year but we did manage to get snyder in there which i think is the parties at least seem to think that snyder is applicable to this even though procedurally it was addressing  e threshold issues about the viability of filing a motion at all and it being recognized vs dismissed for want of jurisdiction but i think snyder informs us as to the threshold issue as to timeliness as well as evaluating the merits well and looking at snyder i mean can't we do the same thing that happened in snyder which is here the sentencing court could have looked at the p s r to ascertain the actual conduct because that's what the sentencing courts were doing and in the relevant legal environment background legal environment or is and if you look at the p s ards very clear that there was there were actual individuals who were threatened by your client why isn't that the end of the analysis here because snyder makes it very clear that the facts that were reported in the p s r in the district court in snyder were based on information that was d from shepard documents and there's several cases from this court that say that reliance on a p s r is certainly fine if it is relied reliance upon shepherd documents while shepherd was two snyder i think that the first thing of course we don't have a district court record on this and and this is you talk about the novo review this court really is doing to novo review for the first time of this and the first question is whether the record of silent district court record is silent at the time of sentencing about what clause was instrumental and it certainly is and so then snyder is says that then you should look if there's nothing in the record to give you guidance then you look at the state of the law the background snapshot of background law at the time that's construed in light of the record also i think snyder makes clear and so i rely very heavily on the supreme court james case which i think the year prior to the since in my case james had held that attempted burglary qualifies under the residual clause with focus on the potential for confrontation when that would be burglar is perhaps confronted by the person that owns the place that's the building to be burgled then the fight is on  so it encompasses what may happen beyond the literal elements it's that the crime a directly cause an escalation of violence and that's the essence of james not only was it available at there's a discussion about whether an indian a conviction for robbery is a crime of violence for purposes of is there an arguable issue citing james the court concludes that it qualifies in residual clause so there's a very clear indication as well i don't think we can forget snyder doesn't do this much i don't think i don't think we can forget that it's part of the program to actually begin with the language of the residual clause and  looking at the statute that is operative in the state conviction and when you look at the oklahoma statute on the options of what constitutes fear of injury and getting into injury of property i think there would have been you know great question about just where it fits in our different catechetical categories that we have  which i think would cause a court to say the easy judge current also said in one case the lowest hanging fruit it's easy to get to the residual clause and i think that we can prove more likely than not which incidentally i do  knowledge i have a preponderance burden of the current case law it's the path of least resistance very evidently and it doesn't look like the district court put the burden on you it seems to me t court record silent the defendant's minutes would you read the district court opinion that  i i don't know if the you know we were wrestling about what the level was because i think that the government in its typical briefing was saying that the appellate had to or movement had to show actual reliance and we were really fussing about that i don't know that the district court didn't think i had some burden but the way that the district court lacking guidance from this court at that point it's on the way the district court addressed it is to say i'm go move to i'm going go through all the provisions and basically go see if if it's harmless so if it sticks under the element clause then it would be harmless error so to just kind which your response to that yeah i think that we should be very cautious of following a case that construes the sentencing guidelines which get  says that the qualifying prior conviction just needs to be any crime that is and then it just proceeds through a very long list of the numerated provisions that's unique to two l one point t said that if we can use more than one of those we are free to do so there's no reason not to be able to do that well in some of the reasoning there was the whole purpose of sentencing guidelines is to level the playing fields of you have a state that has kind of an odd configuration in the criminal law that encompasses both robbery and extortion in one statute as opposed to the majority do it in two it didn't make a lot of sense to treat them differently for sentencing purposes how does that rationale apply here does that help you or her i don't know that it applies yet because we're dealing with a statute we have to begin with the plain language and so there's a section in my brief that just comes right out the meaning of or and case law that says or does not mean a think we have i mean that normally or means or sometimes it means and but then i think that begins to present an ambiguity if we don't know which it is you know in the statutes need to be clear enough to give notice to people like mr duran in two thousand and nine so we end up in ambiguity land i believe