heap you from getting it all well i'll do my best you're a dear you're doing a good thing california penal code section two one five no longer meets the requirements for an aggravated felony crime of violence because of two independent lines of case law neither of which can be overseas holder those two lines of case law make it clear but the by means of force or fear element in section two one five first let any requirement of mens rea as to the use of force let me let me short kept this by saying your first argument is a state law argument that anderson changed the law in california but we held pretty clearly in flora's me here that it marked no change in california law and merely confirmed what california law already require so what what do you what is your response to that issue i think that statement in florida here your honor is best read as addictive because florida media specifically changes the way in which section two hundred five and the elements no longer quote qualify section two and five as a crime of violence the reason we know that is because of united states versus sticks which looked at anderson and said that under anderson california robbery cannot qualify as a crime of violence precisely because or says that because california robbery is a crime of violence section two hundred five must be as well but the shared element between section two and five and california robbery the by means of force if your element has been held in a decision us whether it's right or wrong but it strikes me that anderson retains very much a mens rea element the only thing that isn't required is the specific intent to harm a person but it still requires the specific contempt to take the property and use whatever force is required in order to do that it's not just negligence or recklessly i stole the car it's much more of a man's  random that well your honor the only mens rea of required for section two and five and robbery alike is the intent to take the vehicle and whatever force is used in fact it goes to the force of your problem but there's no intent element as the through but i want to reach the second issue which is johnson issue and the evidence doesn't really say anything about the level of force per se so how do we know that that may be true your honor but this court and panels of this court have relied on johnson in the past to reverse classifications of offenses as crimes of violence even when the prior panels and didn't have much to say about the level of force involved so the best example here is florence court arrow which concerned arizona's resisting arrest that you now prior to johnson that was classified as a crime of violence but after johnson the panel of this court reversed that classification because that statute reads things like minor s and it said that the original court the original panel did not have the benefit of johnson in making its decision and now the did have the benefit of johnson it could reconsider the issue that's exactly the situation here so even though the court had a very short decision based on per se brief pro se briefing and did not discuss the force issue specifically it certainly didn't have the requirement that it didn't know that the federal quire meant existed for an offense to have force capable of causing pain or physical injury now at this supreme court has handed down that requirement it's very clear that section two and five falls below it and so there's no way to reconcile johnson with the us and drama we we really sad that's the physical force means violence forced and to the judge to mourn i read your all those seem to be that that was pretty definitive physical force means violent force that's all it can mean that's exactly right your honor there there must be violent force and just like in goes a section two one five only requires that any force sufficient to overcome a victim's resistance is used there's no requirement that the jury find that there be violent force so the fact that there is no threshold set for the california statute means that it doesn't have the requirements of a federal crime of violence rather any force however minor that overcomes any resistance however minimal is sufficient for conviction and there's a number of california cases that have said that precisely there are cases where the defendant claims that the amount of force he or she used was not enough force to convict him or her under the statute and the california court of appeal has said repeatedly that doesn't matter all that matters is whether you used any force and there was any resistance that was overcome joseph is directly on point i would say oh and also it seems to me when we're really considering the application of andersen and what the california court of appeal would say about andersen we have to look at people be hudson court has on a number of occasions held in the first instance on issues where there's an unambiguous federal definition like there is here and the only question is the match between that definition and the state statute because that's something that a score but only if you don't know  over holder say there's three things we have to look at this court in the past declined to remember the b i this is quoting for goes oh where one only legal questions remain and these questions do not  invoke the board's expertise which i think can fit this one to all relevant evidence regarding the conviction has been presented the b i in earlier proceedings that can be mad here the third have been a tough one made you think about for gozo and i would have had your colleague think about it seems to me that for it goes all rights out right in their plain language for me i'm only a three court three judge panel i'm not the big eleven judge panel can do whatever the heck i want to i've got to follow along and that says these are the three conditions that i have to meet i don't think your honor for gozo is laying out a strict three protest i think it was just out the fact is that the court was considering in that case here just as in for gozo there's a clear federal definition that it met and the only question is the match and the fact that this court is the ultimate determiner of whether that match exists should be enough for the court to retain jurisdiction good morning may it please the court melissa lot on behalf of the united states attorney general the court should deny the petition for review in this case because petitioners california carjacking conviction is a crime of violence aggravated felony under this court's precedent in th drano and there's no intervening higher authority that is irreconcilable with that decision in the event that the court finds it necessary to reach the theft ground every move of the lady the government requests the court remain for the board to consider that ground in the first instance turning to the crime of violence issue the carjacking statute requires now as it did when the court last considered whether it was a crime of violence under the eye and say that the defendant take a vehicle from the victim or the victim's immediate presence with the intent to to deprive the victim of the vehicle accomplished by means of force or fear therefore on the face of the statute there's a requirement that force or fear be used fear is defined in pattered pattern jury instructions for carjacking that  the fear is of injury to a person or property the realistic probability test confirms that california courts have not convicted anyone for carjacking based on conduct that was unintentional i mean let me think about this maybe you can explain it to me it seemed to me that we in you all say this little bit different me than i do all that to fifteen was categorically a crime of violence because it had the same elements action two eleven and then we came out in the united states first dixon and we said to eleven is not a categorical match and we we said then it isn't a crime of violence so at that point it seems to me that decision we've got to riggs salmon the issue again haven't we i would say two things your honor first dixon is another three panel or three judge panel decision and therefore it can't overrule and second there are or do you mean you can't between that and between what dixon said and what we did in the  press court precedent which would allow us to look at that again so as far as the decision in johnson regarding the force requirement  johnson is not irreconcilable with with any of it as even before johnson was decided violent force was required for a state offense to be