florida attempted first degree murder has two elements some act beyond thinking in talking and the intent to kill neither of these elements requires the use attempted use or threatened use of physical force against the person of another and there this therefore this offense fails to qualify under the elements clause as an act of predicate this conclusion is demonstrated by the facts of the hernandez case which i provided to the court a supplemental authority  murder itself the completed act and i mean that the acted self says it's not just the use but the attempted use yes your honor but what the court needs to look at is not let me start again the court in disturbing whether a offense cough eyes under the elements clause has to look at the elements of the offense as defined by florida law determine whether those elements require the i'm sorry include that crime includes as an element the use attempted use or threatened use of of force and as i said the elements of attempted murder under florida law are intent to kill and some overt act beyond thinking in talking about it and as the hernandez case that i provided demonstrates those acts that those floors supreme court focused on in that case were simply that the defendant put on some clothing and tried to lure the victim into the bathroom the victim walked away nothing happened there was no action on the defendant in any way that could be construed as force and those acts were sufficient to support a conviction for attempted premeditated first degree murder such as the same offense for which mr hiler was charged in this case that was used as a predicate for mr hiler and so what i'm saying is attempted murder is separate and distinct offense from murder and even if under a veil by owning castleman it's true that murder that argument as and you cannot you can complete an attempted murder in florida without an act that involves the use attempted use or threatened use of force and florida supreme court has said that the overt act that you need to show to prove attempted murder only has to demonstrate a slight progression towards the offense it only only has to show has to manifest the intent and so that act can be almost anything so long as that manifests the intent to commit complete the commit the complete the crime but that act itself does not have to involve the use of or attempted use or threatened use of force and so i would disagree your honor that that that that florida attempted murder under the elements clause includes an element of attempted assuming she was right on the elements i just want to do that for purposes see to reason why she can't say ok there's no hay vs here because this is these crimes qualify there's no no procedure reason she can't do that is that true you know i agree your honor there's no procedural reason why just wondering why it's all this back and forth when we had a it's really something the government brought up isn't it yes your honor it's something that the government brought up they said that  had not met his burden of showing that he was sentenced under the residual clause that's one one way the government can try to make their case but there's this other way i think that's right your honor i think the government is is concerned that if mr heller is correct that  he was that his offenses do not qualify under the elements clause their argument would be that he has not met his burden of proof that he was sentenced under the residual clause under beeman and i am i'm more than murder or i'm sorry with respect to say robbery and one of the others with that allow him then to challenge all three on the substance i would argue that it does your honor because once he's proven that he was in some way sentenced on the original clause of the court relied on the residual clause with respect to what any one of his three aca predicates then that would mean that he was sentenced under the arm criminal act based on the residual clause and that therefore he's met his burden with respect to beam and then the court can move through and then decide whether or not i don't i don't understand how he could use that to attack the other convictions that were not based on the residual yes i don't understand how that would enable him to attack others to well your honor because if you can i love would be the point of it anyway if you've already attacked one of the predicate your honor i agree if you've attacked one the mr that's what i'm saying if you've attacked why don't i really come up at the government then came back and said well the record shows that that he had other convictions that would have never the less qualified as well or you know some kind of harmless error argument or something like that then then you might be able then you might be able to say something but but but i don't think we're disagreeing your honor i think that what we're saying is that if you can show that one of the three qualifying predicates relied on the residual clause you've met your beam in error and then the court goes through in considers whether or not they nonetheless qualify under the elements clause and i think regardless here mr howell has shown with respect to his robbery florida robbery conviction and his florida attempted first degree murder convictions that it was more likely than not that the district court sentenced under the residual clause in light of the the law the landscape the legal landscape at the time of his sentencing with respect to the robbery conviction this court had held that florida robbery qualified under the residual clause two years before the sentencing and had not mentioned the elements clause with respect to florida robbery until after a year after his sentencing took place the government refers to the fact that this court had held that florida armed robbery a qualified  the residual cause but that's