states versus johnson may please the court your honors my name is jason meeting here on behalf of the united states your honors maryland robbery is a violent felony it satisfies the force clause in the armed career criminal act which is found in eighteen for the last one hundred and ninety three years consistent with common rule but we also know this from the logic and the reasoning of the still cling case which is the recent supreme court decision that construe florida robbery but essentially it found that if it satisfies the common law it will be satisfying the force clause we also know this from this court's recent decision in dinkins which overruled his prior holding in gardner and found the north carolina robbery was a violent felony so we do respectfully ask this court to reverse with regard to the district court's finding on maryland robbery and that we asked this court to find a violent felony we also ask respectfully that this court would reverse the district court's finding on maryland possession with intent to distribute who would ask that this court would find that it is a controlled substances offense under four b one dollar of the guidelines and we say that because if you look at the maryland quid statute it tracks almost perfectly what the guidelines say and so we do respectfully submit that there are categorical match and so we do ask this court to reverse on that ground as to yours and i'd st like to start with maryland robbery if i could and if you look at what johnson said about the force clause it does require force capable of causing physical pain or injury to another and we respectfully submit that if you look at the maryland preceden that's exactly what it says in other words if you look at the west case it's actual violence implies personal violence and that implies any injury to the person or if he resists that that resistance is then overcome so so we think west can and should answer this question we also respectfully push back on the defenses arguments about whether de minimus force is possible under maryland robbery we respectfully submit it's  not and we say that because all you have to do is compare the west case in the cooper case where you had to minimize purse snatching that was found to be not enough and compare and contrast that with the rayford case and so there's this clear delineation in maryland law that says if you have to minimize force it's not going to be enough and that i think shows that we fall on the violent felony side of this law we've also cited  the wilson case that this court decided in one thousand nine hundred and one and i'm happy to address that case it is a published opinion from judge wilkinson and we do think it says quite expressly that maryland robbery has an element they use or threatened use of force as opposed opinion of this court and i don't think that any subsequent cases have undermined the reasoning of it and so we do respectfully submit that that's also additional authority here we also just note that the district court in maryland certainly has been very consistent on this issue we now have five decisions from four different district court judges on this issue judges that are very familiar with maryland law construed maryland law and sided with the government  this decision is the only one i'm aware of in our court that's gone the other way there's also some other just interesting facts about mera law that i think pushed us in the direction that we have postulated and i try to look at this frankly from every angle and in my view any way you slice it every angle that you look at it all points at maryland robbery being a violent felony and so these other sort of clues that we had one of them is how does maryland courts construe some of their elements will they look to federal bank robbery and we've included that in our brief and this court has found in dr that if a state puts its robbery statute in perry material with federal bankruptcy federal bank robbery pardon me that that is a clue that we should find that it is a violent felony as well in maryland law has done that in the cold case in the dixon case they say we're going to bring ourselves in line with federal bank robbery laws that's another in disha of this being a violent felony the other sort of unique fact about maryland law is that it actually is defined in maryland code as being quote unquote a crime of violence and that's an interesting turn of phrase it certainly wasn't by accident in our view in other words the maryland legislature is telling us marilyn robbery is a forceful violent crime and if violence so we do submit that we have some additional clues to make us absolutely certain that maryland robbery is a violent felony and you also obviously would look to the decisions of the highest court of the state in defining the elements of the offense in this case and you pointed to the west case your friend over on the other side obviously pointed to the snowden case insisting that our marbury's account compound offense which includes larceny and battery and that he points to curtis suggesting that common law battery is not enough but i gather you dispute that but if we if we find that there is a at least some confusion in the case law shouldn't the defendant get the benefit of the doubt with respect confusion so you're i guess what i would respectfully submit is there actually is no confusion and i take the point that if there is confusion this court would have to deal with it and make a determination but if you actually look at the cases it's over and over and over again and we'll talk about the snowden case in a  but they define maryland robbery unequivocally as you have to do it by violence or by putting in fear and that is exactly what the common law standard is and still quinn said if you're under the common law standard you're a violent felony the snowden case i really do want to be very clear about it we do disagree with the gloss that's put on it by my colleague and what i would respect with some if you look at that case immediately before the passage that