good morning may please the court my name is mary jean chan and i represent the united states in this appeal i plan to reserve two minutes for bottle under this court's post speckles case law chavez quit us they were gone and johnson california robbery in violation of california penal code section two eleven remains categorically a crime of violence under section four b one point two of the sentencing guidelines so this court should remand for re sentencing and under section ninety eight is not relevant to re sentencing because under the analysis that this court engaged in in the recent case u s versus at kins the relevant portions of amendment seven ninety eight that is the deletion of the residual cla as well as the narrowing of the definition of that condition of extortion are both substantive amendments that are not clarifying and therefore not retroactive has been directly deal with with the extortion no it didn't your honor it does deal with the deletion of the residual clause but i think the analysis is instructive this court as it did in morgan and in other cases looks primarily at three factors to determine whether a portion of the men meant is retroactive or or not the first factor is whether the commission the sentencing commission lists it as a retroactive amendment in this case the same analysis applies to both because that the sentencing commission did not list amendment seven ninety eight any portion of it as a retroactive amendment the second factor is whether the commission talked about it as a clarifying amendment it didn't talk about it in the context of the residual clause nor did it do so in the context of narrowing extortion definition in fact the words that the commission used in the reasons for the amendment are pretty clear they say that we're going to add a definition we're going to narrow the definition and those are all signal substantive changes not just a clarification of something that you know maybe there have were two positions about what extortion meant and and the commission is going to explain which one of those is clocked you on and when if it's not retroactive and you don't have to go to your second level of argument is that correct where is and where is nichols is a different situation because a different timing wise occurred at a different time that's exactly right so if it's not retroactive in this case then what it means doesn't really matter to mr banks and of course we think that it means that the extortion has been shaved off a bit not gutted as the defense would sort of argue and and so either even if it did apply it wouldn't make a difference in mr bangs tin's case because california robbery even under the amended definition of extortion still under basara lopez qualifies as a crime of violence but we don't have to so do you think we should take into consideration that this was an amendment to the commentary rather than the guideline itself is that significant well it wasn't an amendment to the the commentary right so the deaf it is the amendment to come in terry your honor at the the amendment as a whole moved extortion from the commentary from the commentary portion of it to the guideline portion of it so that to clarify because there was debate as as was clear in this particular case that because extortion was listed in the commentary or robbery was listed in the commenter i'm sorry that robbery and other i'm sorry i'm wrong let me take that back you're right your honor it was merely an amendment to the commentary and not right so the amendment is is pretty broad it does have different segments and you're right your honor to say that just because atkins deals with the residual clause we shouldn't automatically assume that that pertains to every single part of the and then meant but judge well if you're correct that the amendment here is really just to the definition of extortion and in some ways it is and should be given slighter weight but the amendment the third factor that the court discussed in atkins and in their cases was whether the amendment resolves some sort of circuits that and if it does then it tends to show that there was a clarification in this case it wasn't doing so there was no circuits put delo was the law of the land and it said under the supreme court precedent what the extortion was it included threats obtaining of property by threats to non tangible property that was not really disputed and what the sentencing commission did was to shave that part of the whether or not i don't think we've made the decision in our circuit on that issue but i would just want to know is that significant as far as how we should come out of this case no so your honor i think that we're not talking about this sort of the amendment aspect of the case we're talking about the fact that extortion robbery is listed in the commentary in my understanding your question correctly no it shouldn't it should make a difference because the guidelines the definition of what a crime of violence is flip between what's in the guideline portion and what's in the commentary stinson says very clearly that the commentary part of the definition has binding effect as long as it's not contrary to to a statute or the guideline in this case my suggestion is that we hear from the other side because we have really heard their argument today as a kind of a backwards case in a way so if you so i do acknowledge that i can see as a holding at this time that the removal of the residual clause is a substantive change there are some moving pieces in that one of them is the failure to sort of recognize the issue in judge who has dissent about whether or not you can in fact apply the residual clause even if it remains in the