welcome back thank you you kara hartzler federal defenders on behalf of mr jones the question in this case is whether johnson invalidated mr jones's sentence under the armed career criminal act and i'd like to begin with the issue that the court asked the parties to address how does the court's recent decision in g s o supplied in this case just so said that the question of whether a sentence relied on johnson is a factual finding that can't be sustained if the record is ambiguous here for slightly different reasons if we look at the relevant period the relevant part of the transcript i think it's at starts around supplemental excerpt a record seventy six and goes to about eighty seven or so starting at seventy six the judge in the parties start debating the residual clause they have a long colloquy about what is a risk a risk of a risk and when does it qualify as a risk then on page eighty three the judge says personally i think that it would satisfy either clause but then she says i suppose it's safer to say that it would satisfy the residual plots and then she says then they go back to basically discussing the residual cost for a while this is exactly the kind of situation where there's still ambiguity and we recognize that as the government has pointed out the judge said it could satisfy either but the problem is that in that situation ultimately we don't exactly know which one it was and so one of them is going to be dicta and i would also point out the fact that at that maybe was the goal i'm not sure it can be both your honor and i and i i'll be honest i've really been struggling with this  both but i think one of the reasons it can't be is that at that time if for instance the judge held ok well it's both and mr jones wanted to challenge that and say no i don't think this falls into the force cause he really didn't have a way to do it because any error would've been harmless and that's why i don't think it can be both and that's why i think that ultimately the record here is ambiguous as it is in g is so so so great basically you're asking for  the judge will say when i said i think it could be either close i mean it could be either close well i don't think we can remain and here i think we just have to look at this is a factual finding that because in fact the the sense in court here that the judge passed away so i don't think that's possible so i think it's just a question of does the the record establish that as a factual matter this rely or could have relied on the residual clause and i want to just read a quote from juices that says have the sentencing court specify that a pass conviction qualified as a violent felony only under the force clause we would know that it rested on a can constitutionally valid legal theory here i don't think we can say that the judge rested only on the forced cause in fact the majority of the transcript shows that he didn't i would characterize this is basically district court dicta because there was no no citation to an authority saying yes this falls in the force clause it was almost all about the residual clause and in that situation i just don't think that we can say that it's clear enough or as in just so's there the question was well is there any suggestion could it have relied on the residual cla and i think the transcript here is absolutely clear yes it could have because they talked about it a lot they talked about a lot more in the fourth clause frankly now one of the other arguments that the government has raised and that jesus talked about is can you look at the relevant legal background and the government has cited the court's decision in david h which came out two months before but that was under an entirely different statute it was under the federal juvenile delinquency act and in a recent published decision that just came out within the past week couple weeks this court said no david h actually we don't look to that because that is a different statute and that is the case that we did the twentieth day on it's called walton and that came out on february first so i think following this sports published decision in that case david h really wasn't indicative of the other reason i think david h is not controlling here is because in two thousand and fifteen this court in dixon held that this california robbery statute here to eleven is not categorically satisfying to force cause and so in order for dixon to have that holding it would have had it couldn't have reached that conclusion if david h actually was good law that applied in this context the other point i would just make is that because this is a factual finding we know from the record that neither the district court nor either  parties ever mention david h so because it's a factual finding i also don't think that we can rely on david h here but going back to my notes about self yes it's a look at that and when i sa figure in here so i don't think that figures in to the aca i think it figures into the one thousand that were similar and at this point we do acknowledge your honor that there's case law against us saying that the for purposes of mr jones is one twenty c the relevant conviction was bank robbery under twenty one thirteen and we recognize that the court currently holds that that is a force clause crime of violence obviously i think there was a recent decision eligible for relief and if the court has no for the questions at this point all of those are for me thank you all right the united states the record allows us in this case to determine that the court relied on a valid ground in sentencing mr jones as an armed career criminal and that's essentially because the district court made special verdict findings instead of concluding