would be no problem the the issue though is the kind of corporal the approach does apply and how we know that is the supreme court says even in the context of this situation where we have in lille cal for instance customs enforcement agency at four ninety three f thirty three zero three that was a sixteen a case again identical so the categorical approach as much as it does cause some sort of metaphysical anx i assure the court on that the supreme court says it applies and that's not really on the table i don't believe for the court to re examine today that's true even if the hobbs a definition of what did completely require physical force the use threat and used a physical force is absolutely requirement that's what elements are requirements the residual clause we can think of as a common sense cause even if not every at the elements clause it's quite clear how that probably is actually broader than what we typically think of as robbery and i think the easiest way and judge roth to to give you an example that hopefully you wouldn't view is ridiculous the easiest way to look at that is to look at the part of one nine hundred fifty one that says that the taking need be by a method of fear or injury immediate or future to a person to the person or his property ok now it's cash drawer or i'm telling all your customers that your kitchen is filthy that's a hobbs act rockery there's just no dispute about that that would be taking money by putting someone in fear of future economic harm isn't that factual scenario that was presented to the jury was a factual scenario that qualifies for the federal hands of a provision the supreme court has said for thirty years that doesn't matter it doesn't matter that we actually know by certainty in the camp most recently that's what the ninth circuit did and chief against really under the categorical approach by saying look we know we know what happened here the jury was only given one set of facts we know what the verdict was and so forth but that does not excuse the categorical approach and that's that's what the supreme court has said all along if i look at nine twenty four see and that section talks about threatened use of physical force that is a felony and often and is a felony and has as an element threaten use of force that's nine twenty four c then i say exactly what happened in this case that was the hobbs robbery in this case i actual or threatened use of force it's also this fear of taking by fear of future economic impact on the person that was the example i gave about the you know suing where your customers ultimately divisibility analysis would not matter here because the jury was charged on all methods and there was no there's no jury in iraq atory so if we were to go to a modified categorical approach and try to determine whether was it a forced case or was it a threat of economic injury case or whatever else all that would allow us to do again this is brown this is they can't all that would allow us to do is look at the invasion and the jury here so what this court is left with on the elements clause is is ha that robert robbery a perfect match for the use of violent force and we haven't talked about that yet but i do want to make that point which is in one thousand and four see the requirement under the supreme johnson from two thousand and ten is that the force that's required by that is violent force ok it's not any simple slight force or anything of course why it's different is because those district courts were acting under different legal standards than would apply here for instance some of those courts said wrongly as i have argued to your honor's that the file some of those just are courts has said well any time there's a requirement of bodily injury because there's one fear of immediate injury to the person is in the hobbs act and he time there's a bodily injury physical force this things are two different you can have injury without force so these district court opinions that are out there are operating under different precedent in legal standards that would apply and would bind this court so i don't think it's i don't think it's t been is not to hear i don't have one of my fingertips but we have to try to get one for the court but i think what what the what i would suggest it's a bit a loose language but i think what that is getting at is one of the rationales on there you know transcript we have a jury transcript of jury instructions there's really no difference in a case like that between looking at you know a transcript that stated ten years ago and a transcript that stated ten months ago so that's one part of it the other part of it is is that the supreme court in fashioning the category or approach me crystal clear that the driving force here was congressional intent it was not about looking at individual cases if we were to adopt your view that we just should not be applied in the city was in washington when no he was brief your honor but i have been i think the department of justice is reevaluating its position on this issue for example if you honour's were to find that the residual clause in sixteen b was unconstitutional we would be taking the position that that does not control in one twenty four c three b because there are material difference is not only between the statute not not in the has ever questioned whether or not when you are looking at the prior conviction whether the categorical approach should apply in that situation the reason there is no he's addressing whether or not the categorical approach should current offense of conviction one that is linked to the predicate crime of violence is because no one ever dreamed of making this argument in this context until the johnson case rose no one has ever come no no one has raised the argument i think there's one reported case from the early ninety's which questioned whether hardback robbery was a crime of violence for purposes of nine twenty four c so there are no cases addressing that aspect because it's not been raised before the categorical approach has been raised in conjunction with evaluating prior convictions primarily for research recidivists enhancements and also for civil removal purposes in the immigration contest the there are several district court idea that you can go in and say well i'm going to tell your customers are places your i'm going to pork chop with syrup on your passport they that is not we're talking about offenses that are committed with a firearm both the person has to have a firearm for t we believe that that would be that a heart attack robbery particularly those yes that it would qualify as a crime of violence under the definition and i think that's the case then you sort of stop right here that's correct that's our position and every district court that's addressed the issue has reached that conclusion but the first clause that object robbery satisfies the force clause the arguments that are being presented about fear of injury and fear of injury to property we are getting very far afield from reality here fear of injury they take the word in isolation and not put in the context of the statute the fear of injury that has to be instilled in order to affection way to robbery remember is a fear of injury that created in order to accomplish it taking from a person of their property against their will it has to be as almost every else the district court's concluded has to be a fear of physical  physical or use physical force me and they were faced with a statute or of a conviction for intentionally and knowingly inflicting bodily injury there was no force requirement in that starting at it in a