how can adding something to aid nonviolent offense categorically transform it to a crime of violence the answer is it cannot and obviously in united states versus strickland this court found that work in robbery three statute is not a violent felony because it requires only the application of minimal force not the violent physical force required to be a c c a so the issue in this case is whether the additional l of the element contained in subsection a of organs property to statute a representation one is are necessarily converts force that this court has already held is nonviolent to the violent physical force that is required under the c c a and we ask the court to hold that it does not and to the extent that the court may find some ambiguity if the ambiguity exists the rule fine and he does require that to keep in mind this case first the categorical approach looks soley to the elements of the state crime as they have been construed by state law not to facts second the outer contours of the conduct criminalized is particularly important because the court must presume and establish in applying the categorical prochoice that the acts relied that the conviction relied on nothing less than the least of the  criminalized and then finally as this court stated in  were a state statute explicitly defines a crime more broadly than the generic definition no legal imagination is required to hold the crime is overbroad and the court does not need to conceive of an actual case can of conviction on generic manna so here we agree first and foremost that the robbery two statute overall is divisible and therefore that the statutory section at issue is the representation of being armed which the oregon legislature chose to make an additional element plus robber three rather than substituting the representation of being armed for the threat or use of force or requiring that the threat or use of force be carried out by the means of the representation of being and turning to the definition of violent force we require an outward expression or indication of an intention to inflict pain harm or punishment we require force that is capable of causing physical pain or injury to another person we cannot simply consider mere trivial force it must be substantial and strong and that all comes from johnson one and organ law has been very very clear and very specific on the limited definition of the representation prong of the organ robbery to statute and specifically it is an intentional communication of what that one is  is not a threat and it certainly is not a threat to inflict violent court force in the most instructive case on this point i think is state vs li which is discussed extensively in our briefs and leave the court was asked specifically to decide the question does oregon robbery to require proof that the defendant intentionally communicated through his or her words of calm or conduct and intent to cause imminent serious pain or physical injury upon the victim which of course is the definition of the gorgon menacing statute korten least said no and the court looked to the outer contours  specifically said it does not necessarily follow from a representation defendant is armed that a victim will be afraid much less that the defendant intended it to be so and of course in part nel in analyzing the massachusetts statute at issue one of the comments that this court made was that a threat does require an element of fear and again a lot of this also cited in our opening brief is very very helpful to the nelsons here because a lot of stated at page twenty eleven one thirty five supreme court twenty eleven the mental state requirement must apply to the fact that the communication sentencing judge to deviate from an otherwise mandatory sentence if the judge finds that the victim was not reasonably placed in fear by the defendant's representation now the government's argument rests i think exclusively on the organ supreme court's decision and why but there are several reasons why white does not control or even provide significant guidance here and the first  most significant is that the question presented in white was one of whether two convictions under were the organ robbery two statute should merge it did not decide nor was it presented with the issue of conjunction that the government argues and it i was not presented with and therefore did not decide whether the level of force needed to accomplish robbery in the second degree must be violent physical force or a threat of violent physical force and in walton this court stated if a state highest court has not ruled on the level of force required to support a conviction we are bound by reasoned intermediate court rulings and i think that's where again we turn to the decision and we i'd like to turn very briefly to the court to the government's  citation of watson in this case and i think the court can dispense with the government's discussion of the intimidation prong in watson because watson was interpretating a federal statute as it has been construed by federal courts and so the analysis is very straightforward and it cannot be transposed on to the analysis of the organ statute now finally in a twenty eight j letter we cited to a very recent district court opinion in the case of united states versus tristen which is an interesting opinion dealing with essentially the fact that under oregon law principle an accomplice liabilities conflated that although the oregon accomplice liability statute requires specific intent juries for decades and in fact at the time that mr anthony was convicted or instructed that an accomplice could be held liable for acts that were a natural improbable consequence of the intended crime and the government's contended that oregon requires cheerier in unanimity but i think one of the cases i think even cited by the government pipkin establishes that the  concurrence here unanimity issue raised did not even essentially get decided until nine hundred eighty nine and we're dealing here with the one nine hundred seventy seven conviction so we have to look at the law as it existed in one thousand seventy seven i would like to preserve their major michael of my time for a bottle but the court is the question thinking i would question why shouldn't we follow the second circuit reasoning in united states versus burgo or you familiar with i am familiar with that case and look closely at a i have a number of responses first i found it interesting that the court in bordeaux did not consider the question of indivisibility because i look at that statute and i see