residual clause of the career offender guideline and if a court below mr smith argued that common law a robbery under north carolina law is not a violent felony so subject to a predicate of the career offender guideline because one it is  visible statute i think the law is clear that when a divisible statute such as robbery is in play the court can look to the shepherd analysis in this instance mr smith entered  offender statute subsequent to us submitting our brief this court came out with an opinion united states versus mitchell which deals with a similar but not exact version of a tennessee statute dealing with robbery the tennessee statute defined robbery as the taking from the presence of another through violence or fear in that case this court likewise turn to two clauses in the career offender guideline one the use of physical force clause into the residual cla under north carolina law common law robbery is defined as the felonious taking from a person of another or in his presence against his will by violence or fear as defined by that statute and or fear can be either actual which involves physical force or constructive which is any demonstration of force or menace or other means that puts a person in fear and takes away their free will under the north carolina statute and looking at the use of physical force clause the definition of common law robbery and kluge both a taking from the presence of another but the definition also gives an alternative where the taking can be not within think that question is addressed by the four circuit and united states versus carmichael which are cited in the court below and in the briefs but larceny under under north carolina law by definition requires the presence of both the person who is being taken from and the person who is taking and so in that instance i think under the residual clause at least that that would and has been determined to qualify as a crime of violence because under began a it leads to a situation where some kind of resistance force can ensue and so there is the ever present danger there because that would be different then than just the garden variety common law which would be the taking and carrying away a property of another act that's correct with it with or without the presence or let me maybe i misheard you but i thought you were trying to read something that said that the robbery didn't have to be from the person or present and i thought the the definition is felonious nonconsensual taken from the person or presence of another so that the the reason that these kinds of crimes have usually been held including by the fourth circuit to present the serious risk of injury is that you are either using violence on the person or in his presence or putting them in fear of it which presents the risk so did i mishear you about the person or present i think it's a very small distinction but when you look at the north carolina definition of common law robbery it is the court is correct it is a full odious taking but then the next two lines are sort of it is and or it is a destructive it is from the person of another or in his presence and because that destructive exist and they defined it in his room president's talking i guess it's we're talking common law robbery we don't have a statute to look at i'm looking at state v bell which simply read that as from the person or presence of another but does that really make much difference in the sense that as i understand the difference if you've got a twenty dollar bill hanging out of your pocket and i take it i've taken it from your person you've got a million dollars a foot from your hand and i grab it i've taken it from your presence normally you would resist right if you could for a million dollars i think i would  for a good lawyer for a million dollars i think the distinction here is in the argument that we made in the court below and i think some think that this perhaps is unique in this instance because north carolina has defined common law it because it is in fact common law robbery and so many different ways that we have opened up the common law definition of robbery in north carolina to include not only the taking of the presence of another but if you look at  statute you could in fact carry out that robbery in other ways that do not require the physical presence of the taker for with the take he writes so for instance if  that includes i believe really reading out the person or presence you're saying it can be the taking of money or personal property by means of fear period any time and well i think that any straight i mean that the norm even i thought you were going to empathize the fear and certainly all of the north carolina fear cases that i could read are all from the person or present any case where persons convicted of common law robbery were he did not take the property from the person or presence there is no case that i can find it and i understand that the law says in fact that  when you're looking at these definitions you have to look at what the supreme court of that say says and definition of that but taking from the person of another when you read out or in their presence right that's divisible right so you can either be in their presence or you can take it from there but we just said a person so there are builders of the million dollar record two separate things so that the taking it from that person could be  some type of a you call them up in a in say some sort of threat that robs them of their free will and say if i do this to you i want you to leave your million dollars on your front doorstep and i want you to leave the house when you do that i'm coming to get the money right it can still be the taking from that person because that person is then leaving that money for another individual to come and get it does not require their presence which then takes them out of the situation where there is the likelihood of a resistance or some kind of melee to occur thereafter that removes it in the residual clause from the big a analysis because the gay obviously and in this particular  instance requires that there has to be some sort of violence to ensue if you know the cases obviously that the courts always look at are larceny which all the cases that you know have looked at it require the presidents of an individual being taken from and the person taking same thing where burglary burglary requires the presence of a person in a home the person who is committing the offense that their physical presence has to be there my argument is that north carolina definition of common law robbery because of