well your argument first this morning eighteen for thirty one united states russa's davis mr fieger thank you mr chief justice and may it please the court in order to render section nine forty nine twenty four c three be unconstitutional need to show that the only plausible construction is one in which a defendant's guilt or innocence hinges on a judge's imagination about how an ordinary defendant might act rather than a jury's finding about how a particular defendant acted that's a very unusual way to draw a line between criminal and non criminal conduct in the context of a jury trial and i don't think the lower courts would readily have accepted it if section one twenty four c were the only or the first contacts to present a choice between a categorical approach and a circumstance specific one the operative language of the statute the civilian what do you think congress and senate in one nine hundred eighty six i thought i think congress in decision that was a perk your in decision of the second circuit that it applied a form of categorical approach to hold that drug trafficking crimes were not covered by the then existing version of nine twenty four c congress clearly repudiated that when added the definition of drug  approach and i'd also note the sentencing commission read the language in a circumstance specific way from one thousand nine hundred seventy one thousand nine hundred nine after a few fits and starts we settled into the categorical approach because that's where courts seem to be going particularly after the ac residual clause in the rest of the career criminal act where in acted and because it appeared to be workable it appeared to be constitutional no i know you didn't want me to reference this court decisions but after to my and johnson it's clear that it is neither workable nor constitutional so we've gone back and taken a fresh look and i think if you take a fresh look at the statute you'll see that it's better read or at least reasonably read as the can of constitutional borden's would demand to have a circumstance specific approach but  harmless but we would be if the court doesn't agree with us on that it could send it back to the court of appeals and possibly there could be a retrial but if you if you look at the operative language of the statute here it clearly uses the term crime of violence in a context specific way it prohibits the defendant from using or carrying a firearm during or in relation to a crime of violence and i think the subsection specific definition of crime of violence in section one twenty c three is best understood and certainly reasonably understood to have that same circumstance specific meaning that's a very logical thing for congress to wanted to do because it captures precisely  but it couldn't be the only factor that renders a crime violent i think that is one of the things the phrase by its nature does in the statute so for example if you had a crime where a defendant simply had a gun in his jacket while he was in the front of a store doing some criminal business if the criminal business worried that he was selling cocaine that would be a crime of violence and it wouldn't be a crime violence would be nine twenty four c violation because he has the gun and he's carrying it in furtherance of a drug trafficking crime if all he's doing in the front of the store is selling counterfeit handbags in a perfectly nonviolent way that would not be a nine twenty four c violation this kind of inquiry i think is the kind of inquiry that the court made clear and both to maya and johnson is the kind of thing that juries can figure out juries are well acquainted with figuring out degrees of risk looking at courses of conduct and of course in the context of nine twenty four c the jury already finding the underlying offense conduct that is that issue so it what the categorical approach would do here is get away from the whole idea of sending things to juries and would substitute a judge's categor l judgment about the ordinary case of the crime for the facts of the jury has right in front of it which you can easily apply readily pleasurable standard of the sort that the anglo american system has entrusted to juries for centuries  offense charged on the books and look at the elements but with respect to be like us to look at the facts and treat the word offense there to mean what did the defendant actually do we don't normally read prefatory language to mean two different things in two clauses that follow and in fact the government earlier this year in a i don't know how to pronounce of cochise i think it is argued precisely this point that normally this single word is given a single construction at least throughout the same paragraph so what do we do about that problem we are in i think we are giving it a single construction and let me explain why first of all the term offense has always been  understood particularly if you look at this court's double jeopardy jurisprudence which interprets the term offenses the framers used it to mean transgression of the law and that encompasses both the acts that the defendant committed and the elements of the statute that the defendant violate it means both those things the same time you look at both of those things to see whether there's been a double jeopardy violation in more recent times this court has understood offense to work exactly the way we're urging here and its decisions  hayes i think hayes is particularly instructive if you look at the statute the court construed there was even more of a difficult linguistic left than this one for two reasons that i'll get to in a second but if i can paraphrase that statute only slightly for the court the court there was interpreted masterminding or i'm sorry running a little far afield for me if