good morning may it please the court good morning helpful elizabeth white for the united states i'm going to try to save two minutes for about a watch my clock the question in this case is whether a conviction in nevada for attempted battery resulting in substantial bodily harm felony crime of violence that's two questions is it a felony is it categorically punishable by more than that year in prison and is it violent crime that second part is further subdivided into three questions it could be a crime of violence because it has an element to the attempted use of force it could be a crime of violence because it it constitutes an attempt to commit a crime of violence or it could be a crime of violence because it const me is dealing with the enumerated crimes clause ok aggravated assault part of the numerous crimes cause oh so i so even if you didn't have all sufficient force it would be it would qualify as a violent crime if it were aggravated assault yes yes and your your colleague says that's true but in under state law aggravated assault being can be committed without i i think we do need to talk about the supreme court has defined violent force as force capable of causing physical pain substantial battery about substantial bodily harm in that it is defined to include prolonged physical pain and my argument is as a matter of common sense a person cannot inflict prolonged physical pain without using force capable of causing physical pain but you pull out just capable of causing physical pain i might agree with you but if i read the rest of that page and it's a whole page devoted to justice scalia makes a very clear and johnson that we're talking more than a mere touch whether or not the mere touch could cause such pain well i actually i think that what the yes it has to there has to be it has to be force capable of causing physical pain and it has to be more than a mere touch asked the court to adopt definition that it's highly likely to cause severe physical pain in the court said no that is not what we said in johnson what we said is capable right but but you know you want to put all your eggs in the fo touching that cause severe pisser co pay because the person you merely touch had extensive burns on their body would qualify so you need it's that part i need you to respond to and this and this is this is what i think i think i'll also respect that the defenses is significantly misreading collins versus state collins versus state the question in collins versus state is whether the phrase prolonged physical pain is unconstitutionally vague and what the say they quoted as an appellate court in the state of new york saying you know pain is a subjective thing if you could you could punch a gymnast in the solar plexus and not cause any pain at all touching someone with third degree burns could c substantial pain and they said that in the context plaining the definition the dictionary definition of care so you don't think you don't think in it again i'm not sure we should be spending as much time in this one isn't the other one your choice why isn't it in this state in the state of nevada it's sufficient for aggravated assault for me to touch you slightly and let's assume that it has never happened and what this if it is if it is because even though it's never happened we have a state supreme court decision suggesting it might be then it would not necessarily involve the use of the kind of force t qualifies under the four squads correct yes but with respect i would say that that is legal imagination and what the supreme court set into and it's all over as is that the categorical analysis is not an invitation to legal imagination  or we can find clear statements by a relevant state court if there's a clear statement by a relevant state court it's possible of course that we're not going to get reported cases some years ago i went through a whole series of california cases trying to figure out what was actually going on because we're not talking about whether it's a realistic possibility going to show up in the appellate reports of a state what we're talking about is a realistically going to show up as prosecutions that are brought i would say that i respectfully disagree i think that what they're talking about in this single paragraph and collins they're not talking about the statutory definition of pain they're talking about a dictionary dictionary definition you know they're talking about the pain that lasts beyond the sort of the physical touching yes which means that if i touch someone who's burned and i lift my finger away that person is going to suffer pain for a prolonged period therefore it satisfied i think that i if the level of force that you are using causes prolonged physical pain substantial bodily harm that force by definition is force capable of causing physical yes but you're not but you're just pulling that single saying it has to be severe it has to be strong it has to be violent it has to be forceful you're better off going where that's a robbery definition that's that's that's generic robbery requires that i forcibly take property or did i take property from someone else and way we're dealing here with a battery definition that's quite different what that but what they're talking about is the johnson definition of what violent force is right for purposes of robbery i think i think the johnson definition for violence force for purpose of the a c c a is the same definition that this court has applied to for b one point two i think my time is up when we hear when we have the inner side and we will make sure you get a may please the court any cleary on behalf of mr fitzgerald i don't think i've ever said this before but i absolutely agree with the panel's questions regarding i don't agree with you here i'd love i'd love to hear your response to your opponents reading a column because i don't read it the way my colleagues here so i need some persuasion on that absolutely your honor i do agree that the collins courts amorphous definition a prolonged pain is just that and that the district court below in trying to assert that this definition of pain was overly broad made it so that it could not stand for the violent force definition in the elements clause it just can't and assessing whether that meant the violent force definition for a crime of violence she was correct in order to enhance someone's offense level the government had a burden to carry to show the district court that there is no uncertain understanding it cannot just be that you know i don't think the court said that i mean we can all read the paragraph going i think the court said and called was pain can be defined it ranges the whole gamut prolonged however it can be defined what i really like to focus on is the preliminary question which courts in the eighth in the tenth circuit and a panel of this court recently decided was before you even get to that is when you have a conviction like mr fitzgerald had where it is not a straight up felony it's a wobbler offense the district court did the right thing and considered whether you can say that this