please the court my name is charles wilson i'm from the federal defenders office in connecticut i represent mr astor america the appellant in this case and the petitioner below actually representing mr s america for quite some time going all the way back to his trial where i was sixteen the key issue here is whether he's connecticut robbery convictions qualify as violent felonies after the residual clause having been struck judge cavallo told us relatively early on and he thought that they still qualified in the forest because the robbery statute in connecticut has undergone quite a review since that time we got the decision from judge underhill and then we came to this court in the government's appeal and argued the issue judge of all was on the panel and asked a lot of good questions that day i had the luxury of sitting in assistant u s attorney sillerman seat and it was one of the few times in my career as a defense lawyer where i thought about just resting on my briefs but alas the decision came out and here we are i recognize the status of the law in this area in terms of shabazz the petition for certiorari was designed by the supreme court and then we have the stokely in case that came out not too long after this court issued it  st opinion and should boss that said i'm not here to concede connecticut robbery is different in florida robbery or the both robbery they're both about crimes about taking things from people with force but the language of the statutes are different and one of the key things that the supreme court pointed out is that prior previously the state supreme court of florida had indicated that robbery requires resistance by the victim that is overcome by the physical force of the offender we don't have that comparable language either in the connecticut statute or that comparable requirement in the connecticut case law from the connecticut mill you have to have a force in the threat of force to prevent resistance to prevent it to overcome it phone under connecticut law so the statute we look at the plainly is in the statute it doesn't require overcoming resistance that's one of the ways that's listed there is the nd sub cronk i'll say of the statue where it's compelling the person to deliver up property or where someone essentially is committing shoplifting which is a larceny right so we have the larceny part of it on their way out they of the stories they're told hey stock the person starts running bangs into another customer knocking down  negligently that's force it's force that's been involved in the taking of the property that may is very well count as robbery as well the statute take it getting back to my point here the statutes are different and the law in connecticut  doesn't have this issue about requiring the overturning of forces not in a jury instructions it's not an element that has to be proven out or be admitted by the defendant in order for a defendant to be guilty of robbery in connecticut it's not my point is that there has to be the force of some threat of force which is on the stokely decision is essentially what you have that element in their their view was that that creates the issue of the person resisting even if you don't have to have overcome the resistance once you exercise that force or threat of force you have all these issues that's talked about so i think you have to be able to argue under connecticut law that you don't somehow it doesn't have to be in the presence of the person i'm just not sure i see how that could be on the net it was so much of what you said your honor i agree with you know in terms of force is obviously an element in connecticut it's not element in in florida but what we have in connecticut and this is discussed to some extent in the right case that is a quick look at the of force and i think you're overstating what right was holding well my point in bringing up right is right also talked about larceny from the person the nd degree version of a robbery where you're actually taking the property off of the  person which that could involve a robbery doesn't necessarily involve it why does that matter because the reason it matters is when you look at the discussion in writing about why larceny from a person is treated more severely it's a higher class felony in connecticut than simple robbery is the reasons that they give it's almost as if the supreme court or this court had read that before writing this analysis that you know it's really about the risk of confrontation the potential to merely ation to the victim and that things could escalate from there the connecticut's court is using that to justify larceny from the person and then saying ok robbery is different with force or that element of potential force but what they're saying is when you have the larceny they said you could it's more easy to get away you're violating a person's personal space to trespass so there are other reasons why they might want to classify that as a higher felony that are independent of the issue of the level of force so i don't understand why that would necessarily somehow undermines don't going as relates to simple robbery i guess because my point is that in connecticut we use larson to address the situations where the shooter is the person to person confrontation and we treat that more severely in the steep penalties that exist which would necessarily imply that robbery is something different why would we have the existence of the robbery statute as robbery can involve not to you know the person volves a store where it's you know on the shelf in the cash registers you know the