second is whether or not wisconsin's primal fleeing alluding is in fact a crime of violence and or rule sixteen be the big issue the one that dominates our briefing is what are we to do with sixteen b after johnson johnson made clear that there are some problems with the residual clause in aca how do we find out how much risk there is in a given statute and then how much risk is it does it have to be to move a statute on one side of the line versus the other both of those are tied to the ordinary case this is a judge made up traction where we sit back and look at a statute and try to inquire what our own feelings are about what the ordinary case and in this case the nature of the case is and by doing that then we try to extrapolate from there and so well does this seem risky enough or is this now that's not too risky and from there we decide whether or not a person's sense should be enhanced and here is not just the sentence would be enhanced it actually increases statutory maximum mr vivah say how it went from a ten met potential maximum to twenty years so in just a matter of pure guidelines this actually had substantial effects on the survivor set up and what he was potentially looking at and all that's tied to the ordinary case throughout johnson the court looked at the indeterminancy that's inherent in trying to have judges look at the statute and decide what is it to be you look at google you go in and just ask your law clerks you just go on common experience what do we say is the right way to find out how risky this crime is and even within that we go back and think of our own experiences in the walky of disorderly conduct and look very much different than it does in madison walk you might be very violent madison might be a drunk down state street where disorderly conduct and lost it might be just tipping over a car one night when somebody is drunk and all of those which why the look and say well what is are is madison two it could be in madison but little bit farther out in d county or whatever it is it's everybody trying to extrapolate and guess at it and it's that gas that is the in terminus seed that the due process clause won't tolerate it and that's really here we don't have that we don't have any benchmark so i'd say that sixteen b is actually worse than the after residual clause you don't have any benchmark that a court could extrapolate from and it's actually the abstraction that you have a substantial risk and then the second obstruction is may be used in the course of committing a force may be used against a person or property of another that may be used or how far does that have to be in johnson they said you know that they had to duck the question whether a sawed off shotgun was enough you know how how residual how far down the line is the risk have to be this quarter answer that the negative they said look we're not going to go that far and miller but that may be cause well how far do we go two months three days two hours from the crime you know where do we where do we draw the want well sixteen b doesn't have a complicating feature of an antecedent list of disparate crimes that  preceded the residual clause language and that seemed to be influential at least in part on johnson i think it's not that that's the key holding the key holding it is that the ordinary case it's that the solicitor general is i think what they're rejecting there is justice alito and the solicitor general's suggestion that look before a new mayor crime say that they don't see that they just they probably complicate it more but that's not at the heart of it the heart of it is the ordinary case is that abstraction looking at a statute and trying to determine what is a substantial risk and what isn't so i don't think that the lack of the numerated offenses within sixteen be saved that i actually really do think that then craft a standard that you really well maybe use it seems like it's at this level you know that where i think justice scalia looked at the model penal code for burglary an extortion extrapolated that kind of risk here you don't have anything to go by that it would be pure guesswork and that indeterminant guesswork is exactly why it has to suffer the same fate as the residual clause this court can't look at these abstractions and try to fashion out something else  just quickly address are actually the government's points in some ways the army says look even if you disagree and you somehow save this sixteen b let's go back unless resurrect everything that johnson struck down and let's look at the statistics and let's look at the statistics of what's in wisconsin and filling in the looting and that's precisely what the court said don't do i mean that johnson couldn't have ben more  clearer and how much of distain the statistical analysis incites yet that's precisely what the court what the government wants this court to do and that's what this court would have to do if you have to go to the ordinary case you can't go to any standard and that's the whole cyclical problem with this that will all right we're going to go back to it but where do we find the standard because there is no standard in the ordinary case it's just pure guesswork so i'm a lesser on the other questions  my time for a bottle  your thank you it please the court if this court adopts the defendants in the taishan here to invalidate it now what act of congress based on johnson would have to do so based on the fact that johnson didn't have sixteen b in front of him that johnson specifically stated that it was not calling into cost you shouldn't doubt those types of statutes that deal with qualit that it didn't do away with the ordinary or categorical approach it only did away with it to the extent that there was the uncertainty that existed when it was analyzing right that under sixteen b the categorical approach ordinary case approach explicit in the statute because it refers to crimes that by their nature involve a substantial risk that physical force will be used right and so that it demands an ordinary case approach so that that takes it outside of the language and johnson that refers to statutes that key broad standard to the individual facts of the case well i would agree with that and it's so then you lose well no force all tied in with the standard evidence spike lee a call instructing us to look at whether or not this the nature of this case involves the nature of this crime not of the nature of the crime excuse me the nature of this crime elements of the offense and here it is wow in a sense you respect not elements approach your honor the government disagrees the government believes that sixteen b by that language and by later calls instruction tells us to go back to the elements of the offense and and there's nothing wrong with the nor near case or categorical approach when we're dealing with the elements of the offense but the statute doesn't say that well the s by that language directs us to that to the only conclusion that can be and that is that we're going to look at the elements of the offense in sixteen b were not directed towards potential injury which under the e c c almost automatically tells you go away from the elements of the offense and that's the difficulty that mr buggy pointed out in other words if we're going to say hey it's just potential risk who cares about the elements let's just abstract and talk about all the wonderful or ought things that could or could happen a situation sixteen be direct directly to the elements of the offense telling us look at the elements of the fence in and determine whether there's a step stanch a risk force may be used and that uncertainty and that that's the uncertainty of estimating the type of risk and that just simply does not exist with sixteen be sixteen b also doesn't have the other problem which is how do no new rated fences to confuse us or do anything else all you have to do is say to yourself they're talking about substantial risk and what does that mean we know through basan reyes that that means you look at the intent  johnson said it just wasn't one item that we found intolerable it wasn't just one item in isolation it was a combination of factors that in this particular case made it intolerable and those included the list of the n amplified the vagueness the holding didn't rest on that it didn't rest on a bit was one of the factors and the other factor dealt with the fact that it was a after the fact conduct analysis told that sixteen b was much narrower analyzing the risks at the time of the offense or in the offense by the elements as opposed to after the fact team b is just simply not limited to analysis of the elements of the offense and there's no case that says that well there's no leo call and the the text of sixteen b tells us that it's limited in only fast and it tells us that it adopts an ordinary case analysis or directs the courts to an ordinary case or committed in this particular case it's not a fact base mouses that's very clear if this court were to invalidate this statute it would be contrary to the presumption of lydia this statue and asking the court are asking so is johnson absolutely but the but in this particular case the supreme court hasn't repeatedly failed to come up with a valid standard there's only really one sixth and that case that's not it that has no effect it's nearly identical language and it's been interpreted strong presumptive validity that the acts of congress are valid and that johnson not dealing with sixteen b certainly didn't have it before didn't the government believes it didn't throw it at the doubt quite to the contrary there are several factors  present here and not president sixteen b that render it a a not vague because sixteen b doesn't contain many of the key features and instead prescribe the standard that provides fair notic prevents arbitrary and for what with that standard be the standard is the ordinary case on the elements of the offense but there's nothing that limits it to the elements and in fact that's not the approach that any court has taken if the court has no other question i thank you thank you