robbery under revised code twenty nine eleven zero two eight three is not a crime of violence in the united states sense and guidelines because it does not include a use of force as defined by the united states supreme court and it is not an  for that reason mr gates was improperly categorized as a career offender because he lacks two qualifying qualifying predicate offenses additionally the district court imposes substantial substantively unreasonable sentence on mr gates by find that he was a career offender despite the application of the career offender unhandsome into his case violated the sentencing commission's express policy statement about the career of fender and hanson and despite the fact that he had not previously been found to be a career offender at his original sentencing and there was no material change in his record when he was in front of judge boycotted re sentencing to begin with the somewhat long suffering issue of crime of violence predicates and ohio robbery certainly this court is aware the united states supreme court said in the two thousand and ten decision johnson versus united states that a use of force has to be strong physical force it has to be a substantial degree of force mere touching is not sufficient to satisfy use of force in the arm her criminal act and if this court has pointed out a number of cases similar reasoning applies and a guideline situation now this court has always looked to ohio's interpretation of its own case law to understand how to evaluate offenses ohio has been unequivocal that minimum mere touching contact is sufficient to satisfy ohio robbery under the a three subsection what cases in particular would you point us to and that certainly unite our state versus carter is an excellent example state versus carter points out that contact the use the the language however miniscule is sufficient to satisfy robbery i would also point the court to state versus copeland which is in briefing in that case a state appellate court points out that mere pushing would be sufficient to satisfy robbery because the level of contact that's required is so minimal and i'm sure that my opponent will get up and talk about this court's unreported decision in united states versus mance or mansoor is outdated for a variety of reasons i i know i don't have to tell this court that the case law on crimes of violence and  evolving nearly daily mansoor is a number of years old now and unreported decision that this court isn't bound by to begin with but if this court were to look at months or for direction how to evaluate a higher robbery at this point it should be dispensed with  this is a really complicated case to me so johnson says the force an issue must be violent force capable of causing physical pain or injury to another person yes right so why is  pushing under this copeland case why is that not enough to meet the johnsons do thank you honor because both johnson and subsequently in castleman the united supreme court the united states supreme court has said that contact that would create bruising for example is not a sufficient amount of force to be violent physical force additionally this court should look at ohio's own definition of force not just in case law but in statute so in twenty nine zero one zero one a one force is defined in ohio as any violence compulsion or constraint now we know from the united states supreme court's recent decision in mathis that this court should consider alternative means but the rest of that definition is any violence compulsion or constraint physically exerted by any means upon or against a person or thing yes you put the thing to the side but against a person why isn't that sufficient to meet the johnson two thousand and ten definition thank your honor again we're back around to it's not a question of whether there's contact it's a question of whether that's violent or strong contact and both castleman and johnson have said touching the causes bruising mere touching is not sufficient but compulsion or going straight could be mere touching and in fact  to the district court of west virginia's analysis and let's see but let's see evaluate in ohio supreme court case called state versus davis and stay versus davis the ohio supreme court talks about how expansive its definition of force actually is so state versus davis again ohio interpretation of its own law says that it's sufficient to establish force if the defendant's conduct impresses on the victim fear likely to and induce a person to part with property not injury but just fear that would make you say your wallet overhand your person in the house print court's opinion that's sufficient and this court should rely on that analysis of ohio's own loss so one we could think of hypos which might or may not be helpful one hypo is suppose somebody is going to a concert and they have the concert tickets in their hand foolishly and someone runs by and holds the tickets out without touching them or not is that covered by the ohio robbery statute and if so does that show anything about our case it's an excellent i do believe and it's not cited in briefing but there is ohio intermediate appellate court commentary that said that would not be sufficient to satisfy ohio robbery there's a similar factual case i can certainly provide to this court in a supplement where it's actually very similar scenario someone has their wallet in their hand into really grabs that there's no contact so that was that that particular case with the wallet in the end i couldn't remember whether what the state court said was that robbery under ohio are an intermediate court to decide the case and that was not sufficient was a robbery ok but again the critical inquiry for this court is not whether there is contact at all it's how strong or violent that contact is and what ohio has said about what robbery requires is that mere touching is sufficient to satisfy the stat we have to two thousand and seventeen decisions from this circuit this jonelle rice and o compelled to follow either rice or hasan because they are unpublished orders but i'll give this court is substantive reason for not doing and before you get to the substantive reason are those both unpublished orders as opposed to even opinions there from what we call our rule thirty four dark you absolutely correct judge moore those are not even unpublished opinions or unpublished orders so that's another level down of influence or persuasive authority