a crime of violence is that i a difference in california law between the level of force and violence for carjacking versus the level of force or violence for robbery is there a different pattern instruction has a different level of force used or some other distinction yes your honor where does the distinction the distinction with between carjacking between the force required for carjacking in the force required for refers to force that is sufficient overcome the victim's resistance a key distinction about carjacking is it's always going to involve a car or motor vehicle and so the level of force used in the carjacking when the force applied is the force against the car to make the escape with the car that is a level of violent force that just isn't that's not similar to to a situation with robbery with russia and i understand that if you grab someone's jewelry engaging in force against the jewel just like you would be with the car i mean i don't i guess i don't understand i mean use your argument that because a car is such a dangerous instrumentality that creates in driving the car over the victim's resistance for the carjacking statute the victim would have to be immediately present and would have to be physically resisting the taking of the vehicle driving the vehicle away in an escape  in those circumstances that is capable of pain or injury to that victim and i would also like in a sense you're saying it's we're still looking at the human being and the danger of injury to the human being we're not looking at whether that hurts the car is that your point i think that the i think that the court could look at it either way but i think that the that what gives most effect to the carjacking statute and what shows that it's a crime of violence under eighteen u s c sixteen a is that you have a use of force that's an intentional use of force against the car to make the escape and that use of force is forms i think that on its face it's the same in that it's for sufficient to overcome the victim's resistance but i think that a distinction is that with carjacking the for can be the movement of the car over the victim's resistance while they're immediately present and that's not something that will always be the case with a robbery in the in the example of stealing someone's jewelry robbing someone of their jewelry or a pocket book for instance that might not involve that might not be capable of pain or injury but when the person is driving a  being taken i wouldn't want to say i haven't thought through that situation and i wouldn't want to speculate about what arguments would be in that in that situation in that sort of hypothetical situation but but but as far as the distinction between carjacking and robbery being that there's always going to be that that car involved and that the force in driving a vehicle which is already inherently dangerous but when it's being driven for purposes of escaping with that vehicle while while the victim is physically resisting and it is right there that is force against the car which is capable of pain causing pain or injury to the victim i would also like to refer back to dixon to say that th the that case was deciding the issue of whether robbery was a violent felony under the armed career criminal act and that the distinction between the issue there of whether robbery was a violent felony under the a c c a is just it's different than whether carjacking is a crime of violence under eighteen u s c sixteen a because  we have a different statute which is carjacking and we also have the different federal statute which applies to use of force against a person or property but if i look at eighteen u s c sixteen a it seems to me that even if i look at a or i look at others other parts of this but eighty since you're focusing on it it still seems like dixon would be controlling because in the context of to eleven fear is defined as either the fear of an unlawful injury to the person or property of the person robbed or the relative of his his or her member of his family or to the fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery sold there it seems to me that looking at fear neither of those definitions just violent force your honor i think that in terms of fear being defined as a fear of injury i think that that does match with sixteen a with a threatened or a mean i quoted sixteen a because that's why i wanted you to think about fear in the context where i define fear either one or two neither of those definitions of fear suggest violent force so therefore it doesn't seem to me that i can make this a crime of violence and i would i would respond to that your honor by saying that they since since the defendant would have to use force or fear i think that that matches with a sixteen a because it could be if they use if they use a fear is  is is causing the person to fear or injury to to a person or to property time that's violent fourth i think that it i think that it would be because i think that johnson i understand then your argument is i can just read those i could just read those elements there and naturally jump to the conclusion that that's a violent for think that because if it isn't violent force i can't get there because any physical force isn't enough judge graber just said so  i don't know how she said but that's how i saw no no and i mean that's the problem i have with your argument i don't know how to get there i'm trying to look under sixteen a to get there i can't if i tr compare it to what we did in dixon i don't get there so they're not there anymore i'm sorry your honor and if i may you may quickly sum up well over your time ok thank you at the minimum conduct necessary for carjacking where the taking is peaceful and the the take and moving the car away is the movement of the car itself that is violent physical force because the under the language of the carjacking statute the person would have to be immediately present and case law shows they would have to be physically resisting the movement of that car the application of force to the car in making the escape that moving vehicle is capable of causing pain or injury to the victim who is physically resisting that i would say  and if the court has no further questions on that offense i'll turn to the theft issue with regard to theft in instances where it would be an idle and useless formality as this court has held  on an issue to be a for a first decision it's unnecessary to do so and that ok if i guess i can't get past the fact that it seems like most of the time when we do that the supreme court reverses with you know very severe admonitions about giving each and seeing the first opportunity to consider an issue that was before it but that it skipped over what is wrong with sending it back i don't understand match between state offenses and generic offenses and work here there is a clear definition from the constitutes a theft offense and that theft offense pertains narrowly only to crimes against owners whereas california section two hundred five broadly applies to takings from anyone possessing a vehicle and one sitting in the vehicle regardless of their ownership there is no need for remained because the issue is clear as the ever once determine number determined that the offense fail within the generic definition to be a has not specifically addressed carjacking in a holding but the v a didn't know that the i j in this case clearly found our client mr even say there are no factual issues to be resolved the fact that the b didn't say anything more than just noted and went the other way should give me some worry should not then i'll let them go f state offenses and therefore where the california supreme court has expressly stated that section two hundred five broadly applies to possessors that information can be construed by this court in determining the very clear maybe yes but the b m i it would have the opportunity to expand that definition in other words because they have never looked at karjat they might determine that theft does include possession and not mere ownership criminal intent to deprive honors and there this court specifically and interpretating the be a stuff addition said that the criminal intent to deprive third parties which is anyone who is not the owner of a vehicle does not satisfy the  this court has already interpreted the definition in making this possess and services ownership claim thank you counsel you've exceeded your time as well yeah the case just argued is submitted we particularly appreciate the assistance