burning is united states against maxwell  please the court my name is robert ruth and i represent the defendant appellant maurice maxwell in this case this appeal address is whether mr maxwell qualifies as a career offender under the guidelines and the career issue basically comes down to whether minnesota's simple robbery amounts to a crime of violence under the sensing guidelines so mr ruef i think you have a really uphill battle to convince us that it seems to have exactly that element well ok so that that's my for the first thing i want to talk about because good the there really are apart from the cases that we talk about in our grief there are two minnesota cases that came up in the pelleas pre that i think answer to question one is well first of all you have to understand in order to be force for purposes of career offender it has to be physical force and it  only has to be just mere physical force it has to be physical force capable of causing pain or injury so that minnesota statute is calling for force against any person to overcome the person's resistance or powers of resistance to or to compel acquiescence in why isn't that just a different way of phrasing the same thing it's not just you know we hold up somebody or well except that it doesn't require first at first blush it doesn't require physical force it just says force so it can be any kind of force it could be mental force it could be but now i actually though i'm i'm backing down from that a little bit because of these cases this state versus slaughter and state versus stand her suggest that it has to be some kind of physical force but the level of physical force can be much much less than what would cause pain or injury and the state versus slaughter says that pushing or grabbing during a fast elevates a fast to simple robbery so any level of pushing in any level of grabbing would be clued pushing or grabbing that doesn't cause pain or injury well in in context it's got to be i mean the statutory language is kind of enough to overcome the person's resistance or powers of resistance et and so i'm not sure every shot of the would you know but maybe some would i could see that the minnesota courts might consider the facts all right except that it doesn't have to cause pain or injury it just has to overcome resistance and actually the best case really to look at is state versus stand for and this is another one yet you really have to read the case carefully because at first blush it sounds like a bad point because stand up or sad fifty degree assault is a lesser included of simple robbery right so when you first read that you think wow assault that salt sounds like something that would cause pain or injury but then look at the definition of fifty three solve it only requires what they call bodily harm and bodily harm includes pain injury that that would be the career fender pain injury illness or impairment of condition impairment of physical condition so if i sneeze i mean what's the difference between impairment of physical condition injury well like for example if i were to provide you with an intoxicating substance that would impair your physical condition that would be bodily harm that would be fifty three assault and if i did gave you an intoxicating substance in that context and took your wallet that would be simple robbery but it wouldn't be a crime of violence  now i think that's the best example because it's the most easy easiest example to understand because you know this in touch i think that's a plausible way to commit a robbery a simple robbery is through an intoxicating substance and quite frankly it's not that uncommon that people slip someone something and then commit a crime another example though is the illness line if i sneeze on you and cause you to become ill and then in the context of that take your purse or wallet like the other example better the intoxicating beverage but i guess i used the example of sneezing there are multiple things that i could do that that would cause i'm still sitting beverage the use of force against someone to overcome their resistance as opposed to you know luring them in some other way i don't think giving somebody a drink is using force must hear drink it i don't want to know drink it that's force it doesn't say physical force natural use of the term using or threatening the imminent use of force to overcome resistance then you look at the aggregate data version of robbery in minnesota and it does seem that your argument your brief was the minnesota statute would criminalize self harm and you know we couldn't find any examples of that you know that's true it but that's it that's something else that's not the question of the element of force that's the question of the element of any person versus another ok now there are we couldn't find examples where we talked about self harm but the term any person and the term another are terms of art and another when you when i when i say another that means everyone in the world except me and the only other way to phrase it to include me is to say any person and we see there are examples in the minnesota statutes where they say any person so you know you also have you know the government points out things advisory comments that indicate that any person was meant to cover this situation x threatens to kill address this particular fact pattern but they did but this element only examples to me you didn't show us a single case not right and i because but that but that that doesn't change that they were in the statute in a way because the case hasn't come along yet baby but they were in the statute and used a term of art that included me the robber along with everybody else in the world and it to me why would you why wouldn't you just say another most chairs don't always pick quite the right word but if the legislature tells you that they mean another when they say any person well they told us that that as an example one example has another but they didn't tell us that was intended to be limited to another and i think they didn't tell us that in the clearest way when they said any person i'm going to keep the rest of my primary battle time thanks to the united states may please the court i'll start with the question of force at issue here i think it's very clear on the face of the statute that it does require some level of force that is sufficient to overcome the resistance of the victim and that would be physical force and i think that the question is does that equate looking at the phrase into onsen obvious is supreme court has told us to be careful about the these things is all physical force can overcome your resistance automatically something that's going to cause physical pain or injury that strikes me as a somewhat higher standard well i would know your honor that it's not that will cause physical pain or injury but maybe merely the kind of force that is capable of causing physical i think that is a slightly lesser standards of just a paper cut count well i don't think that would count as robbery under minnesota law and if you look at slaughter in the way that the court has minnesota supreme court has interpreted what would be sufficient to constitute robbery to