police the court counsel brian spears and janet eastward for the appellate court go to the three robberies that issue in this case occurred at nearly the same time and in nearly the same location and involve multiple coconspirators these two robberies we submit constitute one criminal episode as a result there are just two not three qualifying felonies under the arm career criminal act and the mandatory fifteen year sentence does not apply in this case that's the issue in this appeal standard is not how close they are temporally except in so far as that bears whether they're distinct acts and whether the defending could have basically stopped and it seems to me you have a tough argument there because you can hardly say that he could be he had to go from one location to the next if you are a police and the concern is you've got three people standing in front of you you all of them at once and that's that's viewed as one act but where your client has to travel a distance albeit not a long one i think you you're hard pressed to argue that he couldn't have stopped the crime spree are pleased that the problem for the government it is the government's burden of proof is that on this record looking only at the shepherd and taylor materials that the district court was was bound to look at there is significant ambiguity about when the robberies occurred and the location of that words like in the vicinity of or at approximately when reference to the location in time are very pivotal here they wouldn't normally be if you had  occurring over a longer period time say hours or days not saying they happened at the same location right we actually we don't know exactly where they they happened we know that as the crow flies it was less than five miles  mean significant difference are firms of ceasing the act to the criminal activity i just want to correct as less and point five miles out less than half a mile away but when you put in words such as vicinity of and occurring at taylor materials and we know that one took place and whatever no one on federal street and we have addresses for those two right and then one took place in the vicinity of grand in lexington as is their right right so there are different places three three different locations re different victims there were three different victims yobbery different times if your honor please we don't know exactly when the times were or what exactly the locations are so each of the three robberies refers to locations as the vicinity of what but but we know that the first one took place at about ten pm and then there's another indication that it might have been ten o nine and then the second one took place at ten the offenses can be so close in time as to constitute a criminal up it's a single criminal episode the basic logic is that a defendant must have time to reconsider and to the middle activity so the shorter the more compressed the time the less an opportunity like that exists and so your honour's correct i mean if you go to the police reports you see that the the time was ten o nine for the  first first robbery and then you're talking about a six minute differential but if you put words such as approximately in the in the vicinity of all suddens even more compressed so at a certain point and the court in right out  which really is the sort of the seminal case that governs the second circuit's analysis here recognized that it's situation was different from a situation like this where the  activity was more compressed in time and location right out involved burglaries during the daytime occurring approximately twelve thirteen miles per hour twenty to thirty minute drive in two different counties in  and that situation it is different where a perpetrator is getting in a car driving to the next location having a real meaningful opportunity to think about whether it's advisable to to rescind of eight and make another  engagement in more criminal activity another point that i wanted to make on this that i think supports our position is to focus on this court's decision in the united states versus dancer which i judge to promise authored dan ler is is is significant first it sets the record straight that shepherd and taylor materials are required for determining whether the number of criminal episodes so for this and now we're bound by taylor but interestingly in that decision there was a question because the the defense attorney didn't object to the use of of materials going beyond sheppard and taylor and the court then had to address whether it was harmless error whether that the error affected substantial rights and the court's reasoning in finding that it did affect substantial rights was to look to what the district court judge said in that case i want to quote because it's very pertinent here the district judge said and dancer if dancer had gone from car to car of the number six train and robbed a bunch of people that i could consider one incident and our position is that on a vague record such as this when criminal offenses become so compressed in time and location it is different than  the situation in ride out and the other cases that the government has cited and what adds to the ambiguity further in this case is the fact that we have multiple coconspirators which raises the ambiguity also of what the roles were of the other coconspirators and there's nothing in the record to describe what the other coconspirators did did they stay behind after the first robbery as the others proceeded to the second we don't know and that would affect the continuity of the criminal activity in support of that if your honors please is the sixth circuit case of united states versus barber which talks about the effect of conspirators in multiple offenders occurred involved in the same criminal activity and how that ultimately creates an ambiguity in the record and case the six circuit found that  was reversible error the other point that i wanted to emphasize to you is that the record here is also unreliable now but most of the case laws is phrased in terms of whether the record is equivocal or in big  us there was one case cited in our brief united states versus macleod which is an eleventh circuit case which called upon the court to analyze whether the materials are reliable and there's an issue here because we know that colloquy which referenced ten o'clock as the time of the first robbery is were wrong and you know while we're bound by taylor shepherd we do know from the police reports and this is in the district court ruling that the time of the complaint