if we open the door to or means and  so moving beyond that aspect the overbred argument that i've got that looks at whether or not the threat of injury to property is present that's relevant to extortion in this crime i do recognize that i was relying on the logic in this present parkas case that this court in recent months has said is essentially abrogated and by the supreme court where the supreme court has told us that knowing or intentional causation of bodily there's a distinction that i see ok so you know i was just kind of setting up with those cases we're talking about you know we're talking about a robber threatening or using force on a victim which is a media presence and the notion that well that robber can somehow do something to cause indirect force and i think the theme of those cases the prez margus and the argument that was being made in onto their us is that their their indirect force is not adequate to be the force that we're looking for and that is not the argument that making  what we have here is focusing on causing property to be unlawfully damaged and that is not a situation akin to the robbery situation would apply to where you have the robber the victim i may use this indirect force on you but it's still the robber on the victim here this property that may have not even be present and it's very very broad to imagine what can fit in this crime when somebody can say i can cause force  to result in injury because it's not requiring force against the property is fear of unlawful injury to property so i see it as a different kind of crime because of the  good morning the court my name is lena lama i represent the united states in this matter i'd like to begin while it's fresh in my memory by addressing the fear of injury extortion is the focus i think in whether fear of injury involves force is a red herring because to the extent that the court accepts that we can look at two separate sections the elements of cause for the robbery and the  from an individual by consent induced by unlawful use of force or threats and that fear also as defining because it says fear of injury to personal property now that is identical to the language described in the oklahoma statutes fear of injury to proper person or property so the issue of whether there's a fifth threat of forced property simply doesn't apply  if we accept that extortion can be considered as one of those offenses continuing to go sort of in reverse order and that also goes to whether this court can consider two separate sections of the definition of violent felony in the a c c a in if holding that robbery now constitutes a violent felony and in particular they discuss that the formality of what a particular state calls an offense is not as important as what the substance of the offense is and that makes sense when you're talking about a list of generic  list of crimes but this you're asking us to do use to go beyond i am what happen in studio and to actually say well we're going to break it up and put part of it over here in the force clause and then we're going to put part of it in the enumerated offenses clause which what what from the language tells you that we can do that to the extent that robbery can that group them that formality should not dictate what this court and how congress defines the offenses that qualify as violent felonies if both of the offense is contained within oklahoma robbery qualify as violent since we filed our briefs in this case and i found a couple of twenty eight days on lewis and driscoll us not to was of course in our briefs the key i think and i heard barry say it too is the burden is on the defendant to prove that say in the footnote on the bottom of that page that if the record is silent that the defendant need not show that the residual must be used however here explains that each of these offenses would have qualified as a robbery by fear of injury a person that's at page ninety one and ninety two of volume one of the record at page nine i believe volume two of the record  side it's quite clear that the information the p s r is based on the information in that charging document was the information provided sentencing or i thought it was a not i don't know if it was because no objection was raised to the use of these robberies and that goes to my point about the relevant background legal environment here in two thousand and nine which was before johnson two thousand and ten was decided after sheffer after sheppard in two thousand and ten or in two thousand and nine rather there was no question in anyone's mind that robbery by force or fear qualified as an elements clause offense that's why there was no objection that that's why the court was not required to find it to to look to the shepherd documents because everyone knew before it became an issue of violent force or the type of force robbery by force or fear was going to be in every case a violent felony under the elements that said and i probably should have started with in my brief a page different it is different you know if it's an armed robbery i think we can all agree revealing with a violent felony absolutely and that that is the reason that i want to draw that your attention though i have spent countless hours and maybe weeks looking for a preacher two thousand and nine case that discusses seven hundred one robbery and whether it qualifies as an elements cause felony and the fact is it least in my research it doesn't exist and the reason i posit that it doesn't exist is this was not an issue in two thousand and if you look the best legal record i can give you for that sort of practical argument is footnote four and driscoll where interest got the district court found that even though the record from the