as a crime of violence under the sentencing guidelines and in this case whether the district court committed plain error by finding that he did so now all the circuits that have directly and squarely addressed this issue has of two state statutes that are virtually identical to the hobbs act robbery another reason to toss where things stand with regard to any requests for the department of justice with regard  act robert robbery but that amendment has not been approved as of yet and i believe it's because the sentencing commission has not fulfilled all their positions and so they couldn't vote on it  as of the time of the amendment so it's still outstanding and at this time the our contention that the hobbs act robbery would not without this amendment would not be a crime of violence under if we were to agree with you in re mand is there any reason that the district court could not take advice from the proposed amendment which says enough finally with his categorical method for  evaluating prior offenses or the predicate offenses focus instead finally on what actually happened well your honor i believe that the district court would have to correctly calculate the guidelines st and then they would have to justify any variance which in this case it be our contention that it would be a substantial variance from the corrected guideline and you know ultimately the district court if they could justify it could potentially come up with a similar sentence but it would have to be based on a variance not the guideline itself but based simply on what happen through your honor the reason why where we're talking about this in the st place because of the residual clause and when it was was taken out of the arm career criminal act and sentencing commission itself removed it from the career offender guidelines and that at that point the guy who i no longer included or the crime of violence no longer encompassed hobbs act robbery which includes and can be committed by both threats to person or property now i believe that our the argument between the parties really boils down to whether or not the encompasses a hobbs act robbery now it's our contention that because the hobbs acts robbery can be merely threats to property and can be violated without obtaining something of value hobbs that robbery is more expansive than the definition the guideline definition of crime a violent now the sentencing commission intentionally narrowed the definition of extortion for career offenders they stated that obtaining something of value from another by wrongful use of force fear of physical injury and threat of physical injury now this was a substantial change to the definition in order to enhance only the most dangerous offenders now it's telling too that the sentencing commission also removed burglary as an m numerated offense because they stated that burglaries rarely result in physical violence so it seemed that the physical violence was important and when you look at the comments they stated that they limited it but as opposed to nonviolent threats and one example they gave was injury to reputation now they didn't say threat to property yeah i mean it's pretty sure and i think the real pressure point in this case on whether the error with this is on whether error was plain and obvious sure because it's a clear and obvious as needed for to make the airplane so that it should have been recognized to respond to it by the district judge and this is an area  that is fraught with us and so terry distinction such that almost nothing is obvious so you know why don't we just accept that this was an error but it's not the sort of error that the district judge should have or that we should correct because the district judge should have recognized it's who respon when this came forward now the department of justice and the sentencing commission recognized that this was a problem in two thousand and eighty do we have the th circuit the th circuit as early as have passed since this is an ordinary and regular approach to determining whether something fits under the crime of violence under the guidelines now the probation missed it the government missed that and the a defense attorney missed that but given that this clearly affected substantial rights i mean there's a significant difference in the guidelines as to what would be a proper calculation versus what the district calculated that there's there's no there's nothing in the record to suggest that the defense  made an intentional decision to not raise this whatsoever below and this court has repeatedly held that a sentencing based on incorrect guideline range constitutes plain air and that the case law would would support that but what we're saying is that this was a well established approach to specifically crime violence and this was not something new this was not something distorted or it's not a question of you approach the question of the answer and i'm particularly interested in your answer to the government's point that in essence he was charged with robbery your categor question of whether the enumerated listing of extortion provides a sufficient corroboree your honor may i may i answer your question i see my time is up because the hobbs act encompasses threats to property we would contend that it can be violated without obtaining something of value and for the extortion you must obtain something of value and because the ha that robbery is broader than that it cannot be categor y it does not fit within the guidelines definition of extortion thank you it's just good morning your honor may i please the court i'm scott simpson on behalf of the united states  as we've observed the defendant here has to meet all three elements of the playing ever standard the st of which is must be clear and clear obvious and not subject to reasonable dispute i hope our brief shows that there's at least a reasonable dispute here as judge sykes observed earlier this is a difficult area another way this court has stated that part of the standard is that the error must be sufficiently certain that the trial judge and prosecutor were derelict in countenancing and that's a pretty strong word derelict and that's so that's the question here not simply whether we think physical injury under the guidelines definition of extortion can include injury to property so the question comes down to whether it's plain error to conclude that hobbs after operate carried out by threats to property threat of physical injury physical most basically means material or composed of matter and injury means damage physical injury refers to damage caused by the use of physical force and physical force can be applied against either persons or property the term physical injury actually occurs only about eighteen times in the guidelines manual twice the guidelines used the phrase physical injury to a person not reflects that the term physical injury can include injury to property so you add that additional phrase to the person to exclude injury to property now in contrast the guidelines show abundantly that the commission knows how to refer to bodily injury and it wants to use that phrase that very phrase bodily injury appears more than one more than two hundred specifically bodily injury not physical injury more generally number two the offense level for robbery is increased for bodily injury not merely for any physical injury that might occur to the victim's property in the course of a robbery number three the offense level for operating a common carrier such as a vice under the influence of drugs or alcohol is increased if bodily injury results but there's no reference to the general physical injury including injury to property that i think would be very likely to occur from operating a common carrier under the influence and finally number involved the conscious or reckless risk of death or serious bodily injury not just again not just physical injury again reflecting the fact that physical injury and include injury to the property and if the commission had wanted to limit extortion to the wrongful use of physical injury to a person it easily could have said bodily injury poor physical injury to the person as it has as it did a number of times in the guidelines but that's not what the definition of extortions also in adopting the definition of extortion the commission said it extend it intended to exclude quote nonviolent threats such as injury to reputation close quote and a threat eventually to property is obviously a violent threat  finally your honour's i think we need to step back here for a minute and look at the subject matter here normally when we talk about the categorical approach we're trying to match state law with federal  commerce which is the narrowest robbery that congress could reach how strange it would be if basic robbery under federal law did not constitute robbery under the federal sentencing guidelines so i'll conclude her i started with the standard of review that applies here it constitutes plain error and alleged ever has to be not subject to reasonable  i submit that our argument today has at least been reasonable unless there are any questions from the court will urge the court to affirm the district court which i'm sorry if i could if i could just ask you i postponing the inevitable until he brings a claim that may be correct however we would submit that the lower courts the trial attorneys performance w not ineffective assistance of force if mister jerry brought such a claim we would have to address it then but this court said just last year in united states versus tyler this court that this court crime of violence into the guidelines and under nine hundred and twenty four dollars c was generally looking at that phrase the same way i think because of that trial counsel was was reasonable in in thinking that there would be no no basis no reason to make this objection in the trial court but again it's lead there is no ineffective assistance of claim here so we would have to address that if it were raised anything further mister simpson no no thank you thank you i am scarse i think your time has expired but you can happen at least and if you have any closing thoughts yes i just like to respond briefly to judge hamilton's question about the dollars to fifty five dollars of course we believe that the the there would be a twenty to fifty five files and that he could potentially be successful because you have all the other circuits that have already held that this is not a ha that's robbery is not a crime of violence you also have tyler which stated that this was an issue that was out there and that this could potentially again does robbery could potentially not be a crime of violence and i think that's the cost per ten dollars case lays it out pretty pretty similarly to what would be raised and in this case that even under a strickland test