excuse me sorry mark tells me that all counsel are present and ready to go so we'll dispense with the calling of the calendar and hear argument and williams were so as united states the morning judge may please the court daniel had babe federal defenders of new york on behalf of trevor williams trevor williams following his conviction for possessing a handgun was sentenced to sixteen years of imprisonment under the armed career criminal act that sentence is legally erroneous because in light of the supreme court's decisions in two thousand and ten johnson and two thousand and fifteen johnson williams no longer has the requisite three prior violent felony convictions he's entitled to twenty two fifty five relief at the simplest path to reversal in this case as for this court to reaffirm its well reasoned statutory analysis in united states versus jones you're aware we've withdrawn that of of course your honor jones was vacated pending the supreme court's disposition of backless but jones a guy of the two thousand and johnson decision is required wasn't part of the direct appeal here the face of this court's summary order affirming mr williams sentence on direct appeal contains not even a citation to two thousand and ten johnson the parent was unaware of johnson to the contrary the panel is presumed to be aware of johnson but williams did not raise a twenty ten johnson claim in his briefing on of the law of the case doctrine which as this court knows is a discretionary doctrine subject to exceptions to correct clear error or prevent manifest injustice but assuming the law of the case doctrine is in play the law of the case doctrine applies only with bound by that one why why do you think that the johnson two thousand and ten opinion wasn't even thought of by the people so the simplest the simplest reason is that the parties didn't call to the court's attention and williams didn't present a two thousand and ten johnson claim with respect to his robbery priors and of course this court has said many times that questions which merely lurk in the record not call to the court's attention by the parties not subject to adversarial briefing and not the focus of a merits or reasoned decision do not isn't whether those older precedents say what they say the question is whether those older precedents remain valid in light of the reasoning of two thousand and ten johnson and they don't because twenty ten johnson are retroactively applicable statutory construction decision and narrow the scope of act as elements clause it narrow the definition of physical force down to violent force capable of causing physical pain and injury a kin to the extreme force involved in such violent felonies as murder and forcible rape applying that legal standard williams prior robbery convictions no longer qualify because as this court said the two are not prostitute twenty ten johnson is a statutory construction decision correct your honor i mean that may have some effect on how we apply it at this point let me clarify it was twenty fifteen johnson was close to correct let me clarify that and i'm aware that the procedural history of this case is  complex but let me clarify that this is an appeal from the denial of mr williams initial twenty to fifty five motion so he's not subject to the twenty to fifty five age gatekeeping requirements he's entitled to assert a statutory decision that's retroactive applicable to the two thousand and ten johnson claim is properly before this court and the government has already alive and well as it was johnson was alive and well and moving through the system when that's correct and the government in that case in the eleventh circuit  force does not reach that level new york force encompasses such minor physical contact as forming a human wall bring a robbery victim and gauging in a tug of war over stolen property those contacts fall well short of the violent force necessary to satisfy the elements clause under twenty ten johnson and there's nothing in the record from which the court can go back and for a whether there was or not for but find whether there was violence so no of course this court assessing whether a state prior satisfies the elements clause applies the categorical approach and so it's limited to the elements of the prior offense the third degree robbery offenses in divisible that is to say all that's at issue is the statutory element of forcible stealing the attempted second degree robbery offense the government has conceded no shepherd documents indicate what subsection form the basis of that conviction and so both priors rise or fall together and again that's under a categor analysis which is what we're left which is what the court since taylor has said is what's required in the context of vaca yes and so that's the simplest pats were versed in the school and we have to walk around brown if we agreed with you so this court would have to overrule brown to the extent that brown holds that new york forcible stealing is an elements clause crime of violence but there's no impediment to doing so because the court the supreme court's intervening decision in two thousand and ten johnson makes  abrogation clear and that's what the panel in jones recognised when you tell that spencer was overruled on on a similar basis so we're not asking this court to do something the court is not already recognised as warranted in light of twenty ten johnson so again the government has asserted for predicate offenses two of them are robberies and if those two robbery convictions fall mr williams no longer has the necessary three prior violent felonies to qualify under the armed criminal under the armed career criminal act and he's entitled to relief a reserve and you have reserve two minutes for rebuttal to have you think you the morning good morning your honor they please the court my name is michael cross and i'm an assistant united states attorney in the southern district of new york i represent the united states on this appeal and his reply brief the defendant states that he did not raise a two thousand and ten johnson claim on his direct appeal if this is true the defendant procedur defaulted that claim and cannot raise it in hey b s if it is not true if the claim was raised on direct appeal and this court ruled against that claim then the claim is barred under the law the case doctrine either way on th governor's position is that the defendant did raise a two thousand and ten johnson claim on his direct appeal and that claim was denied and therefore law the case doctrine would state that the defendant does not get a second bite at the apple on a b s and that's a procedural ground by which this court can affirm the dish of course denial of the defendant's habeas petition if the defendant is correct however that he never raised a two thousand and ten johnson claim on his direct appeal then procedural default takes hold and the defendant who should have been aware of two thousand and ten johnson just just for the timeline here your honor the defendant's appeal was in two thousand and twelve this court's order affirming the conviction was in two thousand and thirteen johnson was decided in two thousand and ten that was a claim that could have been brought and was brought in the government's view on direct appeal and was denied or do we know which of the clauses was a part of the district work force cause of the residual clause we honored the on the record here it's clear that the residual