these and we're only california penal code two seventy six point three d penalizes the violation of a protective order is committed through an act of violence or a credible threat of violence it's undisputed that under california law these words of violence do not require the use of violence force as that term as was defined in the supreme court to cause a kind of protective order in california be a protective order against violence against property or against animals yes ok and if the if the government disagrees i guess they can tell me i don't believe that the government disagrees with any of the textual or interpretive analysis that i performed in this case that the violence that is required for a protective order to be entered or violated does not require the use of violent force is that term is defined in johnson there are only contention is that mr defined by johnson so if we look to the specific box in this case that would be going beyond what the statute would require would you agree that if we did not have the supreme court mandated a categorical approach that on the fa presented this me we could would have weakened your position what are we can get slightly but frankly in this case it looks like the threat was just he was going to kick someone's butt so even if we stripped away all the levels of categorical etc i'm not sure that this would have been a crime of violence is that term is defined in the first johnson case which is the type of violence that would cause physical injury or or pain but for violating a restraining order for wading into cruelty to animals or violating some order about property there is a realistic probability as this court has  defined how you would find a realistic probability and that is you look to see if the statute on its face is overbroad and if so the court need not go any further and there are two very recent decisions from this court that demonstrate that  of them is united states versus worley which is a case which involved washington's riot statute which required the use of force while armed now the court could not identify a single case under washington law that defined what force meant for that statutes lee took force from a different statute assault and said that under washington law force for assault requires only minimal force therefore on its face the washington statute could be violated without any actual use of force and held that the dryness of rez analysis was satisfied that that showed a realistic probability so starting from  result decisions of this court and most recently in wormley and chavis elise this court has been very clear that there are several ways to show a realistic probability one is to point to an example now that's difficult because the way we do that is we look at appellate case law and almost no cases are appealed in california courts so we don't really that's not a really good igs way to find cases the other though is to look at the text of the statute as it's been interpreted little bit the point that you just made obviously this would be a much easier case under to as over as if we did have california case law on point that's published and you said that these cases are not appealed or tend not to be an explanation as to why we don't have appellate case law if you didn't you search for i don't know i don't even quite know where you do the search i mean i guess you could go to california practitioners and get affidavits from them and say you know we had a client convicted on this or that do we have to do that i don't think we have to do that i think that those cases are really clear worley's have a silesian result there that we don't have to do that i you know i did ask around nobody even knew anyone ever convicted of the statute let alone you know remember the facts of it there's a very recent case when the first circuit think it was white it was either us first white or white versus points which i thought was very thoughtful of this analysis that said you know we just don't know what's happening in the state court so to impose this burden on a defendant or in that case i think it was an immigrant to find a case it doesn't add anything it doesn't do any work in a case like ours especially w undisputed that not only could you violate a protective order by doing harm to a property to an animal or assaulting someone or battering someone which also are overbroad under this court's california case law finding a specific example doesn't do any extra work for us well it would give us an example of what we think might exist given the general propositions in the case law but i'm sympathetic with both sides  you're arguing about what happens when you actually don't know and all you have is the text of the statutes even though there is something happening on the ground i remember writing an opinion shortly after doing as alvarez came down judge actually dissented from that but in which we did our very best looking through all the unpublished opinions of the california court of the california courts looking in newspaper articles and i remember complaining that this  really a very inadequate way of finding out what the california courts do in fact and despairing of performing the function that you would do for example if you are not apologized or whatever it is i think we're just kind of stuck with what we've got  the morning your honor may please the court for as the jockey on behalf of the united states the lower court did not commit plain error in applying the sixteen level enhancement to the prior conviction for two seventy three point six of the california penal code because that crime is a crime of violence under the sentencing guidelines let me understand the plain error issue here as i read your brief your argument as to plain error is that the was the meaning of the statute you're out of there there is an argument regarding the meaning of the statute but i think given the nature of the arguments advanced by kassam it a month has and the amount of legal gymnastics th statute is that the end of it is that dan plane or guy that's that can understand your grief simply doget about the meaning the statue you didn't go into the other elements of plane air and so on you just argued about with the statue and matt your honor i don't believe that if the court does disagree with the united states his position on this that it's an automatic plain error finding i think first and foremost this would be the first opinion by the ninth circuit regarding two seventy three point six on this issue and  slight touching that the violence can be towards animal or property and that the credible threat to safety does not necessarily involve a threat to physical safety and so taking from castle montana's argument that means that court would have to accept that a california court would accept a conviction under two thirty three point six where someone who had a restraining order against them so it was to be more than two hundred fifty yards away from a person violates that restraining order by being closer than two hundred four hundred one what if the restraining order is stay away from your from your former wife's house and don't kill any of the animals and he comes over and shoots the cat does that violate the restraining order of the