construction involving title eighteen united states code section nine twenty four c three b the question appears to be whether this court is bound by the holdings of the united states supreme court united states versus johnson lyrical versus ashcroft sessions versus devise and the weight of other authority across the country to apply a categorical approach and not a fact based or circumstantial based approach to determine whether a hobbs act conspiracy is a predicate crime of violence under section one twenty four c three  when congress amended section i twenty four c in one nine hundred eighty six it directly adopted this specific language of title sixteen b that definition of crime of violence into the nine twenty four c part of the on crick rumah courts have held the construction of one guides the construction of the other have specifically helped that the categorical approach applies to the identical twenty eight words that are present in section sixteen b nine twenty four c three big that we have an interesting problem here and i understand the thrust of your argument right in fact the categor approach was a judicial construct correct as opposed to a statement of white the supreme court thought congress intended it was a construct a certain constitutional problems and then it certainly well within the purview of the supreme court to construe a statute to avoid constitutional issues or your honor focused interpretation focused on the language of the statute and what the statutes language itself required the court to do i don't think they created it from whole cloth and i don't think a difference because the language of the set you calls for and the experience of the experience of title sixteen be it shows multiple instances where this language has been used in terms of determining whether a present case not a past case but one that's actively before the court qualifies as a crime of violence under that language  adopted at least by the chief just and i'm arguing that justice corps shut or such adopted the portion of that body with his own but he did but he also adopted part one of justice well waivers a very live argument in this case is whether he won't get there just yet ok but i think that justice kagan dealt with that in terms of whether or not it only had a backward approach ruc or whether it could be used in the present case and  i think that she found that it was appropriate either way certainly you now have at least two circuits the tenth in solace and the d c circuit and i think it would be incorrect to suggest that it doesn't adopt a categorical approach to determining whether a hobbs act conspiracy was a crime of violence under nine twenty four c three  court were to adopt the government's point of view we think that it doesn't eliminate the vagueness in the language of nine twenty four c three that would have to be presented independently to the jury for them to result first agree that if it was an isolation the evaluation of a substantial rescue juries do that all the time but giving the question to juries doesn't take away the ordinary case language that's present in the statute the court would have to interpret them on so you're really shifting it you mean by its nature yes the offensive end of the ordinary case yes and also the word of offense that points to the avoiding six and them and contemporaneous case by submitting the issue to the jury and not having a judge take the issue away yes and another constitutional issue is that if you tell all of the people who are now sitting in prison that their nine twenty four c three conviction which was based on the application of the category of categor approach i think you've broadened the idea of what's a crime of violence to an almost absurd degree for example as a crime might be illegally crossing the border well that's not a car inviolate well if you were legally across the border with a gun among all of these other substantive offenses which by themselves clearly are nonviolent but then when you introduce the gun there's a prejudicial quality to that but that's also almost impossible for the jury to distinguish if those are the facts that they have to evaluate and it's not a fact based approach if you isolate the gun aspect of this and get a determination without it and you think n property by this alien who is illegal be crossing the border with a gun and i think yes they would be given the elements of that predicate crime then they would have some sort of instruction under nine twenty four c three a and b force clause residual clause and i'm suggesting that that residual claus medicating has been in the book the law if not expressly stated certainly the district courts all apply it that way it's the way it has been since taylor i think that the government's asking this court to engage a not high degree of judicial activism to essentially change the interpretation of the statute that's been out applied didn't affect for significant time please the court john terry for the united states along with benjamin block from the u s attorney's office in maine a council stable as several of these quotes questions were indicating context matters and here the context is that the supreme court has only applied the categorical coach to recidivist statutes like the aca and section sixteen be as a saving construction to avoid practical and constitutional concerns it has never applied the categorical close to a statute like section nine twenty four c three b which requires a determination based on presently trucks conduct of whether a defendant used to carry a firearm during and in relation to a crime of violence the court didn't dress the specific factors of how the text of section one twenty four c three d exists in the remaining statute and without considering the very weighty practical and constitutional concerns that were the feature of categorical approach cases dating all the way back to the judicial was not viable with respect to the maya it's not correct to say that the court held that a categorical approach was not viable for any language like that exists in sixteen b and justice king's plurality opinion in that particular section relied on four different factors as i believe judge sauls noted one of those factors was that the government had not raise that particular argument in that case it had not add which he did for two specific instruction and therefore the court didn't deem it