petition making a claim under under johnson i think this morning i'll start off first by addressing the procedural default issue that has been raised by the the government the government raises issue both at the district court level and again on appeal at the district court level the judge denied there are root against the government on this issue finding that to hold that mr mumford's claim was procedurally defaulted would in effect blunt the retroactive effect of johnson and welch the government has repeated that argument on appeal and i think it's worthwhile pointing out first the chronology of this case the defendant was sentenced in july of two thousand and twelve is direct appeal was denied in february of two thousand and thirteen johnson was not decided until june twenty sixth of two thousand and fifteen i think it's clear that the defendant her that mr mumford was making a truly novel legal claim in line with the the decision in johnson the court actually overturned existing supreme court precedent in that it specifically overruled the sikes case it was also overturning unanimous body of law that had developed among the circuits and most of the district courts throughout the country this court's decision in childs which was a two thousand and five case summarized the applicable law through out the country and basically said that no circuit had adopted or accepted the argument that the residual clause of the  criminal act was void for vagueness so this is a different situation than what you had in the bows li case that was relied upon by the government where in bows lee there was actually a circuit split and in addition to that there was a tremendous volume of commentary in legal periodicals by legal scholars raising the question that was alternately decided in the in in the bailey case we didn't have that here in fact i think it's worth noting that in the search are already propitious that was filed by johnson he did not raise the void for vagueness issue the court raised that sue a spontaneous so it was not apparent even to johnson's counsel that this was an issue that needed to and should have been raised so i don't think that the government's argument that this issue was procedurally defaulted is is well founded in this case so i'd like to turn now to really the fighting issue in this case which is whether first degree robbery under iowa law the elements necessary to qualify under the force clause of the army what they're being asked to hurdle for me in your case the government says look at your own case mumford's own case in the iowa courts and my goodness that makes this very clear well actually i don't think it makes it clear at all i think if anything mumford's own case rebuts the essential argument here in that alternative seven eleven point two that's the i was statute which provides that a robbery was elevated to first degree robbery if you were armed with a dangerous weapon and i know that the government has also made an argument that somehow mr mumford counsels concession that for that under the facts of that case and he did specifically limit that concession to the facts of that case that  e use of a firearm under nine o two point seven which was a parole enhanced statute and the possession of a day or the being armed with a dangerous weapon under seven eleven point to the first degree robbery statute were equivalent but i think what he may very well of have meant was that simply for purposes of that argument that dangerous weapon was equivalent to a firearm because there had been a change in the i was statute  that where initially i think the the parole enhancement statute provided that it only applied to a firearm whereas in in the robber statute it applies to a dangerous weapon i would also point out that mr mumford and his counsel at that time were not in authority their opinion was certainly not binding on on any other i don't think it really makes any difference because i don't think it makes a difference whether we apply the strip categorical approach or the modified categorical approach because we know from the jury instructions in this case which alternative of the statute relied upon the preliminary complaint in this case and that you know normally that would normally the trial information or the indictment would be a document that the court could look at into the modified categorical approach but here i think the jury instructions trump that because the jury instruction show what this jury was actually required to find beyond beyond reasonable used i think that that argument is a little bit fanciful i think it's more wishful thinking than anything the statute if we look at the plain language of the statute which should always be the starting point of any analysis it says armed and if we look at the legislative history of that statute it is very clear that the i will legislature intended that the robbery first degree robbery statute would be broad enough to  encompass people who merely possessed a firearm as opposed to people that actually displayed brandished or pointed the firearm i think the sharky case that's cited in the brief  makes that point the the government i think is also tried to kind of incorporate the definition of a dangerous weapon into its argument that being armed somehow connotes actual use or intent to use and i think that that argument again is is whatever validity it has is undermined in what mr whalen house to demonstrate is that there is no realistic probability that iowa would apply the first degree robbery statute to conduct that does not involve force or the