conviction the statute is not categorically a crime of violence as defined in the illegal re entry guideline because under nevada law the element of physical force is overbroad and indivisible and the government cannot satisfy taylor's demand for certainty and showing that subsection one c is an alternative element as opposed to a means of commission but even if this court proceeds to the modified categorical approach the government still cannot show that mr mcgowan marianna was necessarily convicted of subsection one c the only qualifying subsection according to the government because the crux of that offense intimidation appears nowhere in the use attempted use or threatened use of physical force against the person of another and they answer here is no i think at the broadest level we know from hobbes and byers which are two nevada supreme court cases related we also rely on the structure itself of the coercion statute so the way the course in statute is set out you can have a misdemeanor coersion that includes no physical force but includes violence but you can also have a felony version of coercion which requires both physical force and violence and so argument based on the text of the statute is that physical force is an element separate and apart from the term violence and so in order for those terms to have different violence without force i don't as i just don't understand that well your honor i think as i said an example is not really coming to mind but i think that even if this court isn't agreeing that the term physical force as used in the coercion statute that force is something less than violence right correct and but still in the misdemeanor you can be convicted of the higher higher crime would say violence misdemeanors so if one a for example were to be committed as a misdemeanor that would mean that there would be violence in inflicting injury upon another person one a but because it's also a misdemeanor under to be have force without violence and the reason i was pointing to the text is that's one way to get there but we don't have state court cases from nevada interpreting the coersion statute saying you can have force without violence so that's why it's an open question and so that's why the best we can get you is the nevada battery statute which also uses the term force and says that under nevada law force encompasses only de minimus for such a spitting on another person or simply any kind of non harmful contact with another person so our position is that under nevada canons of construction because the terms there was a so i mean the natural progression of that argument so that the nevada supreme court would define force under the statute of conviction but they looked at related they looked at cases looking at related state statutes that shared a common link a common statutory term and said that was sufficient to satisfy duenas alvarez's realistic probability requirement if this court concludes however that physical force and violence mean the same thing you still have to ask whether under the course in statute physical force is force that's directed against a person as opposed to property because that's a distinction that matters under the guidelines definition of a crime of violence the government concedes it only section one see involves force against a person as opposed to just property and if that is an actual element the record of conviction documents here make no reference to subsection one see whatsoever there is no indication in either count of the amended information that mr miguel marianna was charged with or convicted of intimidation which is the crux of the illegal act under section one  i see that i'm out of time i'm happy to answer any of the court's questions that remain it please the court daniels up on behalf of the united states your honor is the the word physical force or threat of physical force appears both in the nevada coercion statute and in the definition of crime of violence under two hundred one point two of the guidelines as a result the only way that the appellant can show that physical force under nevada law means something different or something broader than the federal definition under when it's alvarez and if he can point to a specific nevada state  viruses it's pretty clear that you have to have to show a specific state court case that's applied that language in the specific non generic fashion that recorded as interpreted the same in another statute as meaning the opposite of what you'd like to think that's not very confusing you're on that point i think you may have an argument that it shouldn't be given the same that you if force equates with violence there would be no need to have more violence added immediately after it and the statute that language simply doesn't appear in the coercion saturated simply says physical force  addition the language in hobbs relates to the misdemeanor battery language in hobbs he was convicted of a felony battery based on his prior domestic violence convictions but that that's a misdemeanor language and the court in hobbs specifically noted that in the punishment section of the statute the court in the statute includes sort of higher levels of violence that would lead to higher punishments so chilly here in the the language of the physical force or threat of physical force appears in the punishment section of the statute if the defendant or opponents argument is correct that physical force in this context context means seminal touching or spin or something at the very low end of the battery range then it wouldn't make any sense of the that a supreme court would draw the line between felony and misdemeanor based on a femoral touching  statute is that physical force in this context includes some level of violence and the term has the same ordinary meaning that it does under the federal definition are you aware of any other cases where this is on appeal where the same issue is raised not your honor i think i don't remember the case and this court recently issued an unpublished even if the court agrees with us and finds that physical force does equate with some level of violence it would still need to find that the subsections of the statute are divisible it's our position that under the mattress analysis i'd like to address the government's points about the matheson analysis so mathis asked us to go through a three step framework to determine whether subsections one a one b n one c or means or elements in the first question is to see if there's any decisive controlling state court decisions that answer that question and the nevada supreme court simply hasn't issued a published decision saying that one a one b and one c are means versus elements and so i don't think that that first step of math this really is the threshold question of means or elements likewise the structure of the statute doesn't indicate on its face watch things must be charged and therefore water elements it also the mere fact that the subsections in one a one b in one c or separately in numerated also doesn't answer the question of whether those things are means or elements that's something the supreme court rejected outright matheson pointed to a shadow arizona discipline and so lastly we do what we call the peak of the record of conviction documents and those documents don't show that one c is actually an element because there's simply no reference to one c in either the guilty plea agreement in the amended information or in the judgement and so given that entire three step process the government simply can't satisfy taylor's demand for certainty and showing that subsection one c is actually an element as opposed to a means and for that reason we would ask the court to vacat