guideline and not commit procedural error that raises some other issues with some of the precedent that has come down and i can also remains although it is currently published at the time for appeal of our e p has not passed and i construed have to consider that issue on supplemental briefing it wasn't initially raised by the part relevant on the issue of retroactivity art would you agree that it has yes it is relevant your honor it speaks directly to the residual clause i do want to and i'm asking as to retroactivity as to the issue of retroactivity because if if it would seem to me that your client's in a slightly different position than the other individual because if in terms of timing and if it's not retroactive and you're under prior to any changes then that that could sink your ship right there you're going to be a different result in your case that an eccles if depending on the retroactivity issue yes that is certainly true the retroactivity issue is presented in our case mr banks  sentenced under twenty fifteen guidelines mr nichols was not he was sentenced under the twenty sixteen guidelines so regardless of the outcome and i can see i'm sure mr for corey from our office will address that more directly as well the retroactivity as presented in our case not in the nichols case retroactive so the residual clause remains in the guideline on a recent saying then that it's a procedural error to apply the residual clause because the case law that you have to rely on fundamentally routes out of james and the a c c a case law which the supreme court has overruled and so even if the guideline remains you then only would have to ignore it and then only address whether or not better lopez remains good law with the new extortion definition which we would submit it does thousand and fifteen why are we looking at a new extortion definition for a somebody almost zero a sentence before the know the definition came into a fat i understand and i'm sorry i was confused so we do have the issue that thirty seven forty two instructs the district court to apply the guidelines at the time of the original sentencing now the twenty fifteen guidelines direct the district court to apply the guidelines in place on the date of sentencing so we would raise that issue in the district court but your honor is correct that if under if we have to go back and do the analysis under the twenty one the twenty fifteen guidelines then we would have the old definition of extortion and that would be problematic which is why the question despite is that natural human that is it comes in two parts which i think is where i'm confusing the court the amendment seven ninety eight has both the removal of the residual cla and the narrowing of the extortion definition and as indicates the different parts of the amendment can function retroactively in different ways the issue that you're really confusing me i'm trying to get you to understand and fifteen guidelines if we can both close down the residual clause and say it's procedural error to apply this but because the narrowing of the extortion definition is retroactive on appeal we should be able to take advantage of this so this court should say it is procedural error to apply the residual clause and amendment seven ninety eight is retroactive i see you're not arguing the first independently of the second ok so you're right that is what would have to happen in our case under the twenty fifteen guidelines for us to avoid the error issue and in light of recent case law i read knowledge that is more difficult for us to do and why the atkins in light of actions yes  i know that you know your case but it i feel like judge i once in one of his concurrence is talking about how everything there is no common sense and people listening out there in terms of where we've gotten with all of this is the theater of the absurd in terms of to try to i think it will be soon when murder is not a crime of violence somehow under the case law and i think that that would probably the supreme court would probably say murder still is a crime of violence but everything else seems now up in the air certainly your honor is right there have been a number of judges who expressed frustration with the categorical approach and with the results that we see i do want to put in sort of a positive plug for the kind of oracle approach which is that i think he says like two eleven particularly is bringing these issues up but in a way that really two eleven is unique it's a state statute that subsumes a very significant amount of conduct which we don't necessarily see another state robbery statute and so this is part of the ongoing long fight that's been happening about the extent to which two eleven covers a really wide range of conduct and in part through the interpretation of the state court but the categorical approach does give us a very straightforward consistent way to deal with a really difficult problem which is how do we take the whole universe of state case law and state offenses which have different names different the supreme court's recent decision on this issue and really directs all of us to look to the colloquy in district court so the record that a district judge makes to justify its decision and that when a district judge clearly considers two different potential guidelines ranges and then fashions a sentence and discusses at length reasons for that sentence but it wasn't just a case where the judge said expressed a fair amount of frustration about not being able to use the that would seem to be a pretty good indicator that the district court would give a different satins but for the disc of the court's interpretation stuff we think the just a