aggravated felony and handsome and a sauced because he has a prior conviction in california for attempted first degree burglary in order to analyze whether or not dab and handsome it should apply we alternately come to eighteen c section sixteen and the ultimate question before the court today is whether say section sixteen b is unconstitutionally bay as a result of the supreme court's recent decision in johnson versus united states when we look to a prior crime we're looking only to the elements and not to facts or the defendant's particular conduct and number two as this court has aligned its sixteen b jurisprudence with the supreme court aca decisions we've identified that ordinarily we've identified that section sixteen b requires the ordinary case analysis in order to understand that provision where we disagree obviously is is the effect that johnson has on the sixteen p analysis and you know in in johnson the supreme court holds that act as residual clause is unconstitutional  whether the first question is how we understand how to assess the risk under sixteen be the answer to that is the ordinary case when we're looking at the ordinary case it's it's really good to step in now assess number one the court has to identify the ordinary case and the supreme court identifies that that work well requires a level of judicial imagination because it's not conduct that's necessarily an element of the part that's and that level of judicial imagination is this is standard less number t we don't know how much risk to identified when we're assessing such and sixteen be the risk assessment is made in relation to that ordinary case so if the ordinary case is itself an indeterminate standard it becomes impossible according to the supreme court to properly assess risk because it's an indeterminate standard in the face of sixteen b requires these same levels of indetermin i'd like to point out that in identifying the quantum of risk in that indeterminacy of how much risk is required there is definitely been a disagreement grey and then seemed to tie it to the enumerated offenses is that right if so where he said the use of the phrase standing alone is not necessarily confusing but then when you tie it to something else like  examples of the types of kinds it wanted to have fall under section sixteen b and so the absence of any example does not make such a broad clause any more determin about the facial vagueness of says section sixteen b and i don't think there's anything in it as you've heard goes that prevents this court from acting in line with the supreme court's decision johnson read i wonder about that clarify that the court is is looking at a decision by the b i n g but ultimately they find section sixteen b is unconstitutional by in line with it is i believe the ninth circuit's case and tomorrow is the only other circuit case that has dealt with this question on point so in terms of what a circuit has done that is the closest analogue given th jurisprudence in sixteen d and its alignment with understanding sixteen b in parallel with as soon as the supreme court started to articulate the ordinary case after james even though johnson is an active case it provides tremendous guidance because the the ordinary case standard that's required by residual clause is the same standard it is is that it is because of that standard that the circuit has identified sixteen be required in order to the case so i think it's a combination of both and i believe your other it does not address the question of vagueness and sixteen so i think the technical answer is that johnson does not expressly over who will lead how just like johnson did not continuing its alliance with the supreme court logic in law that it articulates in johnson in other words leg how doesn't save sixteen be based on the analysis and johnson the second point i would dress a little bit and the descent into my as my understanding finds important the presence of what was struck down in johnson was truly the the residual clause which begins from or otherwise involves for the new array defenses were preserved well we know from the supreme court's precedent in dealing with iraq is that the enumerated offenses were looked to as part of a solution and they could not provide a solution because the residual clause was standardless so not part of the they please the chording council mera blood for the united states is happily in this matter i'd like to just in outline form discuss very quickly what the four compelling reasons on why he is appeal here fails to and then i'll circle back and fill in some content the first is that there is a strong presumption a very strong presumption that statutes are constitutional and he is maintaining the burden to overcome that presumption that's the context for this secondly johnson did not declare sixteen be unconstitutional it didn't over or got lead cow and leg how is actually what controls each of their area and here today they've conceded that matter of elements third johnson did not eliminate the ordinary case method nor the categorical approach in fact it reaffirmed the viability of both and then finally on this court should not rule that sixteen b is unconstitutional because to do so would exceed the proper exercise of its judicial mandate and seriously degrade the doctrine of stare decisis so let me return to my second point which was that  johnson did not declare sixteen be unconstitutional in fact it never mentions sixteen b and it certainly doesn't discuss lay account either so it best me it can only claim that sixteen the court over that the application of johnson to sixteen the can only be an application of the implication that this court can imply from johnson that sixteen  unconstitutional and that raises the specter of the general rule against a court of appeals finding overruling supreme court precedent base but also flies in the face of what the supreme court told listen sure ssion american express case which is that we're not supposed to anticipate what the supreme court might but we look to the law as it's already been decided it exactly your honor and that's a case where the court of appeals was actually right in the court still said no don't do it let us do it  if you look forward to see how other courts are responding to demaio there's been very very little activity and those courts that have looked at it have not it's i think three district courts to date none of them have  applied in any of that from a substantive perspective though i just want to talk about why sixteen b is very different from aca and that really has to do with the comparison of the elements of sixteen  versus the comparison versus those of aca specifically sixteen b has very specific restrictions on the nature of the risk the type of conduct and the period of time in which offense must occur and that places the statute well within the ambit of the due process clause it's also important to note that since two thousand and two and charles this court has held to the those elements to interpret those cases together in the first instance the conduct under said sixteen b is direct it's intentional that's what les account tells us it has to be and why is that because it's the use of physical force which is at issue that is the conduct that we are looking at it is not the deluded causation type of conduct that act the look set which was a circumstance exactly now critically later cal tells us that there's actually although there are not a numerated offenses in sixteen be sixteen which is an elements based analysis which is that they're there the commission of the crime would involve the use attempted use or threatened use of physical force against the property of another so that's elements based and johnson tells us elements based is good that sixteen a informs sixteen b informs the definition of physical force and that is precisely what the johnson court