good morning i'm brett i represent mr smith in this appeal mr smith was convicted after a plea of guilty to pharmacy robbery and other offenses in an open plea and found to be a career offender under the united states and it's in guidelines and soon it's to the low end of the guideline range of that case we have gone around this appeal one time previously in the us supreme court it was remanded to this court which subsequently remanded it to the district court where mr smith was recent it's been found to be again a career offender not under the residual clause that time but under the force clause of the career offender guidelines we contend that mr smith is not a career offender under any of the three now  clauses of the career offender guideline that being the fourth clause the enumerated offense clause or the now effective residual clause after the backless decision by the u s supreme court finding that while a decision regarding statutory interpretation of the aca is different than the guideline interpretation of an agency the decision making authority and so i'll address those  cut to the chase for me at least i can't speak for my colleagues are previously albeit in an unpublished opinion but with respect to this particular the defend t has ruled that if it is within the residual clause it's correct this is what law has changed to cause us to come to a different conclusion from that i know that the law sort of changed for a while but it changed back it was in quite oh now it's changed and it's changed back to get more for twenty god change back or do we have to reject what we mean it with a thoughtful reasoned decision that went through the president at that time i'm the answer i think your question is the law did not morph in a term but it did change in terms of prior to the johnson decision there was a body of law the us supreme court big a psych's and others which they'd used to over there they overruled him because of the void for vagueness doctrine and in the constitution that's true if they subsequently said doesn't apply that's right but why doesn't he why doesn't that leave what's left other than what was unconstitutional well for rather than just sort of a race all that analysis just seems i think they did race that analysis i mean that it doesn't make sense to say that they did merely because they came to a conclusion based on a constitutional dock and that doesn't apply in this we would have to conclude that in order to rule for you we would have to conclude that well that that all of all of that law that was used prior to johnson could not be used now i don't think  those cases have been ruled in can or cannot be used even assuming if you go back in time that big a and sikes and the other cases interpret ing the aca clause in how do you determine whether there's otherwise force sufficient to meet the residual clause those cases even before this decision by the way the decision in this case is contrary to another number of there is an inner circuit split not only in the six circuit but a number of other circuits around that we would have to disagree with judge b of the arguments and i think they brought it up in that opinion was when you look at robbery under north carolina common law what what are the elements that you have to meet to be able to be convicted of that in what what we argued before but didn't sort of flush out probably as thoroughly as we did i think in this case is what is the definition of fear and is that fear of violent force are there other kinds of cases or other actions which define or defined by and can constitute fear under common law or robbery in north carolina and you see the fourth circuit in a case where they talk about the force clause but i think the sort of the the analysis is very similar to the residual clause where they cite a number of cases saying that the fear element of north carolina common law or robbery can be  found when you give a situation where a person's hand was pushed off a cigarette packet they give another one where an individual's shoulder was pushed and they tripped and fell into a bunch of shelves and they give one example where a person's bag was taken from a table where the other individual standing on the other side of the table there was no threat of force in that particular case it was while there is there is some disagreement between the government a north carolina law about that is some of this case law is getting fuzzy because it's fading into the background now but some of it as i remember was that something could be analogous to a burglary of a dwelling even though there was nobody in the dwelling because there was still the risk that just being there might engender some violent activity and that was sufficient risk to qualify this doesn't robbery even if all you're doing is pushing someone's hand around lead to the possibility of violence in the same kind of sense the burglary of an unarmed sorry an occupied dwelling with one hand it could on another hand it could not give some examples in the brief of what common law robbery when common law robbery was in place and it was in statutory law under lafave in some cases from the seventeen hundreds where presence of the person that's true but those item a letter that would be robber but those threats those threats even if you are in the presence of a person which put a person in fear not of physical injury but of some other  issue right that the cause of them some harm is sufficient under north carolina law if you can if you compile that along with the original understanding of common  law in north carolina around the us as it as it was at the time you don't have to it is not necessarily flowing from that that there will be or could be violence you can meet the definition of common law robbery in north carolina under their case law and under a common law by threatening something other than actual physical force and so and that was an argument we made it the first one i think they cited that it was a i think he called it a creative argument but but i think it i think going further there than a creative argument i think it's an actual real life argument that has you know there are very few cases in the supreme court of north carolina in really him it makes sense because there's probably not that many of these kinds of cases that make it death for and actually get a decision but when you're looking at a very limited scope of cases and how to interpret a very difficult area of law because you're looking back at what the common law was centuries later you you now get into a position where the the lower appellate court has a number of more decisions they my name is look mclaurin and i'm here only half of the united states mr smith's career under sentence in this case should be affirmed because his prior conviction for a north carolina common law robbery qualifies as a crime of violence under any of the three prongs of a crime of violence definition or be one point two and i know judge writers pointed out at the beginning that this case could easily be resolved by just relying on the residual clause and we think that's true this case could be resolved by relying on the residual clause would because there's been some discussion that already i want to start my discussion by focusing on the use of course clause and why we think it's important to resolve this case on that