they cite which does use the word battery they cite in fact the same standard that i just gave you the idea that in the cold case you have to have violence or putting in fear so in my view snowden does not rewrite maryland law or lower the standard in any stretch one in snowden that my colleague cites it actually parrots the language from the coles decision and says precisely robbery is something that you commit by violence or threats or as judge said that yes it is a compound larceny and it does define the force element as battery and then it puts in print parentheses violence so it's showing you it's not the misdemeanor battery that they're talking about in johnson what they're talking about in the snowden case is violence and violence they're triggering back to all those other precedents that violence is violent felony like  thing that i'll just point out for the court time and time again in maryland precedence there's been this idea of like well let's lower the force requirement or let's make it more flexible that's in some of the case decisions and i think it's the spencer court that talks about it mail in courts of pushback on that and they've said no we're going to maintain maryland robbery as consistent with the common law that's the way we've always been that's the way we're going to stay and if you look at what's still clean said  maryland put statute if i could so moving on to that statute your honor we do respectfully submit that that is a controlled substances offense and that i think all one has to do is actually you look at maryland possession with intent to distribute we have a statutory definition so you look at five dash six hundred and two that language is indistinguishable from the guideline standard and so there's just simply no daylight there and if there are categorical match maryland possession with intent to distribute has to be a controlled substance now we also can get deeper into the weeds and i'm happy to do so if you look at the definitions behind that statutory debt that's in five dash want to one they define what you have to do to be found guilty of maryland possession with intent to distribute and it doesn't have the kind of language that my colleague suggest is all important to his argument and i want to address it just directly in order for my colleagues view of the law to prevail maryland law has to outlaw an offer to sell essentially without the intent to do a kind of puzzled over it to be honest but i think this court doesn't need to get metaphysical about it all we need to do is frankly just look at the statutes and look at the definitions and those offer to sell words or just simply not there and so to rule for them i think this court does have to read language into the statute that isn't there and i don't think we're permitted to do that  hinkle statute they actually do say in offer to sell shall be included in what the term deliver again i could quibble with the idea that i think what they mean there actually is an offer to sell with the present intent to actually distribute and not just do an offer to sell in the ether without the intent to distribute we don't need to go there obviously texas law is in front of this court right now but i just think you look at that statute and look at that case i don't know let's just say this way i think there's ways to suggest that it's not what it says it is but we don't even need to get there because that language that was important hinkle just isn't here in maryland and we cited the andersen case in the holloway case to suggest that intent to distribute is actually the element and i think in various parts of my my colleagues brief he says well the intent really is intent to it's maryland possession with intent to destroy that's the crime we also have a unpublished opinion from this case that says the maryland possession with intent tribute statute is a controlled substances that we've made here but we do just want to sort of step back and look at a thirty thousand feet view we do respectfully submit look at the elements and just look at the statutes and it's very clear that a controlled substances not if you look at it in our view that the maryland pattern jury instructions those in our view are what the authoritative jury instructions are i want to be clear in some instances some courts do use the aaronson instructions which is what my my colleague is relying on but in our view those words offer to sell are actually not in any and if you look at the maryland pattern of jury instruction it's certainly not there and what the m p i want use  in the maryland pattern jury instructions are those words now in the aaronson side that my colleague relies on it doesn't actually say that either in other words it talks about how you can deliver a controlled substance and it says that you can do that when drugs are sold and that it defines how you can sell drugs and it says you can sell drugs through bartering transferring or offering them for money and in other words an argue we think that modifies that the  light is on i think i'll see the rest of my time for a bottle or reserve the rest of my time for a bottle one thousand four hundred and fifteen years i'm actually have no time but we do have a bottle thank you please the court in maryland robbery is a compound crime consisting of a common law larceny and a common law assault and battery maryland's highest court has construed the assault and battery component of robbery to require only an offens permission i'd like to focus the balance of my time on the iraq issue and i'll discuss the other issues in the cross appeal of the government focuses here as well as in its briefs on myopically on the fact that maryland for many many years ha needed to satisfy the violence prong or the threat of violence problem in maryland we know the answer to that question because the snowden court has told us it's a murder case which is identical to the maryland court of appeals case  aparicio and it started its analysis in snowden by saying we have to scrutinize the elements of robbery and