threat of force causing bodily injury or physical pain now the supreme crieff versus holder really counseled against digging down into the weeds and using what they sort of starkly called judicial imagination in order to determine what position the state courts to take and in this case every one of the cases that we were talking about when you look at the facts the dangerous weapon was used in law the defendant cove defendant had a knife and pulled it on one of the victims  sharkey the defendant confronted the gas station employees pulled a gun out of a paper bag and pointed it out them demanding the keys to the cash register and all is that under the first degree robbery statute the government doesn't have to prove intent to cause death or serious bodily injury versus the intent can be inferred from the presence of the dangerous weapon but sharky does not say that you can convict somebody of armed with a dangerous weapon and you don't have to show the gun or the weapon the victim doesn't even have to know that it's there that's the argument that the ninth circuit adopted in the parnell case but parno is distinguishable because in part now the ninth circuit looked at the massachusetts case law and under massachusetts case law the court was very specific and held that a dangerous weapon need not be generally generally or openly displayed and there was no need for the victim to be aware of the weapons present now that's a far cry from what we have in the cases cited by mr whalen well me you didn't reply back on the langston case and highly relevant here tonight i was going in armed with intent statute yes and that's that's different than what the cases because going armed with intent requires intent to do harm and langston was initially well the langston case i think mr whalen argues that well if you're going to go with the government in this case you've got an overall lengthen but i don't think that's true because in langston the initial three judge panel was reviewing them under the residual clause not under the fourth cause as we are here so i don't think that you would be is precisely the kind of case that armed with a dangerous weapon is and the facts of sharky were that the defendant pulled the firearm and pointed out or threatened  individuals with it also when you look at mister mumford's case the facts of his case the victim testified at trial that he had a long handled or a long barrel all of the cases that are talked about in both briefs in the in the i would cases the weapon was used and i think the thing the problem with the  it's the only case that even comes close to saying what mr whalen would like it to say but the problem  but the problem with the law decision is it doesn't consider the statutory definition under iowa law a dangerous weapon and when you look at the start that defines a dangerous weapon it requires that the weapon b now the legislature could have said you just have to possess it and that's enough but that's not what they said they said when you when our statutes are talking about a dangerous weapon it requires  not displaying right that's the holding of the law you know what it says yes you can be armed under this very statute and you don't have to point it and you don't have to display it right says that i'm looking at words of it and that's contrary to the statutory definition of the of the dangerous weapon and i think that you're saying i was wrong in  i think when you law i think was from the seventy's and i think if you look at he wanted to go he won your clothes no no no go ahead i think if you look at the fact that this the statute defining dangerous weapon was created if it was present at that time then i think they were wrong if they if it wasn't current if it wasn't present at that time it is now and i think that that shows the legislators intent when you're talking about what an armed with a dangerous weapon means phrase that scott turow used in his book one l about his first year and at harvard law school he described reading his first contract cases as though he were storing concrete with  think that sometimes the paper chase yes yes but that's sort of where we are in this area of the law and i think that the common sense approach is that armed requires you and i think that if it didn't there is no reason for the legislator later to say that a dangerous weapon has to be used  to rely on the arguments made in the brief regarding the procedural to fall to issue i would state that i will be retiring from the u s attorney's office on november thirtieth and it has been a pleasure and an honor to practice before this court these last thirty years and in particular to practice with mr whalen thank you thank you wor luck and happy retirement thank you very much rather show this this reasonable probability i think if you look at the plain language of the statute it it really answers the essential question there the plain language of the statute only requires that the person be armed if  the legislature wanted to require that the person accused of first degree robbery actually use the weapon they could have said use the weapon they've certainly had ample opportunity to change that i think that it's very clear from sharkey in the legislative history cited there ian that they intended to have actually a broader definition one as applied to first degree robbery than the are giving that thought your answer i guess my response would be that if you are inclined to consider doing that that we would like the opportunity to brief that issue at this level before it's remained at all thank you