yes good morning in may it please the court my name is scarce and alton i represent the united states in this matter i would like to refer two minutes of my time for a report on the issue in this case is whether california robbery which includes threats to persons or property remains a crime of violence after the aug twenty sixth amendment to the career offender guideline limited the definition of extortion to crimes involving fear or threats of physical injury because physical injury as used in the context of extortion means tangible injury including injury to persons and property as ok you cite definitions of physical and entry and webster's new international dictionary nicol cites the definition of physical in black's law dictionary why should we use webster's and ignore black's you are it's not just the dictionary is the supreme court also defines physical as clear in meeting and it's not what physical means and what physical injury means it with english is a language of  well both terms of arts and idioms and so i don't think this is helpful to take physical injury into bottom up the question is particularly in the context of the guy whines what just physical injury me yes your honor and we believe that particularly in the context of not only the guidelines but in the context of the extortion and the extortion guidelines and so the term physical injury is a term that is used for example in the california robbery statute refers to injury looked at it carefully that the directly relevant guideline here has uses the term in the other subsection but it actually doesn't  simply different terms you are our point is by looking at that particular guideline for b one point two when the commission says says that it wants an injury to be directed towards a person it says towards a person so  except that it that phrase is completely different it's just not a parallel sat's it's physical force to the person of another which is not it's not saying you know physical interleague of a person honor we actually think that what would be helpful for the court to do is look at another guideline which is the courts that the commissions actual extortion guideline which is found in section two b three and we believe that section two b three highlights the distinction that the commission itself makes between what it considers violent extortion and nonviolent extortion and the purpose of the amendment in twenty sixteen was as the commission said to limit extortion to only violent extortion and  to be three the commission has two levels of extortion they have to be three point two six store sion by force or threat of injury or serious damage and to be three point three which is blackmail and similar forms of extortion in the application note to to be three point three which is the lower level in the nonviolent form of extortion the commission says this section applies only to blackmail and similar forms of extortion where there clearly is no threat of violence to person or property so the commission itself divides extortion actually i think and violence to a person or property it's not the term is your system would only work if some were if the guidelines i mean there are many instances in the guidelines were physical injury and used to mean injury to a person's without without any more it's not rock not correct that is not correct or are actually in the guyland there only eight guidelines that use the term physical injury there are fifty three that use the term bodily injury bodily as an injury is used and you think there is any in which physical injury i mean for example to see one point one if the offense involved a threat of physical injury or power property destruction yes your honor we believe in that context in that guideline physical injury means is meant to be injury to the person however in this guideline which is the which which is a parallel to the extension guideline it parallels the distinction that the commission itself makes in the extension guideline which is between violence injuries injuries to person or property which they define as a more serious more violent injury times that it's used in those context no you're on friday i think imagining there aren't any but the commission uses the term bodily injury overwhelmingly when i mean means to choose to specify injury to a person let me ask you here's a concern that i have and you don't exactly make this argument but this might be a better argument for you to make them and also ass counsel for the appellate this same question ok lopez we stated the generic definition of robbery as quote aggravated larceny containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person ok and then then we hold that for a state crime to be equivalent to generic robbery it must require property to be taken from a person or a person's presence by means of force or putting in fear now i think nichols argues the definition given for extortion in the twenty sixteen amendment does not cover threats to proper e property as did the prior to marriage definition of but if he's right the new definition of extortion would appear to have no material difference from the generic form of robbery so the commission would have no reason to include both bribery and extortion in the enumerated offenses if the two offenses are indistinguishable on top of that while the commission expressly intended to exclude nonviolent harm such as reparative reputational harm there is no suggestion in the legislative history that the commission intended to overrule our precedent on chanelle record stores including threats  property so what do you think about that your honor i think that is correct that the commission only cites two nardella and its in its narrowing of the definition extortion and it only says it means to choose to narrow it to include non and i think that the issue was not in any way correct your honor i think that the issue is it's like a venn diagram there is robbery and california robbery in encompasses the generic definition of robbery then there is limited to injury to a person correct your honor although the person i wanted to reserve two minutes of my time well that's fine but that that's right there's this there is there is space between the two considerable space there is your hon however we don't think that the commission meant to extortion which is what defendants definition would do because it would take out of extortion the paradigm in a crime of extortion which is hey buddy nice shop you got here seamus a lot more for example t burglary now burglary is likely a property damage crime i mean you have often you have to at least knock down the door but they it was clear that they were concerned about injury to people and that's why they took  about how there's really very little little likelihood that people are going to actually get hurt in a burglary at that is how the law has evolved over time yes your honor however we think in this case extortion if you follow the defendant's definition  good morning may it please the court hanny for koori on behalf of mr nichols i'll begin with addressing judge callahan's question about these dueling dictionary definitions and i think the simplest way to answer your question your honor is this court in  versus middleton which is cited in my brief look to black's dictionary to define the term physical enjoy isn't the real problem that physical your is if you can't look up the term physical injury in webster's dictionary it's not in this case when you look at the black's dictionary definition it has a direct reference to bodily injury which supports our argument that physical injury in the context of the extortion i must say that this whole thing is very frustrating at the commission is sitting there and writing this and all they had to do was be you know i mean i think i'm pretty sure i know what they meant but why the hell did they do it this way it's ridiculous your honor i can i can certainly appreciate the court's frustration and i would notice a few this sort of going back to like calling he up and asking them i mean you know unlike the usual statutory definition when you have live bodies sitting there who just wrote this well well your honor i think i think a couple points on that but first of all as your honor has already referenced there is actually a meaningful difference argument i can appreciate that this whole enterprise can be frustrating and counterintuitive and i've heard that from many other judges i think sometimes however courts tend to forget what the underlying rationale behind this whole enterprise was