we just return to this language as i understand it you would have us read offense to me in defense of the charged on the books that much well i well let me just let me just make one can agree on that much i would just make one thing clear i think both of these do hinge on the jury findings just in the first case the jury findings necessarily incorporate an element that has a use of force so in that case the jury is still finding use of force and the jury's finding something in both cases i guess i'm not tracking you at all as i understand today one would look at the the fence on the books does the fence have an element of force  and all that requires a judge to do is to look at a law on the books classic categorical approach analysis and it be us has to skew that same analysis and look at what actually happened and i again i'd just like you to address that and not run too far afield other other cases or other statutes but maybe just focus on this one and explain to me how we might give that same word to different constructions you and i guess i guess my answer to you is that i don't think we are giving that same or two different constructions and the reason i was going to other cases and other examples let's how is it just that it's been understood to well me whe in a second i promise i know you want to write off smaller stuff that's fun but block per we look at the elements of the claim on the books and so we keep saying double jeopardy i say well that's what you want us to do a day but not what you want us to do in b also i don't much for that helps me that's why i'm asking to focus on the statute so you want to block or is only one part of the double jeopardy test obviously if the defendant commits two different murders you look to the specific actually the specific act that he committed each time but the way you look we're not talking about think anyone would look askew if someone were to say that a youthful crime a youthful gun crime is defined as an offense that has an element the use of a gun and is committed by someone under the age of twenty one in that's sends we don't understand offense to encompass both the elements of the statutory prohibition and the manner in which the offense was committed which is again exactly how this court interpreted the phrase comparing it to this bill that's currently pending in congress which is meant to change this provision in order to make it fact specific and so this bill rather than says rather than saying an offense that by its nature involves a substantial risk that physical force may be used instead says an offense that by excuse me an offense that based on the facts underlying the offense so they substitute by its nature for based on the facts underlying the offense and then they change the tense they say involved a substantial risk that force may have been so by it's nature versus based on the facts and change and that tends to make it clear that what we're looking at is something that has occurred and that we are able actually to make a fa specific determination about it now that's the way you would write a provision of the kind that you want this is not the way you would write a provision of the kind that you want by its nature clearly is like what is this  fense ordinarily about and then the use of the present tense is inconsistent with this notion that the jury in this case is having to look back to determine  particular facts of a particular crime well your honor just as a perfect or a matter the first thing i'd say is if that language is clear to you i think that's another answer to justice course of his question because even that clarifying construction the congress might be considering another place in which everyone agrees the defense could be used in both ways you know how to answer and just discourse such as question anymore mr fagan very not your honor to go to your question i think that language is clearer i think there are a couple of issues with that language as well first of all i wouldn't put any weight on the change in tenses because of course section one twenty four c like other crimes that are defined in title eighteen speaks in the present tense it talks about a defendant who uses or carries a firearm and the switch to the past tense is something kind of odd again this is the language congress constructed because it's worried about this court potentially construing the language in a manner that would render it constitutionally invalid so it's i don't think it's a fair representation of what congress might have thought and so in one thousand nine hundred six also with reference to the term by its nature i do think the term by its nature can be used and was used in section one twenty four c three b in a circumstance pacific way if i were to tell someone don't bring your gun to a situation that by its nature is violent i think that would be understood as having the kind of limiting feature that by its nature has in the sense is dead with the word situation you know you can preface that with the word facts but this is not prefaced it with that word as  discourse which said it's prefaced with the word offense which we know from section a is something about the statutory context and then it's you know the crime i would like to get back to offense so buy it by its nature in this in the statute as a circumstance specific on a circumstance specific reading serves some limiting functions first of all it focuses on the offense conduct rather than the know tony soprano's prone to fly into murderous rages at the drop of a hat but that doesn't make that every crime that tony soprano commits a crime of violence mr freedom what is murder by its nature me and how would you say to  somebody what does that phrase me and murder by its nature well your honor then i