of attempted use or threatened use of physical force and that's a violent force as texas courts have consistently explained for the last several decades and this is another one of those more your kind of cases w and it's three sentences three sentences that mr fennell the lights all three sentences that the rappel with the positions for position the other circuits that didn't account for how in those three sentences it said two important things use physical force is talking about the level of force and as i knowledgeable in the brief in johnson twenty eight the supreme court the couple you know sort of an act of force from the level of common law for the supreme court never said it said both in castleman and johnson our starting point is the common law understanding of what it means to use force now in johnson they said for act that it requires something more than offensive touching which would be the common law you know including the common law understanding it's that means something more than offensive touching instead johnson what they said is is that level of force sufficient to cause physical pain or bo court handed down its ruling on the i c c a what what's going on with that that they did we're not giving the district court you have these arguments that are very scholarly and you're not giving the district court an opportunity to consider them in a timely manner i would point out it's explicit reservation of the issue in castle and would lead some to wonder but then voice scene which was decided two months after these objections began voice seen close the loop on that and it was when castle  invoicing together explained that under the common law meaning there that intentionally knowingly and recklessly causing bodily injury requires the use of force once that completion had been made the government did bring that to the court's attention and it did so absolutely it would have been fantastic if the government had brought that to the court's attention you know within a week or two of the decision but it was well before the second circuit spoke on the issue until the eighth circuit spoke on the issue of rights which were some of the beginning and it was prior to the courts since the court had considered it the court did consider that in fact once castle invoicing were brought up the court said i've already considered that that's part of your assault argument i've already dismissed it yet still heard the government out heard the government and said no i still agree with my initial ruling that far just  control in this situation and we have this prior existing case law to the contrary of your case how would you craft a decision analogy to the different points made by the cases and under our rule of order mary's only an unequivocal change in the law not a mere hint abrogates our decisions and so that's circuit which has since changed positions we think there's a difference between using force and causing injury the supreme court said no there's not enough yes or mandas said we think poison isn't using indirect use it doesn't count and a castle in the supreme court said it does and i think the best indicator that that analysis applies to aca is in that same paragraph or the supreme court was rejecting this notion that indirect force doesn't count but did they use as a hype as a as an example that said look at the indirect use doesn't count than that would mean someone would just say that pulling the trigger of the gun doesn't count as use of force because it's not the trigger it's actually the bullet  that caused the injury to me that is a prime example of how the court saying it applies an act because never would we say that congress intended shooting a gun or poisoning somebody that's domestically violent but it's not generically that's not what we think of as fun but texas courts have to have interpreted that robbery statute to require only minimum of physical contacts in contrast to curtis johnson for twisting struggle to use the courts language a twisting struggle as a man was trying to take a woman's purse and she had a bruise she felt pain the the court of criminal appeal said we may you know kind of  about whether this bruises and or what have you but don't lose sight of what texas robbery is it requires violence it is by nature a violent offense is that the main error of the district court in your view i believe that is one of the fundamental errors when when the court rejected the government's position it said look this pointed at lane and said this minor bruise won't do it the district court did not read johnson as saying a minor bruise would bruise would be sufficient i would disagree with that johnson says it's more than offensive touching it is enough to cause physical i'm sorry physical pain or bodily injury but what the court i think the district court missed was lane's discussion of let's don't lose sight by by arguing about the different gradations of injury and less recall that what this is a violent offense and the necessary ingredient to circle back to to where i started a necessary ingredient of this offense is that it has to have violence and that violence it can't just have free floating violence it has to have violence that is used for the purpose of either preventing or overcoming victim's resistance to that and for that reason yes texas robbery is a violent felony mckay i feel your pain that the district judge worked on when to a great deal of written to help you out with a c c a violations and it just gives makes your job difficult oh how can you tell me again you don't know you just told judge iraq how did the district judge missed it how did he miss it to take a case in the district courts very carefully considered view warranted a fifty eight months in advance and force the court to impose a fifteen year minimum so the rule of limited would certainly apply to those three reasons the law would have to be absolutely clear and i submit i think without much controversy it's not clear iran and these are difficult questions and i'd like to start off with the first reason that the rule of orderliness judge all right in the previous argument which will be on the recording what we have here what we have is castleman which is the one of the government relies on to abolish the distinction between causing injury and using force castleman says we're not talking about the armed career criminal  so volume one thirty four the