one statute that deals when you're taking off a person where involves numerous elements that connect and they want to treat it as a more serious felony whereas robbery deals with not just the person but you know some of the location it's not face to face right but the other thing to keep in mind when we look at stuff going in this idea of overcoming resistance that would suggest that there is an intentional miss to the force that's used in florida writes in connecticut if you look at the elements connecticut where someone hypothetically be able to run out of the store and actually not accidentally knocked over a person that they were found to be guilty of simple robbery you know i'm drawn to  this is in connecticut so i'm yes i'm driving to i want to say lia cal which has a discussion of what is force and that accidental hitting running into someone wouldn't necessarily be the physical force that's being at issue that's i want to say the full florida dui statute that was under review by the supreme court before two thousand and ten johnson said it is a little bit older and now obviously has different context the issue g i want to say the leg case which was one of the cases that came across in doing all these johnson cases in connecticut talked about a situation where a defendant appealed that the conviction shouldn't stan because there wasn't shown about his intent as to the force and and the i want to see if the connecticut appellate court rejected that idea because they said well really intent goes to the idea that you're taking someone's property no you're taking someone's property  whereas the force can just be part of the circumstances of the event if if the court like i can try to submit a rule twenty eight dollars a letter that gives the citation and hopefully confirms what i'm saying seems to me that the supreme court's minority doesn't when but there is a lengthy discussion about the types of cases and different cases there are there isn't a magic florida case for the defendant that says force essentially is a fiction in that no force you know is the same as force and i know i'm not standing here with a case that says that about connecticut either i recognize that so i so because ultimately you can look to how the connecticut state supreme court has looked at the statutes in terms of this issue i have about larceny from the person being a more severe crime a more you know more punitive my question to say that connecticut has to actually ruled on the case and places of the case i mean i would say that if you had connecticut substantial connecticut holdings particularly from high courts which which which your i don't have that with me i don't want to misrepresent what i have you know i have some concerns about that approach to the issue because let me give you two of them one is that we s'posed to look at the statute and parse the statute and look at the understanding of the statute and how it's been interpreted and i and i recognize that i'm not pointing out a way it's been interpret in my favor so the that's doesn't necessarily require me to pull out the case that talks about we're trying to robbery so i think that's part of my concerns with that approach in making that dispositive the other part of it i would say just as from  someone is around arrested in connecticut the scenario that i'm suggesting about the shoplifter crashing into somebody else or i go into someone's house while they're voluntarily in the restroom i lock the door grab  diamond ring off the counter maybe that's robbery too and i realize i'm creating hypotheticals and i know from hill and other cases that this court is a big fan of that approach but at the same time with the way the cases are charged and worked out in connecticut i can and i can readily indicate from having practice in state court you can imagine a scenario along the lines that i've described these hypotheticals where the person will be charged with larceny they'll be charged with robbery they might be charged with trespass because the came into the house appropriately but then decided to commit a crime and obviously weren't allowed to stay after that so they'll be tried with burglary and the way the case is going to work out is the person that's going to probably plead to whatever one fits the best and maybe robbery doesn't fit the best but ultimately we still go back to the statute and see if the elements can be made you know and i think that's something that has become more clear and we as we engage in a categorical analysis so i know i've gone over my time and i'll concede the good morning may please the court my name is mark silverman i represent the united states in this appeal there's only one question presented in this appeal whether any prior conviction for robbery in state court in connecticut qualifies eleven days later the supreme court decides still going about a month after that mr shabazz files a petition for panel rehearing and rehearing bunked in which one of his primary arguments is still going has come down and it's different and you should in raise about no a month and a half after that i'm sorry about a month after that may st this court denies that petition for rehearing on bond and so although this court didn't have the benefit of stokely when it issue shahbaz decision it certainly did when it issued the nd set was a decision both authored by judge laval and so the arguments that were presented today are nearly identical to those that were presented in the petition for rehearing and they've been rejected by this court it's the government's view that the shahbaz