narrow issue of confluence between the federal sentencing guidelines and pennsylvania law is subsection four of pennsylvania's second degree robbery a crime of violence for purposes of the guidelines the sentencing was decided about six weeks before the supreme court decision in mathis as is evident from sensing transcript b struggled with how the supreme court made a ruling that this here my first point is that it is indivisible because when you look at the three ways of committing subsection four the war and they are not elements they are means and that is borne out by the pattern instruction from pennsylvania there is not any reason that a prosecutor pennsylvania would undertake the greater burden necessary in proving second degree burglary robbery under subsection four and since they couldn't show it by any of three differing means these are not elements but in fact means and this matches with the analysis this court has already done that of ours does that matter that is the second point and i suggest she really does indeed and it matters because true of the three means can be satisfied without the violent force as required by johnson won yet by using the be divisible approach the cord at sentencing was rolled into the modified several opinions by the router we use the state law in making that determination right how does intentionally putting someone in fear of bodily injury what i suggest you is this in pennsylvania if the victim of the robbery is intimidated intentionally fear can be developed with out there being any threat and so the court would have to infer the threats referred sample if i am a panhandler and i come up to you and i say they are give me some money if you feel that implicit with that is or i will do something violent when first amendment intentionally caused the person to fear the bodily injury which to be had i'm having trouble distinguishing that from threatening the other day that i suppose if you have a gun in your pocket like in your old movies and i suggest you without the residual cause there would not be because the example of another pennsylvania case is holding a cell phone as though it's a weapon when in fact it's not a weapon and so there is not an actual threat of violent force there is a perception by a victim or even a jet of perception but going back to the panhandler if the jury finds that a panhandler intended to cause fear because pennsylvania law to convict him that the jury would have to found that he intentionally here and brown in austin tell us that orse or threatened force is always an element so so rises to the level you know it's intentional except that it's intentional by the question is is pennsylvania robbery forth a new standard of robbery and i suggest to you it is  going for the united states the court has correctly identified that the nub of this case is the phrase intentionally puts another in fear of media only injury that is not the prong of the pennsylvania statute under which the defendant was convicted but it doesn't make any difference because our view is that all three ways of violating subsection four the pennsylvania statute are categorically crimes of violence so the don't think the pennsylvania courts up to this point have been concerned with the issue of whether any of their statutory provisions satisfy the sentencing guidelines provisions of crime of violence so in some ways to point we are we left with predicting how they would come out with that but i think we can make a very accurate prediction for ways one is the statutory language itself it requires proof that the defendant intentionally put the fear of immediate bodily injury well it's the defendant would basically extract the word fear from that phrase but it's not fear of anything it's not fear that the weather might change it's not fear that the lights might go off it's fear of immediate bodily injury so that's one way we can tell that this is the third prong is categorically violent a second way we can tell by the structure that section for itself it has basically gradations of violence the most violent is the actual infliction of bodily injury the second is the threatened infliction of the needed bodily injury which clearly satisfies johnson one and then the third is conduct that is not an actual threat it's not the gun in the pocket it's not the raised fist it's not that no one else but it is menacing conduct that is cited it in which they say that when the defendants commit aggressive actions which implicitly carry with them the threat of an immediate bodily injury that satisfies the third  is the gardner case from two thousand and thirteen that is cited in our brief and schwarz has been addressed by a number of supreme court cases again we don't have an authoritative pennsylvania supreme court saying this is a crime of violence for purposes of federal guidelines which we have to look at how they have interpreted their statutory language and they have interpreted that to be the equivalent of an actual threat it is missing conduct that they did bend it tends to be a threat of physical injury and which in most instances the victim perceives as a threat of physical injury and then the other way that we get to the conclusion categorically all three ways of filing the pennsylvania statute are environment is by all of the other cases interpret ng similar robbery statutes in which the courts have ruled that weather is an actual or an implicit suggestion that this perhaps is on clear title to be defined well i'm i'm read a number of your opinions judge piano and i'm not absolutely sure what the federal standard of interpret ing a state statute and in relying on state court interpretations of that you have said you are forced to predict but i think the ways of predicting that this statute is  are very clear because the pennsylvania courts have said repeatedly that intentionally engaging in conduct that is intended to place the victim in fear of bodily injury qualifies so that it is it's the threat which that whether it is actually threatening or whether it is implicitly threatening it is a threat of physical force and that satisfies the career foundered definition i would be happy to address the divisibility issue but in the government's you that is not necessary that all three means of violating the statute are violent and the quote should affirm and why didn't the government with forward this theory along on the theory