that p c to eleven and six six for attempted robbery was just a crime under the residual clause the district court did both and in effect provided a special verdict for this court to know that there is a valid ground on which this court may affirm mr jones the sentence the court said s c r eighty three that she thought and believed that attempted robbery involved the attempted or threatened use of force and that followed a long discussion that the court had about california temped law and the court discussed how california temp's law in her view required in effect a dangerous proximity to success so if you look at the sub supplemental excerpts of record when the court is discussing  objeck the california jury instructions on attempt the court says you have to get awfully close to the completed robbery under california law in order to be convicted of an attempt that's the s c r seventy eight she then wed that discussion with what robbery required and what judge keep said was robbery doesn't require taking by force in effect the use or threatened use of force then wedding those two concepts together what the judge concluded was that attempted robbery required the attempted use of force and in fact the judge said specifically that s t r eighty three but the way that they define it i think attempted robbery is tempted use of physical force against the person or another or threatened use of physical force against the person of another sufficient says to withstand either one or two under this court's affleck ation of the strong principles as articulated in geos oath that is adequate for this court to conclude would that the sentence need not be set aside because it can possibly this court can possibly conclude that the court relied on a valid ground in sentencing the defendant if there is any ambiguity on that point the court it s e r eighty seven made clear what it's holding it said f c r eighty seven so i hold that attempted robbery under his california defines it is in fact a predicate violent felony under eighteen u s c nine hundred twenty fo either one or two it provided a special verdict form indicating that mr jones was a violent felon because attempted robbery with both the force class offense as well as a residual class offense i wanted just this court question about united states versus self it is actually relevant in this afaik context as well so it's part from david h which was decided in july one thousand nine hundred four the background legal principles that animated the district court included united states versus majority and that was a decision decided in one thousand nine hundred ninety and there the court was looking at whether robbery under california penal code two eleven constituted a crime of violence within the meaning of the sentencing guidelines and there although the majority i say we've concluded a similar statue eighteen u s c two one one three day is a crime of violence under the force clause and that's what majority decided and they said as a result robbery under p c two eleven is also a crime of violence record is ambiguous unclear then you can look at the background context of the law to determine what the court decided but that doesn't mean if for example the court decided as a matter of first impression when there was no law i conclude categorically that this is a crime of violence that the absence of background mall with somehow undermined the court's factual finding the court in this case extended itself to make a factual finding that attempted robbery is a crime of violence under the force clause because it involves the attempt of force under geos us as well as any of that to other tests that the other circuits have articulated for example the first the eleventh the tenth the fifth of the fourth under all of those tests the united states so admits that mr jones would be denied you my colleague has relied on page eighty seven of the supplemental excerpt of record and i just want to read the full quote because i think it's very instructive so the district court said and when you combine that the fact that it's in motion but it fails because it's interrupted  venture fails and what fails or is interrupted or prevented is in fact the taking against the will by force of violence fear or intimidation of the property of another i think it's clear that that's a risk and not a risk of a risk in other words while my colleague is  characterizing this is a discussion of the force clause the fact that the district court then goes on and says that's a risk and not a risk of a risk shows that the district court was actually talking about the residual clause so we would respectfully disagree with opposing counsel that that was a discussion of the force clause i think also that that sort of undermines the idea that the district court was coming to its own independent conclusion that this satisfied the force clause by relying on any kind of authority while ms hong has stated that you know we could look to macc darty or things like that i think as we pointed out before and frankly we were agree with the government on this that the background law isn't finding what we need to look at and what's most important here is the question could the district court have relied on the residual clause and the answer is absolutely in fact the district court relied on the residual clause almost throughout the entire and if the court has no further questions thank you thank you ron thank both you both for the arguments in the briefing i know you are becoming experts on the research work claussen as are we over time so thank you very much  case of united states versus jones has submitted and that concludes our arguments for this morning thank you