supreme court reporter ages fourteen to fourteen thirteen in the government you could be ripped out of the book like the scene at the beginning of dead poets society just tear it out don't pay attention to that and instead adopt this court's precedent because the supreme court said we're not ruling on that question now my second point was that the government forfeited this issue the government did not raise the casimir point until after the district court had written a seven or eight page opinion on the question i'd like to direct the court to page to fifty of the record this was after the three hour sentencing hearing what we call the second hearing stupid for the record the court says if there is any further authority on the arm for criminal no we can't keep it in the court says i'm going to order stuff in the briefing any further authority on the arm career criminal act give it to me by the deadline and then the court extended the deadline at our joint request because it was a very busy time and break extended to july twenty second so even after washington has decided extending the deadline to july twenty second and there's not one mention of either of these points in the briefing instead the government's argument was then as it was throughout the court proceedings robber somehow different than assault and as we pointed out they were basically relying on the old pre one nine hundred seventy four texas case law that argue it's wrong i'm happy to talk about why it's wrong that was the argument below and the district court itself recognized it because when open up in these that the president and the district court recognized immediately no no no no no we've been over this right this was not an example of the just report was rushing through nor was an example where the government attempted to show good cause just what rule recognized that domestic violence nine twenty nine is a different definition the norm for a criminal act so it wouldn't have anything to say about aca for whatever reason it wasn't raised until the court ruled on this court has said time and time again that a district judge has to have but there's a dual role in this is this is out of time and it's wrong that you would not be doing service to the district judge but your record reveals his concern that no one comes up to defend his decision of the fifth circuit dug up a different direction right he says that a couple of times in the record you're not doing service to him if you say you recognize that was untimely but we're going to treat it as though it was just so we have to we have to get over that hurdle if we want to address that that's that is a hurdle right under the man timely is something you have to does not overrule or precedent castleman is different than what we call the washing rule on the issue of recklessness we preserve that in our briefing i'm going to confess this is a real tough issue figuring out the mental states in which it recklessness is about to strangling us and ours and recklessness about the injury here we have a very general sort of recklessness an offense you could commit by recklessly fleeing in a car from the robbery right if someone is injured during that i say that's not enough to be use of force but again it's certainly not clearly tasted it is the government would have to have clarity and they don't have that here so do we have to apply plain error for the government to win yes you're right and do we have to choose to use our pro know we would still retain the discretion and while i have to ask the government that on back that that we would have discretion if it was you know comports with our i don't see that that's really brief absolutely your honor mr howell was convicted of an offense that requires you to strangle your girlfriend salie right or choke her now i'm using ginger terms there i mean no offense to anybody but that's the way we typically imagine this this is someone with a prior conviction for domestic violence who injures a family member by either choking or strangling and blocking the you know the the arteries or the airway right that's the force in how ok i'm actually asking you was argued that rico in the here is not really good law in our circuit as to this these points because somehow it's running afoul of the prior precedent in right does reckless does the presence of a reckless state of mind the use of force that's something that's never really been clear it's something we've argued about before it was assumed for a while i will confess that you know we can fall twenty eight days in the last two weeks opinions are coming out in different directions on recklessness how will if anything speaks to that recklessness issue that is entirely separate from the issue of causation of injury for many many whatever mental  have versus the use of force right voicing says nothing about that how it doesn't have to say anything about that because again the activity the force there is in the elements so how will have an internal conflict with even if it's in a different situation no your honor doesn't the government is going to have to argue that castle and was seen are one of the same if one applies across the board the other one applies across the board and so how is application of washington's rule somehow means that you are also forced to let castleman move beyond it that's just wrong that's just not right now there are some fairly persuasive arguments right which might suggest that recklessness alone doesn't count for purposes of the armed career criminal act and that is an argument we've raised here but i don't think you even have to consider the recklessness issue here because what you have is the i guess or not has to rand you've got rico you've got your honour's no this is a difficult area you can see that the district court saying give me some precedent i don't want to get it wrong this is hard if you look at the threatening cases the terroristic threat in cases we think better rules like to rand that gets applied in vegas fernandez which is on the assault statute right it's an assault of a peace officer it's exactly the same primary conduct as the bodily injury form of robbery so you cannot distinguish the two of them would we be creating a circuit split or does the circuit split already exist if we reach it if we reach new if we decided that it was time bar or if we decided problem for wasn't thing we wouldn't create which is you