your your honor in order for this court to reverse the district court it has to conclude that only one out of the three of the petitioners convictions is not a violent felony and with that in mind i'm going to discuss primarily two of the convictions the attempted assault in the second degree conviction and the assault in the second degree conviction starting with the attempted assault new york law is clear that in the tempt  the conduct to affect the commission of the climb and the case law particularly three cases cited in our brief a stablish that far less than violent conduct can constitute an attempt to commit a violent offense including attempted murder two of the cases the cboe case and the rod see case were both attempted murder convictions based on far less than violent conduct in one of those cases the defendant hired a middleman with the hope that the middle man would hire a hit man to commit a murder the defendant provided information to the middleman about the victim the defendant provided ten thousand dollars as a down payment to the middle man and the middleman went to the police and the plot was foiled as a result and the defend it was convicted of attempted murder no question that murder would be considered a violent felony but the defendant was convicted there based on far less than violent  conduct the new razzi case similarly involved a defendant who obtained a gun and munition in and drove to the victim's home with the hope to kill the victim it was unsuccessful and the defendant was convicted of attempted murder and in denson case the defendant there attempted to lure the victim into a sexual situation with a young victim to defend it was convicted of kidnapping which is also typically thought of i'm sorry attempted kidnapping which is typically thought of the kidnappings to be thought of as a violent felony but there none of the defendants conduct actually involved any violence and yet all of those convictions were affirmed by the new york state courts so what that establishes is that under new york law conduct that means to effect the commission of a violent crime is not necessarily or is the term we use violent in itself as a result applying the categorical approach to the petitioners conduct here he was convicted of attempt to commit assault in the second degree which requires that the defendant attempt to cause physical injury and obviously failing to cause physical injury that law by itself stablished is that his assault conviction is not a violent felony there are three other points i think that are worth highlighting with respect to this argument one is that twenty ten johnson teaches us that when we talk about the aco we focus on violent crimes violent conduct that's what the court said in two thousand and ten johnson it it also discussed that principle in two thousand and fifteen johnson that the conduct has to be violent in nature and attempts under new york law are not categor violent second two thousand and ten johnson also treats us that teaches us that aca predicates are defined by state law so when we look at a defendant's conviction under the aca we look at how the particular state defined the predicate conviction and for the reasons i've discussed it's clear that new york does not always define an attempt to commit a violent crime as violent in itself so the walker use which seems to be walker focused on some of the other arguments that have been made that you know focusing on force that if you attempt to commit a forceful act that's not necessarily forceful but there is nothing in walker that specifically but for reasons different than what i'm arguing what in reading walker it talks about that the defendant focused on the force language that certain conduct that we may think of as being forceful is not forceful but there nothing in walker that talks about this particular aspect of the attempts statute and for that reason i would argue that walker's distinguishable that you did self talks in terms of the use of physical force and the attempted use of physical correct but if we have the attempted use of physical force here well if we don't look at the specific facts of the case if that's the court's question we look at the elements of the statute so in new york we know for example if you go to the store to buy a knife that could constitute an attempt to commit assault you don't have to thrust the knife at the victim in order for it to be an attempt you have to engage in conduct that merely tends to affect the commission of the ultimate crime uptick on the buying a knife could result in your being convicted of attempted assault in the courts of new york well certainly there they are not flawless but it seems to me that that's that's going pretty far that  and that may not be the case i'm using an extreme example but certainly chefs of the new york are great you see that i i do think however if you buy the knife and you drive to the victim's home under the case there's certainly an argument there to be made that you've committed an attempted assault because in that case the defendant bought the gun in the ammunition and drove to the victim's home and he was convicted of attempted murder so he didn't have to shoot the  conceivably i could make the argument that an attempt to commit murder is not categorically violent for the reasons that the new york courts have identified but certainly here where we're just dealing with an assault as opposed to more extreme conduct that only helps my argument i certainly agree with that your honor the other point i would make is in order to avoid well moving on to the assault statute one quick point is that villain wave itself injury and in footnote six this court said invoking neva that that was going to say that was a necessary element of the government's claim that if if we were just talking about physical injury as in the criminal case if i'm pronouncing that correctly then that would not constitute a violent felony i'll reserve the rest of my time for a bo granted she didn't say that as part of the actual sentencing itself because there was no dispute at that time that it was that they were crimes of violence but innocent two years later in a twenty to fifty five decision she clearly indicated that she or she was relying on the elements clause not the residual clause which the court can consider as part of the entire record on that basis there's a circuit split on what has to be shown but the issue because i don't think the record the split is as to whether the record is silent and who the burden is on and actually there are a couple of new decisions since my sense that i filed a brief walker in the eighth circuit said the defendant  would need to show by a preponderance of the evidence peppers in the third circuit appears to go the other way the fifth circuit in in we so well maybe i want to rephrase what i just because you're right that if we were to  that even if under may have test given what judge burns later said it's reasonably sclera that she relied on the force clause not the residual clause yes your honor i think the latter in  that i don't think the court needs to did resolve that issue as to what the standard is i would know it in belk in the footnote there is an indication but i don't so if we're talking about letting somebody unless they're in it under the court's mandate and the direction to judge shade below you don't get to two thousand and ten unless you succeed on two thousand and fifteen and judge burns i think was quite clear in her decision a ruling on the twenty two fifty five that she was relying when she sentenced mr bronze to if she was relying on the force or elements clause and not the residual clause that's what she  doesn't succeed let me just respond also briefly to the issue of the attempt as jacob said i think it's within the statute it's an attempt to commit a crime of violence is actually in the in the criminal statute probability of the crime itself would have been committed but for timely interference so in terms of interpret ing new york state law on attempt i think that that matter has been resolved by pereira gomez thank you must the court as any further questions i'll start by addressing the pereira gomez judge could promise and that decision used very general language citing essential of the principle that the conduct has to come dangerous dangerously close to the commission of the crime but there was no specific discussion in pereira gomez about any facts from any cases we have talked about specific cases with specific facts that establish that attempts in new york to commit violent crimes often or at least in some cases occurs with far less than violent action and so the language in pereira gomez while it does derive from new york cases is general in nature and not specific to any particular cases with respect to the procedural default argument what's important to remember is that in the underlying criminal case the indictment was silent as to whether the force or residual clause applied the plea agreement was silent at the  government nor the court said which clause applied in their view the sentencing memos were silent and at the sentencing hearing most importantly neither the government nor judge burns said that she was sentencing mr brown store for under the force clause and in fact there was no need for her to do so because the residual clause was the most clear cut and straightforward way to impose the sentence in two thousand and twelve because tw johnson had complicated the force clause analysis considerably so what the government hangs its had on is one brief statement in the first twenty two fifty five so a separate proceeding albeit related to talking two years later and as a matter of law the force clause didn't apply based on two thousand and ten johnson at a minimum it would have involved a significant argument as to whether the force clause applied so it's just much easier at that time to rely on the residual clause because as judge calibra the noted in his question there was really no remedy in two thousand and twelve because the residual clause was constitutional at that time i see my time is almost up i just wanted to highlight again footnote six here the implication from villain waive is that that is not sufficient thank you both will reserve decision