morning runners if it please the court my name is michael donahoe i work for the federal defender's office on here in behalf of mr lawrence i can say as a general matter these cases pretty much make my head hurt and sometime just i don't know i've been working with this for a long long time and sometimes i think i understand it and sometimes i don't but i think this is a pretty straightforward application of the categorical rules especially insofar as those rules have been articulated by the supreme court in the last several years here i'm discussing just in a general way the mathis rule so we have the over breath point which i really don't think i have to discuss it's squarely set forth in the brief but i think the center of gravity hears really the divisibility indivisibility i don't want to overly complicate this but i feel like i need to say this i think it i need to get this out of my head the force require many if this is an enumerated defense which i don't think it is but assuming they made that argument which i don't think they did  the force requirement for the robbery itself arises and exists in the third degree statute which has already been declared and not consistent with johnson so i'm just hoping that that makes sense in other words because we move up the scale from three to two to one we don't draft in or incorporate or substitute the force requirement that seems to appear in the first degree statute for the force requirement that's necessary in the third degree statute they're not interchangeable things and i'm speaking at a level  might almost sound silly but it seems to me that that's a very very important point in some respects so let's move on to the divisibility and i am nice about that because i i find this we have two cases involving this or robbery statute today and it's very confusing to me because robbery of the third degree to prove that the prosecution has to show that the person used or threatened the immediate use of physical force upon another person with a certain intent or then burst agree requires that the person violate the third degree statute car rape and then it says and the person and it has these other and he had a deadly weapon or he had and assuming these are in the distant right and i correct in that i think they're in but it can as an enumerated offense in theory i think i could go along with the general proposition that it might be because the additional requirements circumstances factors that are set forth in robbery one  talk about force in other words what's let me focus on divisibility indivisibility all right i think i can concede that if we're talking about the visibility as between third degree robbery which is incorporated into first degree robbery we could concede that those two things are divisible aren't so stricklin resolves the third degree aspect of the force requirement we're done with that so then it is is it divisible robbery want it self the factors one a through c and they're not because under mathis it says follow the state law and the edwards case from the court of appeals in oregon in the year two thousand says these are means of committing a single crime and that articulation of that rule ends this discussion there is no need to go any farther you know try as we might i don't think you can say categorically that those factors in robbery one are independent elements they aren't they don't carry different penalties they may appear to be broken down but that edward's decision clearly says that there are means there not elements judge or logical make sure you can still see us ok of thinking about this and i'll hazard this hypothetical you let's assume just for sake of discussion that the modified tentacled approach they say it does apply and you're going to use some kind of documentation to say that these factors you can see specifically what the person may have been held responsible for in the list right well that can't be right because edwards says that there are means of a single crime just because a prosecutor cherry picked out something that was very specific to an individual case doesn't change that rule it doesn't mean that we're going to make some kind of factual analysis of what happened in the  case and in any case the government never proved even under the modified categorical approach in this case that he was convicted of robbery one castle me ask you this obviously you want us to hold you think the laws clearly should win and i appreciate that but as you've also acknowledged these cases make your head hurt and i think everyone's head hurt would there be any utility in seeking help from the organ supreme court on notice i only you know i kind of do your honor you're going to ask me that question why no i respectfully submit that that would not be an appropriate thing in this instance and why not i've had cases certified in some circumstances i can't say i'm an expert in when that process should be employed certainly that's a question for the court but the reason that it shouldn't be in this case is because the edwards case in the court of appeals of oregon has clearly said these are means not elements discussion over mathis says we have a rule mathis says if the state court has weighed in and this and the state court has weighed in here i e you can go on and talk about that white case all day long i really don't care about the merger analysis the murder analysis that they prime bring and incorporate into this discussion simple fact is is that the court of appeals interprets white and says the first degree robbery there means not elements so crimes and what the jury instructions are on unanimity in that sort would you agree with that well i think i can agree here are insofar as it's a question of federal law if the people's court has indeed addressed the question and they have specifically in that edwards case which i set out in the blue brief i think the discussion terminates thank your hono of section four b one point two the definition of crime of violence i think probably the more straightforward analysis here is the analysis under the numerated clause although i would add that the fact that mr lawrence was convicted of the aggravated crime of first robbery with a firearm which the oregon supreme court in a place called flores makes clear is a new crime  that includes the element of use of a firearm during the commission of the robbery i don't think the court needs to undertake divisibility analysis of the elements of robbery one the fact there is that new new crime that definitely has and b one point too and this court has defined generic robbery as a crime containing at least the elements of misappropriation of property under the circumstances involving immediate danger to the person oregon robbery even looking at just the basic elements of robbery three satisfies those those elements it requires misappropriation of property in the form of theft or on authorized use of vehicle and it requires circumstances involving immediate danger to the person in the form of a threat of immediate use of physical force upon another person this court has been clear in the united states versus  that the use of force required to meet generic robbery is not the same does not require violent use of force under johnson that's absolutely clear if the analysis of whether or not the issue briefly not only did the united states not waive this issue both progs were identified by by the united states at page one twenty seven the record in the in the states or the united states memo and even more clearly in the reply brief at page ninety six of the record so i don't think there's any problem with waiver and even if there had been strickland is it is the change in law it would be appropriate for this court to address i the first instance unless the court has any further questions with respect to the numerate clause will move on to force clause and again here as i mentioned because this court has made discharge of a firearm under this court's case law the threat of the you use of a deadly or dangerous weapon in the course of making a threat is crime of violence that's clear from the view blasio scase which i know judge jones was was a member of the panel of it's clear from juvenile female camacho crews and specifically that that would that still would qualify under federal law the federal bank robbery statute involved in operable firearm but was still found to be a crime of violence but in this case we anyway i don't have that in front of me but it is it isn't in our brief that i think here in order to meet the underlying elements of robbery one under the he would have to have shown that it was it was i'm happy to talk about the divisibility analysis of first rule every if the court wants to hear my question about certification my answer would be that we don't have to do that in this case because of the flores case which makes clear that that when you when it is charged pled and proved that the individual used the firearm there isn't any need to undertake the divisibility analysis of robbery one because it doesn't matter which of the three aggravating factors and robbery one were were met the additional element we know that the jury had to have convicted  lawrence of using a firearm during the course of threatening the immediate use of physical force upon another person and so i think that law is clear and this court can say for another day the is because we have to be careful these cases we don't look to the facts and ignore what was charged you're saying because we as a matter of law it had to be proven it had yes absolutely it had to be proven that he used a fire m during the commission of the robbery and so so that that element is sufficient to show that the force clause is met and of course i also also  would like you to respond to what he just said about the nature of this charge and why divisibility at least warn him is not an issue well because we never get to those documents and i don't want to get lost in the weeds on the fact that they never proved it up with the papers that they submitted the inconsistency between the charging document that they submitted in the judgment they submitted there's no rhyme or reason to that so i  want to make that factual point on the enumerated clause they never argued that in the district court below they're arguing it here and you can see that in their papers but if you look at the sentencing record that enumerated argument does not appear the way it does up here so they waived it and the case turns on whether robbery one is divisible or not and it is not divisible under edwards so this court's decision in part now that says just mere possession of a deadly weapon it's even concealed can carry the day if it's not divisible the analysis since the modified categorical approach doesn't apply and the case is over there's no need for certification thank you thank you thank you both for your argument briefing in this head smashing case would we get these sometimes these one submitted will move on to another for those in the audience who are in the law school here's another cases similar to the first one united series versus an canny