was ten zero nine so there are liability issues in addition to the ambiguity s as a result of which we submit to the court that it's a single criminal episode as a result are only two qualifying offenses in our client who otherwise would have been subjected to a far lesser sentence should not have been because that's a factual determination by the district court whether or not the acts were distinct or not what's your position on that our position on that is that it's that it's subject to do novo review by the court because because the record is established by virtue of the shepherd and taylor materials and that's the universe of the record there is no further fact finding to occur ok thanks for i reserve two minutes for bottle thank you my name is jennifer lurana represent the united states your honors judge thompson appropriately sentence mr bordeaux pursuant to the armed career criminal act because he had three predicate violent felony convictions all for first degree robberies were committed a november twenty fourth of two thousand and nine mr bordeaux was convicted pursuant to subsection a four of connecticut's first degree robbery statute which qualifies categorically as a violent felony as it requires display or threatened  that to use your own or the use that's the critical lack word here both for the for purposes of the connecticut law and also for the aca is that right yes your honor and but it doesn't have to be a threat to use it if you can just display it right you can just display it and i think that that conveys an implicit threat when a person is committing because iran has have to remember that in the context of displaying this firearm or what's represented rather to be a firearm or threatening the use of what is represented to be a firearm the defendant isn't doing it in a vacuum the defendant is doing that during the commission of a robbery or immediate flight there from a robbery connecticut law does require use or threatened use of physical force during the commission of a robbery and as such that constitutes particularly given the display or threat and use of what's represented to be a firearm which by definition threatens a grave injury to a person if not death on that that would constitute a violent felony under the armed corrupt criminal act now each of these these first to be robbery convictions were obtained based on conduct which occurred on the same day they were committed on occasions different from one another within the meaning of the armed career criminal act the shepherd approved or approved record before judge thompson and also before the score includes a detailed plea colloquy where in the assistant state's attorney gives a fairly detailed recitation of the conduct and mr bordeaux agrees with that conduct with with no correction that recitation makes explicit that this was a series of robberies that plea coll establishes that these offenses were committed at different locations within the city or bridgeport that they involve three separate victims and that they were separated by the passage of time judge thompson in his written opinion appropriately analyzed those factors in accord with this court's decision and right out and appropriately determined that these constituted separate criminal episodes and as such that they qualified as separate predicates under the armed career criminal act for that reason the government's admits that that this court should affirm judge thompson's judgment within that respect that these that there are three violent felony convictions in the acas appropriately applied if the court doesn't have any questions or government remarks our primary position is whether the first two robberies amount to a criminal episode the second question on this appeal goes to the issue of whether the first degree robbery statute constitutes aca which the court is aware is a very thorny question and very unsettled question at this time in the circuit and across the country two weeks ago the case united states versus ship w argued before a different panel the number of questions about about the statute we submit to this court that you don't need to reach that issue that difficult issue because of the fact that the compressed time and location of the first two robberies is a nuff to require reversal here and that's our primary position well that would only that would affect your sentence right the whether we have won or multiple counts right yes all right but don't we have to reach the aca question as well why why do you think we don't have to reach that well i think you could without deciding whether robbery in the first degree is a violent felony you could say that on this record i think ok there are only two not three qualified ask you what your position is because aca requires a threat of violence force connecticut one thirty four a four categorically requires the display or threat to use of a firearm and a threat can be that the so they're threatening violence force how does this not fit but also our position on that is that the critical difference is that under connecticut statute talks about display or threaten to use quote by words or conduct a firearm so for example you could approach a victim right and not have a firearm but say you know i've got it i've got a gun in your back if sticking your finger there and all but but all that aca requires is a threat to use violence force it doesn't require the capacity to use violent force under connecticut statute we would submit that if you walked up to a victim and tapped your pocket and said give me your money that could qualify as first degree robbery under subsection a for but not be a violent felony for purposes of aca and we cited cases examples state versus you look at how the state courts have analyzed that the words or conduct language in the statute that shows that the bars lowered so for example that we cited one case state versus lopez where the comment was give aca requires i mean i'm not sure i'm following you if connecticut thinks that that is enough to prove a threat to use a firearm how is that not a threat of violence for some in the threat comes from a firearm not simply i'm going to you know do something else to you and you don't disagree that the use of a firearm would be violent force i don't disagree ok so connecticut requires a threat to use a firearm now whatever it thinks satisfies its law in that regard that's what's being required a threat to use a firearm and i don't understand how that doesn't satisfied act satisfy acca it because the connecticut statute permits