of this court should consider the substantive reason subsidy particularly in rice these are both two page orders very brief with essentially no analysis there they're very conclusory with all due respect the defense counsel and rice clearly made a factual argument perhaps misunderstanding how the categorical approach works in this context because the court in rice does point out that there was a factual argument made so it seems perhaps at least in that case the arguments were not properly framed for what the united supreme state supreme court has directed us to do in these instances but again the from an an alytical perspective these decisions don't provide this court with any analysis and i think this court will find in reviewing months or that there's a similar problem there an unpublished case at this course is the court is not bound by it but it's analysis is very brief  it's really just one page discussing a hierarchy it's very conclusory with little analysis additionally i suspect my opponent will get up and talk to this court about its recent decision in united states versus paterson which is a case that addresses ohio's aggravated robbery statute under a one subsection do you want to know for this court why patterson is so different and doesn't provide guidance in this case aggravated robbery that was considered in patterson has to do with use of a deadly weapon that's displayed brandish indicated possession or used the ohio supreme court has been unequivocal in state versus evans which is a case that patterson relies on in its analysis that use of a deadly weapon in this context is an implied threat of force and so it stands to reason that this this court would conclude that since that's ohio's interpretation of its own case law a threat can be read in there one has robbery stashed under the a one subsect or a three subsection does not include any deadly weapon the analysis is very different for this court the dish there is no case law from the ohio supreme court saying hey we should imply a threat of force here in fact the higher supreme court itself is saying we have a very expansive definition of force a very broad definition of force and that's where we come into problems in evaluating the crime of violence because it covers conduct so far outside how the united states supreme court is defined force in this context my will and i will file a twenty j when i return to my office this week they're united states versus nichols or the tenth circuit which is twenty seventeen u s affleck's a seven one zero one and us versus winston which is a fourth circuit case eight fifty f third six seventy seven now those both considered robbery statues that similarly required uses of force and in both of those cases the courts concluded there's conduct that's too broad here mere touching is also covered by this robbery statute so it can ohio supreme court held in state versus tal of are that there is no attendant mens rea a to the force element of ohio robbery now the underlying mens rea for robbery and aggravated robbery is the underlying theft which is a purposeful or  so are you saying that big a itself would invalidate than using this statute because of the lack of mens rea a for the force of that big a itself says that the gay doesn't specifically address state statutes where there is an underlying mens rea to the best of my knowledge the supreme court has never addressed that but i do believe it provides helpful authority to suggest that would be the correct conclusion for this court to reach is there any court that has said that you need to have the element of but part of what i would ask this court to consider is the government's benefit in having a reduced burden in state court for stablish in robbery to some degree not considering the mens rea that applies to the triggering element allows the government sort of have it both ways to get the benefit of not having to establish that element that mens rea element at trial and state court level but then can they also get the attendant benefit in arguing the enhancement applies because of the underlying misery and i can see that i'm out of time  person that's exactly what a three robbery hants there's there's two parts to a three robbery the attempt or the commission of a theft of fines and the use or threaten the use of physical force violent force capable of causing physical pain or injury to another so doesn't johnson in the sense cause us to have to look deeper at what the meaning of force is in the ohio statu us and the ohio statute apparently defines force as any violence compulsion or constraint physically exerted by any means upon or against a person or thing yes i understand theft requires the theft be from a person yes so we're not going to worry about the thing part i guess but but isn't the definition of force in ohio any violence compulsion or constraint physically exerted suggesting that it's more than violence because in addition to the word violence there's compulsion or constraint i think and this was anticipated during the problems are going to do go back to mansour where this court found from west virginia that goes the opposite way which might be equally persuasive to some or more persuasive to others so we really have to confront this and then we have these two unpublished orders of recent origin but are of less value than mansour because they don't have any analysis at all only have more value than my or because lizzie had an analysis whereas these two recent ones are one and a half pages of to recognize that the sixth circuit in unpublished decision had gone the other way in mansour but let's see is from the fourth circuit so but let's see court was not bound by mansur so you know we don't know why they didn't mention mansur why is the lid sees analysis raw apart from the thing well again because you're right if it's i think it ignores the the consistency between the crime of violence definition and the a three robbery definition in ohio but it's saying among other things this definition of force as any violence compulsion or constraint doesn't that go broader than the johnson twenty ten supreme court definition of what can be violent force well johnson does say capable of causing physical pain or injury to another person and that really mirrors a three robbery and the and it's it's the it's the commission of of use or threaten use of physical force against the person of another do you agree that johnson affects