court throng here it would seem that the district court should get a crack at doing it under the correct case law now maybe you could get the same sentence but there certainly seems to be a little bit of an indication that the district court would have given a different stance if i'm going to run out of time but i just want to briefly respond i think what matters here is the way the district court talked about her disagreement so if she had said something to the effect of well i think this is ridiculous but i'm stuck with this so i have to do this that would likely be the right result i think where you actually see in i disagree and i think the sentencing commission is going to fix this so while i have to calculate this guidelines range in this way i'm going to give a sentence that i think is appropriate in light of my disagreement about the way this is being treated and particularly in light of his history and the facts of his offense here so where we could have gone over the guidelines but she didn't she could have but she didn't she strongly indicated though that she had this disagreement she acknowledged the other guidelines range and that this was the sentence that was appropriate for mr banks and given his offense and his history and i think that puts this in that narrow range of cases where even an error in calculating the guidelines range doesn't necessity to remember ok your time is ok so i think that they i just want to clarify that there are two bases by which california robbery qualifies the crime of violence the first one is under the basara lopez line of cases in which it is under the  the combination of the enumeration of robbery and the enumeration of extortion that make it a crime of violence it has nothing to do with the residual clause that line of cases has been attacked by the defense for as be one of the enumerated offenses and the language for the reason of the amendment states as always these crimes are part of the enumerated offenses we delete the residual clause but we are not doing any violence to the new read it person's presence by means of force or putting in fear your interpretation of the twenty sixteen amendment to the definition of extortion seems to be materially indistinguishable from generic robbery is ext distinguishable from cuban air robbery if not why would the sentencing commission include both in the end numerated offenses so i think my colleague will be talking about this more in the next case but it's distinguishable because robbery generically requires harm to the person so also it requires a physical presence right that's the biggest reason and immediacy it does it requires all those who have a story was out you know writing somebody a lopez they essentially say that given that you have to get the extortion given extortion requires sort of it's there's also sort of the willingness of giving it up because the inducement has to be by willingness and  don't really understand because it's not really consent i mean it's no but it's you know here is consent and standing next to somebody and say give it to me or i'm going to shoot you or or i write you a letter i give it to me or i'm going to shoot you tomorrow what with this point but the point being that there are many reasons why you might say that they don't are totally closed but this court has through its line of cases basically closed that daylight and said that that to the extent that robbery generic robbery in close to daylight they said if you take one and two  then you get three california robbery but didn't say that you could do without one and two right so it's saying that essentially that because generic extortion is what are was listed in the commentary i'm sorry not in the commentary in the guidelines that that covers anything but generic robbery doesn't for purposes of california robbery so that's been pretty well established there it's really foreclose stack and then you said something i think commentary and i think this is a good point but judge also said i don't understand what you meant i mean for b one point two so as to term crime of violence means any offense and it has one which is  extent that they need the force clause or the residual clause or also crimes of violence and then in two thousand and sixteen your argument is that somehow you have this crime of violence definition attached you know subsection a for b one point you know that it's and attach but doesn't have robbery and you're saying but it does have robbery correct and i think if you look at the barrack on the case really a non non if the court is a company or by that the residual clause i don't be a stand son in that i don't buy it i don't understand what you're saying was saying that the list is partially enumerated in the guideline and partially expanded upon in the commentary and that if you look at amendment seven ninety eight it states that that collective list if you look at the guideline list as well as the commentary list collectively so the fact that it was a new read in the commentary and if that was the hook or the textual hook of it that doesn't go away because under beccles the residual clause is fine and even if you consider that big despite what bekele says the fact that it's under either the residual clause basis or under the new rated offenses basis both robbery and extortion were a numerated and then there's the second argument the government makes which is that under prince that extortion and the residual clause freestanding also serve as a basis for finding that california robbery is a crime of violence ok thank you very much let me ask for a little interesting argument a complicated case we will go on to its friend and relation united states