incorporates it and the issue is what is being incorporated in in the two hundred and fifty eight not what the language of twenty to forty four is right and that's exactly the issue that the government accept that concession without addressing it and i know it's the reason you can do that it's subject to waiver because it's not a jurisdictional provision will acknowledge through the court that there is an th circuit decision with some loose language called bradford that suggests it's jurisdiction can give you the two quick points as to why it's clearly not the language itself shall be dismissed isn't jurisdictional language this court has held for example under the speedy trial act at that exact same language shall be dismissed is subject to waiver that was in  substance of the johnson claim and so on that the this course decision and winston sets were the two step process for evaluating the johnson claim at step one threshold determination whether the district court may have relied on the residual clause and step two is the merits claim as to whether there are three remaining predicates now acknowledge the government wants the court to conclude that winston was wrongly decided and to follow the th circuit and a couple of other circuits that merge those two inquiries into a single sort of historical fact based what the district judge say inquiry but this winston is binding on this panel is also correct it's been followed by the rd circuit in peppers and the th circuit in joseph's and so we are on all fours with winston as to the threshold showing because as in winston the record here was silent the district judge did not specify which clause of the violent felony definition he relied on so we get through step one which brings us to step two whether there are three remaining predicates so on step two if you agree with us either that become an all robbery does not count under gardener or that the excess or offense does not count then mr jenkins is down the only two remaining predicates of the drug offense knocked out as well and we  asked for the recent thing in that scenario so most of the briefing in the extra briefing has been on the common all robbery issues will start there and our fundamental point is that gardner remains binding on this panel because let me deciding whether to overrule anything we're deciding whether stokely governs this case all right really also talking about the language is still open it talks about resistance by the victim and it is overcome by the physical force of the offender and that's exactly what's missing in north carolina ok why is that so i think when you when you look at these robbery type of answers they fall into three buckets and the st bucket is the one where it's a pure snatching there's no contact between the victim in the robbery and everyone agrees those out they don't count the other end of the spectrum is statutes where the state draws the line between larceny and robbery using this overcomes resistance standard that talked about i think everybody agrees understand pulling those counts but then you have this middle ground where north carolina sits where the state did not draw the line using this overcomes resistance language but it also said there must be something more than just a snatching s contact with the victim of brushing pushing of the hand in the chance case for example that's a middle ground we don't have that prevents reserve or overcomes resistance standard so stoking doesn't control and still cling to very carefully and repeatedly of the local decisions on page nine of the original reply in three to four of the sir replied stalking is very careful limits holding to that provision north carolina or to that standard of carolina does not use that standard and so garner remains on point with told us we were dead wrong about that in an unpublished opinion that wasn't close enough to even more an argument or i think you were on the panel if i remember correctly and so if mr or was wrong when he stood up in front of this court or in briefing and said these two provision exactly identical in the government or your heart no no there is a big contrast and it's cited chance case in particular it's briefing and says nothing in chants really shows that the court of appeals of north carolina required any resistance by the victim so if the government was right in that case to draw this distinction between florida and north carolina then we are right now to say that distinction that the government previously drew just niren the court accepted it or it remains correct today and i would add the meanest partner for that though in in gardner we said it eight o three we said the supreme court of north carolina has explained that the actual force implies personal violence the degree of force used is immaterial so long as it is sufficient to compel the victim to part with his property and pray so there has to be some force that compels the victim to part with the property so how is that different from the resistance an analysis employed in stokely sure so i think it's different precisely because of the chance case that garner went on to talk about as illustrating this is the least culpable conduct under north carolina law and what happened in chance is the offender comes in and pushes the clerk's hand off of the carton of cigarettes and the clerk at that point i wasn't going to fight there's no i'm not going to fight him on it i'm not going to resist he takes and he takes it and so there you have the contact the pushing of the hand but you do not have victim resistance and because you don't have victim resistance you lose the rationale that simply relied on what still cling says is when the victim is required to resist and when the offender required to overcome that resistance you necessarily have a physical struggle a through the contest between the defendant and the victim in the presence of that struggle is what is the work resistance and we went on to talk about the necklace around the neck and that the pole in the metal us overcame the resistance it says a necklace is attached to a person such a way that it offers resistance to anyone who would try to pull it from the person's neck and therefore justified  so the issue here is that we have to look at the least culpable conduct covered by the north carolina statute in there's no doubt that the something that involves actual resistance and overcoming it is going to satisfy the standard but it's in north carolina but it's not the least call people are just adice we said it minimum force necessary to take an item from the victim's possession we said he must direct a degree of force toward the victim beyond the minimum