basis but the reason we think it's important is because we think there's some guidance that's needed to the lower courts here in light of the four circuits decision and garner that misinterpreted both north carolina law and the federal you through use of force clause jurisprudence in and we think that helpful guidance could be provided by this court when you look at north carolina law and if you actually look at it fully which is not what the fourth circuit did and garner it's very clear that north carolina law does require the level of force that is is needed under the use of force because the supreme court in the first johnson decision didn't set that level extremely high all it did was put the level above mere offensive touching it said that violent force includes force capable of causing physical pain or injury in expressly stated that it's not it doesn't have to be the kind of force that even results in any injury at all it's enough of this force capable of causing pain such as a slap in the face a push of a hand pulling of hair hitting another all those things are violent force the the thing that johnson was concerned about was the lowest level of force that had been allowed in the common law these sort of unwanted or offensive touching and what the supreme court said is that is not enough but it didn't set a threat hold so ridiculously high that offenses that involve causing pain to others can't meet it in fact the court was very clear violent force is force capable of causing pain that is enough to count as violent force in the north carolina courts have been very clear that what is required under the statute is force that is sufficient to compel the victim to part with their property in effect i think a really key supreme court case that was not looked to by the garner decision is state v john which is an eight hundred fifty seven north carolina supreme court case was cited in our brief in that case the court very specifically said that the force used must be of such nature as to show it was intended to overpower the party robbed or prevent his resistance to the taking and not merely to get possession of the property stolen now if you look at that kind of language as indeed other courts that have analyzed similar types of robbery statutes and similar types of robbery case law they said that when you look at that language the only way that you can use force that is capable of overpowering summary or preventing the resistance the taking is by using force that is capable of causing physical pain or injury to another person and i think one of the things that makes the use of force clause analysis somewhat complex and i know the courts like to shy away from that recently is because there is somewhat of a mess of the case law out there in the last two years there have been dozens of  appellate court decisions addressing whether robbery offenses count under the use of force causing the of the guidelines or in the dark or criminal act and while it seems like it's a big mess out there i think you can actually really identify a commonality in all of those cases the fact the commonality that this court recently identified in states decision that the robbery offenses that don't count under the use of force clause or those robbery offenses that have departed from the common law and that now allow for purse snatching to count under them if you actually look back at the common law if you look at the faith you look at blackstone it was very clear that this this idea of mere purse snatching that was not enough however over time some states managed to incorporate that mere person acting element into their basic robbery offense in those states that have done so those offenses do not count as violent killings or crimes of violence and in fact if you look at every single one of the recent supreme court recent circuit decisions to saying particular fence doesn't count as robbery the reason they're doing so is because there is a state supreme court opinion saying hey mere person that's enough what we have in north carolina is just the opposite north carolina has been very faithful to the common law and it's interpretation of common law robbery is explicitly rejected the notion that mere person acting can count as robert again going back to that state  that reversed and vacated that conviction it said no that's not enough mere person does not count as robbery and if you look at the north carolina court of appeals in at public decision a published appellate decision said the exact same thing state  roberts and it relied on sleepy john also relied on other supreme court north carolina supreme court cases state b parker emphasizing that the in a robbery case the victim has to be induced to part with their property we should just a degree of force more than just an offensive touching if you simply offensively touch somebody you're not going to be able to induce them to part with anything you have to touch them or threaten to touch them or use force in a way that is going to be capable of causing them pain injury in order to induce them to part with their property that's very thoughtful and interesting i have sort of a medical question you suggest that we rule on that basis rather than on the residual clause because it would help clarify the law in a confused area of the law and when you said that i just started wondering whether that's that's really consistent with the same kinds of jurisprudential concerns that underlie avoiding dictum if if you have two bases that we could be equally rule in your favor  i'm wondering whether we shouldn't always or almost always use the easier one rather than the more difficult one even though the more difficult one might be more instructive because if you're making law on the more difficult one when there is some other argument that would have easily led to the same conclusion you're here in effect giving him advice her opinion and depriving the people who have a different view of the ability to appeal it because they're going to why should they spend the money appealing it when they're going to lose on the other issue and why doesn't that sort of suggest to us as a principled matter that we should generally rule on the easiest way that leads to the conclusion that we're coming  the court does generally want to warn the easiest way and what i'd like to suggest to the court is in fact the use of course clause may be the easiest way because if you actually stop and think about it the animal the the analysis i mean the most the least subject to either about what changes though is when you're in the use of force cause arena the only thing you have to do after that is then compare it to the language of the use of force in the interim rated defense context what you have to do is you still have to determine what state law means but then you have to determine what what is the generic version of robbery and that's an issue that this court has not yet done and that involves a complex analysis of its own and only then after you do that complex analysis and you can hear it you get into the generic definition of robbery that look at defensive conviction you have to determine does that offense involve a serious potential risk of physical injury to another which is another step in the analysis and then you have to do a third step and say is the risk involved in this particular offense  