deadly weapon none of those offenses qualifies as a crime of violence under the sentencing guidelines and for that reason remain free sentencing is required and let's start with the coercion statute which is that an i r s to go seven point one nine zero the parties agreed to the course and statute is divisible as between its felony and mr meaner versions and that mr ed link pled to the felony version of coercion the dispute in this case which raises a question of first impression in this court is whether felony coercion is overbroad and if so whether it is  divisible as we explained our brief felony coercion is overbought for several reasons first of all each of the subsections of section one a b and c is itself overbroad subsection one a explicitly states the defendant can violate the statute by using or threatening force against the property of another person whereas the guideline requires a force be used against the person of another subsection one be for similar reasons as overbroad as the session of talks about depriving someone of a tool  implement again the force that's used in that case can be used against the property of another that's the middleton case that we cite in our brief defend it was found guilty where he quote used physical force against the victim by taking and breaking her phone with the intent to prevent her from doing an act that she had the right to do you completing a nine one one call so even assuming that the force in that case was violent force it was force used against property against a phone why wasn't the wrenching out of the victim's hand of her phone well even if taking a phone well first of all we don't know that it was in her hand that's not clear from the from the facts of the case as far as the opinion indicates he could've been sitting at a table could have been on the couch i don't think that fact is in the opinion but even if it's in her hand and he takes it i don't think the act of taking a phone just like that would be violent force and in any event even if in that case it was in her hand there could be a case where it's sitting on a table he picks it up and breaks it  years later with similar facts wary of phone was taken and broken and the court held that that was also coercion but but yes i see close to a real world case but even if there weren't a real world case this court has held  line of cases going back to the on bond case from two thousand and seven that if the text of the statues playing on its face the defendant does not need to point to a real life case to show that the statues overbroad subsection one c is overbroad for two reasons again it provides that someone is guilty if you put attempts to intimidate the person by threats or force so in that case it's the person who has to be intimidated but the intimidation can be effected by using force against property under the plain language of the statute so if i threatened to use or used force against the victim's car or computer that would qualify under one c and so for that reason it's overbroad it's also overbought for a second reason and that is that the word force in one c includes to minutes force case law explaining what the word force in that statute meant so this court looked to washington case law and supreme the workforce and other statutes found that in those other statutes the word force meant diminished force and therefore important that into the right statutes of the workforce in  be that thanks for walking through a b and c that's irrelevant for the most part because we're talking about to have and why wouldn't we just say that the physical force referenced in two necessarily has to include force used against property because  we know covers one a b and c and we know that one day of course definitely includes actions against property so why would we just do that stop with all this we don't need to go through all three and then we're done i think you can that's actually exactly what i was going next your honor is that the word forced into a can also includes a minimum force and as your honor said it can be force against property so you don't even need to get into a b and c my point is that there are multiple routes to getting to the conclusion that the statute is overbroad  and one of them is the one that you just mentioned even if this court disagrees with those two conclusions and decides to address whether the statute is divisible its course you conclude that it is indivisible section one's indivisible as between a b and c and it's important at the outset to remember that in math is the supreme court said that before moving to the modified categorical approach this court must conclude with certainty that the statute just visible and there can be no certainty that this statu of force or deprivation and the intent to compel another to act or not act and the government reads that to mean that force or deprivation are separate elements but i think a more natural reading of that language is the court is saying  deprivation which comes from subsection one b and if so the statute is indivisible because those are means either one of which satisfies a single element of the text of the statute itself doesn't really provide any clues about the visibility we do know that sections subsections one a b and c do not carry different punishments so one of the key indicators of the visibility for math is is not present in this case and then finally moving to the record documents the government concedes that in this case mr at least information listed both subsections one b and one c and a single count of an information which match this indicates is all the proof you need that the statute is indivisible and again we don't need to address any of what you just said if we adopted the reading of two way that i mention respirator and maybe in the minute or century english the word injury refers to harms to people not harms to property and so you can no longer committed store sin by threatening harm against property under the new definition so in a defendant who can who committed about a robbery by threatening force against property would engage in conduct that qualifies as neither an eric robert in north america extortion and in addition to the plain meaning of the were no i thought were you're talking you're relying on the special definition of extortion that now exists on the twenty twenty six thr guideline five k two point two which we cite in our twenty eight j letter regarding the o'connor case it says when the victim suffers a major permanent disability and when such an injury was intentionally inflicted a substantial departure may be appropriate so say about disability to a victim and uses the word injury that clearly means injury to a person or five k one point twelve ordinarily coersion will be sufficiently serious to warrant departure only when it involves a threat of physical injury or substantial damage to property the council we would have to overrule some of our precedent to adopt your argument correct i don't think so your honor why not because besser lopez and harris relied on the old definition of extortion that definition is no longer the definition that this court uses the guidelines used  setting the guidelines did and often times when the guidelines intend to to speak to a particular case