it please the court counsel my name is lisa kirkpatrick and i represent the government in this appeal this court should reverse the district court's determination that robbery under minnesota law is not a violent felony under the arm crew criminal acts force clause for several reasons and those reasons are outlined in the government's brief but i would like to focus on two reasons here today the first reason is that when read properly chris johnson is a kind of force case not a level of force case and minnesota robbery has the kind of force necessary under curtis johnson and under the force clause the second reason i'd like to discuss is that the reasoning articulated by the seven circuit in maxwell and in jennings that because fifty three assault is a lesser included offense of simple robbery and because assault has as an element the use attempted use or threatened use of force within the meaning of curtis johnson so to just the greater offense of simple robbery so turning first to my my first focus here today curtis johnson curtis johnson is a kind of violence case kind of force not a level of force the florida battery else two courts have your honor the third circuit in chapman which is cited and one of the government's twenty j letters and the second circuit in hill which is cited by the third circuit in the chapman johnson specifically outlined by the supreme court and this is that page twelve seventy of the curtis johnson opinion is the question is whether the term force in the force clause has the specialized meaning that it bore in the common and applications of those statutes so they are not controlling but the path of those panels analysis of johnson probably is controlling the pale or at least that's a serious problem ballasts the only decision that actually about minnesota case law is a little different than missouri case law absolutely i think that missouri case law in bell that missouri robbery strays from the definition of common law robbery because it defines forces and bodily impact minnesota's robbery statute is not that broad it doesn't adopt that non common law concept of robbery instead it requires that force be used to comp acquiescence in the taking or counsel though both statutes have the exact same words like force to overcome resistance minnesota in missouri yes they do and if not further down at minnesota missouri this a go ahead because missouri has a separate statutory provision that defines force in a way that strays from the common law concept of force it defines forces any bodily impact and that's not common law burglary or excuse me common law robbery robbery at common law could not be committed by the slightest offense of touching which is exactly what was at issue in curtis johnson which sounds eerily similar to the language of the missouri statute but that minnesota doesn't missouri statute leases physical force correct but the missouri statute has a separate precision that defines physical forces any bodily impact and under curtis johnson that's not sufficient because that encompasses the common law concept of battery force and curtis johnson court held that when congress was defining the term violent felony it would not have used a force specialized term of force that applied only misdemeanor offenses because it common law all battery fences were misdemeanors it meant something more are you sure missouri has a different statutory definition of force or is that from the case law i apologize your honor i'm confusing missouri with arkansas yes you are that's what i was trying to bring you back on to thank you because missouri is i mean scuse me arkansas is in there statute any bodily impact it's not missouri missouri is reads a lot like minnesota except missouri put physical force to overcome resistance and minnesota puts force but go ahead my apologies the wording of the statute is certainly similar but missouri courts his interpretation of missouri law has no bearing on minnesota cour interpretation of minnesota law and minnesota law is what's before this court and the case law confirms that violent force within the the the meaning of curtis johnson is required there's no case that hol that a battery level misdemeanor level of force would be sufficient in fact as was seventh circuit found fifty agree assault as statutorily defined is a lesser included offens progression so that the logic of your of your lesser included argument i understand i'm not at all sure would carry the day with the ordinary way would consider robbery to be a violent felony and that's the approach the district court should have a pop applied instead of saying i'm going to set aside common sense and apply rob robbery in the this distinct way hassle i still don't quite know where you are your poet said both at the trial court and in their brief in this court we'll see what they say argument for purposes of the i'm quoting for purpose would determine whether crime is a pretty interpretation of its own law has no bearing on minnesota court's interpretation of its law which you think the words of the statute of the same the wording is the same they seem to track the common law definition of reset physical force versus force is the only our panel said that the seventh circuit in jennings properly construed minnesota's statute as interpreted by minnesota courts and applied it to the a c c this case is over look at chris johnson and to look at the history of the armed career criminal act in one thousand nine hundred four when the predecessor criminal act was enacted it identified only two to predicates burglary and robbery and it specifically defined robbery to be common law robbery a taking from the presence of another with force or violence fastforward in one thousand nine hundred six when congress enacted the centrally the current version of the statute sought to expand the scope not restrict expand the scope of the arm career criminal act and in doing that it retained burglary as a numerated fence and added a few others and then acted the force cla legislative history bears out that it specifically intended the force clause to encompass it the the robbery that used to be included in the predecessor statute that common law robbery it intended that robbery as well as murder rape and assault be included within the scope of the force clause that's the kind of force violent force that curtis johnson was talking about that's the kind of force required by the minnesota statute minnesota statute as interpreted by minnesota courts has not strayed from that violent force common law concept of robbery and none of the cases no case supports that make that clear a pickpocketing a person acting by stealth and none of that will qualify under minnesota law you need a struggle you need to tussle you need some sort of violent confrontation between the the victim and the assailant i know that it's much of an understatement to say that that application arm career criminal act has been a challenge for courts and parties but this is an easy case it's an easy case because chris johnson defines the kind of force as violent force it's an easy case because fifty groups salt has already been held to be a violent felony and is a lesser included instant easy case because then it defines violent felonies as a felony that has an element an element and that's an important point they use attempted use or threaten use of physical force again an important point  person of another physical force minnesota statute does not require physical force arkansas requires physical force missouri requires physical force minnesota all requires force the  