know going back to the ok well then it's not use of force and so that case is you know states versus fields and i can get your citations that are twenty a j and the government has pointed out very helpful you told them about you're not that i'm not the presiding judge here but i would say that to the extent you're being a mentor today it's very important if you're going to sign a new case you tell the other side who's sitting at the table when you run a few just happen don't think we're going to talk about what different circuits did because the fifth circuit was just so clear so if we were having this discussion with everyone here in the on bank court then maybe we could talk about where the other circuits are but i do want to say in response to the question of which is there a circuit split probably i career criminal act but if the if there is a split on that point that split is already established by fifth circuit precedent this court has already always been stronger than the other circuits on this distinction between the causation of injury indirect causation is called and the use of force probably because texas defines its assault of offenses in such a strange way so judge jolly he started off the argument talking about what people on the street think of as robbery and is that violent and the typical situation maybe it is that's united states versus davis right in the residual if we if we're going on gut instinct our gut instinct would be yeah this is a violent felony but the residual clause been struck down we're now limited to the elements of the offense and texas defines its elements in a very strange way and this is the other case that i mentioned i did provide this to opposing counsel this morning i just found this case late late last night power versus state three three three southwest third one thirty seven he has had the opportunity really review it became a copy this morning so we'll do the twenty eight days but in howard the robbery was a convenience store owner was in the back room sees the defendant come in on the video screen it was an aggravated robbery case because he had a gun he had a mas an opportunity to respond and as i say we will your honor we're going to do it this week as soon as we can to give him a chance to respond to it but i didn't we have also got the situation can call our attention to within to argue the facts from your point of view when he hasn't had because the bank robbery case the taking of the property has to be by intimidation in other words it's the key of them locks the door that was also the order to government made throughout the proceedings below until the district court ruled robberies different tha been held posts johnson to no longer be violent felonies there they're different in texas and so again if we're looking at the elements compare elements to definition it's just not there certainly not there that's clearly  said otherwise because first how will we look to castleman for the answer they are in that texas assault statute not finding the answer there then it turn to that companion voice scene and i understand that superficially  counsel would like us to draw a line and say castle and only goes this far boys seem goes much further superficially that's attractive but i have spent a considerable amount of time trying to think of the intellectual gerrymandering that would have to go to say congress intended because keep in mind what we're doing here is trying to figure out what congress intended when they said using force congress intended recklessly using force explained to avoid invoicing that applies but intentionally and knowingly using force no no that's that only applies in domestic violence that's not true and  can point the court to this example of shooting a gun and poisoning in no room you know reasonable interpretation would we say that poisoning shooting a gun that's domestically violent as the court was explaining and castle and but that's not really generically violent no it's violent and as texas courts have said robbery is a violent offense that is the problem there you're trying to put common sense onto our competing rulings and we're just trying to figure out what exactly are the proof previous ruling say you're trying to overlay some sort of logical answer and we're just looking for what does the thing say i don't think that we suspend logic and robbers felony assailants murderers people who cause injury are they the people that the congress intended to capture in aca absolutely or you've got two other problems mr mckay timel that the district court found against you and also prong fooler perhaps i find the finding on the court's part the court absolutely expressing frustration and i understand it in this rapidly evolving environment but never have i seen in the briefing is replete on both sides with plain error cases are cases where the court was asked to apply plain error and never have i seen one in which the the district court was more thoroughly presented with an argument minor essence of it that is in robbery using force and causing bodily injury are synonymous that was said from the very beginning or the finer points of it cashman invoicing presented they were presented to the court and again reiterate that the courts that i've already considered that i've already ruled on that you're not telling me anything new by saying castleman invoice seen yet even then the court entertained that argument and said no it doesn't change my mind but you're your fifty eight seconds absolutely your honor to say that that this doesn't call into question the fairness of the proceedings the or the  that the court would simply say yeah it's wrong but we're just going to look the other way is to say to this community community in mosquito x s where mr fennell got drunk shot off a gun this isn't just a car stop or a guy had a gun and he should have had this is a man who got drunk took his wife's into the front yard of his neighbor's house knocked on the door first and made you know references to shock chicago murders or something like that then stood in the front yard and fired off at least five rounds to say that that community isn't to be sorry but where this court has said look all the other circuits are uniform on this and all the other circuits are uniform and saying castle went after castle and there is no distinction that's us you got on that it's claim it's seems very complicated not