and so the next case on our docket is united states of america versus harold and whose are so the parties are ready to proceed at leas you could come forward one of the the questions that we have you can forward to the podium sorry for the one the questions we have is looks like united states versus  it's shelby is the next case and they have similar issues i don't know if you want to combine those looks like the same lawyers are arguing those two cases do you all have a preference or of you all discuss this i don't have a preference i think that the issues are distinct but overlapping and so if we did address them in one argument it would be i think helpful to separate out those areas where there are different i'm prepared to address them and separate consecutive arguments and just refer back to the extent that the same arguments are relevant that's fine that's what we'll do thank you thank you so here it's united states versus harold then who's possibility of reliance on the residual clive's and nd the district court erred in applying the modified categorical approach to the conviction record of the prior state robbery offenses and determining that those offenses necessarily involve violence meet would you be able to get to that but i wanted to figure out which parts of your argument that covered so why i think if we lose on the force clause post we would also likely lose on the numerated offense although there are i'm sorry let me rephrase that if for this case would be determined in your view is still good law after yes your argument and as i was preparing this case for oral argument i i wonder if remaining to the district court to consider burglary might report thought it was enough that he had the robbery sure and we raise the aiding and abetting in our reply brief we limited it to the robbery because that's what had been discussed and we limited our response yes i'm having difficulty thinking that the aiding and abetting argument is in front of us since it shows up for the st time in your reply brief but i take it your point is that if we were to get to burglary and didn't rule for you on some other basis we ought to remanded for the district court to her i think co have and the primary position would be that since nurse is not overruled if it is then perhaps that would be an appropriate basis for re man for the district court to consider in the st instance whether these burglaries which those records are not in front of the court  in respect to generic burglary well it's really movable buildings were structures that are not adapted right because i think that if one burglarizes an office building that's generic burglary after so clean different kinds of not just movable but mobile structures that are not ordinarily designed or adapted for overnight accommodate it is your view that stokeley held that those were not within the generic definition of burglary or just didn't treat that issue now it still clings plainly hellholes that the generic definition of robbery and a burglar was talking about burglary burglary actually yes the generic definition of burglary extends to non permanent structures adapted for overnight accommodation does it answer the question about whether nonpermanent structures not adapted for overnight accommodation are indeed hers as you're just not treat that question it does not treat that question and it leaves this courts which therefore leaves o use for overnight accommodation but not any other element as to either building definition or other definitions like that entering a remaining unlawfully which was litigated and says narrows but not the basis for the ruling to go back to robert i know you  may have answered this in your exchange with with with her what's been a me maybe ask it a little bit differently just to break it down for me does your argument about robbery three rise and fall on state versus johnson or do you think that's a nuff after stokely i think state versus johnson is the case that we've been able to identify and that involves non violent force post because it doesn't seem like the supreme court was trying to say that the state uses the common law definition of robbery that it's going to qualify as an a c c predicate when you get your views on that well backing up a little bit stokely where you affirmed the johnson one finding that physical force within the armed or criminal act means a violent physical force they carved out for robbery specific exceptions this rule that physical force that overcomes a victim's resistance is violent physical force so the question then is does oregon robbery categorically only encompass that degree of force and state versus johnson proves that it been implicitly overruled correct yes and because of the narrow holding of struggling and hasn't been struggling said we're modifying what it means to have violent physical force but again only in this respect regarding overcoming victim resistance and strickland they recognize that oregon doesn't require overcoming victim resistance because it can be accomplished by nonviolent contact that prevents victim resistance because it's so swift for example in the the court suzanne miles for the united states so i am prepared to jump into the career criminal act robbery discussion but before we get there i do want to take a step back and just primarily address defendants th nine life sentences so any direct claim against his three strike acts sentences is untimely at this point well i don't understand that it may be wrong but it may be wrong but i'm not sure it's untimely what he's saying is look there's been a big change in the law johnson he says johnson makes clear the residual cause of three thousand five hundred and fifty nine is constitutional that makes my challenge timely what's wrong with that so there's two answers to that st this court's decision in blackstone talks about the timeliness johnson claims against not a  statutes and what it says is we simply have to wait so when we have we have to use another words it's ok he's going to be in jail for a long time no matter what happens here he has to wait until some court there into my own looking at sixteen be the