to begin with and if you go back thirty five years ago to tailor w the supreme court was really concerned about was fairness to defendants and ensuring that there was an equal playing field well finance is the real problem is that this is my understanding is that in the criminal conviction context where you would open up a major can of worms if you started getting facts specific because we know that justice thomas and others would interest stories and say and would like to do it anyway and jurors this now or in the current lines where we don't have that problem but the fact that they're both being treated the same pretty much and is why it comes out the same way in the highlands that's my understanding of the background here and why the whole thing is frozen but it doesn't really matter because just that's what we've got it is what you got here and the supreme court in both matheson to camps of recently said that the focus has to be on elements and so when we do focus on the analytical approach that applies it's clear that the district court below was correct and i would note that the tenth circuit has a doc did our view of extortion under amendment seven ninety eight as well as to why is it true that there i mean there are some instances where the guidelines say physical injury to a person when a little bit there's at least one or two but there's none in which physical injury but there are several where where they use physical injury or property damage they obviously don't mean property damage  disagree with the government's approach of looking at the extortion guideline to understand what the extortion definition within him and within the forty one point two context applies i think of course and we've done it in our brief on pages twenty three and twenty four and obviously we could look to other sections of the guidelines to give insight into what the sense in commission meant and i think as i think the government itself pointed out when you do that it supports our view that physical injury and property damage  different concepts and they're not quite equatable with one another and to go back to make it really simple i was just thinking of playing the way people speak in real life i don't think anybody would say my i pad has a physical injury to it if i've dropped it on the sidewalk in the screen has cracked would say my i pads been damaged and your ass getting one if it if that's been robbed is that a crime of violence i don't think that they would say no either if you want to get down to simple common sense that's true your honor and i can appreciate that concern but again when we're focused solely on elements and if we go back to the underlying rationale of taylor part of the problem particularly in california is that state crimes are defined so broadly that while somebody ma hear the term robbery when you actually look at the conduct covered by penal code two eleven specifically it actually may not match what some people might think of as a violent sort of robbery and i would also note that taylor itself was looking at california burglary and that was also i think like robbery a statute that if you talk to somebody on the street and say you know what do you what is your concept of burglary you know what they would probably say is very different than the way california defined the term let me ask you this though given that the sentencing commission expressly intended to exclude nonviolent harm such as reputational harm what should we make of the fact that the commission was silent as to whether it intended to overrule our precedent on generic extortion including threats to property well i don't think the sentencing commission needed to say anything about it because about best lopez specifically because it was talking about in lopez hinges on our delap and so does every circuit court case looking at the definition of extortion for the purposes of the sentencing guidelines prior to the amendment do you any idea what i mean it is the problem presented by the america crimes you're going to have to confess i'm not quite sure if other circuits have taken a similar approach to take a state statute in lump it into two separate crimes what i will say two eleven and i'll note and this may be sort of also speaks a little bit to judge callahan's question you know this court's already said in other contexts there are problems with penal code two eleven so for example this court's already held it doesn't satisfy the force clause for approach of lumping it within robbery and extortion and i would add one other point about this and that is in the government's brief does sort of make the point that trying to find my notes here that  well let me say this way even in best for lopez itself this court in footnote eight said it was unconvinced and as i'm reading a direct quote this is page eight ninety one footnote it was quote unconvinced that a taking by threat to property necessarily entails gender to the person end quote and so even investor lopez ten years ago this court was already highlighting that penal code two eleven is not you know despite the title of that robbery which obviously sounds violent and intimidating that there was problems with the way the statute was written that it was not clearly overly broad in terms of what kind of conduct would satisfy the elements of the crime when that's all that matters under artillery for example i mean they're almost always property damage quite often i mean less somebody left their door open to break a window or break a door or break something that's absolutely correct and from the very and again i've been talking about taylor from the very first case taylor which again looked at california section if you look at section four fifty nine burglary said this statute is much broader than statutes in other states that are narrow but the one thing we know about the commission in terms of reading the commission's mind is that they took out burglary because it didn't have a danger to people of enough enough of a danger to people absolutely or honor and again i think that this amendment is consistent with what the sentencing commission was trying to do into narrow the types of crimes a fall within the crime of violence definition to only one crime numerated crime that is relied on to the contrary is ours so what do you say about that well i think that just proves the point that if the sentencing commission want include a crime encompassing property damage it could have done so explicitly and it has that al i mean doesn't are him seem like you don't i mean it doesn't necessarily change or a person but when it does it's really really really dangerous and often and usually does and sense that even if you're just trying to burn up one building you're going to come and kill somebody else well i again i just seems like a in it  avoid a scenario where we have to sit in specifically look at the specific facts underlying every particular conviction which is expressly what taylor forbids you have to look at what the elements are if the sensing commission wanted to include property based type crimes it could have done so it had done so in other portions of the guidelines and it did so specifically in forty one point two when it a expressly included arson as an enumerated offense and prior to amendment seven ninety eight when the case law defined extortion by the looking at the generic definition which collude clearly encompass property crimes that was permissible this amendment amendment seven ninety eight narrows that extortion definition in the limits those kinds of crimes the sense  commission can go back and change that if it wants it can include other sorts of property crimes if it wanted but what it did here was clear i think ok thank you very much i'd like to answer judge callahan's question which is why didn't the commission include besar a lopez if it meant to overrule besar a lopez and i think that it's clear that what the commission believed that it was doing was starting with a broad definition of extortion which included threats to applying to one state yes your honor but if the commission said meant that he was also shaving off property in addition to shaving off reputation it would have said we are also shaving off property that's a different point the question is would have said it is the happiness of the commission and i don't know the answer to this if it is overruling a single stroke or hurting a single state to say that it's doing it i don't know the answer to that question or honor but if the we have to take the commission at its word which