common sense tells you that if you're if you're doing things that are going to cause would amount to an attempt that that's got to be the same now say as an actual  it's got to have the same effect on a categorical approach what's real what is wrong with the reasoning of the th circuit in hill in the th circuit in saying you were in the th circuit in domingo's that all those circuits have got it wrong that's that's all understood but that doesn't seem to me to come to grips with the argument that i understand the majority's are making those cases which is it's clear isabelle to us congress is trying to do here in congress was trying to get  attempt x it was not it was not i mean it could have been clear that it wanted attempts to be criminalized as crimes of violence it wanted that to happen now if that's right and taylor says we shall not read into the statue the definition so obviously ill suited to its purpose such one of the lines out it isn't is is 't what you're suggesting to us that we read something we read the statute and wave it's ill suited to its purpose when congress by using the words for towns is telling you we want attempt crimes to be to use violence because because otherwise it's just an attempted robbery to have that be an attempted how exactly robbery to differentiate it from just plain attempted robbery there has to be an intent to use different members of the bank robbery i think that is an intent to use violence even as a poem unary step is just driving to the back correct your honor and you so your position depends upon your position and the position i mean it's it's not an illogical position you've got thoughtful dissents from a few circuits that take position you're taking but it depends on us accepting that what congress meant to do here is to allow criminals who intended to and would have completed crime fortunate intervention of the government the the difference you know hobbs stacked conviction as a crime of violence in your telling out of it is the folks who got turned around just before they got to the bank they're ok the folks who got there and pulled the guns and hope if they are they get the full brunt of the law that's what you think congress meant but i am saying is true well what they really meant was no well i guess i guess what your position is is the supreme court of the united states means for us on that distinction the distinction you just draw and say you know thank you very much the money i would never please the court represents one half of the government the i think judge gordon's questions lead me to the answers that i want to give this is not about the residual clause the residual class of course is invalid and we rely on the elements clause the words attempted use appear in the elements clause that's what we're dealing with here and what mr my friend is half its position would do you can you hold just like in  here we have and i'm going to ask both counsel hold on here i have just gotten an indication i'm looking up we've watched judge kraus this is great sorry for the interruption you know just crosses remains connected but i think she just turned off her video for that ok but kid i can't hear her so and i want to hear judge krauss very much absolutely you know no it doesn't you know everything from i and appears that your sound and that your audio is on and so there is no i can see what you could try to do which i think you've used before we could either have you disconnect and reconnect or you could use your phone in conjunction which i for the video and audio to start and i do want to assure ms hoff of that substance of her argument came through loud and clear and it was certainly consistent with the submission that she provided yeah know i absolutely i understand what this op it was saying i just had problems from time to time with the words if that continues to be a problem is it possible to have her or picture but have her using her phone to call in yes she's actually done that before so that was because the words attempted use appear in the elements because it's unambiguous that congress meant that when someone commits an attempted violent crime and brings a gun with that there should be an is a clear illustration of what it is that it's actually the typical illustration of what this is all aimed at their welfare well that's i understand the point you're making because i was and i think i was  is not good law after davis you know it's just not so it looks like the supreme court is saying in effect well this may be nuts but we want you to we watch you did march down this logical path and if you marched down this logical path guess what it's conceivable that you could get convicted of something that doesn't involve any wall or threatened use of violence here there's nothing you know i think about a crime i put a gun in the back of my car i get five minutes from my house and the car breaks down i took a substantial step but so what nothing i ever did involved the use of violence why isn't that the logic of davis and what ms hoffa's pressing honest right now why isn't that consistent with the categorical approach and causes us to say well we don't like it but that's what they're telling us to  do so there are two answers your honor one that focused on the exact statements of these dissents the other is looking at the application of the kind of or approach more broadly starting with the reference to tailor that your honor made so st with regard to what these to censor say they're saying that if you take a gun with you but your substantial step is not excel for violence then you have intended to commit each of the elements of the offense but what you have not done is actually attempted to use violence that is simply covering all of this to find what the majority is because that's exactly the point why is it coming into finally why isn't there a lot worse in the assertion that intent is not the use of violence the pent tell us isn't it because what the majority say and we're now up to four seventh's by the way i'd like to mention the th circuit decision this year in a case called smith which involves attempted murder and how that is the same thing any attempt any attempted crime that's completed is an attempt if you use for purposes of the of the elements clause and the reasoning is that we just look at this in terms of common right that would require that answer i it would apply just as well to conspiracy so why isn't the government's concession that conspiracy to commit crimes act robbery is not a crime of violence which i  a the government's making here is it has been in a number of other cases why isn't that dispositive because the intent to it to ultimately commit the offense to complete it would seem to be the same in bo and i wrote about that well there's a big difference and the big difference is the substantial step the conspiracy offense is only an agreement and the government and the courts have recognized that agreeing to commit an offense does not involve the use of violence whereas when you've committed an attempt in taking a substantial step towards committing a violent crime that is definite what tells us it's different is the language of the elements clause itself the elements clause says and is is irrelevant because that's just shoring up the intention to follow through and actually commit the offense that for some reason is not completed why isn't that just as true with overt acts when it comes to conspiracy  i am not focus only on intent that i am addressing the dissenting opinion the focus i think last misters of i can you hear me now i do here do i still have everybody ok let's see what happens here he may need to disconnect the reconnect charge if you can't hear me it doesn't like you frozen from here and ok he's going to reconnect you know how is this different from conspiracy where you've got to have an overt act and and then and then the internet kicked me off or or vote by the people in the audience voted me off the island i don't care another i