and clarify the meaning of the gatt land in relation to that case it says so but the amendments did not mention any of their authority or purport to clarify or tell us why it was incorrect so why should we say back implication that  cases are no longer good law so the two reasons you are first in the amendment proposed amendment to the guidelines that contain this amendment the sensing commission wrote quote the definition of extortion in the proposed amendment requires the threat to be if threat  physical injury against the person so it's right there plain as day you can exclude property explicitly but doesn't say against a person and not against property but it just says against the person so that's in the legislative history but i don't think you need to get to the history because the the guideline is clear on its face use the word injury which elsewhere in the guidelines clearly denotes harms to people and i think perhaps the most telling example of that and i apologize this example is not quite in our briefing and that's guideline to be three point two which is the guideline for the defendant commits the federal crime of extortion and that guideline is called extortion by force or threat of injury or serious damage so clearly injury and damage are two different things and then it provides in the text of the guideline if the offense and ball preparation to carry out a threat of death serious bodily injury kidnapping product tampering or damage to a computer system and hence by three levels so clearly injury and damage to property in the context of in the guidelines are two different things counsel are you familiar with the ten circuits decision the united states versus connor yesterday would you agree that in that case the tenth circuit said that even after the gag man was amended the in compas is threats to property doesn't that undermine your argument i don't think so your honor because the evidence that the tenth circuit used to show that extortion could still include threats to property was mostly non textual evidence for example the fact that historically extortion statutes were used to plug a hole left by the fact that robbery didn't cover threats to property the only textual clue the tenth circuit used to say that extortion could cover harms to the property is that in forty one point t that the use of force must be against a person as opposed to a property and in the definition extortion it didn't specify but i don't think that's a persuasive argument because the word force inherently can be used against either people or property and so if you wan limit it to just force against proper you have to specify because force in a vacuum could mean force against a person or against you know this table injury is different the word injury by itself in modern english means harms to people and so you don't have to specify that it's harms to people as opposed to harms to property but even if this court disagrees and find it's in it's ambiguous then this court can still do what the tenth circuit didn't o'connor which is apply the rule of lenity and give the defendant the benefit of the doubt and hold that that's why i'm good morning good morning please the court elizabeth white for the united states when we think about extortion you know what is extortion the classic maybe the quintessential example of extortion in american culture is the mafia protection racket right there in force or goes into the store and says hey nice shop you have your boy wouldn't it be a shame if something happened to pay me money or i will burn your store to the ground that's what we think of as extortion and as the tenth circuit noted on o'connor a lot of states enact it extortion statutes because they're robbery statutes didn't didn't extend to threats of damage or injury to property so if the sentencing commission had intended in adopting this narrower definition of extortion if the commission had intended to do a complete one eighty and exclude from its definition of extortion the thing that we think of as the essence of extortion it would have said so and it didn't and it didn't mean to and the reason we know that that's not what i meant to do is because it told us exactly what it was doing what it was doing was basically distinguishing the supreme court's decision in our dello in the in that the amendment gives the the reason for the amendment the reason for the amendment is that it under existing case law it cites the supreme court in our dollar which had said that this idea of the rights of injury extends to injury of public ridicule injury of harm to reputation nonviolent non physical injuries like black male nardella was a black male case and they said consistent with the commission's goal of focusing on the most dangerous offenders we're going to narrow this definition so that what we're talking about is fear or threats of physical injury as opposed to nonviolent threats such as injury to reputation so the sentencing commission said exactly what it was it narrow it yes it did narrow the definition of extortion who incidentally probably to the ultimate effect that no extortion conviction counts anymore because they'd mostly be overbroad but but as to what it was that they were narrowing they were very explicit that what they were narrowing as they were eliminating nonviolent threats such as injury to reputation pay me money or i will burn down your store is a violent threat that is a threat of physical injury this idea that the word injury can't possibly mean injury to you to property  that just goes counter to what it is that we're talking about here we're here interpret ing the nevada robbery statute which defines robbery as taking someone's personal property by means of fear of injury to his person or property right that is the same as the california robbery definition investor a lopez california robbery is defined in two in in section two eleven and then to twelve defines fear which says fear of unlawful injury to the person or property of the person being robbed and all due respect to the tenth circuit they were interpreting the hobbs act robbery statute the hobbs act robbery says the exact same thing robbery by means of fear to his person or property so so the legal use of the term injury to talk about injury to property is very common it's not at all i mean you know maybe they should have said injury to persons or damage to property i mean you know that would be another way to say it but this i i mean i think you make a compelling case for why there are good arguments on the other side as the tenth circuit recognized and i guess i don't see how you get around the rule of lenity do you do you think it doesn't apply at all here to the guidelines or is it just you think it's so crystal clear that there's no room for the call for comments when they put out the proposed and they say here's what we're thinking about doing give us your comments the first sentence which she did not quote said extortion has been defined in case law as including nonviolent threats such as threats to reveal embarrassing personal information you know we're thinking about excluding that and and they did say requiring physical threat seems you were quite dismissive of that i think in your brief but it seems to me that's at least a small clue i