would want to know whether you were talking about murder in the abstract or a particular murder but i'm just repeating the language of the statute with the particular offense robbery by its nature well your honor that's not how we interpret offense here we interpret offense to mean the offense conduct of a particular defendant whether that conduct by its nature that goes that's just discourse such as example because you clearly can't mean it that way because then section a would be incoherent drawn of that's exactly the interpretation the court gave in hayes if i could just explain that for a second the court there was faced with a statute that had misdemeanor crime of domestic violence it was defined and i'm paraphrasing only slightly here as an offense that is a misdemeanor that has an element of the use of force committed by a domestic companion the court interpreted the has a element part even though a fence is a misdemeanor applied to the whole thing the court interpreted the has as an element of court to have a categorical approach and the committed by part to have a circumstance specific approach so i don't think the words offense that is a felony something else in addition the committed by specified persons or the fraud involving over ten thousand dollars and saying that that peculiar you know that that particular language made it clear that somebody had to look to what it actually happened but there's no such language in this statute well your honor if you're with me if that is the question you're now raising then we've gotten past a fence that is a felony then we're all agreed the defense that is a felony could have categorical eroded and other land and specific justice that and then and then we're just on the question of whether section one twenty four c three be read in light of the canon of constitutional avoidance can reasonably be read to invoke a circumstance specific approach and i think by its nature there does both what i said about the offense offender and also captures the idea of essentially the word otherwise as this court s rosemont what this statute is going after is it's trying to prevent a defendant from quote upping the ante by bringing a firearm to a situation that would otherwise present risks  sims please i'm just little concerned i would be able to squeeze in some question during your presentation but go ahead i'm sorry as i was saying earlier it can't just be that the firearm itself creates the risk it's bringing the gun situation it already has it without by its nature i don't think that would be as clear i'm sorry just this alito no no no so i'm interested in the practical implications of our decision in this case how many contemporaneous crime statutes would be put in jeopardy if we rule if we affirm here well your honor very few of them have their own subsections specific definition of crime of violence so i think the court's decision here is going to certainly would certainly if the court held that the ordinary case categorical procure plies would certainly invalidate section one twenty four c three b would also call into question the bail reform act but i think if the court did that there'd be a couple of other very important consequences for one if the court does so based on respondents argument that juries can't possibly figure this kind of thing out because it's too complicated for them it would call into question a host of other federal and state statutes that call  question matters of degree second we know from johnson exactly what the fallout of invalidating a provision like this is going to be and we're going to have hundreds and thousands of very violent offenders some of the worst offenders in the criminal system federal criminal system challenging if they're still on direct review challenging their convictions or challenging their current prison terms the other thing it's going to do is increase the amount of litigation under section one twenty four c three a because it will call into question whether some very violent crimes that congress would undeniably i think have wanted to include as section one twenty four soon rather gets actually can serve as section one twenty four  predicate the government in all of these cases keeps up in the ante even though they continue to lose hands immediately prior cases who will if you rule this way all these other ones are going to fall and then we do read the rule that way in the new got to come back and you've already given up all those other ones case after case i would have thought you'd be more interested in saying that there are possible distinctions in these other cases so that you don't automatically stack the odds against you when that next case comes up well your honor the only federal statute i think we would see next if it came up is the bail reform act we might have some discussion of that but i think the main the concern we have here is going to be the practical concern that i was just mentioning with all the defendants who are going to may be required for a large number of persons the likelihood of significant changes in prison sentences is low given that this is usually thrown it is an additional charge from what about mehdi stacked on top of others well i don't think that's correct your honor so for example although a court is entitle to consider the fact that there's going to be one twenty four c three sentence added on to defend and sentence court's will lower sentences if the one twenty four c three excuse me the one twenty four c conviction is vacated we didn't see in the aca contacts every defendant get the maximum non aca sentence and some of them were released just to be clear do we have any and we have this very impressionistic argument you tell us it's the end of the world is near or maybe now after the