may please the court the district court committed a sentencing guidelines error and a statutory error in this case the sentencing guidelines there was the imposition of a sixteen level enhancement for a crime of violence mr nunez was drano sex offense for conspiracy to commit aggravated robbery was not a crime of violence under the guidelines because it did not have as an element the use attempted use or threatened use of force because for the the additional reason it does not qualify as generic robbery the statutory air was finding that the texas offense was an aggravated felony on the grounds that it was a crime of violence it was aggravated felony again because it was not a crime of violence in that it did not have as an element the use of attempted use or threatened use of force against another because the use of force issue is common to the sentencing guidelines air and statutory air all discussed that first of then proceed to discuss the guys on the additional guidelines issue of generic robbery do you have to win on both the eighteen u s c section sixteen a i just need to win on the use of force prong since section sixteen b is unconstitutional and that is a statutory issue under section sixt the texas conspiracy to commit aggravated robbery is not a crime of violence under either to one point two or sixteen and because it does not have the required use of force in bursts this court looked at the least culpable conduct of the texas robbery statute that is causing bodily injury during pfeffer and held that robbery by injury does not have the use of physical force as an element because texas defines bodily injury expansive include minor physical contacts that are more than mere touching the court concluded that such minor injury is not sufficient to be the use of violent or destructive force as required by the supreme court's decision and curtis johnson violent or destructive force as you know that there's been such a focus that under the a c c a it's a violent felony we've got to have some violence in here and that's not been the force under the the the focus under the sensing guideline question i think that this court has said repeatedly in domingo's for one case that the force under the under two a one point two is violent or destructive force in other cases are brief also so i don't think there's any parting of the ways and i think the courts also said that sixteen a and to a one point two and aca are equivalent so but i mean we were having a massive evolution if you will of these things with each supreme court decision so johnson is fairly new to some of these cases are older when i don't know the world seem different from my perspective than it does an hour so i'm just asking repeatedly said that if a court i mean just to get to the another problem if the courts talking about like johnson and castle men i can address that you know where the government's trying to back off of force needing to be violent force and frankly your honor i think that argument is completely untenable if you look at curtis johnson the supreme court said force is a term of art and but here in curtis johnson we have a phrase violent force or violent felony and that term of art that common law term of art does not apply we do not apply that minor force where the term violent or violence is paired with it and that term is paired with force under the sentencing guidelines to a crime of violence now the government then wants to somehow take that statement and then move to castleman and say see castleman use minor force but they ignore the castleman again emphasize that curt is johnson was the use of violent force and they then said oh here in the misdemeanor saying common law force doesn't apply here because we have the word violent and then going to castleman and say all right it does apply here because we have domestic domestic misdemeanor and somehow say ok see the supreme court sound like they're overlapping a little bit you get in there your honor that would depend on how far bird the answer is yes possibly it depends on how you read bir contrarious if you decide that you don't need violent or destructive force then you would need to look at what kind of force texas requires and decide whether that's going to meet with whatever contrary decision you made in may is contrary to see i mean you would still need to apply if the government win race contrarious you would still need to look at the decision which i don't expect they will by the way but if they were somehow to win there you would you could look at what you said and raise contrary which doesn't involve a texas statute right involved  read this correctly he received the letter of the of the of the higher range but he would be out should have been if you were to prevail and the judge was also sin sin and sin against the law in he would have been out may isn't that right so and so it's already past the time for which he would have been out if you were successful so this for six more months or whatever we're making  isn't necessarily going to decide that burris is is wrong because you still have slight force and that may not qualify you see what i mean you can say causing injury isn't necessarily use of force but you can still ask ok what kind of injury do you need to have and burress is very slight and so again i guess i gotta get to my same answer is you have to wait and see what race your honor it would be or could be twenty seven to thirty three but it's in that twenty twenty to thirty s range so and i'd ridgeley in one brief as i came off of it my reply brief said now wait a minute under good boy i don't fortunately don't win on the guidelines aggravated felony ok so then you would it would be february fourth two thousand and nineteen to october fourth two thousand and nineteen would be the correct range that yes that seems correct your honor i don't have it in front of me i'm sorry the correct range would be now i have thirty three to forty one months without the plus sixteen but with the plus a and he is range was seventy seven and ninety six months and he got a mid range of eighty four months from the court the government asked for the lower range of seventy seven but he got mid range so i don't think you should wait i think that we went under burrs on least under the first argument and i don't doesn't result in a non bonking cetera et cetera i could but i hope i don't your honor under the sun to esteban hernandez per judge king the court hello in two thousand and