assault and battery and in doing so the court made very clear that robbery is a compound crime existed two offens satisfy the violent felony now the government's principle response here on snowden is that it should be ignored for a couple st off they point to the fact that immediately prior to the section of the case talking about how  robbery is a compound crime it uses the same language of west the state and rayford in cooper and all these other cases again we agree that maryland robbery requires as an element the use of violence but that doesn't answer the question of what  violence is needed and i think it is stunning that in the government's two briefs that it filed with this court and again today at argument the government has offered no response to this court's decision in aparicio which dealt with the maryland court of appeals case in the identical procedural posture nicholas v state was a case where the maryland court of appeals was examining whether assault and battery emerged with a greater sense of rest the stokely effect our reasoning an app is not your honor for two before i dive into wishing stokely i want to make something clear my colleague has said that stowe queen said that any state that defines robbery consistent with common law means that holding is on it's the st paragraph this case requires us to decide whether a robbery of it has as an element the use of force sufficient to overcome a victim's wrist resistance knesset necessitates the use of physical force under the a c c u the government has never argued not below and not in its briefs and i hear today that overcoming a victim is an element of maryland robbery just to the contrary the government has insisted that the element we have to focus on is the use of violence and again we agree so we don't have the identical situation here in stokely and answer questions as to whether or not that robbery in maryland is a is a compound offense that includes assault and battery right but we disagree and i again i don't think the government has ever argued that overcoming a victim distance is a necessary method of committing robbery certainly it is often the circu victim but the evidence is too speculative we can't the firm on that so the court didn't just vacate the conviction it actually remanded the case back to the trial court to give the government another opportunity to substantiate its claim reflect the notion that assault and battery is an element of robbery and that it's defined consider common law if you look at spencer v state in coles we state these are two cases that the government cites extensively in its brief the name twice today what and was having to distinguish gardner what it says on page twelve of its board is that all these cases turn on the idiosyncrasy law and we agree with that assertion and that's part of the reason we have a memory on my question is not being clear i'm not with this case and with this court ending can set is well we decided gardner that was the deciding factors we base that decision on the fact that in north carolina all you need to do is overcome a victim instance and they don't really care how much force it is and our case is whether or not maryland robbery requires overcoming the victim's reasons in the same way that florida robbery did in the stalking case in the same way that north carolina robbery does and again we've heard no argument not before  overcoming of the victim's resistance than aparicio is still a good law and my and my friend on the other side has never argued that stokeley impacts the wait for the presidential force of aparicio in fact he hasn't offered any argument at all as to so you know obviously you don't think that weston cooper somehow heard the those cases of the better definitions of what robberies in maryland or do you think that's those cases are entirely consistent with your view that what we have here is an will anyway go ahead well perhaps i haven't been clear the issue is that those cases don't require it and because they don't require resisting it's not the same element that still cleans looking at still clean is of maryland proper so what's the government concedes that it's not an element of maryland robbery as your honor rightly pointed out it's not discussed in many of these cases is not contained within the elements that these cases set forth for mail and robbery when your argument is in maryland robbery requires only an offensive touching that's right so then you look at snow robbery is a compound larceny it is a larceny from the person accomplished by either an assault it's requiring a battery and we know that that's not sufficient to qualify as a buy and you say that because battery requires only an offensive touching so does maryland robbery that premise is sound but the cases just don't bear an out and that's what i was trying to get at you in considering minimum conduct or the categorical approach there must be a realistic possibility not a theoretical path so then you go look at these cases upon which you rely western cooper right and each of those cases the court held that the defendant neither injured the victim nor overcame resistance not that any touching was inoffensive w always incorporated into para law but i think last piece in those cases don't say that if you look at cooper i think it does say that the kind of the court says is right the government's argument in that case is what he took the money out of the in a court says that's not enough and the government says well we've got this witness the victim says well maybe he put his hand on my back and the court says well maybe that's maybe that's good enough but the problem is the testimony itself the evidence in the case it's too speculative so what the court said is we're going to rema case back to the trial court to give the government an opportunity to shore up that defect in its case to substantiate the claim that there was a hand on the back the head on the back is an over instance of hand on the back isn't violent force it's an offensive touching and the other example that cooper