force suffices for purposes but that's not so that's only the beginning part the next thing the court needs to look at tell me what's the difference between force and physical force i think there could be a force that is not physical in nature in terms of glare i could be a look it could be something else and get a so what minnesota court upheld a conviction under this statute where the glare ok well not with the glare but we'll get there to there is a course state versus nelson and state versus nelson two young men are on a bus there's a thirteen year old kid in front of them they think the thirteen year old kid has money they follow him off the bus and they grab his coat the young if you go to the stanford case the standard for case talks about what it is to require fifty degree assault fifty degree assault requires intent to cause fear in another of immediate bodily harm or does the lengthy discussion and jennings of the facts in the else and going behind going behind the opinions reference to grabbing the code and explaining why  you're not you can say that but that seven circuit looking at the same issue that we are looking at is i would say perhaps more likely to be persuasive authority than our other than our court looking at different statutes and case decisions in other states in our circuit that to me is a reality of a c c a jur and let me if i may answer your question two fold one curtis johnson talks one it's important to keep that in context with curtis johnson help curtis johnson stated at one thirty supreme court twelve sixty five seventy one we think it clear that in the context of statutory definition of violent family of violent felony the phrase physical force means violent force that is a force capable of causing physical pain or injury to another person must consider the lowest level of contact that may support a conviction under the statute that then goes on to say a realistic probability that the state may apply its statute conduct falling short of violen force is enough to disqualify the conviction for purposes of the a c c and bell the court analyzed missouri law states versus lois unless the defendant up the victim shoulder yanked her purse away from her nudge the victim and there was a slight struggle over the purse that's in the record you have a different that why i asked you what was wrong with the jennings and now factual analysis else what does second think nelson in addition to nelson there's other cases in minnesota law slaughter of force necessary to contain a conviction of simple robbery so there's a second case out of minnesota that has a quantum level of force and i'd rather have a slap in the face than scratches on my neck but then it goes on al other cases beside nelson and specifically going back to well you know let's go back to bill for a second yes how do you disagree with the way i characterized it in my dissent that the the bell touching didn't didn't right match the facts of the case but in that case the court held in that in the bell specifically your honor at talk that they pointed to the defendant victim shoulder they point to the defendant yanked her purse away from her they pointed to the defendant nudged the victim and they pointed to there was a slight struggle over the purse so it goes beyond just a mere touching on that part and that's a holding a belt and go go ahead  think this is a critical point that we the court needs to dress and i think it applies here and bell the courts in missouri a defendant can be convicted of second degree robbery when he has physical contact with a victim but does not necessarily cause pain or injury although this is not the same as concluding the force used by such a defendant is not capable of causing pain or injury and does lead us to conclude that there is at least a reasonable probability missouri could apply such it already has to conduct falling short of violent force a second degree robbery under missouri law does not necessarily par use of force use of the type of violent force described the supreme court of curtis johnson so i want to sing minnesota law and looking woman is a law you can't just look at in isolation with respect to state the nelson you have to look at water you have to look at burrell and you have to look at the other cases in terms of the easten case in arkansas your agree with your restraint or confinement or threat of any impact the speaker can find and that's not minnesota missouri right that's arkansas yeah i know but that's not nothing like that is in minnesota and missouri statute i'm asking a simple question i think i think there by minnesota missouri don't have a statutory definition of any bottling impact there is is sufficient to overcome force by the impact restraint or confinement is what the states and it's different in minnesota in missouri i think restraint in confinement minutes leaving aside how they've been applied minnesota requires force nothing more there is a real list of probability when you look at minnesota law that one can people a victim of simple robbery on the minnesota law that does not meet the threshold required by cur i one last point your honor if i may you have three minutes with respect to this fifty three lesser included therefore we decided and and were done that is wrong because that requires a standard for the is not necessarily proved by proof of the commission of the greater offense does not mean that the lesser offense is not included under section six or nine point two for the reason that's important as because and stand for the standard for requires  n element of intent to cause fear of another of immediate bodily harm or death that is not present simple robbery and under minnesota law something can be a lesser included offense start where i had left off hackler hackler addresses one of two ways minnesota defines included offenses under minnesota statute six section six zero four point zero four minnesota defines an elements meet where proof of the greater offense and necessarily proves the lesser offense that's what the court held in stand up for is why fifty three salt is a lesser included turning to the nelson case using these cases to stand for something that wasn't in fact in front of the court and nelson the court was addressing causation did the defendants use of force caused the victim to relinquish his property or did the  victim simply just let go and run if the court had been addressing the force itself the use of force i suspect it would have been a very different opinion or council they use the word force and they used the term use of force in the holding so does say some about force worst was assumed but the question is whether that force no no force was described in the opinion this is a state supreme court talking it was you know it was but if that if the defendant had argued that what i did didn't amount to force i suspect there would have been a very different opinion and the only opinion that a different holding is what you're driving at correct and probably a greater recitation of facts but that discusses the threatened use of force and not simply the use of force because under the facts of that case you can see two people grabbing a kid coming off of a bus you can absolutely envision that is being a violent encounter but that just simply wasn't the issue in front of the court the only case i found guided him that's the only opinion that i have found where the actual use of force element was and play and that force clearly qualifies as the under curtis johnson violent force listeners have any for the questions we asked that this court reverse