chief justice is not quite so close as we thought and then are your friends going to argue well it's not going to really change much at all  but we don't seem to have a lot more than these very rhetorical arguments we don't have a lot of empirics before us on this well fortunately your honor this we haven't faced collateral litigation yet because most of those cases are on hold but i can tell you that numerous defendants and numerous federal prisoners are filing for relief and we do expect that quite a few of them notwithstanding are u rging of courts to impose the same sentence if they can which won't be possible in every case but if they can impose the same sounds we do think some of the about this is also going to increase litigation the lower courts under the categorical approach under section one twenty four c three a if the court rules against us in this case i thought one of your excuse me one of your points was that this was going to significantly lower the sentences of many violent criminals so there are going to be cases in which can't that is there are going to be cases we cannot get under one twenty four c three a and for those defendants there nine twenty four c convictions are going to be wiped out and they're going to get lower  lessons and i think the length of sentences is one of the concerns you have to confront squarely here when dealing with nine twenty four c and so your response to that and what congress was thinking about in one nine hundred eighty six with respect to why they wanted why congress wanted long sentences for these kind of violent crimes well i think it is crystal clear in the largest weight of history congress wanted a decision and frankly in the text of the statute the congress wanted a different terms on top of the sentences that the defendants would receive for any underlying crime of violence that was also charged for the nine twenty four c offense and i think what respondents approach here would do is essentially eradicate that judgment whereas adopting our approach the only defendants who are going to eradicate the judgment as to anyone who would have fallen under nine twenty four c three b and i don't think that's the right approach to take when one twenty four c three b can at least plausibly be read to have a circumstance specific approach whereas under a circumstance specific approach the only defendants we're going to be able to obtain relief are the ones who actually committed their crimes nonviolent i think that is exactly the result the congress would have wanted had it understood as the canon of constitutional void and presumes that it's choice of an ordinary case categorical approach hadn't even imagined one in one thousand nine hundred six would be held unconstitutional i should reserve the balance i'm sorry just to sort of if i could reserve the balance of my time thank you counsel mr chief justice and may it please the court your honour's this case is about following the text of a statute where it leads and when necessary requiring congress to speak more clearly on what is prohibited and there are three reasons why the nine twenty fo residual clause should suffer the same fate as section sixteen b first they contain the same language that gives rise to an ordinary case categorical approach second they share a common history suggesting similar treatment under the law in third a conduct based approach lies beyond the reach of constitutional void and before i move to my those are cases those cases we're concerned about the jury protecting the right of the jury to find the facts that concern which undergirded all of those cases that sixth amendment concern as well as the practical concern of trying to really litigate what had happened many years ago that is totally absent in this case right your honor the constitutional concern is absent in this case of course they are made and you agree with me that that concern undergirded taylor that undergirded johnson in undergirded to my i disagree with you that that the right to a jury trial in your honor my reading of that portion of taylor is it's raising a question of judicial economy it's within the paragraph dealing with practical and workability concerns and it simply raising the question are we now going to be faced with the problem of every defendant appealing saying they were denied a jury trial and i raised this because i think the prior cases interpreted language in a way to avoid a constitutional problem namely the sixth amendment problem when you're focusing on prior convictions but that reason to stretch the language and one direction is not not present here as i see it this is the jury was all the all those cases were about the jury and then the jury would be able to find the facts here in your honor i want to be able to answer your question clearly in taylor when this court first raised the question of whether to apply a categorical pro church conduct based approach the very first statement was we were persuaded by all of the circuits below that reached a categorical progress in not one of those cases there were mention of a constitutional concern or the application of constitutional avoidance the conclusion in taylor was there's only one clause their interests went into the system you talk about them reaching the singular conclusion that that language often its plus by its nature with the absence of conduct specific language requires a categorical approach let me ask this question about the text let's say that  statutory provision comes before us and it's possible to read the language of this provision in two different ways and one may argue about which is more which is more strongly supported by ordinary textual analysis disregarding any practical consequences but we know that one reading is entirely workable