crime of picking from from a person against their will and in order to accomplish that goal the fear of injury that you create is going to be a fear of injury that they're going to be hurt physically hurt or their property is going to be destroyed  in a manner that is that satisfies the johnsons the injured a violent physical force it's just not conceivable that you can convince somebody to give up their property especially when you have a gun that's in the context of nine twenty four  and you're not instilling a fear of a fear of injury that's based on physical force so even though it doesn't have the fear of injury can be isolated and viewed that way that's just not the correct way to read the statute and why if you do that fear of injury to persons or property but remember nine twenty four c talks about threatens use of force against a person or their property the statutes match they both invision that a threat a sufficient threat to property that induces or accomplishes the robbery is sufficient they don't drive at the station and the examples of their being positive are just as they're really an act of legal imagination not reality one other thing that the government would urge the court to consider and at least one district court in a southern district of new york has a lengthy discussion of this in the pennines decision he talks about wait a minute we look at the minimum credible conduct or evaluating the elements clause but that we can't be there also has to be a reasonable probability of a minimum culpable conduct the conduct cited actually would occur a reasonable probability not a theoretical possibility that someone dreams up and says now the fourth circuit refused to apply that in the torres miguel decision which we believe was at least the reason of course miguel with overruled by heffernan and the ninth circuit did apply outside of immigration context it makes sense otherwise we are left with of injury is not something that you just it doesn't change the context it's a fear of injury that was fission enough to effectuate the robbery on they also make an argument about it's not intentional well it's not intentional act how you can create a fear of injury sufficient to convince somebody to give you their property without intending to do that we have the bank robbery line of cases that say can be objective we reasonable standard but you still have to show that the person has the act this radius to commit the charge offense the taking of property from another person and they have to at least have the knowledge that they are their conduct will insufficient fear of injury to property is not sufficient because they don't necessarily implicate the use of physical force and we totally disagree with that we also agree that there is this we disagree with the fact that the mere fact that it doesn't say intentional into all these facts from past cases and it's going to be unmanageable we have hundreds of state statutes to deal with that could be predicates under under these offenses in one twenty four c context has to be a federal offense you know congress wrote gun to further or during the commission of the underlying violent crime and they wrote it thinking of the bank robbery statute that's what they wanted to that's what they congress wrote the bank obvious that they knew the elements of a robbery so they were they and not vice versa as defense is suggesting that the somehow the residual causes the driving force behind one twenty four c it is not the residual cause is never the driving force it especially in a scenario well like this where they're talking about federal crimes and federal robbery current and it's to find to the contrary would be that congress is so so ineffective in this situation that they wrote a statute that has no meaning because let's talk about what we're really up against here the defense position means that no robbery offense can be a predicate under night twenty critique of federal robbery fencer i'm aware of perhaps there's a murder offense or some other insecure qualify that just is an absurd position it means that congress so blew it and this isn't like the on career criminal act we had that there was nine years of litigation by the supreme court alone they rattled with what does this residual cause need i mean they were they were off on the residual cause with this this is this is clear cut the elements clauses clear cut there's no we really reason for reach residual costs and i'm just bringing into focus the difference between your career criminal act which is what led to the johnson decision and actually applying considering whether a charged federal robbery offense is a crime of violence for purposes of one twenty four so there's a world of difference and here even if the categor should should apply and the reason we did apply it the categorical approach to sixteen a which has identical language but the reason they did so was because they were looking at a prior conviction and no one quite frankly dispute that his conduct satisfies nine twenty four see that his heart that probably satisfies why do we need to go further in this context and that is an open question that i think we did not address but  us with over the last thirty years that's fine but that is the law and we are not here saying that every conceivable robbery is is is is would not  act robbery which permits a conviction based on fear of future economic intentional loss which is broader than any typical robber you would have were saying that does not qualify under the hernandez cruz was and the other thing we i heard from my colleague was outlandish for a field this is crazy what what this court said in her hand hernandez cruz was it doesn't matter if the hypothetical least culpable conduct has ever been prosecuted in the history of the world that's virtually the record quote when it has cruise so what we have here is bucking against the categorical approach and buckie against the least culpable cause injured but that is the law and your honor i will endeavor to find a case for you to confirm that but i believe there is certainly no case that supports and the government until at least a few minutes ago the podium absolutely applies here so we can't i would submit a wow that the bucking of the law to get in the way of the analysis here and the analysis think i would say i would say that we should resist the urge to to look at to disagree with the least culpable conduct standard or disagree with the application of a categorical approach and i think we should resist using the frustration that that generates now that the residual clauses gone as a rule of decision in this case because until johnson yes there was no issue h well it couldn't be charged under nine twenty four see if there wasn't a gun right in tell in taylor your honor you had jury transcripts and you had everything that said exactly what happened in the case what the charge was what the actual facts were say i totally understand your on the frustration i get i get why i heard once judge barrett an argument very much like this about a year ago say how can we suspend our knowledge of what happened in this case very first and i understand  it was he was quite animated as well but the point is i understand the impulse but that impulse cannot ride roughshod over what the law is here and we wouldn't be in this position had you know it's had the supreme court not said as i started this argument out with is in many ways you can think of as the common sense clause but what the supreme court said was that common sense is not a definitive in the definitive enough talk to hang a criminal liability