a law that that is anticipating some level of force that is slightly higher then perhaps the touching necessary to take the object from the victim and and they are point to some scratches on the neck of the victim as evidence that the kind of force that is necessary constitute robbery was used there so what about the lack of the word physical in the minnesota statute i mean we've had a number of cases where we've discussed the fact that psychological force can be very powerful you know there's a mother and there's your child and you say to her you know if you don't give me your purse i'm going to hurt the child or i'm going to take your child away you're not going to see i'm not in a way that's going to hurt the child but it's going to deprive her of the child that would be psychologically agonizing for the mother and yet seems to fall within the statute but i think if it it isn't necessarily how the minnesota legislature and courts have understood the statute i think if you look at the statutory scheme that they've laid out that that kind of force would be more properly considered under coercion statute which is kinds of force that cannot amount to robbery into that kind of force would would be included there you agree though that look that this missive minnesota courts also not think so yes if you look at cases like slaughter they reference for physical force such as pushing her grabbing and that is i would not the kind of force capable of causing pain or injury so it is it does meet the johnson standard and the kurdish johnson standard is not  force capable of causing serious bodily injury or force that actually results in harm it's just force that's capable of causing some pain or injury so i think it does meet that standard i would also note that we're not talking about a necessarily absolute certainty we look at the text of the statute and as it's understood by the courts of minnesota and make the best estimate of what kinds of conduct are compassed within the statute and i think it's telling that defendant has not pointed to any cases that encompassed this kind of conduct there you know  and the supreme court has said under doing is alvarez that we're looking for a realistic probability that the kind of conduct at issue would be encompassed within the statute so certainly i don't think that those kinds of cases would be within the minnesota setting i don't think changes to the guidelines it tomorrow at the moment you know for the next few months has a very short list of specific crimes burglar vidual an arson extortion anything involving explosives we all agree minnesota's simple robbery is not and you of those things it too is not prefaced by anything like the language that would say among other things these are offens covered and the fact that the commentary includes a much longer list of crimes could certainly be attributable to the fact that when eighty two was first written the residual clause was there so you can see that the commission might have wanted to remove all doubt for a somewhat longer list but i'm not sure that as things presently stand we can just expand it to with the list of crimes in the committee knows yeah well to be fair the defendant has not raised this argument and it interpret ing the residual cause they're providing an alternate framework for determining what is and what is not a crime of violence and i would give you a thirty something i mean i went back and read i mean i probably read a million times of four b one point two and i can't find any language that says crime of violence is a lot of things plus these two things and i don't list it's it just says a crime of violence for purposes of four b one point one is you know something that has an element or these things in the list or actually now the stricken you know three residual clause well i would point to three things that i think make clear that the residual cause is not in fact interpret in the commentary it supplementing the commentary so we take as a whole the text and commentary a for b one point two as the definition of a crime of violence and the first is the to and structure and that would be that the forty one point two is designed to do three things it provides a definitional framework for interpretive was the current violence it also provides some crimes that are always crimes of violence and some crimes that are never crimes of violence and i think from that we know that the commission is not working through the definitional framework to determine that those crimes are never within the residual cause they're merely providing an alternative route to conclude that some crimes that there always are always are not crimes of violence the second thing i would point you to is the history and how the guideline was was determined in fact the numerated crimes in the residual or in the commentary predated the residual clause so that the commission amended what was in the text of the guideline and left the numerated list i think that if it weren't fact interpret in the residual cause that would be somewhat of an unusual way for them to do so and the third thing i would say is that the court in route did not say that conspiracy and other in court crimes are within the definition of a crime of violence because it's within the residual cause they said it stands alone and it is authoritative outside of the meaning of the text of the guidelines so i think that you know as i mentioned that that is pending before the court in that case but certainly has not been decided so we are arguing here and also arguing that robbery in minnesota is within the generic definition of robbery robbery is enumerated crime and will continue to be an enumerated crime after the guidelines are amended in august so should we until we hear with us certainly if you would like to go that route that would be reasonable for the court to do but i think that it is very clear that this this case can be decided and should be decided on the elements cause question because i think it's very clear that minnesota robbery does have as an element the sufficient use of force as i noted in the brief could also resolve this case would be fairly clear from the record that it would be unnecessary for the court to send it back a third time for him to impose the same sentence a third time based on the factors and thirty five fifty three if there are no further questions we w is the government has done a very good job of showing us a lot of different minnesota cases and this pointed out that look there's no medical sort of case that's talks about psychological force well so what it hasn't come up that they left it open in this they haven't said psychological force doesn't count it's psychological forces insufficient perception for simple robbery and so if the fact that that hasn't come up yet doesn't really matter this that the legislature left it open when they said any force not just physical force and also this business of rop and rollins was not raised in our brief but i did file a rule twenty eight letter pointing it out they believe that the state along right now is against all right thanks as well to the government will take the case under advisement and the court will be