found wanting with regard to the union rated offenses that you really couldn't make heads or tails of them but with sixteen you have this confluence of two separate statutory subsections which give each other content second risk under sixteen is very clearly defined because the risk is soley substantial and this court in the supreme court of had no problem in defining what substantial means substantial is simply defined as a strong probability that the event in this case the application of physical force during the commission of the primal occur contrast this to aca and the residual clause where you had essentially a two step test first you had to determine what was a serious risk and then you had to determine what was a potential risk then you had to put those together that's one of the reasons why the tonsil court says this is just too far another words in johnson language sixteen b does not present a how remote is remote problem and that was one of the things that johnson really pegged its decision to the  next element which is important to look at is time judge you pointed out that sixteen b contains a very specific temporal restriction which speaks to  is that the it has to be the use of physical force has to be during the commission of the crime itself and that's in contrast to the residual clause which as a johnson court noted had to be the causation of physical injury which in and of itself is somewhat difficult to quantify before it could be before during or after the commission of the actual offense it's not truly sixteen b and in length how the supreme court characterized the temporal restriction as bounded by the use of the force against the victim in completing the crime and this court has essentially followed that standard  substantial risk is a phrase that susceptible to some very specific unambiguous definition and then when it goes on the talk of the the physical force against the person telling me what i'm saying is at the precedence of this court and the supreme court have have indicated that they don't have a problem applying the standard that substantial it substantial risk is a standard that very well known to the court and easily applied and that is one of the factors that the johnson court look to we don't have the judicial morass the black hole of of precedent here that you did in in case of a and that's what and that's what makes a difference is that is that it's an easily applied standard that also yields even handed and consistent results even those cases for example judge in each of area or based on later cal's standard and the court doesn't have any problem in applying that i think it's true that you know you can't necessarily say well just because there aren't or are a lot of cases in one direction or another that that somehow that that points to the constitutionality were vagueness of a statute but here what i think we're trying to talk about is the quality of the cases that you don't see the constant readjustment the super tinkering with the standards that you saw with the residual clause and that's what the johnson court really focuses on it says this is just too much to keep we've tried for nine years and we can't make it work in other words it's the government's position here that the supreme court got it right in lay a cow and if it isn't broken don't fix it and then finally brings me to my next question next issue which is about the ordinary case method and in this regard i think the most important part throughout the johnson opinion the court does discuss on several occasions the application of the categorical approach but it's at the very end of the opinion and i don't usually like to read language from but it's very important language and in this is what the court says at the end of jobs and finally the dissent urges us to save the residual clause from vegas by interpreting it to refer to the risk posed by the particular conduct in which the defendant gauged engaged not the risk posed by the ordinary case of the we declined the dissents invitation again at the very very best this leaves me heel with no out except to argue that somehow implication johnson has eliminated the ordinary case method but time and again judge as you pointed out this court as it probably should as it properly should do has said absent a clear directive from the supreme court we are bound by prior precedent and that precedent not only includes like how at the supreme court level but also this court's precedents with regard to the categorical approach  i just wanted to address really quickly just three things that are very very troubling about a mile the first is that it conflates injury with the use of physical force and again and it does exactly what the johnson court says you should do which is to look at the sum of everything all together that's how johnson actually reaches its decision it looks at all of  the elements and it says you know what individually taken in isolation they might not be so bad but when you put them all together it's a nightmare and the opposite has to be true to you can't look at each one of these things in isolation you have to look at how the statute functions as a  whole oh and one last thing i'm sorry to maya doesn't action doesn't jettison the ordinary case method which is exactly what the defense is asking you to do here is to jettison the ordinary case method so i'm not sure that actually in that sense to my really helps them that much finally there's a lot at stake in this case there are over forty federal statutes that are affected by the definition of eighteen u s c sixteen b and you know it doesn't matter whether the application of those statutes is categorical in any one particular case if the statute unconstitutional i unconstitutional and those statutes will be left without any definition for all these reasons if the court has no further questions are the united states asserts that me he has not met his burden to overcome the presumption that this statute is on const that the statute is constitutional and in the absence of any clear ruling by the supreme court and the presence of a leg carol this court should exercise you method and that is a question of this court has not addressed so we do not have process we do not have precedent in this court that would provide that court's decision this court's decision on that question number two there was some discussion about how limited the supreme court made its johnson decision but in the flurry of cases post johnson the supreme court has granted g v ours in cases dealing with just the curfew under guideline and that definition i think it's an excellent question whether or not the guidelines can be themselves determined to be unconstitutionally by whether or not there is even a right to do that the supreme court has gone on to grant a g d r when that's applied under the reasoning of johnson which i think may be some indication that there have written johnson in a way that allows i think it's important to note that to my own limits its decision to sixteen b and how sixteen be applied and it does not go on a hypothetical guessing game of how its decision is going to effect ultimately when the supreme court articulated the ordinary case method in james this court found that this court has found that the language of sixteen b requires the same level of inquiry and engage in the ordinary case enough that it is the heart of a big mess that exists for the residual clause as well as for sixteen be in the government has not been able to point to a case or explain how that type of judicial guessing of what conduct creates the ordinary case creates an objective standard so we do ask that this court continue to follow supreme court precedent in the way that it's a line sixteen be without them and find that by written by requiring the ordinary case method to analyze the language and to understand the language it too lacks a standard