an overbroad into will step into visible statute but second the statutory language of bordeaux is distinguishable distinguishable because the statutory language specifies that the display or threatened use of a weapon be done in the course of the commission of the crime of robbery thus creating a temporal factual link and it also ties that display to the purposes of the robbery statute and finally e certainly the representation to being armed is a necessary element of property in the second degree and that i think is the significance of the legislature's use of the word and but this legislature did the threat must be accomplished by the threat of being armed or by the representation nor did the legislature specify the representation is the threat of being armed and robbery to the minute ok thank was a violent felony under the a c c and denied the defendant's motion it followed the prescription for analyzing a predicate crime down the line first it looked at the plain language of the statute and i differ with my opponent in this case that somehow the oregon statute in this case is they or confusing it's quite clear there's a core robbery offense in robbery three and in order to commit robbery to section a you have to commit that offense along with the elevating condition that's found in robbery in the second degree section a which is the representation of being armed those two are married there can joint and the district court found that on the basis of the plain language of the statute which says that both those elements have to be committed in the course of the theft that's taking place there is no temporal disconnect and the notion that somehow that representation can happen on a tuesday when the robbery in the third degree as happened on a monday is just silly that doesn't happen with that statute in the plain reading of that statute allows for that conclusion secondarily the district court took a very careful examination of oregon state law and state versus white is an authoritative opinion of the supreme court in oregon that followed  and looked at all of the robbery offenses in oregon gave a historical context to how they were passed by the legislature and what they mean in terms of analyzing them as they elevate from robbery three to robbery two to robbery one in no less than seven places in that opinion the court can joined the threat that's found in the representation of being armed with the core robbery offense at page two fifty fo says threat of violence from a purported weapon in describing that elevating condition counsel just a few minutes ago said to you that the representation element in robbery two doesn't involve a threat and she even said that it doesn't involve a threat of violence and yet the organ supreme court said exactly that not just once but over seven times in the course of its discussion about the robbery offenses it even went so deep as to look at the commentary that had carried with the passage of robbery in the second degree in the other robbery statutes and talked about how section one a is intended to cover the type of robbery in which the actor is in fact unarmed but conveys to the victim the impression that he has a weapon while such a threat may not create any greater risk to the person of the victim it does heighten the terror in the victim's mind and also is persuasive in overcoming resistance to the rob that ties it in not only with the threat that's required in the core robbery offense but it ties it in with the intent that's required for robbery which is the intent to overcome resistance from the taking or to compel delivery of whatever is being taken i could go forward with all the examples that white talks about but as i say there are at least seven sections of pages two fifty four to two fifty eight of that opinion that combine those two elements and treat them as one and they are indeed a single crime when one represents that one is armed in the course of a taking and robbery now parno is actually quite helpful as is quite helpful because parno and counsel has limited parnell's discussion about this and i think it's important to look at the totality of what parnell's is but parnell says that oregon law requires or pournelle says that the law requires a threat of outward expression indication of intention to inflict pain harm or punishment it then talks about what that means it typifies or qualifies it isn't in plod threat to use violent force and in fact it's as if every robbery involved an implied threat of violent force every victim would be placed in fear so i submit that in no place has oregon law placed some real requirement that fear be proven or that fear even be a part of the analysis the subjective or objective view of the victim is irrelevant to oregon law when it comes to robbery in the second degree and so i submit that on the basis of the fact that you have the requirement for immediate force being threatened in the course of the taking and the elevating condition of representing that you are armed with a deadly or dangerous weapon no dispute has been taken with the nature of the particular type of weapon and what that means but it clearly is an implied threat of violent force to the standard of what is required under johnson which would be pain or injury and i submit that parnell's expression of what is involved in a threat is mirrored in the leak case which says exactly the same thing that what is required is an outward expression of a threat so you have no in this circuit you have leave from the organ court of appeals mirroring each other and then you have bordeaux's helpful analysis because this court has never ventured into this particular type of analysis with what this threatened robbery offense actually means for the force clause threat prong but bordeaux did and the connecticut robbery statute that bordeaux was looking at was very similar to oregon's where you have a core robbery offense and in elevating condition and i have to submit before going on with bordeaux that that type of structure of robbery offenses is not unusual our own federal bank robbery statute has a core robbery offense in section a of the bank robbery statute and in section d has an elevating condition of being armed and no one has ever questioned that the armed aspect of that federal bank robbery statute somehow is not can join or a part of the core robbery offense when both of them are committed and i submit that there is no divorce between the core robbery offense in oregon and it's elevating condition in robbery to section so if one looks at bordeaux it's helpful because