represent mr martinez in this case i'm sure this court is concerned about this issue coming up over and over again and as judge pointed out we have the problem with the why st of all garcia acknowledged that there were some issues with new mexico laws just stated we acknowledge language in new mexico cases suggestion that any quantum of forth which overcomes resistance would be sufficient to support a robbery conviction but what is said is less important than what is done and that concerns me in obviously that also concerned judge lou settle in the subsequent case of ash u s versus ash where he very clearly in a footnote footnote number five state it and there again referring to garcia we noted that some federal circuit courts it is no longer good law and so opposition is out of course garcia was decided before stokely was decided before the bond decision and because of that we feel that this court can reconsider that particular issue so i take it you would disagree with the proposition that our decision in garcia was even more conservative on the amount of force required than still clings but much voted rework that i think i didn't think i would be the problem with garcia is it of course did that analysis that was required in fact if if by might that the three cases that seem to have talked about this analysis was the pond  cash and the harris decision made it very clear that what the court has to do is go through this two step process the st step they have to do they have to the court has because it then if i the minimum force required by the applicable state law for the crime of robbery and then secondly the court must determine if that force categorically fits the a c c a definition of physical force and of course that st step involves an analysis of new mexico law and the law is not real clear on exactly what it takes to commit robbery the cases cited definitely somewhat confusing as this court noted in all those three clear that that force must be the trigger that helps separate the property from the victim and part of the problem with new mexico law is that there's problems with exactly what that again this is a unpublished opinion of the court of appeals because the process involves having to go st to those cases from the stream court if there isn't anything helpful then you go to the the court of appeals cases and that case involved an individual who reached into an open window grabbed the purse either at the time or shortly after that made a threatening statement and was gone with the person that person was in the questioned him in that case whether the some threat made to be able to to to separate the purse from the individual in that particular case it was clear from the victim's testimony that it happened so quickly that she really didn't have time to be for all it was after the different focus in that case it was only there was a crime against the person or property not whether it was force involved robbery well i think the point i'm trying to make is that that  threat or that force has to be something that's done before the act that results in the property being taken from the individual in that case it didn't happen the other case that the state the other case from the state in mexico is the here not in this case involving a bank robbery and that particular case the defendant goes into a bank goes up to the teller and says give me all the money in the top drawer and don't set off the alarm  french and the other one that's even more confusing is a curly case where the defendant ran up from behind against the victim grabbed the purse and ran and during the act touched or bumped into the victim and then ran and of course he was asking for lesser included instruction and large any which was denied by the district court and  appeals reversed indicating that that was proper and it was he should've gotten a lesser included offense and the part of the facts in that case was that the defendant despite that he was intoxicated and that that might have been the reason why pumped into individual but it wasn't a robbery and that's what the court of appeals essentially agreed with so that's kind of where the problem is with regard to the mexico law that it requires either no force or minimal force so let me  ask you something so all these this excellent background you've given us of new mexico law in wasn't that the state of the long island garcia was decided i mean these cases you're talking about they're not all new are they there are two cases that i've this you were probably here for the st argument on this issue right had there just seem to die i have a disconnect with the whole deal because we've we've made a decision on this particular statute already and so necessarily the argument is well your decision in that case was wrong so don't it's out and we get a new crack at it i mean it in my in my oversimplifying it well i think i guess one about that you're right i think it composed enough to saying well we maybe should look at this issue again and that's you know where we are with that but there's but there's a procedure for that and that's to ask every but the whole court to hear it right if we just disagree with what the prior panel decision i mean i all i mean i just all these things that i'm hearing are things that were the state of the law when garcia was decided and so it's like there's nothing changed if you said over the new mexico supreme court's issued a new decision that is entirely contrary to everything you've believed before well maybe you've got something to talk about then but when we're just talking about the same state of the law i think what you're asking for is the is for us to over rule another panel opinion i don't read at least to disregard it maybe do it happened in asked to at look at it a nd time again because you do have a little bit more clarification not just from the supreme court but from the cases that also were decided on that same in that's really your hocus whether stoke playing somehow alters or a high crime area could now be walking down the street and someone looks at them an angry way and says you know and doesn't say anything that simply by the way they look at them or sign and that person turns over their a few minutes and i would just make the argument that new mexico burglary does not fit the generic definition of burglary as it has been defined most recently by the u s supreme court and stilts meaning a structure or vehicle that has been adopted or is customarily used for overnight a combination is our position that any mexico residential burglary could essentially be committed if a person enters a vehicle there were someone asleep in if someone maybe has some too much to drink at a bar decides to stay in the vehicle that i rather than taking a chance of driving home someone breaks into the vehicle residential burglary and we think that that simply is not the case and that that also what should not what do we do with u all but where's the problem again this is that is a decision from this court i guess it's our position that that also misinterpreted i mean mexico law and that at this point what reserve the remainder of my time for rebuttal thank you