this common law not defined by statute is broad enough to include these other types of takings from here i mean the part about taking from the person i would think that's language that's that's you know goes back into england and pretty common across the country so if your argument is correct wouldn't that pretty much take all of the common law robbery statutes out of crime of violence if you if you can interpret taking from his person to mean it's not taking it from his person it's it can be as you said miles away hundreds of miles away you have any case and in any state that adopts that interpretation not that i've been able to find your honor and i admit it it's a fairly broad of some government somewhere might like it some government prosecutor might like it but i don't think it ryan where i don't i don't disagree with the court however in looking at just north carolina law which defines the statute for common law robbery here i think that you know the taking of the presence and then looking to the fear element as well fear in north carolina does not require any physical force at all you know the very definition of that fear in conjunction with whether it has to be in the a terrorist such threatening by word or gesture as might induce a man to part with his property for the sake of his person that is true it doesn't but it can if it is a threat you know a piece of paper that says give me your money or i will kill you doesn't that have the same risk of physical injury as grabbing it because he's he is he may well resist and you have threatened that's where the fear is that's true but that that piece of paper likewise could say give me your money or i will reveal you cheated at summer camp correct i'll blackmail you or some of those other things and i see my time is  spared you have three minutes for rebuttal is that it can be committed by either violence or by fear yes we can we say that in our brief ok and if you can if you if one concludes that mr smith committed the robbery case don't indicate which particular variant of the offense the defendant committed that doesn't mean that the government loses all that means is that we have to show that every possible variant of the offense is in fact a crime of violence and it's our position that every possible variant of north carolina common law a robbery is categorically a crime of violence under either the residual clause the enumerated offense cause or under the use of physical force because now i think th clearest way to get to the answer just based on the this court's precedents and that's out there is would be the residual cause i think the new refence caused also be a very clear way to get there as well but i'll start with the residual cause and i want to begin with with seventy one this definition is quoted several times in later north carolina supreme court cases but it's the definition says robbery a common law is the polonius taking of money or goods of any value from the person of another or his presence against his will by violence or putting him in fear now i would submit that there are essentially three elements that offense there's the taking part there's the from his person or in his presence whatever describe the second element arguably divisible element because a good be as we talked about as you just talked about  person or in his presence in the third element by violence or putting them in fear now i want to begin by just addressing that second of all element because it was really discussed in the bruce's race for first time here at oral argument but this whole notion frankly very confused by  counsel's argument because there is no north carolina case that i am aware of that suggests that the taking can be outside of a person's actual presence i mean the language of the cases is from the person of another or in his presence and in fact when you look at the description of the violence or putting him in fear element they talk about that the the putting him in fear requires a threat that is going to induce somebody to part with property for the sake of his person which suggests that there's some sort of in person or presence interaction that's at issue in the offense so i don't think there's any support in any north carolina case law for suggesting that this offense could occur outside of the person's presence so i think that's clearly an element of the offense and in fact if you look at the four circuit cases that have discussed this offense they relied on that that understanding north carolina law that that this offense is committed in the in the presence of the person so i think the really key question here i don't think there's really any dispute that the attorneys that third element of the fence the by violence or putting him in fear i don't think there's any serious dispute that if a robbery is committed by violence that that is a situation that is going to create a serious risk of potential injury to another i think the question is whether the putting him in fear element does and i think if you look at this court case law the don't think there's really any meaningful way to distinguish between these two definitions and the court of mitchell found that definition qualified under both the use of physical force clause but also under the residual clause in and said look when you have a robbery that's inherently a situation that creates a risk of injury to another whether it's from the the force that the that might be used by the person who's committing the robbery or from the fact that the person who's tried who is being robbed is likely to resist even if they're being threatened they're still likely to resist and that's what this court said indiscreet and talking about larceny of a person back in one thousand nine hundred eighty in united states versus payne they said look when somebody is you know when somebody tries to rob you you are likely to resist that that resistance itself is what's likely to create violence and that's the seem kind of risk that is at play in one of the enumerated offenses of burglary in the crime of violence of commission also in the  criminal context and the supreme court has said look the main risk of burglary arises from the fact that there could be a potential confrontation and this court recently clarified in the timothy phillips case united states versus timothy philips decided i think a couple months ago that burglary involves a risk of confrontation not just with the person being burglarized but with bystanders and i would say the same things true of robbery that you have it's not just the risk that's going to come