and the other one is absolutely unworkable and would we presume that current would would we not think that congress is likely to have chosen the interpretation likely to have meant the interpretation that is workable as opposed to the one that is absolutely unworkable in your honor i'm i'm aware of the presumption of constitution ality but i'm not sure i'm not talking about the presumption of constitutionality i'm talking about the presumption of rationality i think that's relevant when considering a statute i would agree with you on that the question here ultimately so if the language can be read in the workable way as opposed to the way that's completely unworkable we would choose the way that's workable we would think that's what congress meant not something that was that was dead on arrival your honor we must begin with the text when trying to determine what congressman workability has to be a secondary or  consideration here the government has proposed a new reading conduct based approach that cannot be reached by constitutional boykins simply because it's not a ploy all the me ask you this textual question and look this is looking at subsection capital b when under your understanding of the categorical pro choice when the court is determining whether an offense by its nature involves the requisite risk it isn't not asking to do the elements in themselves involve that risk it's us is that what it boils down to i disagree under this language your honor so what w does the court look to besides the elements to determine what is the typical case well as this language been has been construed in this court would imagine the crimes imagined ordinary case in we get there from this with the intent to commit a felony so now i want to think of the the ordinary case of burglary and that's what i think of what do i think of beyond that you think of how burglary is often ordinarily are typically committed and you'd then ask the question is what is the risk associated with that now that's if i was to do what is typically done in a burglary beyond the elements of burglary the problem with this is we can't answer that question justice scalia explained for example with possession of a short barreled shotgun and johnson is many times as we try even with these common offenses ultimately it becomes an impossible while i get him to stand that but if i could just i'm sure i see justice please  if if you can't tell me what beyond the elements of burglary one would take into account under b in determining the typical burglary i think that what we're talking about there are under your categorical approach is the risk that some herit in the elements of burglary and if that's the case why is there no reference to elements in b when there is a reference to elements and in any doesn't that tell you we want to look at something other than merely the elements of the famines i would agree your honor but not conduct here in this kind of goes back to justice gorsuch his question to the government how do we construe this when the early word often  the subject phrase for both subsection a and subsection b this court answered that question in clark first as martino's that words cannot be treated as a chameleon meaning one thing for one purpose and another for  of a different question which perhaps puzzling only me but both you and the government assume that without this case specific interpretation the statute would be unconstitutional because now i know but let me tell you why not and then you tell me why i'm wrong what we had in johnson was a statute that said in defining the relevant crime burglary which is sometimes violence arson my probably a lot of problems extortion hardly ever violent use explosives often violent  otherwise involves conduct that presents a serious risk potential risk of physical injury and it's that last phrase that the court sort of with justice scalia writings threw up their hands in that context and both judge posner you know lower court opinion and i think i've said the same thing there's no problem here look the government go look at the pre sentence reports and let them discover how often these crimes do involve violence and then categorize now that's very tough to do with the johnson case because with the johnson case you're talking about state crimes that are phrased in four thousand different ways but it sure not tough to do here this is a federal crime based attitude the government has all the pre sentence reports it wants and it could go through and categorize which are violent and which crimes are not and if that so i don't see why it couldn't if that so this would not be a difficult statute to interpret it would not be very ambiguous and therefore you win but you lose because in fact it isn't unconstitutional if i think that which i do is there is there some abs know is there some killing argument against it which there may well be which should tell me i'm really on their own loan or out of my mind or it's out there you understand i understand your honor one of the reasons we have the void for vagueness doctrine is to support the separation of powers by not delegating to judges and prosecutors the authority to define the contours of a criminal statute particularly a criminal statute that takes syncing discretion away from judges and imposes harsh mandatory minimums in this case twenty five years but i want to tell you keep going i want to tell you why this is like johnson and of course we shouldn't forget about sessions versus demaio which looked at the same language the same two features in johnson that conspired to render the residual clause void for vagueness are also present here first a lack of guidance on how to imagine the crimes of ordinary case coupled with an indetermi risk of physical force so what