same way i got there and back was looking at the advisory guidelines the same way it's getting there this term in davis looking at nine hundred and twenty four see upset it's not going to get there because no court after johnson which is some years ago ever is going to impose a sentence based on that residual clause which on its face appears to be unconstitutional so unless there's a case on direct appeal or some court was done with off to use the residual cause nobody ever ever be able to raise the issue under your theory and it's not my theory your honor it's this court's theory and blackstone and it's directly from the statutory language of twenty to fifty five and three it's congress's requirement that you may not raise an untimely this time a twenty year late b s petition and less you have the supreme court declare a new rule and then put the question is whether the new rule in johnson which deals with a cause which for my purposes i can't distinguish at all from the course in this case extends to this it's a different thing to see say whether it extends to the sentencing guidelines but your position is that this defendant must wait till the supreme court declares this specific cause unconstitutional and if it never does even though it's blatantly unconstitutional and he couldn't have known that until johnson was decided he's outta luck that's exactly what blackstone says now the man which says that in order to raise the johnson claim so even if we can argue that the residual closet johnson's rule extends to three thousand five hundred and fifty nine dollars you have to say that defendant sentence arose out of the residual clock and said your court here said it didn't work i know the district court said it didn't but we review that you know how do we know you do so i've gone back and read the sentencing record in this case point to me where the district court in new where the original sentences say they arise out of something other than the residual course so the original sentences do not say it so what she owes us tells us is that we can either have a direct statement by the sentencing court or you can look at the underlying legal environment at the time which is what the judge here did my problem was that the underlying legal environment at the time allowed said it didn't require a district judge or to go through this difficult categorical and silly categorical approach that we have to go through the district judge could you say hey i don't care if these categorically match they're so close under the residual clause i'll use that well yes so why why should we assume with this on the record have to exclude the possibility of court tells me it was so that doesn't help me and even if you take that position you still need to look at the specific holdings in geos us which tells us that we do not need to have a specific statement no i don't have to  robbery we see that from this court's decision and mullen are looking at a similarly worded arizona statute which looked at arizona robbery and compared it to the enumerated offenses under the united states guidelines and found that to be a categor so once we leave those three thousand five hundred and fifty nine sentences aside and get to be a way we do have some issues here too before we ever get to robbery so st we do have a timeliness issue with regard to the a c c a sentence as well again but the same problem here when i go back to the district court original sentencing i can't tell what was relied on and again we have another piece of that factual puzzle here because what we have is that this exact same district court judge was overturned by this back at this record set you know we don't give any difference to what the district court did so forget what the district court said you want us to conclude that don't you based on this record and i think what the district court did is persuasive here looking in saying that without a doubt your argument today is rising and falling on the timeliness now it's not at all so we can put timeliness aside and still even if we have a timely hey b s petition here and we get to harmlessness that's where we work into the other basis for why these a eight minutes of your argument though on everything but that you want to talk about that last part and i can hear out there and the robbery issue does overlap with shelby and shelby isn't a different procedure or posture so we can talk more deeply about the robbery issue  permanent structures not accommodated for overnight use so waste the supreme court didn't address that issue you agree the supreme court did not directly address the issue so and in excuse me instead it right  why doesn't that make the oregon statute categorically broader than than the generic crime because the supreme court's decision in taylor cleans up some of what the state didn't address and talks about how the generic definition of burglary that congress imposed was meant to track the version that had been used by the majority of the states but i've looked at other states and i can find that other states have the definition that oregon has which express says this extends to non permanent structures not set up for overnight use so the argument here seems to be that oregon doesn't have the definition of the majority of states i'm not sure how taylor it's a combination for overnight use or accommodation for business is answered by static that the mobility isn't the problem the question is whether it's a structure that's accommodated for the kinds of uses that a generic burglary is meant to to address and with that i will leave the burglary issue aside and address the robbery issues in my next argument that's how you like to proceed that's fine thank you i ask you to assume that for purposes of your response that that we don't we aren't that i don't accept just for purposes of discussion the government's argument that i can tell from the record that they were so that these defendants were sentenced that under something other than the residual cause but why and why shouldn't you have to wait for the supreme court to to blast twenty to fifty five but the st answer is that this twenty to fifty five