decisions are binding and that they squarely resolve the single issue presented so the government's view is that this court should affirm the judgment entered by the district court seems  questionable unquestionably there's language in stoping which takes an approach that is hard to reconcile with some of the reasoning she was but that is in a way that's some explanatory language but earlier i think that to the shabazz decision in the smoking decision largely align with one another i think the ultimate resolution here in both of them is there's no case in florida there's no case in connecticut that suggests you can commit a robbery without some sort of force that is capable of causing physical pain or injury that's the magic language from the two thousand and ten johnson decision of the united states supreme court now my adversary has raised some interesting hypotheticals about more maybe this could qualify as a robbery in connecticut maybe this could qualif robbery in connecticut there's no case that he can point to in this court's been quite clear in the hill decision that oh no i'll quote it the categorical approach must be grounded in reality logic and precedent not flights of fancy in other words hypotheticals are not enough there needs to be a realistic possibility that offended has to point to his own case or another case if you want to show that the statute can be read in the way that gets around these force requirements now i do want to make one other point about the other case that he would point to has to be a building in that case i don't see any reason why it can't be a discussion by a court that endure says the proposition but rules the other way rules on a different ground but put into words the proposition that the reasons are you and that may be judge of all i think the issue here though is that there's no factual scenario that i've been able to find a defendant has been able to highlight that would show a robbery that was not in the person the presence of the victim this was stretched beyond those points or that didn't involve this level of force and the right decision is quite court has embraced justice scalia's concurrence and his concurrence in castleman justice scalia had written that actions as small as hitting slapping shoving grabbing pinching biting and hair pulling satisfy the force threshold that was his concurrence install calling justice thomas writing for the majority says this understanding of physical force is consistent with our holding today that forces keep of causing physical injury within the meaning of johnson so those types of actions the their money out of their hands and obviously that was another right and so i think stoking reinforces in some ways it very much reinforces the judge of all decisions in shabazz the connecticut cases and the simple robbery provision that last pronk engaging in other conduct with aiding the commission of the larceny yes your honor so i could and i have not practice in state court like my adversary but i don't know that i could walk you through them in some academic manner what i can say is that in right the state supreme court noted that the distinguishing characteristic of simple robbery is that force or the threat of immediate force is used to facilitate the taking whether the properties from the person or not so i say that last piece because i think it echoes just beyond those point earlier you have to commit some act and it has to be the force this is the language of  rodney as the user threaten the immediate use of physical force upon another person for the purpose of any of those things it can't be some accidental of crashing in this person while i'm running out of the store has to be for the purpose of there has to be that intentionality and so it could be a robber walks up to someone on the street and says i think this is the example in the whole case that's a nice car would you like to continue driving it it could be maybe you're driving a nice car give me your keys and that threat would be enough even though the car's not on that becomes person it might be parked down the street give me your keys and as long as that carries with it the threat of a pinch a scratch or slap or something more serious than that would categorically qualify under the act as force clause and so i guess the point here in the government's use that should boss remains good law after still going i think the court did have an opportunity to i do have a memory that may be incorrect from the shabazz argument that your honor brought up this idea that you know one person could tap somebody on the shoulder as mr rection while the other person pick their pocket you know and that would be force right the really teeny tiny amount would be a slap up and you know so there are the hypotheticals that could get us there i guess my biggest concern about the the perhaps perceived i was the imbalance but inconsistency is between shabazz and stokely is that really in the end this idea that there's a risk that someone can be injured that sounds really familiar and the reason that sounds really familiar is because that is the re so this approach to force just seems to be resurrecting that maybe that's a reaction to the idea that when two thousand and fifteen when johnson came out all the sudden i'm getting calls from the u s attorney's office that nothing is violent anymore nothing counts anymore you know and for a while it did seem like that and maybe the pendulum has swung the other way but in the end i'll rest on my briefs unless the panel has any other questions and we'll see where this goes