six that generic robbery that texas robbery fit generic robbery and the premises that the court used were number one it relied on the model penal code with regard to what it had to say about taking from the person which involves use of force it also said that the majority of states require taking from a person or the presence the person's presence by means of force or putting in fear and that generic robbery involved immediate danger to the person this court in davis also said the generic robbery involves interacting with the person and as we said in our brief in the texas court of appeals criminal peals case and howard in two thousand eleven the court found that where the perpetrator was unaware that there was anyone around and the store clerk was in a back room and had locked the door and there was just a video camera that that was sufficient for texas robbery because you don't have to intend to put someone in fear you don't have to know they're there you don't have to interact all you have to do is act in some way that's reasonably likely to cause someone there to have some fear and some i mean this was a store that was open and there's nobody in there but he's brandishing a gun and he has a no nobody's in there right in that front and in fact somebody isn't there but they're in the back th isn't like breaking into a house you think is empty and then you encounter somebody there or somebody scared and but you don't know that they're there that would be burglary but here you have this added element he's brandishing a gun and he's is that sufficient anybody was there all i mean you're walking into a business i've not the same thing as breaking into a house it's a burglar i mean that's my point that texas turns robbery into something akin to burglary because you don't have to know the person is there you walk into like burglar you walk into the structure carrying a gun which you could do in robbery you don't know anybody who's there you see a while that on the counter like he did but what w business open or was it not was an open ok that's what i mean that's a little bit different from breaking into a house you think is empty i mean when you when i walk into the seven eleven for example and there's nobody at the counter but the door is open i i mean i'm not saying there exactly kinda burglary but you're assuming that because it's a store if the store were open and the clerk had run out to do an errand and he walked in and took the wallet same thing right that's a burglary under the crime of violence provision of u s sentencing guidelines two thousand and eleven version to a one point two b one aide to first of all because it isn't a numerary offense and our current precedent not in our current press they are you can't win that argument today no your honor however as has been pointed out we are in a great degree of flux in regards to this issue and there are be overturned now would you tell me your perspective putting aside the issue of waiting or not waiting what is your perspective on whether race can turn is likely understanding that on it's going to come out either is likely to have a bearing on this as to the overall application of force and what force constitutes in these sorts of circumstances and what degree bodily injury or what degree of bodily injury is required by what additional cases that are also looking at that i know currently we're waiting on state and orals in the supreme court and generally a look at whether interact or direct force discouraging the excuse of the poisoning case that seems to come up right regularly as an example so and that to her a lot of robbers are using poison apparently your are you did point  hernandez should control in this case and in this case we have every reason that we can decide on the merits of the record so as far as mr nunez madrone is case as from hernandez controls it is still a  what about this argument that well you know you wander into a store and nobody here i guess i'll just you know take what i want to take that that shouldn't be a robbery according to council opposite yes you're right on that in the argument on howard and the the government's position  be that howard is not an intervening change in law it is in fact one case in which texas is simply elucidating the fact that to qualify as a threat and use of force you don't have to have an admission by the defendant that he was absolutely aware that someone was in an open convenience store when he walked in masked with a rifle during the hours of operation and was actually cognizant that there might be somebody own guilt and testifying against himself you don't need an outright admission that you saw the victim that you're robbie saying that howard it is inferring from the circumstances and i was discussing with your opposing counsel i eat that it was the store was open for business and yet there was nobody at the counter that that might be perceived there still somebody in the store somewhere yes charlotte i can easily been empl individual or woman walked outside a store where if she had seen her husband shot she later pursed tend to door a husband was on significant fear for the safety the purse was then taken so in that sort of reverse an area of the victim isn't aware of exactly where that a phone is communicated threat and that had already previously been aside by the texas court of criminal appeals so there's the issue of a direct or indirect threat it's really the focus is whether or not the victim feels that threat and whether adequate force or threat and use of force is shown by the defendant and pursued by the so let me ask you the hype cycle again which is walking into somebody left their house door unlocked someone walks in with a gun or a firearm of some sort of whatever and take stuff never sees a person but there is a person who hears them come in goes in their bedroom shuts the door and sits there and in panic but the person never sees them that there is the the diff the the robber burglar never sees the person is that a different case from power that saying could you charge that guy i mean you made the distinction that when i walk into the seven eleven the doors open and it's normal hours three in the afternoon or whatever i'm expecting there to be a store clerk somewhere when i walk into a house with just the door unlocked you know some people leave their doors unlocked and they leave and go to the store for a while and come back or whatever and they didn't lock the door behind them