for jumping to those two points i just want to reiterate that in light of back alls our position is that the guidelines after august first twenty sixteen should be applied the defendant here was sentenced in september twenty sixt after the residual clause was removed and therefore our position is the residual clause is not relevant to this case so the new guideline specifically includes robbery it correct in the united fans cause yes and you want us to  call and this is kind of across many circuits that bank robbery acquires taking the property of a bank in the presence of another by force violence or intimidation and the its target has said that intimidation does not require an intent to intimidate on the part of the robber it just requires that they engage in conduct that an ordinary person in the position of a teller would reasonably infer that they  reasonably reasonably get a fear of bodily harm of harm to their body from but in the supreme court case alone which analyzed what a threat is for purposes of the threat statute alone that a threat requires making to make a communication with the purpose of communicating a threat or making a communication knowing that it will be perceived as a threat so how the it's circuit has defined intimidation where it doesn't matter whether the defendant intended to threaten or knew that his conduct would be threatening him that's inconsistent with how the supreme court has analyzed the word threat and i think that that same analysis should apply to the force causing the  force causes the offense has an element the use attempted use or threatened use of physical force against the person of another and i see no basis to distinguish the meaning of threat there in the meaning of the threat in the statute analyzed in  so so you can be convicted of federal an armed bank robbery when you're negligent with respect to whether your conduct would be threatening consider the following example let's say a large  physically imposing person comes into a bank and says give me everything in your cash register i think that be a communicable offense under federal bank robbery i mean the teller in ordinary position in the in the position of a teller  well understand from that sentence that what's going down is a bank robbery because no one goes to a bank and says give me everything in your cash register they say i want to deposit this check or i want money from my account they don't say give me everything in your cash register so the teller would understand a threat and i think that if the defendant has certain physical characteristics that that could very well intimidate a person in the position of a teller but note that the defendant i in this example has not made has not used force has not attempted to use force has not threatened to use force i mean yoga led to a conviction even where there was nothing about the defendants appearance  he was armed so there been any cases in the other circuits that have completed the proposition that you were in before us and you know what would you do with our person and starting with the robbery then how are you going to figure out what is a generic robbery well federal bank robbery is not generic robbery the circuit told us what robbery is i think the cases are there other the other federal robbery statutes they define robbery differently well so generic robbery is defined under a circuit precedent as the mr pearl as aggravated larceny that is the misappropriation of property of another with me it's a relatively recent case so the you have to have circumstances involving immediate danger and i don't think that bank robbery categorically involves circumstances involving immediate danger consider the example give me everything your cash register the teller where did that definition come from this generic definition that you're advocating they took it from the ninth circuit defining generic robbery which i think took it from the fifth circuit so you know where it came from originally did somebody do a survey oh i see what drugs and the taylor case or right right i think the origin code we're looking at it because they recognize that you know you can't look at the vagaries of state law to define what a generic offenses so i mean i think that they talked about what state law was but i don't actually think that that was the driver broader than robbery that has nothing to do with the misappropriation of property in circumstances of another in circumstances involving immediate danger and that's just worth to it so for those oh and actually a third reason with robbing the park state bank in duluth minnesota this was appellants third federal conviction for bank robbery he was convicted in two thousand two thousand and five and then in the instant charge when he pled guilty on august eleventh two thousand and sixteen september twenty seventh two thousand and sixteen the district court sentenced the defendant to one hundred eighty eight months the district court found that he was a career offender based on the fact that bank robbery is a crime of violence under this cour precedent bank robbery qualifies as a crime of violence because it is a numerated into the guidelines and this court is also found as judge cotton incorrectly notes that as the district court and as a district court found below the bank robbery qualifies as a crime of violence under the force cause the appellant now concedes that the guidelines that this court should apply are the ones that were in effect at the time that he was sentenced and they are robberies enumerated specifically in the text of the guideline prior to the amendment robbery was included in the commentary to the guideline as this court is well aware but the case law in the circuit found that even the robberies and robberies inclusion in the commentary was still binding and that robbery was versus jones and united states versus johnson which similarly held that robbery was an enumerated offense under the guidelines are instructive now you know under the comment here former commentary that's correct your honor i did it did they talk about this concept of generic generic robbery those cases didn't delve into the question of generic robbery  but i think when you do look at the definition of generic robbery and it is united states versus house the it's circuit case that talks about what generic robbery as it is aggravated larceny and robbery then is then further defined by the united states supreme court in car versus united states as the taking of property from the person or presence of another by means of force or putting in fear and that's that's what eighteen u s c twenty one thirteen requires which is the taking of property from another person or from the immediate first presence of another person by force or intimidation and so really the question in what appellant argues is that it's intimidation doesn't qualify as  the threat of force and the appellant really focuses on the idea that the actor that the bank robber doesn't and intended to intimidate while other circuits have looked at the similar objective standard of intimidation that the circuit applies which is intimidation is measured by the ordinary person in the bank tellers position and whether or not based on the actions of the defendant they could reasonably infer a threat of bodily harm from their words or actions so put another way intimidation requires the defendant to take actions that would cause an ordinary person to reasonably infer a threat of bodily harm this is the threat of force as judge collets and noted in united states versus right back in one thousand nine hundred two the court stated intimidation means the threat of force so plainly bank robbery meets the  generic definition of robbery well i guess you see your counterparts and you argue that because it will wellness the law has changed you have any comment on that well your honor the only thing that i would notice is that none of the other circuits that have taken on this question have agreed with mr meyers reasoning in that case in that he articulated and his argument they've all looked at that objective standard of of intimidation measured from the ordinary standpoint of the teller and found that satisfies the threat of force required by a generic robbery bank robbery is section nine twenty four c cases which has a force clause that also requires the crime have as an element the u s or threatened use of physical force against the person of another and there are  numerous cases throughout the united states others are court cases that have similarly found that robbery aside bank robbery satisfies the similarly worded force clause in one twenty four c if there are no other robbery which is defined as aggravated larceny or the misappropriation of property under circumstances involving immediate danger to a person and cites to a ninth circuit case which i believe cites to face certain case and it cites to fav and i think that's it's crucial here  for a couple reasons on a hypothetical that i posed where you have a defendant of a certain stature says give me everything in your cash register i haven't threatened any violence but a person in the position of a teller could reasonably experience fear based on that statement because it's clearly an attempt to rob the bank and that's very but that does not involve the use attempted use or threatened use of physical force opposing counsel also said that because the commentary in the prior version of the guidelines that the presence of robbery in the commentary of the prior version of the guidelines shows us that bank robbery is generic robbery or qualifies under the united fans because that's not the case the commentary under the prior version of the guidelines is interpreted the residual cause under the new version of the guidelines there is no residual cause so the question is the teller can experience intimidation without the bank robber threatening force