was gone so would you mind repeating mr mayor where you were describing why there's a meaningful difference between an overt act and a substantial step so that in one instance you acknowledge that there is no there's no categorical possibility of conviction in the other you sick terrorists and so what this all comes down to your honor is the explicit statement of congress in the elements clause including attempt to fences there is a difference the law has recognized the difference between conspiracy and attempt there may be a substantial step may be a more significant step towards the exact crime as opposed to the simple over an act that confirms that people are not just talking to each other but there really is that the material point here the material point is that congress in the elements clause said the attempted use of force qualifies when you bring a gun and that's if committed and i can foresee a fax and i want to get to my i think my most important point and it rests on taylor and cases that have come after taylor which is that the supreme court even while it has given us this categorical approach which has the court recognizes creates them unbelievably resolves even as it this is a very important point and let me respectfully disagree the this is a categorical approach we would not be permitted to look at the facts of a case we couldn't say oh let's limit this only to cases in which the substantial step was violent the what the categorical approach tells us is that if there is any instance in which the crime may not involve the use of force then categorically no such crime qualifie only be the intent along with a nonviolent substantial step if that's true and if that's a limited by the categorical approach that eliminates every attempt offense that eliminates the attempted murder and smith and any other towards committing a violent crime and therefore you've attempted in a violent crime and that when you bring a gun or possess it or use it or kariya you've committed that crime we're not i'm not relegating anything i'm simply using the explicit language of congress it meant to put in a tap miss her office as well an attempted use can only be you point the gun and it misfires or you throw a punch and you mess and i can tell you if they if that's the know costed this boy at gunpoint thinking they were robbing his father so yes he'd always have to show that we have to prove the crime but categorically we are trying to establish is that attempted hobbs act robbery by itself back to the term a template and we accept that a we have in front of us to the argument that it's attempted had sacked robbery that equates with you know attempted use of force but  as we try to hone in on that you keep stepping away when we try to focus on the issue of intent because the attempted hobbs act robbery in a categorical crudes has these two elements the intent and substantial step you've told us substantial step does not need to self to involve the use of force so so relaxed with intent but it's intent and you know to commit hobbs or gregory is is and not to make it a crime of violence why wouldn't strip attempt at a party into its components where congress says it's simply plainly told us the greece could say the same thing and maybe they will one day with respect to nine hundred and twenty four c but they don't but what we have here is no because congress they say that attempt to commit a crime of violence is a crime of violence and therefore where it's not a productive vs to then break down attempt into its components to try to come up with an argument that comes up with th seen reasoning applied to a conspiracy where there's also the intent to commit the offense your honor again all i can say is there were line the elements clause the elements closed it's not say break it down to the intent of break it down to the substantial step it says and attempted use it says an attempted crime of violence had it said as well of cases there's a different there's no question about that that's historically always been true and so again i just don't think it's appropriate to to start stripping down the temp and then it's especially inappropriate when the result is you've eliminated every attempt and that's the corals case from last year involved burglary and the supreme court's based on the defense argument there we're not going to interpret the jim lehrer crime a burglary in a way that will eliminate every burglar in the united states facts definitely we cannot look at the facts we cannot look at a particular case as to whether there was intent we can't look at a particular case to say whether this was fans will stop was violent or not the this comes down to a simple question is any  i i don't believe so i think the government i mean certainly you have to have the attempted predicate so the attempted use part of the elements will only come into play if the underlying statute can be committed by  tap so it's significant for that reason that there is such a crime as attempted hop sack robbery and we're saying that it's categorically a crime of violence because of the wording of the elements cause the fact that there are conspiracy offenses out there don't help us that you have to look at both the elements of attempt and the elements of an underlying offense yes i mean certainly hobbs act robbery itself has to be a crime of violence and in that situation is the government's position and as here we're we're there's not going to be a difference for example between federal and state attempt but that you need to look at both the state and federal attempt elements as well this so a little more complicated answer there with respect to twenty four say that that will never deal with a state offense that is already in relation to a federal offense for the entrepreneurial act and the career fender guideline yes the same thing will apply  the only way in which there might be a different result with a particular state is if a state defined attempt in some bizarre way that's different from the generic definition of a town i don't know of any state like that probably a violence is a crime of violence will apply just as well it's certainly not a problem with regard to the career fender guy and because it explicitly refers to attempt this certainly would be a significant issue for the armed criminal and  that i believe the context in which the smith case came up in the th circuit but the for the arc or criminal act there will be many attempts predicates that involve violent acts and the decision in this case will obviously be a very read attempt out of this out of the elements close entirely because by your logic no attempt crime could ever be a crime of violence well i'm not going to press a gre against every statute he's made a logical argument which is your the the logic of your argument is because it's conceivable that you could have a substantial step that doesn't involve violence therefore categor you cannot say that this temple use of force is a crime of violence under the elements quote that's your argument he's saying if that's true you've just read attempted use out of statute what's your response to a with a crime tell him i'm twenty four use or intended use of force they could have included that language of intent to use and also logically with regard to be other argument that the government has here which is basically a kind of attempted to commit a crime that have are we just right back to the definition of an attempt to categorically where it is intent to commit the offense meaning the intent to commit each element of defense and why did miss i don't have to i'm just wrote attempted use act nor this internal act necessarily follows force as conceived by the government in their greetings and there are it doesn't that take us back to what what would essentially be a case specific as opposed to a minute do you do you can you confirm for us that you are conceding that hijacked robbery itself constitutes a crime of violence no i'm not conceding at all i think