as a necessary element the use of violent or destructive physical force and that force must be applied at least recklessly not negligently and not accidentally the question here is whether the florida fence of resisting obstructing or opposing an officer by doing or offering violence to that office satisfies these requirements it does not for two reasons first because violence and physical force are distinct concepts under florida law and violence has been applied to such non forceful conduct as wiggling and struggling while being detained and second the claim forceful conduct here requires no mental state at all a person can be and has been convicted of resisting with violence for driving away from a police officer but accidentally allowing the side view mirror to hit the officers hand and if the court agrees with either of these two points then the crime of violence and handsome in this case should be reversed and your honors are first already know that the enhancement was inappropriate here is really quite simple florida treats violence and the use of physical force as separate and distinct concepts in fact the phrase violence in the phrase use or threat of physical force appear as alternatives in the same sentence and at least five different statutes in florida and these statutes range from substantive offenses like robbery and carjacking to reset of a sentence it's like the crime of violence and hence meant that we have in front of us here today so if the court was to interpret violence in the resisting that violence statute to entail the use of physical force it would effectively make the phrase to use or threat of physical force meaningless and all of these statutes and the court should certainly hesitate to read the statute in a way that would render the terms of those other florida laws superfluous and another reason why we think this court can be confident that violence and using force of distinct concepts in florida law is that there's another florida statute on the books that deals with the exact same subject matter and it specifically refers to resisting an officer with physical force that statute states that a person is not justified in the use or threatened use of force in resisting an officer who's trying to make an arrest in good faith and what that tells us is that the florida legislature knew how to draw statute as to refer to resisting an officer with force but chose not to do so in drafting the resisting with violence statute but your honour's of the best evidence that we have in this case that violence in this florida statute is broader than the term use of force is that the florida cases that have construed that term and applied it to conduct that  not forceful and we cite in our brief green in one thousand nine hundred one case of the florida district court of appeals that rejected the defendant's argument that as a matter of law his conduct of wiggling and struggling while being handcuffed did not satisfy the doing or offering violence element of this crime that means that that was legally sufficient to go to a jury to support a conviction in another case in one thousand nine hundred six is right versus stat in that case the court upheld the defendant's resisting with violence conviction against the legal sufficiency challenge holding that his acts of struggling kicking and flailing his legs after being tackled and sat on by the officers qualified as or were legally sufficient to satisfy the do the offering violence element and the common thread with this conduct your honour's and the bottom line here is that wiggling in struggling inflate and flailing someone's arms right ran away from the officers the officers tackled him saddle and so while he's being sat on indeed he was eventually hog tied his arms are flailing and his legs are kicking that is not directed that that's not the type of violent force directed officers person that should satisfy the force clause but even if flailing and kicking of course and by the way clearly and kicking at an officer intentionally or were in the direction of his officer would absolutely qualify as a use of force but struggling wiggling certainly is not the type of violent aggressive conduct that typically satisfies the force clause of the crime of violence definition and as long as that type of conduct can satisfy a conviction in the state then the crime of violence and handsome should not apply but even if we look past the statutes application to obviously non forcible condom there's a second equally powerful reason why it falls outside before school and that's because resisting an officer with violence requires no mental state with respect to the doing or offering violence element and th applied negligently or accidentally and that's important in this case because the florida supreme court has twice made clear that the willfully and knowingly mins reading the statute only applies to the verbs resist obstruct or oppose and the object officer but it doesn't apply throughout the statute and that's the crucial thing that the eleventh circuit missed in its opinion in two thousand and twelve in the united states versus r those the eleventh circuit looked at the term violence and equated it to using physical force without and specifically looked at the florida supreme court's decision saying that this was a general intent crime and read that to mean that there's an intent required throughout the statute but the florida supreme court was clear the grab a man of this offense is resisting obstructing or posing an officer willfully full opinion did the court tell that the willfully or knowing mens rea to the doing or offering violence helen and i think that's important in this case so what that tells us is it leaves open the possibility that resisting with violence would apply to a willful act of resistance against an officer that happens to result in violence negligently or accidentally or even intentionally or recklessly the point is that there is no proof court to a case here that demonstrates that the statute has been applied to this type of negligent or accidental conduct and that cases you russo versus stay cited in our brief since two thousand and six case there and mr yoo russo was at a well lit car lot in the middle of the night plainclothes officers approached him they identify themselves and they come put him over to his car mystery russo got into the car locked the door and beg backing up off the tagger the officer that had come up next to him yell stop held out his hand and mr yoo russo drove away and while he was driving way as the florida court of appeals put it he allowed his car the rear view mirror of his car to hit the officers hand and that conduct right there and went to injury in florida and the florida jersey jury found mr you so guilty of resisting an officer with violence and while his conviction was alternately overturned on appeal for different reasons in your rousseau the court of appeals made clear that it was undisputed that an act of violence occurred when his car hit the officers hand and in that case it's typical of what we're saying here it's that the mystery russo knew these individuals were officers and he was willfully trying to resist their their attempt to detain  but there's nothing in that case that suggests that he was anything more than accidental or negligent with respect to the rear view mirror hitting the officers outreached hand and at the very bottom line there is certainly nothing in the case that suggests that the prosecutor had to prove that he acted intentionally to hit the officers hand that he knew that he was going to hit the officers hand or that he acted and reckless disregard or conscious disregard of the risk that the mirror would hit the hay and that's exactly that is the crucial point in this case and why that the crime of violence and that's the second reason why this crime of violence and hanssen shouldn't apply your honors i don't quite get there's no further questions on those first two points i'd