not the offense that was that issue here at issue here was simply florida strong arm robbery and as a district court judge sitting at the time of mr hiler sentencing in two thousand and eight where the court had two thousand and six case saying that robbery qualified under the residual clause but armed robbery call it five and under the elements clause as a district court judge i would say i wouldn't i wouldn't why look at the armed robbery case and the complications of that and and rely successive twenty two fifty five motion can be affirmed and two independent grounds as this court noted he's neither eligible for nor entitled to twenty two fifty five relief pursuant to johnson i'll begin with the attempted murder argument unless this court would like me to begin with the alternative that or another person for attempted first degree murder occurs when the defendant had a premeditated intent to kill he undertakes an act intending to kill that went beyond mere preparation and act would have resulted in the death of the victim had someone not intervened or the defendant otherwise have failed to commit a killing premeditated murder as a prototypical violent felony and has an element the use of physical force intentional in a lawful killing of a person necessarily requires sufficient that a crime is a violent felony if it has an element that the act results in great bodily harm permanent disability or permanent disfigurement because such an injury could not occur without the use of physical force as defined encourage johnson it requires  another student follow me to the bathroom put on a hat and gloves and then that student ran away at the fact that she's leaving out is that the defendant also confessed that he had intended to kill that other student in the bathroom by stabbing him in the back and that that student  a so the term the intent evidence satisfied a required element of i believe that yes he confessed to law enforcement immediately after that this was his plan and in fact he hadn't acted that plan i think a day or two later and actually killed one of his classmates in the bathroom  attempted hobbs act robbery and the federal statute governing hobbs act robbery has in the statute exchanged pressley it states that the taking involved or the attempted taking involved has requires the use of force that's not true of the florida statute involved here with for attempted first degree murder or the status itself does not require him as an element in the statutory language the use or attempted use of physical force i would also say that seem to bear applied federal law with respect to attempt which is based on the model penal code and requires a substantial step towards the commission of the offense florida law does not follow the model people code with respect to attempts it does not require a substantial step it requires only an overt act and that overt act can is the common law definition of an overt act and requires only an act that manifests the intent to demonstrate a slight progression towards the commission of the offense one of the cases in hernandez it's cited in hernandez called hudson  the victim the defendant's basically the strength of the defendant's intent a lack of equivocation and then also whether or not the defendant seemed to step back from committing the offense and so in under florida law the stronger your intent to kill those slighter the pression towards the crime has to be an internet and it is where the defendant had a very tense intent to kill as he stated in his confession there only a slight progression a slight act was required in order to manifest manifest that intent and that's why in hernandez the court found that the facts were sufficient to support an attempted murder offense but that's very different from the situation in say new bear where you have a statute that expressed only requires a taking that shows the use or attempted use of force or violence and where the federal law attempt requires a substantial step towards the progression of the crime and so i would submit here that even though the court insane who bear equated the completed offense with the attempt offense that that's not appropriate under florida law into determining the elements of the offense for the omens clause here this court is required under johnson and james to look at the elements the offenses they are stated under florida law and under florida law the offense of attempted murder is very different from the attempt offense and under was under consideration and seen to bear and i think seen to bear is not relevant precedent in that respect the same was true of the seventh circuit decision that seen a bear relied on hill there the whole case relied on an illinois attempted murder statute i'm sorry it was an attempted murder statute but an attempt statute that's also based on the model penal code and also requires a substantial step an act that clearly manifests the intent in a way that is very different from what's required under florida law  and in the same respect it does not require of use of force for an attempt under florida law that requires an act that is capable of causing physical injury or harm even if you want to apply t in standard to florida's attempted murder statute the act involved that the defendant need only commit in order to be convicted of the completed offense of attempted first degree murder that acts need not be capable causing physical injury or harm the only the defendant only need have the intent to cause that injury or harm he does not need to commit an act that is capable of causing physical harm and i think one of the and in the government's argument here is that the government is equating intent with attempt and they are totally different things under florida law you can be convicted of attempt if you have a very very strong intent and you