law makes empty buildings and it criminalizes the use of force against non owners of the property who come on the scene long after the taking is complete and it's not inappropriate to consider those cases as the ninth circuit's decision and strickland points out in light of the minimum conduct rule cases concerning the outer bounds of the robbery statute are exactly what this court has to consider we need a case right you can't just use our imagination right this yes your honor this court has to find a realistic probability of prosecution we certainly have sloan and dan a way as to the hypothetical that your honor has discussed involving their right to theft over the phone we would argue that if a prosecution is permitted by the statutory language and contemplated by the legislature that demonstrates a realistic probability it's not additionally necessary for us to identify a case  finally i want to talk in practical terms about what the rule we're proposing means it does not mean that no robberies will count on the guidelines as we point out in our reply brief many state robbery statutes will continue to count under the elements clause in addition many state robbery statutes the majority of stay robbery statutes do include a person or presence requirement nor is it the case that a district court in sentencing needs to ignore the fact of a robbery whether it's counts under the guidelines or no that's the import of this court's decision and jeanette if the district court is convinced that certain conduct has occurred in the real world and that conduct is proved by competent evidence the district could consider that conduct as a thirty five fifty three factor judge does that every day this comes up in the context of priors not not of the current sense often true and so we're looking at whether or not there's an enhanced component and that's based upon a sentence that's been imposed in the past and has nothing to do with the argument you're making absolutely right my point is only this judge walker under genoud and under ordinary principles of sentencing the court first computes the guideline range indeed and we're arguing that judge ross erred in her computation of the guideline range and then the court is free to take a broader perspective and consider the nature and circumstances of the offense as well as the history and characteristics of the defendant which would obviously include the defendant's prior criminal conduct so again we're not you've done that here you obviously think you've got a chance at a better sentence if we if we vacate we do because we think it's at this point fairly well established the guideline range of the powerful anchoring effect and in this case the guideline error increase the range from what we can we contend that the correct range was thirty seven to forty six months judge ross applied a range of fifty seven to seventy one months she said she was giving a modest variance to forty eight months if a proportional variance were applied on remand do pretty who has it now serve twenty seven months of straight time would be entitled to immediate release again judge ross isn't required to give a proportional variance but the parties would be free to present arguments as to why that would be appropriate but again you now makes clear that when a district court short circuits the thirty five fifty three process by pairing and its guidelines computation this court's proper role is to vacate and remain and why should a court that agrees with you rely on two crystal clear principles walker's statement that generic robbery requires a taking from the person or immediate presence of another and smith the new york court of appeals decision in smith's statement based on the legislative history  the statutory or vision that new york robbery does not in addition we cite in our briefs numerous cases of this court including mccrimmon and gmez finding the third and fourth prongs of the plain error test satisfied based on comparable or indeed less severe guideline errors mccrimmon for example with keith you talking about the when we last month know when you're all right when i said i spoke too fast the smith case i mentioned just a moment ago is the new york court of appeals decision smith so those are the two plain principles were relying on this court's decision and walker which says that generic robbery has a person or presence element and the new york court of appeals decision in smith which says that new york robbery does not and so again to return to the third and fourth progs mccrimmon for example was sentenced within what he contended was the correct guideline range unlike du pree who was sentenced above what we contend is the correct guideline range and that error was found to satisfy the third and fourth progs thank you thank you both for thank your honour's expert argument we will reserve decision