mean i grew to grant you it's not  e by any means but it's a clue as to what it least drafters of this amendment were thinking as an exact i mean i think that they were thinking of excluding threats nonviolent threats such as threats to reveal embarrassing part of the region next yeah the next sentence i mean it actually kind of depends on where you put the emphasis as you're reading that my point is that i think you battle quite well to draw here yeah and then we're left with there are good arguments on both sides and why wouldn't the rule of lenity control i would say  first of all respectfully i think that this is a stronger argument but also i don't know that you can use the rule of lenity to overturn precedent i mean that a panel can say oh well it's ambiguous sub s or a low pass is no longer good law but we're not overturning anything that whatever our prior cases said about the pre twenty sixteen guidelines still controls we're just saying that there's now a new provision in place that we're called upon for the first time in our circuit at least to interpret it and and here's what it means going forward what why would we have to overrule anything well i think that the decision i think the analysis would be that if there are if there are good arguments to be made imo side both sides then maybe the two thousand and sixteen guidelines change the game that's all that your opponent is out and so therefore yes or a lopez is no longer good law because maybe property and right there i'd say it doesn't but if you know i then i mean i think then you get into theirs wow i hadn't actually considered that i mean i know that in the in the tenth circuit  this this issue of the rule of lenity hadn't been briefed at all and obviously we have him briefed it here it wasn't mentioned in the opening or reply brief there are there are of course arguments that the rule of lenity no longer applies to the guidelines post but that hasn't been briefed at all ok that's what i was trying to do yeah to say yes or do you know whether just as a general principle the rule that even applies to the guy who i think so i mean back will said that the that the guidelines aren't subject to constitutional vagueness challenges i would want to i would want an opportunity to do some research and briefing on that that hasn't looked at some of the tests are good had some case law that said the rule of law to do you apply to and guidelines and i'm not sure  the status of our case law i just watch and i don't know if any of that is post back also i mean i really do think that that you know obviously as you know the department of justice had assumed that the residual clause in four b one point two was  after johnson and the supreme court said why would you say that that you know the constitution vagueness doesn't apply to that and and so i don't know if any i know i believe that there are ninth circuit cases that have that have applied the rule of lenity and guidelines quickly before i do and i know that joe johnson had asked the assault with a deadly weapon i mean there is actually binding camacho cruz is very clear and to the extent that this this idea that you can put someone in fear of bodily harm without using force capable of causing physical injury you know this court rejected that recently the terrorist so i think we don't need to say anything about that the coercion statute  practice to dispute unpublished decisions but in this case we really do think that the panel got that wrong and how they how they interpreted as off or as i mean what they said is if the statute says that then you don't have to  then then you don't actually have to find a real world example and this court has said that before and that's fine when you're talking about the burglary statute that says breaking into a car you know there is a realistic possibility if that's what the statute says that's what the  but when you're talking about to minimize force you have to ask yourself ok how would that work how would someone compel someone to do something that they're that they don't want to do or keep them from doing something that they want do by using de minimus force i just i don't think there is an example of that in the law and i don't think that once you're talking about interpret the words in the statute and then you know coming up with this hypothetical i honestly cannot come up with a hypothetical proposed the physical force we would have to know includes force against property because otherwise it couldn't cover one a crime yet and that is that is the hardest part obviously for the government in this case and again i mean the only thing i would say there again as i don't think you can you can find a case i mean maybe maybe you just say that's what it is and therefore it's overbroad and then we're done and i do think that that middleton doesn't say what i mean i don't read middleton the way the defense does i think that it was that it was the grabbing of the phone and it was actually grabbing the phone from her hand that's what the decision says the smashing of the phone was actually the of events of the specific intent to keep her from calling nine one one right i mean i think that if you read that decision it's it is reasonable and that's the way i see it but at the end so i say but i just hope we all know that matter is i his if assuming that we get the robbery and the assault with a deadly weapon that would it would lower his criminal history category from six to five because because he coercion and the assault were the same offense so he got four points for that because you get one for the extra crime of violence and of course it's not a crime of violence he'd have twelve criminal history points instead of thirteen but he'd still have assuming that we get if we if we get the robbery and the assault with a deadly  wouldn't change the offense level it would just change the criminal history category and so the range would be what and i said because of the question is this a make a difference it was yeah oh yeah you know it was going from criminal history i think he ended up seventy seven ninety six so it would probably be something along the lines of seventy to eighty seven i think is the next lower but that's just i guess i guess ok i'm like some will give you t t thank you your honor very briefly like to make two points first is the government points to the nevada robbery statute in the california robbery statute where the word injuries used to describe harms to property and that's true but the text this court has to interpret is the federal sentencing guidelines and if you do ace the control of find all for the word injury in the guidelines i have you'll find that in every case the guidelines use that word it refers clearly to harms to people and not harms to property so that includes the ones i cited already but also to jail one point two to see one point one and two j one point three in each case the word injury clearly refers to harm to people and it's a cardinal rule of interpretation that when the same word appears in different in case that pushing scratching throwing twisting hitting slapping shoving grabbing and pinching would all not be violent force and a non domestic context and i think it's clearly possible to commit coersion to one of those actions