necessary to remove the item from the victim's grasp so i think there are two points of i guess one is that's a different line drawing scenario and what they all focused on this idea that you're not snatching like a person that but you are overcoming a really distance of some force more than necessary to simply remove an item from the victim's grasp then the crime becomes robbery that's a disjunctive we agree if the minimum conduct is overcomes resistance it qualifies but the disjunctive there is or force more than necessary simply remove an item from the grass that's the slight push aside of the hand that's overcoming the force in other words the person is just that which is necessary to take the purse and there is no resistance to assume that if there is some resistance to and supreme court and gauge in this analysis in stokely they talked exactly about these very same types of situations in so there's just not the way that north carolina applies and chance illustrates that where there is no resistance at all and in fact you have a victim testifying no resistance i'm not fighting it i want him to get in so that's what distinguishes north carolina and i point to the ash decision and th circuit we talked about in the final reply brief which talk about missouri law missouri had a case very similar to chance where the person brushes aside the clerk takes the item and the missouri court says no that's not enough in that it we're sticking to it overcomes or just a standard that's not enough if the court if the state draws a line that way it's if it allows this broader set of conduct qualify as chance does then we think it's still under still clinging and that can't go in us a different direction that may be related to a thing that's race started with and it's really age to a point to fifty five and whether we really have a new rule in light of the for shift motion and being merits how do we deal with but it has to be you know the level circuits talked about that no way that appears right on point so i think a couple of points i think one is that welsh does make this different because at the time that this was the sign of the johnson or wasn't available to him in the sense that it hadn't been declared retroactive that he but if he but to take advantage under two thousand two hundred and fifty five not recognize that it case and then we have to in then it's a success of motion other words that that that that distinction is only due to the fact that it was prematurely brought isn't it so i'm not quite sure that that's right or that i can follow that i think our position here is that the johnson the initial johnson claim was decided st was decided wrongly it wasn't we never got to the merits sentence correct here in the district judge nor the government has ever given that the reasoning it was rejected on a prejudice analysis that well it didn't really affect the sentence but when you look at the record it's very clear that was just a mistake is it i don't disagree with that but does that defense that can be ways we think that we get through h two and all of those issues because the government waived any reliance on anything related to that they've never invoked any kind of affirmative defense based on reza judicata based on this what we think agree is an  us prejudice holding in the initial order so i think we get past all of that because of the government's failure to raise any of those arguments and it's affirmative waiver in this court of the one thank thank you it please the court elizabeth growing up on behalf of the united states this court should affirm the district court's dismissal of mr dink and successive twenty to fifty five motion because he has not met his burden of proof to show that his constitutional rights were violated under johnson furthermore even if he could make that showing he cannot show the merits of his claim any error was harmless because he still has three prior convictions that qualify as violent felonies and i want to start off here with the showing that's required under johnson that the supreme court held that imposing an increased sentence under the residual clause of the armed career criminal act violates the constitution's guarantee of due process the court did not hold that if someone would not be subject to the a c c a today that that's a constitutional violation so this court's analysis is a backward looking one and that's why it's so important to look at what the district court did at the time of sentencing and only if mr jenkins can show that he his sentence was increased and the residual costs can he make this johnson cl successive twenty to fifty motion he had to make to threshold showings st he had to show this court that his application presented a new rule of constitutional law made director acted on collateral review by the supreme court that was previously unavailable and once he made that threshold showing him was granted authorization to file is excessive motion with the district court that court then had to examine each claim  within his application to determine whether it met that standard and in winston what the court said and it specifically divided its decision into two different sections st addressing the procedural threshold issue what the court said winston is when an end made sentence may have been predicated on application of the now word residual clause and therefore may be an unlawful sentence under the holding in johnson the inmate has shown that he in fact what the parties that's what the parties argued in winston contrary to his contention the parties did not argue whether that was a merits determination only after the court and winston made that determination that they may have started would suffice as a rush hold issue does the court turn to the merits and so that the district court i'm sorry this court is not bound by winston in terms of determining what the appropriate burden of proof here is and the supreme court and the  circuit has prevailed have previously recognized that in the post conviction scenario because we're dealing with a presumptively valid conviction the burden of proof lies on the applicant in this case jenkins he have the opportunity previously to challenge as conviction and he also filed as you noted a prior twenty two hundred and fifty five dollars motion so this is his rd shot at it and it's not unfair to put that burden of proof on the movement when he's seeking the extraordinary remedy of post conviction relief now there are several ways under your theory a defendant really could never make a johnson claim unless the district court did nor are they expressed they say that hadn't relied on the real is it residual clause no your