similar to or of an equivalent nature to the risk involved in one of the enumerated offenses in the guidelines so you know our position is that yes that i mean those two the numerator offense caused in the residual ca involve a sort of a more complicated series of analyses now that that to be to be fair the you're on this course hardly done that announced this in the prior decision so it you know it may make in this particular case it may be easier to do the residual clause but we think particularly in light of the interpretive difficulties that lots of courts have raise resolving regarding the residual clause in light of the fact that you have district courts in this circuit expressly disagreeing with the fourth circuit and gardener and saying that north carolina law means something different we think this court would provide useful function by resolving that issue however the court does not meet your right to your absolute rejoinders the court does not need to address these of course causes case could have firm on the basis of one of the other two causes but the reason we're asking the court to consider the use of force cause issue is because we think it is in one way analytically simpler and also because we think it would provide useful guidance to the lower c s and so getting back to that use of force clause issue again what you see in the case law is a distinction between robbery offenses that allow for mere purse snatching and ones that don't north carolina clearly falls on the side of the line that does not is is useful to point out as well is i want the court to consider of three other circuit decisions harris from the tenth circuit involving colorado robbery doctor from four circuit moving south carolina robbery  just to those two i think are very helpful because here is in analyzing colorado robbery it looked to colorado state law in the way that colorado had defined the offense of robbery and some of the language colorado used in talking about its com robbery mirrors the language that the north carolina courts use and in fact some of the crucial language that the tenth circuit relied upon you find in the north carolina cases the tenth circuit was pretty good persuaded by the fact that colorado had repeatedly insisted that the the offense was the violence used well the north carolina supreme court has said the exact same thing if you look at the state the lawrence decision for side in our brief the court said unlike larceny the gist of the offense of rubber is not in the taking but in the force and terror used that's very similar language that the tenth circuit found so persuasive in harris same with doctor if you look at doctors it involves south carolina common law or robbery and what's interesting in that case  is they are the they are actually relied on the south carolina law case using language that was word for word identical to the way that north carolina has described north carolina common law robbery in state b sawyer where they said that the fear that's required under the statute is such that the transaction must be tended with such circumstances of terror such threatening word or gesture as in common experience are likely to create an apprehension of danger in to induce a man to part with his property for the sake of his person and i want to emphasize the for the sake of his person language because that rebuts the creative argument that council made it's a creative argument that you can maybe threaten other things besides bodily injury it's just a wrong argument because the north carolina courts have been very clear that what has to be threatened is bodily injury that you have to have you have to be you have to have an apprehension of danger to yourself and you have to be willing to part with your property for the sake of your person you're not going to be doing doing that if you're not afraid that your person is going to be injured and so for these reasons we asked the court to find that north carolina around very categorically qualifies it in the use of force clause however as we've noted in our brief we also think of it squarely within the generic definition of robbery indeed that's not surprising because it is a common law robbery fence and it has like the majority of jurisdictions north carolina has like the majority of jurisdictions maintain the common law elements of robbery and when you look at that the way robberies normally defined by most states it's normally the time in most states in the way it had been defined a common law the law most  settled in that particular area however two cases north carolina common the robbery is more broad than generic robbery because in the first case is state vs smith it's a two thousand and eleven north carolina appellate court case it's carolina supreme court i recognize that started to syces the supreme court makes the ultimate decision but again there's a second case in north carolina from two thousand where again they upheld a conviction for person acting and so not only do we have a situation here and i think this is the point of johnson when they found under a different standard for statutory interpretation but that these decisions about individuals who are convicted of crimes and found to be career offenders just as a baseline policy need to be taken very seriously and determined very carefully because you run in not only to have problems with says you give to an individual which are wildly more severe than a person who is not found to be a career offender that's true in this case but you run into a situation where a court a sitting court a sitting district  been required to look at the career offender guideline and make a proper determination which is required by law of the guidelines for which you must sentence a person to time in jail in take away their liberty  based on these decisions which the supreme court even though they were not interpreted in their career federal guidelines have said it is impossible to make any sense of the residual clause at all and so you have a notice and  due process and that in the very foundations of our criminal law system are called into question when a court is required then to look at these decisions and make determinations about who qualifies and who does not qualify as a career offender particularly in this instance where common law robbery there it i could point out there is there is a circuit split there is a split in north carolina on common law because the supreme court and its court of appeals have said something different on numerous occasions about whether a person asking does or does not qualify as robbery you've got an inner circuit split in this circuit alone between the smith opinion and two or three other opinions carmichael and others that were  but but i will say that when you if the government is asking the court to instruct the lower courts in to clarify the issue to me that clarification in this case is impossible to get to in the supreme court as much you cannot clarify this issue because it is so convoluted and difficult to determine what the of the hundreds of thousands of crimes that are not only on the federal books but on the state books how do you reconcile those under the residual clause as the court in this case previously suggested the other panel in his i assume this court will address the sentencing commission is done away with a residual quads now