the and and that would seem to quarrel with johnson the violence has to be more severe twenty two purposes and the court found that a common law battery was even you know the slightest offense of touching and the congress and intended to apply the common law standard in that circumstance  it didn't address the physical force within the career finder context and it really did not invalidate the reasoning of mans so what do we what do you say we should do about these various ohio supreme court and or how court of appeals decisions that are applying the ohio robbery statute to a variety of different circumstances well tal of or as is an interesting case in that it tried to clarify somewhat how ohio was applied applied that suppose well why don't we take my hypo that i gave your opponent if somebody is holding tickets in their hand for a game or a concert and someone runs by and pulls them out would that constitute robbery under the ohio law don't believe so so then that's not a good hypo for analyzing the degree of force of the purse snatching cases which are from ohio involved persons being taken from what are called elderly females query what that means and those are held by ohio courts to constitute robbery under the ohio statute right was was physical injury was the use or threatened use of force of force to cause physical injury and you would say that that qualifies then under johnson so that can you think of any instance where the ohio robber statute has been used that would not qualify as violent force under johnson are you saying that all of the ohio cases that you and your opponent have found it's really more instructive to the mens rea part of this argument which if if the courts aren't going to do if you would go to that because what is required under federal law if your opponent cited be gay as saying that we need to have mens rea as to the force element how do you respond to that i don't think we gave really stands for and i think really when you look at mcmurray from this court you know w is that has to be more than recklessness the consequence to the crime of violence and ohio a three robbery is more than recklessness but it's more than recklessness not with respect to force with respect to force there's no but it takes the force of the theft defense which is part of that which is part of the a three robbery and the theft of funds is purposeful knowing and purposeful going in purposeful what knowing  person knowing a purposeful in time so it doesn't go to a right it doesn't go to a strict liability type of recklessness that is contemplated in revised twenty nine a one point twenty one b  which has been court discusses in leicester when i was talking about aggravated robbery and brandishing in tal of or tries to clarify that point two and says that that that that incorporates the robbery incorporates the the intent for theft it's not recklessness its purpose for it but i understand that the theft definition requires purposeful it also says though to go to where there's a situation where twenty nine zero one point twenty one b would apply it must be a complete absence of culpability before that statute can be applied that's not really what we haven't read the theft a three sticker robbery statute there isn't a complete absence of culpability it's when read together it's the fast and then the use of force or attempted use of force and talgarth tried to clarify what it called  all consumed within the the property as well that was not provided that the mines were here for the robbery and so it didn't revert to recklessness and that's really  this mention mcmurry anything else that would help us out on the mens rea issue can't think of anything right now what do you say about the length of depend on the first issue we get it does i mean if the if the court found that the career finder was appropriate and then the sentences couldn't really wouldn't be an abuse of discretion then the court did very down based upon mr gates health  fruit a few brief points on rebuttal i believe the government is advocating for this court to just do a word by word analysis a three uses force the guidelines use force that's the end of the analysis but the united states supreme court directs this court to consider the minimum conduct that's current eyes by the statute in moncrief versus holder ohio has made clear that minimum amount of contact is sufficient to satisfy ohio's robbery statute and if i were to write this court syllabus case law i would ask it to say that under united states versus castleman which is judge gilman was getting to earlier with the government has held that a minor use of force is not a violent use of force but over four ohio robbery it is that that is not adequate  to satisfy the guideline definition and to address what judge moore was discussing earlier the hypothetical with the tickets case that dealt with the grabbing of the wallet with no contact with state versus furlough it's eighty forty six of this court wants to take a look at that there is for example a tenth district case in ohio from two thousand where they point out in discussing another case with with no contact we noted that there was no evidence that the victim was pushed struck touched or in any way injured and then concluded it couldn't be ohio robbery touched being the minimum amount of contact that satisfies the statute more broadly than the amount of force that's required to satisfy them it's been so long i'm just curious what is no evidence that the person was touched or and that quote actually is from state versus walford which is a tenth district case in ohio from two thousand so is there a case you know basically if you could find a case that said that m however miniscule is sufficient and state vs coppa noting that even pushing which i think we can all agree is attendant to touching is sufficient to satisfy use of force and just very briefly to address judge tillman's question about mr yates's actual sentence this is someone whose picture of rehabilitation actually improved by re sentencing he was a model inmate despite the fact that he had thirty years of time to do what he was originally sentenced so when he returned to judge  was actually in a better position and he got a lesser sentence for that reason right he did but that variance was some pretty minor compared to where the career offender put him compared to where his guidelines would have been without its application so i would ask this court to