quintessential example of unreasonable perform its further found that as of twenty thirteen there was clear supreme court precedent detailing the analytical framework for determining whether a crime of violen existing case twenty thirteen provided the genius abduction statute does not constitute a crime of violence for purposes of the sentencing guidelines mr morse's trial counsel however didn't point that out to the district court despite having at least three opportunities to do so to the contrary trial counsel affirmatively represented that mr morris was a career offender because a prior virginia attempted abduction conviction as a result of trial counsel's non objection district court before the court as presented by the defendant was whether virginia's abduction statute was a class a violation that was the issue before the corner wasn't whether it was a crime for purposes of the sentencing guidelines further though the government did raise the crime of violence issue and in one paragraph you didn't cite any case law on that point it didn't engage in any of the categorical or modified categorical in cruise and further it in and argued almost entirely from the facts of conviction for that defendant's particular case so i think first washington doesn't stand for the proposition that virginia's abduction statute is a crime of violence but also the ineffectiveness standard does take into account duties of counsel so one of the things that counsel would have done when researching the guidelines and potential jackson's there to possibly identify washington but on the other hand  significant body of countervailing case law that went the other way in particular from the d c circuit which in two thousand and nine and said for purposes of the guidelines region is attempted abduction statute is not a crime of covered through a match to generic kidnapping in you know i'm certainly prepared at least for the sake of argument to assume that yes the d c circuit opinion should have been turned up but then there is a separate question about whether it's covered by the residual clause and that's where washington comes in and a bunch of other cases saying that even crimes that can be committed kind of by deception and without actual use of force can come in under the reason so what's counsel supposed to do with all of that how does that strongly suggest a number of different elements in the disjunctive in each of those elements can satisfy or can support a conviction and this gets to the point that you have to look to the least serious means under the supreme statute your honor but because there are no shepherd proved documents in the record for mr morris you look to the least serious means that would support a conviction under the statute and so considering abduction that can be conviction so it makes sense that cases from other circuits that consent are more serious abduction statutes would find that those statutes satisfy the residual clause but what we can't do under this court's case law is to say kidnapping if you can commit a crime through deception or stealth is it still covered by the residual clause in a point to a bunch of fourth circuit cases saying that escape by stealth pickpocketing things like that they're still coming in under the residual cause no question that you can commit them without force and by stealth but there's still enough of a substantial risk that they'll be a confrontation that it's like burglary and it comes in under the residual clause so why was that because that's all for circuit case law and it's basically rejecting the premise of the argument very articulate argument for why your view of whether or not abduction virginia abduction doesn't satisfy the requirements of a crime of violence of course just harris is just engaged with you showing cases that should  serious potential risk of injury in order for that offense to constitute a crime of violence in the abstract and this is where i would distinguish the other cases that the district courts and where i would point you to the more recent cases from this court residual clause i think probably hemingway i'm sorry martin the federal bank robbery case which said that you know even though in some circumstances bank robbery is committed by a defendant who takes a she was being kidnapped in honor of virginia's induction statute that's not always the supreme court of virginia has held that no heightened intent or no aggravating circumstances are necessary to support a conviction the mere unlawful the victim on her virginia connections doesn't always necessarily know that he or she has been abducted and a number genius law similar to new york saw abduction of a child or a minor also and thirteen was it clear already that when we were looking at the residual clause we were applying the ordinary case version of the categorical approach to i believe it was or is it isn't the fact that there might be one or you might be able to find one or two was not as important as it is under the straight categorical approach because you're really supposed to look at the ordinary case well it's true that you look at the ordinary case your honor but that begs the question of what offensive connection and what the government tries to do exactly but the court has qualified that to say that even in the ordinary case it must be most if not all circumstances that involve serious potential risk of injury so turning to prejudice  a number of reasons this this case was unique in its facts the first since the memorandum the trial counsel's minute is where he ferment really misrepresented that mr morris was a career offender because of this attempted abduction conviction mr sentencing you solicited argument and briefing on that point on three different occasions she continued sentencing for the sole purpose of ensuring that the p s r was correct that the attempted abduction conviction could serv willingness to engage in the requisite legal analysis it is very hard to figure out what a judge would have done had an argument been made that's the whole point of ineffective assistance there was no no adversarial process i thought we've held in other cases that let me ask this question it's not a subjective question about what this judge likely had done it's an object a question about is this a sufficiently strong argument that there is a reasonable probability that a reasonable judge would have  ok and there's no i'm sorry there's no indication in the record from the judge that would have said regardless of the stories presented to me or any other consideration i want to apply the sense that i did  of the question of whether or not council adopted a reasonable trial strategy by picking options over option b and where i was we don't act with a good deal of deference and we don't engage in hindsight a part of that is the sort of the analysis of considering whether or not counsel at least considered the proposition and decided or ever reason that that was not an appropriate way to go i