was necessarily a crime that was punishable by more than a year in prison and it is not as this court has previously now recognize and joining other circuits said that in order to find that a crime is necessarily punishable and that surely a crime that could be punished by because then we would never analyze it was necessarily punishable every wobbler would not be a felony well that's not what moncrief said moncrieff didn't say every wobblers not a felony did well it's coming close because but no the word necessarily would lead to that conclusion because you wouldn't necessarily be punished for a felony if you committed a warbler a court could give you a misdemeanor sentence but not all wobblers are treated the same across the state as to be sure so why is this wobble or one that doesn't qualify as a felony he could he could have been punished for up to five years because in this case there was nothing that prohibited him from being sentenced as a misdemeanor and c because he that's that's what i'm having trouble with your argument if your argument is that there's nothing they're prohibited from being said there's a misdemeanor that would be true in there even in nevada he could have been eligible for an age and a handsome and penalty he could have been eligible if this were not an attempt conviction he would not have been and or chose a misdemeanor that ends our analysis correct that's your point if he would have chosen a misdemeanor he well he'd he chose a sentence in this case which was not more than a year correct no he sent him as a arguing is that in every wobbler case in which the person is eligible for either we must treat it as a misdemeanor correct and you think moncrief holds that i do because i was convicted of what of an attempted aggravated battery which is to say a battery with the intent to cause serious bodily harm substantial yeah ok why tell me why that isn't aggravated assault generic aggravated assault for purposes of the numerator climbs cause the easy answer is attempts does not after the enumerated offenses that allows the incoherent offenses to somehow add to them through a so attempt unlike the forced clause where it says attempted you cannot  can't we don't include attempts no another search and then you've got to get the application no one so tell us why application no one because it's commentary that's not been approved by congress it's something that the commission can throw in there without congressional approval other circuits have said that there's nothing in the text that supports that once the residual clause fell out this court would be going against other circuits and finding that attempt against one of their circuit with one circuit now well and actually i didn't want to overload the circuit panel but there's also the d c circuit now also holes that the commentary doesn't support attempt the second reason is aggravated or assault also requires  and this is the this is the last point i wanted you to ponder and give me an answer to i think even if i accept your reading of columns as i read nevada law it says that in order to commit an attempt one must have the specific intent to do the completed crime so unlike unlike a a substantive a sole current aggravated assault here i would have to have the intent to do whatever the the last part which we would on happier well then i get back to my other question which is don't don't the definition of serious bodily injury in the guidelines include extreme physical pain which is different however than collins the intent requirements don't match up well some they do match up because a of attempt for a moment is extreme physical pain in the guidelines different than prolonged physical pain and problems it is because of the i'm starting to take you on that side trip no absolutely i'm trying i'm having trouble figuring out i don't want to i don't want to know you don't you know i don't think you know even if you did it wouldn't matter ok thank you thank conviction for attempted battery with substantial bodily harm in nevada no matter who the defendant has and no matter what conduct of the engage in that ends up with that conviction the conviction alone always in every single is whether it was punishable as a felony under the controlled substances act the georgia statute could be could be violated a bunch of different ways one of those ways was the possession of a small amount of marijuana for distribution without renumeration if that was the conduct that violated that statute that would be punishable under the controlled substances act only as a misdemeanor it would not be punishable and that was what the supreme court said this conduct the conduct in georgia some of it mendoza what the court said was the statute says two years but if under washington's mandatory sentencing scheme if the defendant has no criminal history and there was no gun the most the judge can impose this six month  received a lesser sentence in mind if i think the court said we interpret georgia law as him not being eligible for the longer one because as we read georgia law he couldn't have gotten a longer one that's a different situation than this where he statute attempted battery was substantial bodily harm which is to say attempting to touch someone in a way that would cause substantial bodily harm meets the definition of aggravated assault with a clear definition of aggravated assault because aggravated assault is it is an assault that includes attempts to cause serious bodily injury but the the crime itself not talking about your attempted crime but the crime itself is a willful touching he's trying to commit what will be a crime the guy next to him reaches out and stops him sounds as though that was an attempt right if he didn't if he intended to  he stopped i think that is why i'm not an attempt i think that that would be in an attempt to commit about it while assuming that the touching ok you know i have a different view of collins but but i think that to be convicted of attempt to commit battery attempt crimes because i mean anytime you have a general intent the substantive the completed crime as a general intent but the attempt to commit it is a specific intent because you have to have the intent to commit every element of the completed crime and if the police you know this court has over and over and over again said when you're talking about substantial bodily harm when you're talking about you know this is juvenile female this is great great this is you know what watson this is you know seven or eight times this court has said when you're talking about substantial bodily harm now you're talking about actual johnson violent force it is simply common sense and when it comes to the use of a deadly weapon or when it comes to the inflicting substantial bodily harm this court and most of the other courts of appeals have issued these kind of yes you can come up with a hypothetical where you touch someone accidentally with or whatever but what we're talking about here is the cannot find a case that would not qualify as johnson violent force that would violate the statute