the court writes i'm not saying we should is enclose a it is it's an offense it is a felony has an element the use attempted use or threaten used to physical force right so we get the pre sentence reports and we see what the average risk of those crimes is in terms of physical force and then we say be means the same those crimes that have the same risk of physical force in respect to be as the crimes in respect to a are what this language is referring to that would be clear nobody's tried that i've suggested it so what do i do i guess you would like me just to say the government's conceded it's unconstitutional that's the end of it well in to address your proposed solution your honor at that point we'd be delegating to united states probation the authority to define this what we're looking who who writes the pre sentence reports or who has a right to pre sentence reports according to the facts and anybody who wants a trial as to any fact in respect to a pre sentence report have a jury to find it or the judge i inappropriate can do it in then we run into the same problem in johnson and dimaio what statistics do we use what other sources do we use and this court has never been able to answer that question and i think appropriately but it's an unanswerable  johnson we said we distinguished cases about prior convictions were you looking at risk from this case and said more importantly almost all decided laws require of gauging the riskiness of conduct in which an individual defendant engages on a particular occasion so that was to say and then went on to say as a general matter we do not doubt the constitutional now any of those laws so why would a law that refers to substantial risk be unconstitutional in the court and johnson said that's not an issue well it's certainly not always the case your honor but it's usually the case we see the court said do not doubt the constitutional and now any of all those laws oh no i would agree with you that most of the time a jury is capable of making a risk assessment the question here is not whether the jury is capable of doing but if that's what congress intended right here i take your point on that on your vagueness point vagueness is born in  conception of fair notice you would agree with that a combination of fair notice and the support of separation of powers your honor and hasn't congress in one thousand nine hundred six was concerned about the enormous problem of gun violence violent crimes committed with guns which was bad as it is now extremely bad worse much worse in one thousand in the one nine hundred eighty s nope and ever put everyone on notice on notice fair notice if you commit a crime with a gun you are going away for a long time that was congress is obvious intent overwhelming intent because of the problem and the idea that you know i guess i'm not seeing the notice problem given that that has been crystal clear since which created the arbiter criminal act section sixteen as well as the first definition of crime of violence here congress was thinking about the predicate offenses categorically as categories of traditionally violent crime on the question of what congress was thinking maybe we could just taken a glimpse at what actually happened in this case which is that the defendant conspired to commit and then commit it a series of robberies of convenience stores where they put a sawed off shotgun to the head of a clerk and then robbed cigarettes now do you really think congress would say well that's not really a crime of violence to defendants in this case are guilty of every offense you just described in we're not challenging any of those convictions the difference here today if we were to win in remove counts that they were convicted under is that either they would die in prison or be released as very old but that's not my question of congress had in mind this kind of crime do you think congress would say no that's not a crime of violence as for the robbery certainly i would agree with you as to the conspiracy as of the conspiracy they would say that's not a crime of violence congress has not spoken clearly on that question not with the language i mean no doubt what they would  i certainly do have doubt about what whether congress included intended to include conspiracy when it was thinking about traditionally violent crimes simply because conspiracy is an in code defense counsel  looking at what congress actually wrote in terms of canons of construction we have times console one we've heard about so far and talked a little bit about it is the care of constitutional avoidance this court will attempt to impossible usually those two canons point the same direction this is an unusual case where they point in opposite directions and if you done any study or examined how historically those two canons when they compete are reconciled it's a difficult question to answer your honor we know for example from clark versus martinez that we resolve all textual canons before reaching avoidance dealing with another normative canon like limited it's not clear i couldn't cite a case for example it certainly makes sense that constitutional avoidance well before we get to what makes sense we we hear a lot about what makes sense in this room i'm curious about what the law is yes have you done any examining of historical sources inconsistently in application they're certainly they exist in the same sphere they're both triggered by concern over ambiguity they both are used with a plausibility standard but the reason the government's proposed product based approach is not plausible really comes down to the rule of liddy but in addition to that and perhaps more importantly it's irreconcilable with the plain text of the statute it conflicts with how this court has already interpreted