made so he has to meet the plein air standard which he has not acknowledged let alone attempted to meet in his briefs or an oral argument so this court would be acting well within its discretion to decline to review his arguments at all but if it were to take up clean air review there's no error here as to either of the premise going to just for fun just for fun let's talk about richardson which is the case the end of the road quote that we see almost every day apply here in a criminal case we have different standards in a criminal case the court has acknowledged in the court new decision for instance that there can be a little bit more road if the court chooses to go down that the court discretion to entertain an argument on plein air or if you so maybe not an end of the road then but it didn't exercise that discretion and it has declined to exercise that discretion in cases where it's raise it you have to walk through plain air in your appellate brief otherwise and the road that's right often the court will say in the circumstances yes this is the end of the road this specially where it's not then even addressed in the reply brief and especially when it's go into it at all but if it were there is no error at all here and there certainly couldn't be any plain error because there is an on point decision of this or that is published addressing each of the predicate offenses that mr martinez i challenging so i think we've narrowed down in the argument there that if mr martinez has a chance here that maybe it's because stoke cling as an interview intervening case that commit a burglary therefore there is not a good match with new mexico law can you address the effect of stoke playing i suppose that that is his argument the problem isto clean went the other direction the parties agreed below  other way but it's still equally dispositive stokely adopted a standard that is what's conservative and garcia applied so that actually but no it's not judge lou sero questioning whether garcia's result still applies after stokely i think it's judge lewis arrow saying it looks like garcia actually applied a standard that is now too strict garcia was too hard a case had it come out after still going it would have been easier because it's a prima court made it clear  no you think intends to say that garcia was too strict of an interpretation against the government i think that that is reading the reasonable reading of no five and it certainly the reading that  stokeley would compel everybody was a new mexico robbery is not enough because you can you can violate it by overcoming even slight resistance or you slight force overcome resistance and so clean squarely disposed of that argument the only other argument i have seen mr martino specifically raise to get over garcia is that garcia doesn't control because it didn't involve the violent felony and it lets categorical does not mean what i think it means that forecloses a later court from holding that new mexico robbery is or is not a crime of violence or a violent felony and turned yet not to confuse the point was argued by counsel garcia squarely addressed whether new mexico robbery is a crime is a violent felony and it held that it is garcia's on point it remains a good law and that should be the end of the question car a boat or aircraft in other words you can't as mr martinez is claiming be convicted of new mexico residential burglary by breaking into a ford fiesta even if somebody happens to have slept there and below he said that his argument wasn't foreclosed by to get it because he was making a different kind of argument as to unauthorized entry now he just says it turned out it was wrong he says that he understands that one panel can't overrule another is wrong he point to some supreme court cases are and sorry decisis then there's some amount of flexibility there but of course that's that's a different animal on the supreme so that's let me back you up to the argument he made below because i think it similar to some other arguments we've heard today and it's and the thrust of it appears to be yes i know you for example held that robbery is a crime of violence in the garcia case but my argument as to why it's not is different than the one that was presented in that case i mean does that it does that work i think it's novel i've not heard that i suppose a court could certainly issue an opinion same we are only considering this argument we're not considering we're not deciding if this statute is categorically a violent felony but if the court does decide that the statute is categorically a violent felony that's the holding of the case even if it didn't even if it didn't grapple with an argument that later counsel comes up with it doesn't make that holding not binding anymore i mean what if what if we decided that robbery was categorically a violent felony and we were dead wrong and someone a new argument showed that we were clearly mistaken the procedure for correcting that is to take the case on bach i don't believe that the court was dead wrong or wrong all i'm on either of these issues but mr attorney had a for instance did see kronk review i think that garcia did too i'm sure that terri edited now mr martinez could try his and at that procedure to but unless and until the court grants that review those cases are the law of the land you to begin with in terms of whether this case can be considered the no i think it really comes down to whether this court is reviewing whether defendants conviction concert's a crime of violence under that particular statue in other words it's a question of whether or not mr martinez should be held liable based on that enhancement in other words i think it's very limited to that and whether or not it might have been raised alone just to clarify our office was was not the attorney that represented his marching it's reported after he was sentenced but i think it's very clear that the issue is just whether or laws and i don't think there's anything wrong with taking a nd look at new mexico law based again on that the law that is changed somewhat not only in this print court but also in the circuit in terms of the analysis and vong ash and harris  and just to quote something that is from the from the bong case i guess it's a case of quote from the city versus older stuff case that's not kansas supreme court right to constitute a crime a robbery by forcibly taking money from the person of its owner it is necessary for the violence to the owner must either proceed or be contemporaneous with the taking of the property and robberies not committed with a theft or the thief has gained peaceful possession of the property and use no violence except to resist arrest or affect the scapegoat i think that's really what the problem is here in new mexico law that you could essentially take property from an individual and make the threat afterwards make it contempora to that particular taking and that simply is not enough and that's where the problem lies with regard to new mexico law and we would ask the court to again look at this issue again i think it's an important issue this issue is going to keep coming up there's different ways to deal with it