i believe two thousand and six two thousand five sentencing was silent the two thousand and sixteen court considering the issue driscoll found that it had relied on burglary as an enumerated offense and in footnote for out that's ridiculous because it was clear by the time of sentencing in two thousand and five from the relevant background environment that there was a real debate and that some burglaries qualified under the enumerated offense and others did not and there is a wealth of case law discussing burglary as early as two thousand and five the converse is true here there is no law discussing whether a robbery qualifies as a violent felony really under any clause and certainly not distinguishing between whether or qualifies in the residual clause or the enumerated offense cause and that's because it just wasn't an issue and for that reason even though the district court record is silent here the burden is still on the defendant to prove by a preponderance of the evidence that it was more likely than not that the sentencing court relied on the residual clause in light of the entire absence of any law suggesting that the residual cause was used to call robbery by force or fear a violent felony under the c c a the defendant simply can't meet that burden so you're basically saying sorry in the absence of why you can't show a provider it's just impossible yes and there's a seventh circuit case cited in my brief that talks about the burden to the defendant in the twenty to fifty five and the fact and  has language the effective and for the record is silent that burden makes a difference and i think that applies both to the record as in the record of this case which is silent but also to the absence of any law suggesting one way or the other which clause was used in the absence of either facts or last suggesting that the defendant here was sentenced under the residual clause the defendant simply cannot meet its burden at the first step of johnson and therefore this court need not move to the harmless error stage that we've discussed of course for the reasons that i have posited we believe that we prevail under that as well the defendant argues that when the law  where you have a silent record and you have silent that it's reasonable to assume that the sentencing court would have taken the path of least resistance which is that the residual clause was kind of a catch all basket that you could just throw things in easily without much analysis which is probably what was wrong with it and that we should therefore it's more likely to assume that that's what happened on that i think driscoll sort of suggests otherwise and really the body of law on burglary the hoops that the court's went through to try to prove that a given state's burglary statute qualified under the enumerated offense clause and only turned to the residual cause him as an alternative in the last in the last case i think demonstrates that really what happened here was the residual cause was not used unless one of the other clauses could not be used that's why it was an otherwise clause here there was no suggestion that the district court rejected both the force causing the numerator defense cause and went on in the case is that if you look at the other cases that this court has addressed here and i granted they're all burglar cases l snyder if you look at the district court records in burglary cases there's a lot of discussion about well can it qualify here if not maybe maybe the residual cause the practice of the courts and as a trial lawyer back then was the residual clause was only resorted to if you could not prove through documents or or other or the p s r or the shepherd documents that the offenses qualified under one of the preferable sections of the felony definition and because we can't go back in time and submit the shepherd documents to the court where there was no objection raised by the defendant it's safe for the court to say that if the defendant had some belief that this offense did not qualify under the force under the elements cause he would have raised an objection just like the defendants did in all of those burglary cases because burglary was an issue and robbery was not i see that my time is almost up unless the court has any further questions i would see the rest of my time you taking up the issue about the state of the law at the time of sentencing i have in my hand the p s r which on page seven paragraph twenty three is supporting the recommendation of a c c a sentencing because the defendant has six convictions of robbery by fear and one conviction of attempted robbery by fear and sometimes i think in some discussions robbery by force or robbery by force and fear  has sort of been injected i think inadvertently robbery by force is not on the map here at all certainly i also don't think whether it's robbery by whatever the answer to what's the law at the time sentencing is answered by musing about everyone you what everyone knew what was sort of a no brainer or you know that kind of approach isn't isn't really going to fly me we're looking at the law looking at the  residual clause and and any other applicable clauses in the state statute so i would think it's reasonable to think that if somebody was in our arena in two thousand and nine and was told well there there is there's a threat of of injury to to a person there and then extortion was not even really thought of hey let's turn to extortion now you're looking at this time of the sentencing historicity of the law i want to point out to studios not on the books that either so that was not part of the thinking that comes into the merits component of our analysis thank you thank you council we will take this under advisement and