statute here it violates the restraining order or however it doesn't necessarily mean that it violates or future he commits the element of the use of violence or credible threat of violence looking at tonight i thought i heard you say violence against property or animals counts in the restraining order violation however looking at two seventy three point six d there are actually two separate elements one is the violation of the framework and one is the use of violence or credible threat of violence and so the act doesn't necessarily need to be both you can violate a restraining order say one for distance and then also in addition to that commit an act of violence towards a person or or a credible threat of violence towards the person i understand you can that of that i thinks conceded on all sides the question is not whether you can be held responsible for violence and of violence against a person but whether you can be held for other things as well certainly your honor an underclassman montoya's analysis of the statute the organ it would need to necessarily include that this statute would result in a conviction were somebody simply made a threat to someone that they were going to literally tut that person's car and that an actual conviction a california state court would result from that conduct and that's exactly well how about if they wouldn't didn't say i threatened you because by touching your car i am going to take my baseball bat and knock the windows out and i are going back and forth with which is to say these tend to be low level things and about which you don't get much appellate law so how can you tell me that this is merely theoretical when we've got a statute if you look at that if you look at the various cases in the statutes it appears that a realistic possibility that they can be applied in the way that mr chen is arguing and you're saying but then in fact there's not a realistic possibility but you don't know and i think you've got agree that given the nature of these cases we just don't get much appellate law i think that we don't get maybe as much as we see in some other stats you get over the united states did cite five cases that were  involving two seventy three point six and various subsection of it but one of them being deed and those involved acts of violence or credible threats of violence against people and there were in fact no other cases and there were none cited by  any must at least point to his own case or other case in which the state courts in fact apply the statute in the special non generic manner for which question i'd like to focus you for a minute on the plane error aspect of this appeal so my understanding is there are four points that normally get ticked off to recognize a plane there first has to be air second has to be plainer obvious third it has to affect substantial rights but then there's also an element that if it meets those thirst three we have discretion to relieve the person of their forfeit if it would not impair the fairness integrity or reputation of the of the court and its sad fourth element that i wonder about here is would how does it if we if we don't recognize the plain air here how does that impair the fairness or integrity or reputation of our court your i think the fair's reputation the court  you when the united states filed its answer in brief in this case and therefore wasn't available to the lower court in the analysis at the time so and i think given that error if it were read anything into the fact that and the federal definition and the since the commission gives as to crimes of violence the absence of simple assault because the way i interpret rule him is a simple assault threat he's anything to be read into this i don't think so your honor and here is why is that the two seventy three point six statute would fall under the residual portion of the crime of violence federal definition  where the state statute has to do just involve if violence or threat of violence and in fact actually closely mirrors the language that's in to seventy three point six and so i don't think it needs as it would be an enumerated offense for this court to find that it falls within the crime of violence definition further as i think you know some distinction of chavez elisa's is important here because it does represent a different kind of analysis where the defendant wasn't required in those cases to provide an actual case but could rely on the text of the satellites and brazil and football were also cases of that nature however as i was discussing before with that the spectrum of theoretical possibility the realistic probability the plain language of those statutes where the broader scope was and as xabi sillies noted the court there noted it was readily apparent from the statutes  but i think that's exactly why doing this all over as requires something closer to a realistic probability because having an absence of case law and having a statute that so plainly mirrors that of the federal definition of crime of violence to include an act of violence or threat of violence now who has to show is there is there any case father tells us who has the burden of proof as a realistic probability hundred winners over us yes or on a draw to solve or is know panel like ours isn't really feed free to disregard are put aside some prayer press certainly orders and let me be more precise with my language i think that there could be situations however when it's all over it's still obviously has a place in which a case needs to be provided and it is for situations like two seventy three point six here where the broader scope it requires cross referencing this statue with this case and this other cross reference to determine this this non generics pacific way in which the statute could be applied ok without we got the point thank you out here and thank you response indicate that because chavez so least came out after after the sentencing that that renders it not playing but the supreme court of his dress that very issue and both johnson and henderson we look at the plain error analysis at the time of appellate review and i think that's really important for two reasons one is we do all the legal analysis first and then we determine whether or not it's playing we don't decide whether something's playing just based on common sense that's what the supreme court told us  a more than fifty one months i think that is clear but he also said many times during his hearing that i keep in the guideline range in mind i counted four times that he said i'm keeping the guideline range in mind and if the guidelines analysis had been done correctly it would have been twenty one to twenty seven months with zero departure so he gave him two levels departure i think it's hard to believe that the judge would have give him more than twice the heigh and of the range without a departure if you had known so i think that with respect to the third and fourth prongs both this court now the supreme court has made clear that guideline error will generally satisfy the third and fourth prong and in this case it's particularly clear because the judge said several times four times i counted that i keeping the guideline range in mind ok thank you i think both sides are good arguments