it's a little different i'm saying is that a different scenario visa be robbery could you and distinction on that that you know if you are the idea of robbery is putting someone in danger and just an ordinary burglary you go into a seven eleven after the hours or just pick any you know any other store know i'm not putting that aside that's my point my point is that the enumerated often included putting someone the victim in fear of immediate danger whereas in an empty house who's being put in immediate danger and you're saying all houses are occupied well not my experience your honor i'm not saying that all houses rock you lied but i what i am saying is that would be hard from a defendant's perspective i would enough to narrow the case and i'm wondering why this hiding in the bushes to enter into a business doesn't tell us that it's not the over sixty five disabled person why why were you willing to concede that what am i missing are we we can the ceded the point on the fact that it appeared that that was more a manner and means issue which would go beyond specifically speaking to which elements of the case were satisfied under both the indictment and the judgment and the court could rely upon factoring in as well the conspiracy issue in this case our contention was that we did not at the time have sufficient documents with the use of a deadly weapon or exhibiting a deadly weapon wasn't something the government was able to show based upon those specific indictments and judgments so unfortunately in this case  certainly wish we had had that ability it would have made this case a great deal easier on all of us but we weren't real willing to make that argument and didn't feel that we had the substantive information to be able to make that argument is mentioned only in passing at the beginning and then there's just kind of get into the aggravated felony issue without ever tying the two together and it's not until i think the reply the supplemental letter brief reply that they actually say you have to unsure how they were tying all this together and normally when people are trying to say it should have been a thirteen twenty six b one they say that and and they didn't hear so i just thought but then they talk about the aggravated felony and they make that those underlying arguments that would tie you to that but if there is a difference because and you go off on the issue of well when we're talking about sentencing the laws are different and all that but when you're talking about statute thirteen twenty six b two they will then to my would apply is that the thirteen twenty six b provision is appropriate in this case because robbery does involve the use of time to use or threaten use of force and it's  b and our prior precedent and burress apply to cut off sixteen a if we stand here today and had to decide it today on the b two versus b one point yes sure if it is divided today and the and the state what you want us to do is decide on the generic issue today yes sure but we can't avoid the use of force issue today if we're talking about the twenty six b two versus b want to realize it doesn't change his  sentence but it's my experience that people who come here aren't without proper documents do care about the b two versus b one issue and we've rather routinely either modify the judgement ourself or send it back to be modified where there was a b and we are currently dealing with the whether the mandate issues or not it's still binding precedent on it's binding pressing your honor of believe only once the men know that's not true you said that in your letter and  thought that maybe that was just an accident it's been going on other cases since the day it comes out the door except as to that case so it's exactly the opposite that's you know it's president  comes down to robbery to someone in a certain status so that's why births applies but wheeler also held that aggravated robbery is control how that  actually i mean i was on the panel and wheeler well wheeler said was that was the government trying to claim plain air and we found it the argument waived first and then we said well you've created enough goo here that it's not play near but we certainly plane or a government case where the government was having to assert plane air so it was a very different procedural posture and then we have here nonetheless there a difference a whole careful how you read this stuff well to me it says they first raised the visibility but nonetheless here the least couple conduct is robbery of someone in a certain status so birth does apply second the ordinary case i believe the burden usually is to show a state court would in force the law as i say it would in force of the law and we have the highest court in the criminal court in the state of texas saying yes this is how we construe and enforce the law so i think i meet that promise with regard to howard it doesn't matter how many hypothetical facts we come up with because the question is the elements so the elements under texas law do not require interaction they do not require using force against the person or in the person's presence they just require looking scary and someone somewhere in a back room being afraid so they don't require presence taking something from the presence or person do we have a case that says if you can find that one case where we've done it then that counts as the ordinary case because i thought that  i think if you or any jurisdiction i always understood it as if that the court would apply the case like that and i mean here the air is preserved so i mean i have the supreme texas court of criminal appeals cases yes this is how you apply the law and i think so it's not plain error like i have to show you something more i'm showing you here is the case here is that how they construe the law center esteban looked at the model penal code this is now different and we should win under howard with regard to preserving the aggravated felony issue the supplemental objection pages one do i think the supplemental objection preserved it i think it's clear the council first had a guideline section objection and for some reason didn't put that in his objection and so he said wait a minute here's a supplemental objection i believe it was before sentencing and the court had the issue before i mean it's just a weird brief on it before i mean you have the arguments you need there but you don't really make the can the conclusion that you should make it's a very strange way of