appropriate to consider it in that particular case the second factor was those weighty constitutional concerns that would result from adopting to specific consideration justice kagan didn't say that the doctrine of constitutional avoidance could not apply to save language like sixteen viz she merely said that it would ping pong the court from one constitutional problem to another because sixteen be in the criminal context is often applied to second circuit held in barrett it is certainly a reasonable interpretation to look at the language of section nine twenty four see holistically and the language of nine twenty four c three d specifically and find that it is a net of all to a case specific approach the breakdown of the opinion went in that case judge thompson only four judges signed on to that particular part of the opinion that said that the language was best read in that way as the panel indicated justice course which did not join th opinion he reserved for another day in which the government had properly viewed that particular point as to whether the statute would be amenable to a sitting construction like a specific approach but did not join that portion of the opinion and of course for justice is dissented to the majority opinion that case striking down sixteen these no that section in which justice kagan wrote the statutory language is best read was not a holding of the court it was only joined by four justice with justice kagan plurality opinion there that this was not and that this particular statute sixteen the was not amenable to a t specific instruction but as i mentioned briefly before the language the text itself if we can consider that for a moment does support a case specific application my friend noted that the word offense suggests that a categorical approach is required that's not what the supreme court has said in cases like me joie and in hayes in both of those clerk adopted a key specific reading of the term offense and said that it's capable of multiple constructions the word involves also suggests a key specific inquiry that looks at the facts of the offense if you take a step back and look at the larger statutory framework you look back at section nine twenty four see what day which talks about any person who during and in relation to any crime of violence uses or carries a firearm or in further such crime possesses a firearm that is a fact based inquiry that's determined by a jury there's no objection to that there's no controversy over that in this case and in one thousand four c t s the jury is always instructed to in furtherance of that crime or if the person carried it during in religious he's a user tarried a firearm during in relation to that crime the additional element that would be required under a case specific approach is rather than for a judge to the courts assuming that the categorical approach of size to anything that sort of walks and talks and looks like the acar the aca residual costs we assume that it up like a similar type language we didn't have too many problems for a a struck down sixteen b and the clerk other quickly and clearly stated that the ordinary case approach when coupled with a risk assessment is unconstitutional all required for government and the courts to really evaluate their prior associations that the categorical approach applied to this language that's what the second circuit did in barrett there the court did have binding precedent in that night twenty four c three b required a categorical approach and here is that the second circuit's alternative holding that conspiracy to commit hubs are probably categorically qualifies as a crime of violence under section one twenty four c three b is not correct the only viable construction of the statute is a key specific construction steps required simply can't have two different meanings at the end of the day either it has to be required to have a key specific construction or is required to have a categorical construction the difference between sixteen the a nine twenty four  think there is at least two judge lynch one is and i wouldn't encourage the court to consider again kisses like you wanted is with the supreme court has said that like language in that case the definition of a fence is capable of different interpretations based on the context that the particular language exists and to other cases and these are inside in the brief but i believe the responsive to your question now be happy to submit a twenty year j after our kisses like johnson was also known as curtis johnson which deals with the definition of physical force and castleman in johnson well in the supreme court said that physical force in the context of the criminal act means royal force in the context of castle and for the contexts and to acquire the violent force felony requirements from chris johnson and imported into the misdemeanor crime of domestic violence definition would totally obliterate the meaning of the statute and wasn't necessary whatsoever so in terms of a limit constitutional one certainly pushes it over the edge because the supreme court has made it quite clear that otherwise an ordinary case approach is unconstitutional and this court would be required to strike down the statute if the s may finish answering that question we don't have a prior conviction we have a current conviction but underlies that of course is that is the entire sort of force of the can textual organ of the government is making which is that there's no reason to resort the government is pretty its case beyond a reasonable doubt for example very determinations like that are left to a jury and there's no reason to resort to this unnatural judgment instruction in this case thank  you your art isn't just in prior cases and in the minor that the government has taken the position that categorical approach applies they did it in this case in the district court they s roberts of making five utilize the categorical coach and it didn't provide a basis for saying that that notion was under under challenge in fact that's expres binary that that interpretation has to follow but that way for is a significant principle that is applied routinely to defendants who try to change their argument in the middle of the case and now the government comes forward to having argued exactly one hundred eighty degrees the opposite in the district court and now they want to change their point of view here thank you