like to turn briefly to the room in this case we think regardless of what standard review applies here we do contend that our objection district court was sufficient to preserve the de novo standard here without the air it's undisputed that the correct range is twenty four to thirty months that means that thirty three months there's a thirty three month spare or almost three years between the low incidence he received and the low end of the correct guideline range and what's very important in all running through all the harmless error cases and indeed in the third prong planar analysis now after molina martina's is that there is no indication in this record that the district court decided to sentence or select a fifty seven month sentence for reasons independent of the calculated guideline range the court did not consider the range that would have applied explicitly it did not state it  point that it would impose the same sentence and it chose the sentence at the bottom of the range which is strong evidence that the guidelines influenced its decision and also if the court looks to the statement of reasons that to the air preservation issue between the court specifically to the record page one zero nine and that is our objection in the lower court that where the attorney asserted that the florida courts and i'm quoting here have a pint of the offense requires physical force or violence strongly suggests that one can resist an officer with violence without using or offering to use physical force and that is in a nutshell the claim we're making on further questions i'll give the rest of my time back be knowingly resisted obstructed or imposed a law enforcement officer by offering or doing violence to his person this court in a previous unpublished opinion in united states purchased from issue here and doing so it reviewed the case under to know the standard of review and it also reviewed the state of the florida state cases and interpret in the the eleventh circuit held that the statute is not a strict liability crime that is the defense argument they are in contrary to the state court frame it also held that the florida courts conclude that violence is a necessary element of this statute and that circuit court the eleventh circuit the surface bentonite in that case it held that florida courts had held that doing violence in this context plainly conclude that recklessness is allowed under that statu into officers officer is telling the defendant to stop still qualifies as recklessness rather than accidental or negligence and so as the eleventh circuit and road below those indicated even looking at all of the prior state florida cases that statue at issue here cannot be violated by mere accident alone it must be violated by knowing or intentional conduct and i would argue step further even recklessness but  i think that romo deal it has to answer is that with regard to the state of the law in florida as far as accidents is concerned looking also at this court's more most recent case mendez decided by the government's twenty eight janitor that this court will look to the entire statute for the mens rea it doesn't merely look at any misread indicating use of force in other words statute and again backtracking to remove the a lives eleventh circuit there held that statute florida statute eight forty three a one is not a strict liability statu the district court was very clear that it was revealing that thirty five fifty three a factors and that it would not have imposed anything less than forty one months from the present case because of the defendant's criminal history and that is this defendant had previously been convicted for illegal reentry and was sentenced to forty one months and the district court here acknowledged that this did not turn this defendant from reentering the country just three months after deportation on them after that forty one month sentence the court also was entitled to and did consider the fact that the prior florida office did involve violence that was violence against a police officer and the court could consider this under the thirty five fifty three a factors regardless of whether or not the florida statute fit within the technical definition of two of one point two finally the court did say it wanted to choose this and that is to deter future conduct and to protect the as this court in years recently in that case united states versus sheppard decided in the government's twenty eight jail letter there are no specific magic words that must be stated by district court in sentencing and the government would argue in this case if friend of the government recognizes that case for light exclusively on alonzo garcia now in alonzo garcia this court looks at the florida aggravated assault statute and the aggravated assault statute speaks in terms of threatening to do violence to an individual the court there looks specifically and holding that that the aggravated assaults that she qualified as having the use of force to dictionary definitions of the term violence and we don't quarrel with those dictionary definitions the difference here is that as we've pointed out the term violence has a specific meaning or at least it's been applied in much more broadly than those dictionary definitions in actual practice and regardless whether or not violence with respect to the aggravated assault statute does always necessarily entail the use of physical force and there's other factors at issue in that type of crime that the intentionally knowingly threatening and of into individual with imminent harm the fact remains that in this statute the resisting with violence statute doing or offering violence has been found legally sufficient with wiggling and struggling that violence is an element of this offense an individual does have to do or offer violence to a police officer the point is that the only mens rea in this offense is willfully resisting impeding or obstructing and that's the crucial point and wrong of the lobos that court did not address your russo and it completely ignored the florida supreme court's clarifying internal handing you will without some action your honor willfully impeding does require action a voluntary act and to willfully impede i suppose could be to run away from a police officer after getting off your bike and throwing the bike down behind you when the cops got to jump over the bike i don't have a florida case to point you for on that but the point is that the polish will act here is the appealing the resisting or the obstructing an officer but there's just no proof required for the men for offering or doing violence and that's what you are so demonstrates is that the individual can drive away from a police encounter a consensual encounter in that case and as long as the vehicle hits the officer that's enough and the judge southwick to look to go to your point with the you're so case on the fact that that might have been reckless conduct we simply don't know if mr your russo was acting recklessly because the state of florida wasn't required to prove that as an element it wasn't required to explain it and that's what the differences a jury instructions like i have a citation i can give that to the court in the twenty a j and just one simple sentence it charges the jury with finding that the defendant either willfully or knowingly obstructed imposed opposed or resist foil here because the conduct ins california statute issue in that case was willfully discharging a firearm at an occupied vehicle and so the political act there willfully shooting a gun was tied to the use of force and they were linked that's the difference here is that here willfully resisting is all that's required the claim forceful conduct doing violence simply does not have freely with respect to harmlessness that forty one month sentence was in infected with the same sixteen level crime of violence and handsomely and that mitigates the district court's consideration of it and unlike shepard there were simply no words