identical language and it offends the separation of powers and i come back to the question about the meaning of the word offense which you address i'm sorry which mr fagan addressed extensively earlier  does that same problem exist under consistent with our argument the government in fact is trying to change that so the government already have it all let me ask a different way do you think that the residual clause in aka it can be objected to on the same grounds that you were using to object to the use of the case specific approach the fact specific approach to the residual clause here i think so your are absolutely could you just explain how that is sure in it if i can refer to precedent while doing so but i'll do it without mentioning taylor for example while i thought i'd prefer if you can do it with the language if you know the language in mind th n i'll just leave i have the language that the same problem exists in both the lack of guidance on imagining the ordinary case of the crime in the indeterminate risk threshold does are present here is well is there you also have the dual inherent probabilistic language that gives you right over the word what i'm getting at is this your argument that the provision here under the government's reading interprets the word offense to mean two different things element at one point and facts at the other the way aka is worded that problem doesn't arise it says it talks about a crime and then in subsection i has an element subsection t presents a serious potential risk so you don't have that problem there dick we do have the same problem because what's modifying crime is not presents but involves conduct so it's a parallel reading here and of course if we look to sessions verses to my it's the same language but going back to nineteen i don't think there is an important distinction in this respect between the language of its provision and the provision of  r if we go back to nine hundred eighty four when congress created both section sixteen and for the first time narrowed the application of nine twenty four c from all felonies to just crimes of violence there was they were can joined with a cross reference at that time even if we didn't know what section sixteen and section nine twenty four see meant we know congress intended them to change it in eighty six they changed the cross from they removed the cross reference but what they know it was meant to feed your whole point that it is not your honor because they use the same language so the truth is neither the government nor respondents know exactly why congress chose to copy and paste  language from section sixteen into nine twenty four c but we know they use the same language so it makes better sense that they were doing so for convenience because it was at that time that they were also adding a definition of drug trafficking crime the united states i believe in two thousand and seven this court dealt with a similar situation where two provisions used the same language at inception in the way congress intended a different meaning there is it changed the language in one but kept the language in the other the same yet here we are faced with thirty years of a categorical interpretation from circuit courts we have three different instances where congress has changed the language of nine twenty c in that time and not once has it changed the language that gives rise to this categorical approach so i think that gives us some insight into congressional intent through this amendment history just last term this court stated in jennings vs rodriguez quote spotting a constitutional issue does not give the corps the authority to rewrite the text of a statute in the government's proposed conduct pace or approach would effectively be asking this court to do just that one of the big limitations on the application of constitutional void in this is the separation of powers congress alone is the law making authority and a conduct based approach would offend that in the truest sense uses this basic question asked is the question of whether it's too vague that's why i'm in my dilemma and certainly the conduct based approach is one effort to escape that's correct you're osa but what it would what i do if i think you see these words here is a substantial risk that physical force against the person what they mean is the same risk of physical see if you were to do that it would be very specific and it wouldn't really be like johnson because johnson put a lot of weight on the fact that they had three examples which cut in for examples cutting in different directions in their state crimes and i just wrote that out and said that hasn't been argued here's here's what would you do if you were in this you see some obvious problem but here's the difference subsection a is asking the question does it have an element of force and subsection b is asking a different question what is the risk of force posed by the nature of the offer those are two very different questions although i would agree with you that subsection b sweeps more broadly  a clear indication from congress that we were to look at fact specific conduct using the language in which are using the language committed by and it's important to note that one of the reasons this court ruled the way it did in the is because the provision right above it clearly called for a conduct based approach and it had identical structure if we were to apply that same reasoning to this case it would require a categorical approach because drug trafficking crime is categorical conceded by the government the elements clause is categorical effectively conceded by the government and why would congress intend to treat subsection be any d ifferently without clear intent based on the language it chose two other provisions