guess the problem i have here is what would have been the downside of making the claim we're making the argument well and i think that goes to a core point about what these principals are saying and when it comes to questions of law like this ineffective assistance standards don't compel attorney to raise every debatable legal issue and it doesn't have to pass through a screen of let me explain my strategic reasons for making that argument that it is goes back to the basic  take the ineffectiveness standard and say look this attorney was ineffective because there was a debatable issue that you could've raised and so now we're going to litigate it on clareview ineffective assistance because he didn't that this would i think really distort the way the adversary system works if every debatable issue that was not raised by an attorney had to be shown to be ineffective assistance standards are not designed to do and one one way to come out a problem is what the supreme court and harrington versus richter sandwiches ineffectiveness can function as a way to escape rules of waiver that a particular lot of argument would provide an avenue of relief for particular defendant so how does the government view that standard how does how does  approach how does the government see that standard how much does it have to be beyond a jump ball before it strongly suggested i think it's a pretty restrictive standard t strongly suggested and you know the one thing that maybe is a counter intuitive about these cases is the very fact that there is this a lot of turmoil and crime of violen  divided lot of opinions and then supreme court unanimously reverses that what that is is in fact not the defense attorney should have been making these arguments but that it's very difficult for people to be sure of where the direction of law is going to go and an analogy i used in the briefs i think is helpful is if you are required to use a tool that is very difficult to apply it is harder to say that somebody made a mistake when they don't predict things accurately based on the excuse me this tool that's not very helpful and so you know the doctor had is not likely to yield accurate results and had for the sake of simplicity and not having a longer brief just look the residual clauses the stronger basis i will rely on that in the court with a lot of argument about whether virginia induction  would stick to the what i perceived to be the more straightforward way of analyzing the case and a point about the deception cases that i think are the deception means of committing the ninth circuit in two thousand and twelve and d hundred ninety four plants and they say that deception may be used to effect the kidnapping does not erase the ever present possibility that the victim may figure out what's going on and decide to resist and turn requiring the perpetrator to resort actual physical restraint if used carry out the criminal plan and i think that's the intuition that has like courts to send us more than intuition and that's the that's the the principle that they have used to say that the offenses that can begin with deception nevertheless satisfy the residual closet standard because in a case where you're detaining someone and you've deceived them into the detention they may come to figure out what's going on insufficient evidence and the way in which they said there isn't sufficient evidence i think it's really salient to what i was pointing out with delgado hernandez income plants which is they said that there was a failure to show  intent to deprive the victim of liberty and that's the part of unlawful imprisonment or abduction mapping the leads to the danger to them as you know i'm going to continue to hold and against your right i think in the context of this case it is most important when viewed against the backdrop of all these published opinions from other circuits that it's just it's a pretty penny on but it's consistent with with a broad range of  cases saying these types of offense count if you didn't have that it would it could you know have potentially a different way there is a course the fact that washington dealt with applying the supervisor of holland was there's a circuit split currently discordant weighed in on it about whether you actually use the categorical approach under that supervised release guideline and if you side with you that you do that and washington would be right on point if you side with a view that it doesn't then it would not but that would just be another un settled question and that would undermine a finding that as attorney was thank you your honor so i just would like to make a couple of brief points i think in remodel the first is to bring the analysis back to the specific facts of this case and the specific action or inaction the trial coun for attempted abduction only provided silence he punted to his client in every turn and we think here that silence is evidence that he was ignorant of a fundamental point of law because he knew it was an issue he knew his client contested it he knew and represented that it would have a significant effect on his client sentence had the career offender designation not that applied and yet he didn't say anything about the two thousand nine cases all the cases and in my considered judgment this is not an objection worth making that doesn't seem to make sense no your honor but i do think here that there's enough evidence through his admissions below to my definition if he's not going to make the objection he's not going to say things so i'm not sure what that gets you well i think i think the point is that given the strong body of case law including cases almost directly on point from the d c circuit and knowing that this point wasn't issue and could have a potential serious effect on his client's case one would expect a reasonable attorney to make the objection the fact that he didn't didn't say anything about it didn't write any briefs on  about but we don't have anything like that here there's nothing on the record suggesting that this lawyer and actually just didn't understand the categorical approach that's correct your honor i think it best what we have is there is evidence but to get back to your point just as i do think that humor that the silence is evidence sufficient to revive the presumption that counsel acted reasonably and the twenty to fifty five statute contemplates in evidence or here and so maybe that enough if the case law were sufficiently in plugs that rise to the level of an obvious objection to make so i'm not sure what an evidentiary hearing is going to accomplish  i think you know if you got to the point where you say you know it's a question what a reasonable turn he would have made and the objection was was this was there any strategy involved not raising the objection that could be something to examine the evidence you're hearing turning to to the residual cost cases that my colleague reference though he does cite burton it was true that that conviction