violent felonies necessary for sensing under the arm career criminal act first california robbery no longer is categor violent felony under dixon at the time of mr walton sentencing prince was still in effect but this court has since overruled and reverse prints and now has made very clear that conviction which is frankly on it's very similar to california and is very similar to several other state robbery statutes that very recently in the last six months this twenty three letter last week in which you referenced the switch florida statute moment are from arizona stricken from oregon all of those cases are very similar to this one  acquittal to various cases under alabama law if you're correct based upon the changes in the case law and you if you shown that two of these four cited convictions are in fact not violent but we just did you need to just have to write this that's not going to so if we knock out the california and we knock out alabama robbery then that would be enough to cause a reversal of mr wal and it would there be any reason for us to discuss the other two at that point it would not because that in fact would be enough and you're i can go into specific details in terms of comparing alabama to please the court actually all for the united states the difference between this case and some of the recent robbery cases that have been decided by the court i think starts with plane air review and then goes to the doing as alvarez problem was discussed in a previous case under the supreme court's decision and henderson if a substantive legal question is unsettled it forecloses the possibility of a plain error finding now defendant has contested the plane air review applies here that's it i would point the court to all of the pleadings before the district court here this was not a case where the aggravated felony pardon me the crime of violence terminations wasn't contested but it was contested in a very specific very factual the case to the point respect we're really talking about construction of statutes and a specific element of the statute is really that very much that's factual about it it's really a question of how these fit and counsel has made the argument that  supervening case law has made it so that the california penal code section two eleven in the alabama criminal code section thirteen eight forty one just don't qualify anymore not the government's fault it's not the drought courts fall that just possibility that a state would apply its convict part its prior in a particularly over broadway and i do see some and i would admit it is narrow but there is air space between  parnell and the schools and the differences well mourner there's an easy one in arizona there was a statutory definition of force that was overbroad there's no statutory definition of force in alabama and so we are in squarely territory where we're looking at the way that courts have described and we have jacksonville state about this person acting and that seems to not be violent so jackson the state is an interesting example but it's not analyzing sufficiency on with respect to force it sufficiency in a totally unrelated ground and i thought it was a conviction not for robbery where there wasn't for so how do we get around that i think there's not enough i mean i think as we all know as writers and jurists facts time expands and contracts when you have an issue that is focusing on a particular moment the court wasn't focused on how much force is applied in that person grabbing you described it as hugs resulting in the person being taken away but i would submit if the issue were how much force what it was applied we would know more about how much force was really involved in that key i think a possible reference on an issue not raised in an intermediate state court decision is to send a reader to find that an entire state robbery regime is over broad and you have a case has to answer that though i mean we're supposed to look at the state court cases they have this case that seems to not have forced i don't know how we can say well they didn't really mean it or i mean maybe it goes the other way if it didn't bother them maybe that's a sign that all robberies in alabama are like this i mean i don't know how we take it to mean that that is tension in alabama some tension in alabama law in the twenty eight day i filed the supreme court has emphasized repeatedly that violence is required but that was before jackson those are older cases they're definitely older pieces and then jackson is a case where certainly it suggests that there might be a purse snatching that is similar to the person acting analyzed in the recent cases but because that issue wasn't raised i find it to be not compelling evidence on that point again because it wasn't raised an argument about why you think you should win as a matter of law on this question but it still seems to me that it's a question of law and i'm not sure why you're not facing a problem with your plan or standard that this is a question of law where i don't think the government is suffered a prejudice if we exactly on point to the circumstance here and certainly to sense of the court had discretion to apply plainer or not to resolve the tension between to foil monta longo and the pure issue of law cases i would submit that this is not the case to skip over plain because it matters so much to the outcome particularly with respect to alabama robbery the at a minimum under one hundred percent the substance of legal question is unsettled with respect to whether robbery qualifies and that is exactly the kind of circumstance where under he concerned where when we're dealing with these fairly difficult and wide ranging issues of whether or not prior state convictions qualify we end up in these fights about lower state court opinions and that first of all itself is somewhat questionable but it gets worse when we're looking at state credit pinions that don't even analyze the question that we're talking don't have that all the time don't we counsel i mean with you like the california robbery for example we've had all kinds of these things and and the and the reality is that some of them were not analyzed by the state court for the purpose that you're talking about we simply look at the the factual situation and we determine whether that makes it too broad or whatever the case may be i'm having difficulty understanding how we can accept your approach without undermining a lot of case law that we've decided so planar is the first way and i think there is no way to find that there was a clear and obvious error by the district court but dixon is in fact a perfect example to the contrary dixon analyzing the over breath of california robbery found a case there was a california supreme court decision finding that accidental force was sufficient it was a supreme court case from the state analyzing exactly that overcorrect that was analyze kids that is the kind of compelling evidence that is completely absent here we have intermediate alabama decisions and not very many of them not dealing with the degree of force that is actually required meanwhile we have alabama supreme court decisions all the quite old ones saying that some people here might want to i'm still having a little trouble with your argument so if there are conflicting arguably conflicting lowered state court decisions and the it becomes not a plain issue under any analysis because in my hypothetical the petitioner raises in the lower district federal district court we think of the state law means x and we think there's no question about it and the government says no with your skin flick thing and you say well when it gets up to us court and certainly if you have a number of intermediate state court decisions analyzing for sufficiency of force and finding that as in massachusetts for instance you don't need to have really any force at all you can take something without someone noticing and finding that that's sufficient i think that would be a sufficient record but our record here is quite different from that not only with respect to it being lower court decisions that i would say are are consistent in their outcome but in that they're not even analyzing the question that is the core the analysis here and so what instead defendant does is cites it's not even dick that it's factual and unnecessary factual discussions from the beginning of those cases the few cases that we have that do analyze the sufficiency of force and that's a very in that we didn't have an opportunity to to litigate the state court decisions and develop it below how would you have done that differently than how you got here the obvious i'll be frank i don't know how that prejudice analysis works against the government i think it is further evidence of the confusing nature of this exception overall i frankly don't know how to analyze prejudice in a case like this where we're talking about legal issues and whether state law is there certainly wasn't a factual record that we were deprived of the ability to make as a certainly if what prejudice goes to is the deprivation of a factual record that i would say we weren't prejudiced that said to the extent that there are any facts that we could have developed in the district court that this court might otherwise think were dispositive here that i think in that case we would have prejudice and that would case in which it said very clearly the amount of force required is resistance however slight that is the standard you know alabama it's the same standard that was then the same like kind of the language in in the arizona this isn't it's the exact same standard it's and it's not the standard required under federal law for i gather your position would be in response to my colleagues question about prejudice that the government really didn't and doesn't suffer any prejudice by having our court analyzed these cases and the facts that were referred to in those cases in terms of the degree of force required that's correct i mean they have the same opportunity to do that here as they would have in the district