from the fact that the person who's who's robbing the individual might engage in violence but it's the fact that the person who is being robbed might resist that's what creates this this inherently dangerous situation and i think that that's been recognized by this court in mitchell it's been recognized by this court in taylor versus taylor united states versus pain both both involve larceny offenses let me ask you this the we've sort of blackmail and how does that play out here that is you have a divisible offense we all agree with that and when you're determining divisibility you can get very creative because if there is an element that is bizarre you still have to find it divisible but when you talk about how the offense is committed can you use you know something like blackmail or do you talk about the ordinary fact there's you know this court's decision in tailor this court's decision in pain has basically said look just because you can hypothetically imagine a scenario in which this might not involve violence that doesn't necessarily mean this isn't a  element that's what i think wishing that we get very creative in dividing the statute but we don't get very creative in looking at the possible ways to do it well i think there is some limit on the creative the courts creative process to divide the statute if you look at the camps opinion the supreme court said you can't just you know sort of the courts can't just hypothetically sort of divide the statute however they might are you have to look at the length of the visible so we don't need to go beyond that but i think more important here is if you look at north carolina law north carolina the law doesn't suggest that it's enough to just have some sort of threat of blackmail north carolina law suggests that the threat has to be something that involves a threat to the person something that's going that's going to make the later supreme court cases but i'll point to sawyer is the source of it and the key part of it is no matter just quoting here no matter how slight the cause creating the fear may be or by one of those circumstances the taking may be accomplished if the transaction is attended with such circumstances here such threatening by word or gesture as in common experience are likely to create an apprehension of danger and induce a man to part with his property for the sake of his person the victim is put in fear and i think that that's what i mean the other part of it says that under constructive force all unconstructive course are included all demonstrations of force menaces and other means by which the person to rob is put in fear sufficient to suspend the free exercise of his will or prevent tennessee law which is that this putting in fear element requires fear that something's going to happen to you right this that that your going to be hurt you know this is after all robbery we're in the presence of another person and so the fear element is something that requires you to think hey i'm in danger here so i'm going to give you my money that's what the north carolina losses so i think that when we look at the element of north carolina law i don't think it really allows for this kind of extortion that using your hypothetical judge boxer that's the one response the other response is we are supposed to look at the ordinary case as james said in and finally i would point out that even if this court were a little bit hesitant to go the residual cost route i think it's absolutely clear that north carolina common law robbery is robert which is a it is a generic form of robbery which is one of the enumerated fences under the crime of violence definition and the only reason it i've suggested involves comparing the all fifty states and i think this court's task is made simpler by the fact that other courts of appeals have done that most notably the eleventh circuit in united states versus lockley the fifth circuit in united states versus sen accomplished by violence or putting in fear or whether it just requires some sort of violence the minority position is violence and in fact most of the the courts have said that the generic definition of robbery is essentially identical to north carolina's definition robbery involves a polonius taking of property from the presence of another by means of violence or fear and i think when you look at the generic definition this north carolina fence clearly qualifies as robbery under the the crime of violence definition i'd also want to just point out that there is to the united states is knowledge there is no court that has considered this offense that has concluded that it is not a crime of violence in fact the there are panels from the definition of robbery i think that goes back to we've just all agreed that robbery in this instance is divisible and must go through the sheppard analysis and or be found through the use of force clause or the  residual clause he's asking this court to redefine generic robbery contrary to what every other court in the country has found for many years now the question i guess when he was talking about it and to and in to look at the questions this court was asking me and perhaps can be answered by a question in return is how can you take from the person another without being in their mostly it just means that to be robbery i don't have to have it in my hand i can be sitting in my couch with my diamond ring over on the on the nightstand or pretty  well but then if you look at it it's not from your person but it is in your presence your presence as the the tricky case would you know become you in my presence of the on the far side of my of my olympic sized swimming pool or away then you'd have a problem but that's not where we're talking about here also counsel suggested that there was some discussion about sawyer and norris i think had the definition where it was the taking from another person that room where they did it for the sake of their person the second portion of that where we discussed the force being demonstrations of mrs or other things they put a person or take away their free will i believe came from united united states versus north carolina versus  norris which expanded that definition and sawyer if i'm looking at that correctly so not only does it include the fear is removing it from the person of another but nor is it then expands that to include all the other mi and types of things that would remove a person's free will and so it doesn't just include the threat of physical force or violence but includes all of those other things for instance what we talk about is generic definition of