right good morning before you get into it there are a couple cases that i wanted to flag for the court that were not brother parents i'm sorry my name is dan paulson i'm representing mr peters if you have cases that were not cited earlier you have to submit  to say the government has done a very good job it finally going to bring twenty three letters citing cases that i think were actually brought up in the briefing so the reason we're here today is because mr chooses to serve in a legal sense the reason we know it's illegals because none of us part convictions qualify a troubling to me is that you're asking us to disagree with the circuit in which florida sets which is how things stand you know this categorically a match right why should we disagree and there are many reasons disagree with that conclusion the case that your honor is referring to is united states versus lockley so two thousand and eleven decision from the eleventh circuit and there have been a number of subsequent cases in the eleventh circuit cited to that defendant who is seeking relief under johnson needs to show that the residual clause was the exclusive basis right chance wasn't published you know it was not those are published cases you've got members of the court strongly disagreeing with one another there's a lot  the eleventh circuit has a lot of problems with each other they're not and you can see that because every time they issue a new decision based on based on walkley there's usually a dissent by one of the judges on the panel saying that there's a problem with the courts and also from your perspective in the sense that it's a case that talks about the burden of proof that a defendant has for seeking relief under johnson but it's also a case that looks to an armed robbery statute i believe it was virginia i could be wrong on that but there are now since i think is more thorough more well  researched and frankly falls in line with the way this court has handled johnson cases i think that the the lockley decision by the eleventh circuit is an outlier i don't think this court should have much difficulty disregarding that so yes the big problem robbery or at least under common law it didn't take that much force to commit a robbery and i would yet the floor is not unique in this regard it is slightly different i would say from say the oregon third degree robbery statu which this court found was not a violent felony in united states versus strickland was aside in the briefs but that is a relevant case that we can point out in a twenty eight day letter but it's a little bit different in florida because when this case when this court struck down  use as much force as is necessary to overcome the resistance of the victim and that's the same defect we see in the florida armed robbery statute but that's real whole lot of sure let's put this issue aside for the moment and talk about the fact this is an s o s e since we don't know for sure what your best argument that position is claim relies on johnson to and by that i mean the two thousand and fifteen case right well actually we point out something that the government has not advanced  real authority for why the government's rule should be the rule of the government has said that the defendant spurting this to show that the research will cause was the exclusive basis that the judge at the time of sentencing had only the residual close in mind the problem is that oftentimes sentencing i just don't say which cos they're relying on when they find something to be an arm curl if you're right about the elements cause it won't make any difference right well it does with respect to the burden and i believe that's that's what we're talking about in terms of identifying whether or not the court relied on the residual clause of the time of sentencing our position is it's not necessary stunning comment on a defendant to make that showing because a judge doesn't have to say at sensing what cost or a lying on and so the judge was relying on the residual clause that wouldn't be here i think that as long as you can say the research close could have been relied on the language that winston court relied on was  possibility that the residual clause was relied upon and your argument is that so now correct i think the language of the supreme court use them again it's was can the government disprove the risk of doubt that the johnson versus syrups in cases involving unconstitutional theories submitted to a jury to deciding whether or not a jury's verdict rested on an unconstitutional theory or not you agree we don't have any case law in  defendant because the court said i didn't find any link any reference to the research or clause in this court reversed and said that it appears that the defendant sentence may have been based in part on the residual clause and that was sufficient but we are firmly advocating for  essentially the problem with florida robbery is as your honor pointed out it requires de minimus force it doesn't require that the defendant use force capable of causing pain and injury if you look through all the florida cases that's the one thing that you do not see in their definition of force for yes to show by a preponderance of the evidence and here the appellant is advocating that they simply have a lower burden in the johnson case that they have to show simply that they may have been affected but the reason  know whether a person was sentenced under the recent actual close when ordinarily that's not a conversation that the sentencing court has had in the past well there was no need to have it and so i would say there is going to be a basis because the residual clause in the residual process we all know was found so vague that it was unconstitutional it would seem odd that a judge would sentence someone under the residual clause with no discussion from the government on the issue no discretion in the pre sentence report no discussion from the defense and that's what we have in this case and the judge in the seventy two years really not hard for me to understand because you didn't need to get into the elements because if you couldn't check off what you needed under the elements clause you had the residual clause which obviously covered a broad swath this is within that broad swath no need to talk about it anymore i mean this is before johnson we had cases where i didn't think about it very much wasn't convinced that he relied on the residual clause of all and also looking at the state of the law at the time it wasn't as if assault only counted under the residual clause or robbery only counted on the residual clause there was extensive authority that johnson to assess prejudice would we not yes your honor ok why does it make any sense that we would apply former interpretations of the term whether prejudice in a second or successive twenty two fifty five motion when the supreme court has found that the residual clause is unconstitutionally vague i think the question is not whether it's whether they've proven carry their burden to get your point about the burden of proof i'm asking you as a matter of common sense why it makes sense if this were a first appeal there would be no question that johnson to apply why should it make any difference that this is a second or successive attempt where you're dealing with a statute that the supreme court has found to be unconstitutional a big insofar as the residual clauses concerned i guess our position would be you know first they would still have the burden of showing that the residual clause in some way played played a role in their context so i mean it was brought up you know throughout these hearings and again you know when when when petitioners and other twenty to fifty five come before the court they have to show by that's not they don't show an absolute certainty or anything but there's basically at least something and here this record is devoid of any mention of theirs it's a clause and again the sentencing judge himself said he's not convinced that the residual clause played any role but even moving on to the held the florida robbery statute now an armed robbery and one of these was a robbery qualified under the residual so why isn't that enough sort of circumstantial evidence that if the series of decisions that seem to permit florida robbery and even armed robbery to be committed with out what we all normally think of as force or violence  i just have trouble seeing how that meets their definition the federal definition what's i mean it's a strong armed robbery and so the perpetrator has to use sufficient force to overcome the resistance from the victim and under johnson very definition of force this force capable of causing physical pain or injury and i think that's what they love and circuses this is when you're struggling over property with a victim that's capable of causing physical pain or injury  overcoming resistance from a victim i mean that is a strong arm robbery that is the definition of force it's capable of causing physical pain or injury i mean there's that and the mcleod decision from one nine hundred seventy six out of florida is the lady was struggling over her purse and was pulled down and hit her head and and was injured but that's that's why i think the eleventh circuit repeatedly has found that this force is sufficient under the i'm career criminal  robbery offense by reference to force or violence or force and violence these terms are not self defining and as we've seen in florida in the florida system the definition of force and violence is categorically overbroad and one final thought taking out that force or violence requirement that florida does have at least force or violence well it says the you may say it's watered down that so it doesn't require violent force but it's not quite like massachusetts it is and it isn't i guess in both cases the problem is the statute be just a minute misconduct so scuffles you know unwanted touching the victim's awareness that the property has been taken from them those kinds of contacts which again do not follow don't satisfy the child's one standard and then finally just with respect to the burden of proof issue this case has been litigated for approximately two years and during that time i have not seen the government raise any president or any authority for