that are also categorical in nature that apply to president often says that are cited by the government section nine twenty nine of section nine thirty one one dealing with body armor in connection with a crime of violence one dealing with the use of armor piercing bullets if the government is correct here today those would be treated differently then nine twenty four c use of a gun and i think that really calls into question the internal coherence of the body of law i think this court does have some obligation to seek a harmonious interpretation of the body of law in many of the points raised by the government today would destroy you not only the internal coherence of nine twenty four c but also also its ex turtle coherence with the way this court has interpreted section sixteen and so it's for these reasons that we asked this court to affirm the judgment of the court of appeals for the fifth circuit in hold the nine twenty four c residual clause void for vagueness thank you very much thank you counsel mr fagan you have four minutes remaining no thank you mr chief justice i just have i think four points one is i think my friend agreed in a number of points that our burden is simply to show that this is a plausible interpretation the statute second i think it's helpful not respect to think about whether this particular self contained provision if it were to have come before the court is the first time anyone who's ever urging a categor approach and a criminal defendant were coming before this court and saying no you should apply the rule of law under the for me because i want a circumstance specific approach i understand that an ordinary defendant who commits commercial sex trafficking with a minor does so by threatening the minor with force but that's not the way my crime was committed and i want to prove that to a jury and i were arguing the other side i were arguing for the government that that didn't matter it just matters wouldn't ordinary defendant does you have no right to show the jury which you did i don't think anyone would think that that was a slam dunk case for the government that the court should apply an ordinary case categorical approach third i think that shows why the rule of one of the shouldn't have any application here because it cuts both directions a defendant who committed his actual crime in a manner that is nonviolent would invoke the rule of law in favor of the very circumstance specific approach we are urging there is no reason to apply the rule of  of defendants that this statue now will the plight of the wise you wouldn't be fighting so hard if it was really a draw in your brief sort of walks this line in saying there's no empirical evidence to support how large the difference but logically speaking the use of a gun in the vast majority of cases i spot to that there's a few where this wouldn't happen is itself always going to provide substantial risk of violence so i'm not buying that there is a limited because for a very large number of people who do your reading they're going to have this statute applies to them except you're really let me answer that in two ways then i think i had my complete at that point the first thing i would say is i don't think this will dramatically expand the scope of crimes that are going to be very few crimes that we would think about is ordinarily nonviolent the group can become nonviolent just because there's a gun and let me give you a specific example of a set of crimes that are now nine twenty forty crimes that are going to very least be jury questions under our approach which are these stash house stin cases that are come up in some of the amakosa briefs where defendant into conspiracy with an undercover agent to rob a drug stash out that stash house that doesn't really exist those cases obviously get to the jury because the defendant can claim that the situation was so under control that there was actually no risk that there would be a use of force and we might lose a lot of those cases and in some cases judges might prevent those from coming to the jury but the other thing i'd say is and this was going to be my fourth point we're not urging this approach because we want to broaden section one twenty four see it's going to of course limit it to only a subset of conspiracies we're doing this because we want the statute to remain constitutional and implement congress's intend and because there are a lot of offenses that we're going to lose kidnapping conspiracies to commit murder rape these are the kinds of things that congress would certainly have wanted to categorize as crimes of violence and there are a number of other offenses that are going to be called into question because it's not clear we're going to be able to get the men under section one twenty four c three a which is going to spawn a whole new cottage industry of litigation on this issue i'm not making up these example being clued assault manslaughter material support of terrorism for defendants who've gone and trained a terrorist training camp and with all of those cases nothing about our ruling will affect the discretion of district court judges if they choose to give the same sentence and even more because once a defendant opens up a sentence a judge has the discretion to go up down or stay the same man justice your honor it's not always going to be possible to impose the same sentence and congress we really made the judgment that it wanted additional sentences for people who use firearms for example in furtherance of civil rights because physical injury this issue has come up for example in one roof prosecution in charleston this is we i don't think it's correct to say that all these defendants are going to get the same sentences no matter what thank you thank you the case is submitted