gives is a hand around the back of the neck while you pick the pocket that is squarely in the realm of an offensive touching and question about what the realistic probability is and  how do we satisfy that standard here again i would direct this court to the aparicio case where the government made this argument that said well you need to show an actual conviction what this court said is when you have a statement from the state's highest average you yeah i suspect that you might we do we do rely on it but you know the court says if you got a statement from the state's highest court that's it you don't need an actual conviction we know that prosecutors to this theory and by the way the formulation of the elements as requiring assault and battery and snowden didn't come out of whole cloth if you look at the st part of the opinions what the state government proposed what the state government told the court was required for robbery and the only dispute was whether or not the facts of that case showed that one assault was being considered by the jury as as satisfying the robbery so we know what the state government in maryland thinks we know what the maryland court of appeals thinks is required and und of its responsibility of given the limited instruction required by this court the other argument is about the intrinsic nature of the evidence and i think we've pretty effectively dispelled that by citing the united states case out of the th circuit and again i think my colleague from the last case said you know one thing we can do in these cases is look to what the government said in the closing argument and that's a pretty good indication of the theory of the case that was being pursued and i think we can do the same thing here the government says marijuana evidence was introduced as an intrinsic part of the crime so here's what they said in the closing statement the defendant possessed marijuana and addition to that firearm drove away because he knew he was guilty of multiple offenses that's it s j a three  and ninety three he admits to crimes that he's not charged with our review here is for a point where we are here before assaults court on plane air and the defense counsel did not object but again the government has not disputed that there is it what's your reading of the record my reading of the record is that defense counsel was not maybe clear as to what the judge was asking him because the the facts of the case are right that the government had said at the outset we're going to ask about one prior conviction that moment that it was going to ask about any of the other convictions on the record i think you will tell them that you were put in certain convictions i mean it strikes me as i don't i don't i don't mean to fault the government for not disclosing that ahead of time what i mean to say is that your honors i'd just like to make a few brief points in rebuttal if i could st your honour's my colleague started by indicating his belief that maryland robbery would only lie for an offensive touching and i think judgments as you pointed out in the cases just don't bear that out if you look at cooper and west if my colleague was right those cases would have come out differently in other words they would have affirmed on the basis of those facts if you look at cooper you have a sense of touching a hand in somebody's in snowden and i'm i'm glad to address it i think one of the things that's interesting about snowden is not just that i talked about with judge diaz initially that snowden basically has the same language of words you still see sites to cooper you still see sites to west in other words no one is saying that the single word in this single case that really isn't even construing the factor that we're talking about here affected this great change that my colleague is suggesting because i think it's very true it would be a change in other words over the last you know several centuries this is the way maryland law has been and so i think it's simply not a good reading of to say that it's this great magnanimous change that all of a sudden lowered the force element in maryland robbery to this low to minimize battery in other words everyone would then be saying well cooper is no longer a good law or west is no longer good law because of what snowden said and obviously no court is saying that so i think it's just simply a wrong reading of snowden as one that i think this court should reject there's also some some tell us the answers to the need to answer here in other words that case was about a different statute were focused on the force element in maryland robbery and we have to look to those cases operations serai tells us sort of a pathway in other words you know look at barron court of appeals decisions of a special people's opinions and we're employing this court to do that to you know look at look at the cooper case look at the west case in other words follow those pathways and we think it will lead you to the conclusion that the government's postulating the last comment that will make your honour's is about still clean because there was a suggestion made that that the arguments that were making are somehow mis reading stokely so i do want to be clear about the specific language that we're relying upon to make this argument and to justice thomas in stoke when said congress made clear that the force required for common law would be sufficient to justify an enhanced suddens under the new elements clause in other words he's saying this is what congress intended and he went through sort of a long exit jesus of what did congress intend and why did they use the words they used when they adopted the career criminal act and so i think that's the language that we're line upon and and judge much you indicated dinkins and what does that tell us i think it tells us how this court should react stokely and what the court of drink and said is this is how we react we say now that north carolina robbery fits and is a violent felony and so i think consistent with dinkins and recognition of how to react to