honor in fact there are several ways that he could make that showing it may be available on the record the court could also rely on its independent recollection of how it sentenced the defendant but i think probably the most likely scenario would be to look at the state of the law at the time that he was sentenced and if the state of the law shows that it would have qualified only of the residual clause then the defendant could meet that burden  and at least seven circuits that have already addressed this issue you have held that the burden of proof lies as it should on the movement i would like to turn now to the common law robbery issue carolina law fits within the mainstream of common law robbery offenses it requires the showing of the use of force that must be of such a nature as to show that it was intended to overpower the party rob or prevent his resisting and not merely to get control of the property and as mr jones admitted it requires something more simply than snatching we know that from the supreme court or cause pain or injury it's the physical confrontation the struggle between the two sides that really counts so the north carolina definition is sufficient to show that it meets the stoping standard requires the use of sufficient force to compel someone to give a property the force has to be used to accomplish the robbery and chance isn't any different from this in chance we know the clerk was holding on to the cigarettes the robber grabbed the cigarette box with one hand pushed her arm off with the other hand and then was able to secure the cigarettes that's more than snatching that's compelling her to give up property that she had court disgusted in chance was and this is  i think it page four of five of the opinion says by pushing mrs wheaton's hands off the box the defendant prevented her from resisting so is an act that prevents resistance as opposed to tell me why there's no difference st before you go to him ok because in order to prevent resistance you have to use a sufficient degree of force that the person you know it's not going to fight back and i think you see that thing that is overcoming resistance even though it isn't a isn't necessarily a strong act right and you see that when we're dealing with committing robbery by fear so if you point a gun at someone and they don't resist nobody's arguing that that's not common are robbery so if you use enough force that the person and doesn't resist it should fall within the same brush hold and turning to this court's recent decision and ham and there the new york robbery statute was worded similarly as using or threatening the use of physical force to prevent or overcome resistance to the taking of the property or compelling the owner to deliver up the property and that's almost the exact language that the th circuit used with respect to the missouri  robbery statute and i want to go back for a minute to what mr carpenter said with respect to this one of the state decisions in ash you talked about brushing against the clerk when you look at that decision you'll see that it seemed to be an accidental brushing that the cashier who was involved wasn't even sure that she had been touched so it's very dissimilar from what we have in north carolina law to robbery by fear pointing a gun at someone and that preventing their resistance we agree that that's fine that qualifies but that under north carolina law is a distinct means of committing a robbery in gardner talk about the two different means the robbery by fear and the robbery violence and the sawyer standard the court talks about in our near uses the prevents resistance formulation as relevant to that other formulation the resistor the robbery by fear formulation is there any indication under north carolina law that it intended to amplify or modify the common law definition of property or i think i thought i sort of assumed they were basically adopting what they thought was the common law robbery so i do have no idea what the court was thinking or less you're going to horton because as you remember in stokely we don't have anything that suggests explicitly that florida was adopting but they had common law opery which was defined almost the same as here and it's spent most of its time talking about common law robbery right and so the key i think in stoping is it cites a bunch of common law treated  in the like that use this formulation overcomes resistance and what we see is when north carolina gets around to deciding these cases it doesn't copy that formulation so i think we have to believe that was intentional or to find robbery in its decisions identical no it doesn't it absolutely does and there is not a single north carolina decision out there that uses the phrase overcomes resistance and that's why it's different if they do say prevents resistance only under sawyer which is the governing supreme court standard now that's only relevant to robbery by fear  the only time that prevents resistance is using light in chains it does use that formulation but it's very clear that it's different from overcomes resistance because you have the witnesses fine no not going to resist in so that again that takes away i think the coup or reason that still cling held what it hell a couple of other points i want to not lose track of the fact that we are correct on the accessory that you don't have to deal with the gardner issue and two quick points about accessory the st is a state will point which is the government's brief kind of makes it seem like an accessory or north carolina sort of a puppet master provision that the accessories pulling strings on the precipice committing the offense really if you look at the least culpable conduct is you're required to as a cheerleader provision if you look at maher it's as if you encourage the accessory encourages the principal to commit the offense and that encouragement contributes to the principal's decision that's enough and so that is a far stretch from a causal of pure causal factor the other is a federal law point i think two strands of this court's case law combine to eliminate an accessory under aca the st is cases like united states versus white which dealt with the that the elements of the object offense are all the matters in white was a residual class case there wasn't exactly and so the really residual clause isn't available to our point is these in kuwait offenses like excess every previously qualified under the residual clause now that it's gone they're out and so i think that is something that justice alito is dissent in johnson talks about he is complaining that throwing out the residual calls is going to allow all of these things to you know no