clause was never raised the residual cause wasn't raised by the defendant by the government excuse me it wasn't addressed by the district court it was an applied by the district court and in this court's order affirming the conviction the cases cited by the court were for the most part elements cause cases brown decided that robbery was a third degree robbery in new york state is a crime of violence under the elements clause with the most part  clause assault is a crime of violence in opinions where there are two grounds the more narrow groundwood control and the government's position here is walker and brown both control of this case as the panel decided correctly in two thousand and thirteen johnson claim on direct appeal there's a procedural default that follows from that you're not barred entirely if the court decides to apply the law the case doctrine because there is an escape hatch that would apply potentially here and has been argued by the defendant if the law the case doctrine would lead to manifest injustice the court could reach the merits however the defendant's reply brief is quite clear in raising the position that they did not  at sentencing which he did and then on his direct appeal is not entirely true that the defendant didn't raise two thousand and ten johnson in his direct appeal he cites to it explicitly in distinguishing brown and therefore in the government's  raised that claim and this court denied it there is no manifest injustice in the second circuit making a decision under the law at the time and maybe this is not meant to substitute for direct appeals of the government's position is there is  no manifest injustice that would apply but even if the court did reach the merits in this case the two robbery convictions and the two assault convictions that mr williams had prior to his sentencing or at the time of his sentencing hill and after the supreme court's decision in castleman apply which hill applies it's clear that both robbery and assault in new york state are crimes of violence now where  where the jones decision the government believes went wrong is that in a play in looking to the new york state precedents it failed to appreciate that the convictions in those cases were decided by juries the jury decided based on the elements of those offenses that violent force had been used physical force had been used to effect the robbery and to effect these assaults in the robbery cont the controlling case for new york purposes as people the jergens which is a new york court of appeals decision that explicitly states that a robbery that does not that robbery cannot be affected just thr mere touching it's coextensive with the supreme court's decision in two thousand and ten johnson two thousand and ten johnson's only holding is that a florida battery statute cannot qualify as a crime of violence because it can be effected through just an offensive touching and people be jurgens in two thousand and fifteen in states that new york robbery cannot be accomplished with just offensive touching that has to be more force and the justice scalia's concurrence in castleman makes clear that violent force is any force that has to the potential of causing physical injury or or bodily injury and after those decisions have been made the intermediate court decisions that were cited in the panel's decision in jones do not change that analysis in those cases the intermediate courts are looking at the evidence presented to the jury in the light most favorable to the people and deciding in that case that the that the jury has enough evidence to show a  honor but it is a challenge to the guidelines regime which in back of the supreme court stated did not did not have the same analysis with respect to the residual clause your point is because back on says come down and jones is going to position is those intermediate new york state appeals decisions to aren't properly addressed in john's there are understand understood properly act of requires the use or the threatened use of physical force same as the new york statute for robbery the case relied on heavily by the defendant bennett where a human wall was formed that's clearly a in the context of the encounter a threat to use physical force if your wallet is taken and then three confederates of the robber stand in front of you in a threatening manner that a jury could conclude from that based on the elements of a robbery offense than a robbery was committed because there was a threat of force all of the new york court decisions can be distinguished and it's the government's position that after that two thousand and ten johnson properly understood it encompasses a robbery conviction in new york as an  has waived any reliance on procedural the fault that's an affirmative defense it's required to be raised in an answer to a twenty to fifty five motion it wasn't raised in the district court it wasn't raised in the response brief and indeed this is true waiver because the government has argued that a tw johnson claim was presented that's the opposite of defaulting the claim with respect to law of the case judge sac i agree that cases aren't quite clear on what manifest injustice could mean but if it means anything it surely means that six years of unlawful incarceration are manifestly unjust and it's frankly perplexing to to hear anything to the contrary so let me let me turn to the merits first with with respect to hill hill express clauses are now or the nine twenty four c's force clause nine twenty four c's force clause and compass is violence against property not just violence against people and so he'll really sheds little light on the discussion here with respect to jurgens with respect the government reads it for much more than the case says jurgens holds that pickpocketing isn't new york robbery it does not hold that any force greater than pickpocketing is new york robbery and in fact as the new york cases make clear there are a number of intermediate forms of physical force greater than pickpocketing but less than the violent physical force required by two thousand and ten johnson and those would be the bumping the tug of war and the human wall and the government suggests that the human wall necessarily involve the threat of force or the jury could have inferred a threat of force but in applying the categorical approach to this offense we ask what the crime necessarily involved and this court considers only the minimum conduct necessary to violate the state statute in bennett that was a pickpocketing followed by a passive obstruction with no evidence that the individuals forming the wall threaten the use of force or were indeed prepared to use force that's all that jurgens holds that pickpocketing isn't new york robbery with respect to judge drone his question jones to put it this way i obviously i can't speculate as to what the jones panel will or won't do but t extent that the jones panel reaches the elements clause question as the first argued case its analysis would have priority i'll defer to the court with respect to demin but i agree with the government that which concerns eighteen c sixteen b and thus by extension nine hundred foresees residual clause that is not likely to impact this court's analysis except except to the extent that hill might be overruled but as i've already explained hill itself distinguished jones thank you thank you thank you thank you both very nicely argued the court appreciated thanks will reserve