it analyzes both the force clause issue and the intent is and oregon's statute is even stronger on the issue of intent connecticut statute simply said that it had to be done purposefully well that's pretty easy to conclude is a matter of intent the organ statute express requires intent and the intentional threat has to be made with the elevating condition in order to sustain a conviction for robbery to section and i submit that this is a very strong presentation  of the totality of these cases concluding that the district court in this case got it exactly right when it analyzed both the plain language of the statute but also the surrounding oregon case law that it was required to do i'd like to respond to the tristen argument that was brought up a minute ago this argument was presented for the very first time to this court a few days ago in a twenty eight jail letter i submit that it is a forfeited argument that should not be considered by this court the veld the vivia case that it stems from was decided before the defendant filed his reply brief in this case and there was opportunity for them to address this with the district court previously it did not and to wait until just a few days ago to raise this very new issue which has nothing to do with johnson and involve complicated issues of divisibility of the aid and abet statute i mean talk about making one's head hurt this particular issue is particularly thorny and for this court to be asked to address this within days and with no briefing i submit is procedurally incorrect and should not stand and we asked that the court reject that argument there are other procedures available to the defendant should he want to address that particular argument to the just record in some sort of renewed motion of under two twenty two fifty five course that may not be a sure thing but nevertheless he could try to make that motion but i submit that particular wanted to bring to the court's attention one more point on the aspect of the elevating condition being can join with the core robbery of its counsel in one of her twenty years this week cited two state versus johnson one fifty two pacific third nine sixty two and it patient hundred sixty four of that opinion in discussing the elements of robbery in the second degree it said in order to prove that crime the state had to establish and it talked about the first two elements the core robbery offense and the intentional aspects of it and then in the third component of this it says very clearly defendant represented by words or conduct that he was armed with a deadly weapon to effectuate his intent that analytically from the court of appeals in oregon ties in that elevating condition with the core elements of robbery in the third degree that are required the intentional requirements come from that core offense it's absolutely impossible in the face of that dictate from oregon courts for this court to find that somehow those elements are divorced and could become committed somehow apart from each other to where there's a divorce between the threat of violence and the threat of force and the representation and i submit they are married and they're there together in the course of both analytical statements from the supreme court in white but also the court of appeals and johnson  will go ahead and give two minutes why it is not the authority that the government makes it out to be because white was not presented with the question and whites discussion of the legislative history of the robbery statues was not engaged in with the intention of parsing out the level of force required to satisfy or that must be proven in the course of the commission of a robbery no where in white there's the word conjunction appear and white doesn't differentiate between threatened risk and again what white was presented with was a statutory murder question in my reply brief i cited state versus slaton which is a case that discusses the purpose and focus of the white course analysis at length with respect to deciding the statutory merger question and i'd submit that in discussing the legislative history of the statu a court necessarily is looking at the heartland of cases what did the legislature perhaps focus on but it does it does not look to the outer contours of the offense and that's where we turn to state laws state versus gain side in my opening brief in fact mates that makes that clear with respect to statutory interpretation text and context have primacy legislative history is a secondary consideration so this court looks to state cases what about this johnson case that the government cited at the end of the argument i mean i think that that is a dictum since it certainly has not been followed with respect to any other case and the question presented in johnson the issue on appeal was do i have a lawful claim of right in attempting to commit a theft and the court said no you do not so that dictum does not supersede the holding in lee which limits the intent of the representation and in fact the looking to the fact of the johnson case we have an individual who says i feel like popping off some caps that is not a threat against a person it is not an implied threat against a person it isn't a representation that one is armed it could be accompanied by a show of force or use of force and it could mean i'm going to start shooting at your t v or couch but all that organ requires is that the force itself  applied against a person there is no such requirement with regard to the representation and we've cited a number of cases in which the second prong the aided by another person present is plainly divorced we sighted all over in which again the taishan and the force are plainly divorced and it is the government's burden to show here that the outer contours of the state offense necessarily require a conjunction and necessarily require proof of intent to inflict violent force for the for the crime to qualify under the since the government has not made that showing we ask the court to reverse with respect the government's argument about forfeiture may  wrap it up yes purely legal issue timely raised diligently raised government responded and if the government wishes the government can certainly see briefing or the court can order it but we don't think it's waived you both for your argument these kinds of cases we could go on for hours and hours and hours it's kind of like looking at it as you're painting and trying to figure out what exactly how we did it maybe it's a little harder than that this matter is submitted move on to the final case today