there on behalf of appellant you saw rodriguez i would like to reserve three minutes for a bottle and i'll watch my time there is a narrow question for this court to address in this case whether nevada battery with a deadly weapon is a crime of violence under the physical force clause in section sixteen there's no dispute that simple battery in nevada does not qualify as a crime of violence because it can be completed by the slightest touch so really what's before this court is whether the deadly weapon component of that offense transforms it into a crime of violence and we're really looking at the nevada state yes you're right there's no question that under the federal statute the i believe that i don't know that johnson changed that i think that's so that's the big case that's come down since oh i'm sorry johnson twenty one yeah that's right yeah because johnson says physical force equals violent force capable of causing physical pain or injury to another person so if physical force equals violent force and under great heat or even the least touching is for seems to me the federal statute pretty well there so we got a look at the nevada's bench yes and these analyses always turn on the very discreet particular language in court cases of the state statute at issue let's go to nevada yes tell me why the conviction under seems to me that this as we're looking at a functional test here i'd rather it is dead hold that the definition that the weapon as used in the battery statute is a broad term the legislature in turn a broader term and they said that the judge who was undermining and put it in a jury instruction that it was a functional test was correct yes your honor and so therefore if i do it in the functional test the instrumentality even though not normally dangerous is a deadly weapon whenever it is used in the deadly manner and here we are categorical match and i understand the court reading the decision as the holding was that the definition included the inherently dangerous and the functional inclusion the the a functional definition but the decision also stated that the the other definitions of deadly weapon used in the enhancement statute a separate statute are instructive and those definitions are ever broad but they said instructive in the thing that worries me about this and this is why i thought this new case was not appropriate for sentencing in the hands of the other test of one ninety three is and therefore the functional test is appropriate when the deadly weapon is an element of the crime so here we go again it seems to me that again says even with gone back that it's a functional test that i must apply and this case from nevada seems to say even though it had never been said before it's a functional test you're a judge and therefore nevada equals sixteen eight and i actually disagree or honor zomba it was overturned by the nevada legislature there there was somewhat of a struggle in the ninety's between the courts the nevada court defining deadly weapon narrowly to the inherently dangerous test and then the not a legislature came along and i believe  broadened materially overbred over the definition of deadly weapon by including be inherently functional the inherently dangerous test the functional test and then incorporating by reference all of these other definitions of deadly weapon in nevada saying to me that any judge who is in the battle and giving jury instructions on battery committed with the use of a deadly being it and it being a hundred about a statute if you're going to look at that the functional test is the only one left you can use these other first sentencing emancipates but you can use them for this crime no your honor and was addressing the deadly weapon enhanced meant statue and that is one three point one six five and that was the definition that the legislature over they overruled the limited definition that it provided and that's  arbor apply brief it explains that so what we're left with and what the nevada legislature clearly told the courts was that deadly weapon is a broad offense the legislature intended to in clude inherent functional and all of these other statutes including two zero two point two six five which states that on school grounds it is only it's a deadly weapon to that you cannot possess deadly weapons and including in that definition is quote any any part of a person with paint or other substance that's in the enhancement statute and then you're in a river if you say under this expansive definition of deadly weapon a person could be convicted of battery with a deadly weapon no your honor well isn't that the issue here the underdoing is over as we're told that extravagant and law school definitions of what could be a deadly weapon or whatever the issue is is not the quote the test i but under chavez so lease of the panel decision that your honor was on that decision said that's not the only way to show the other breath nature of a statute when the plain language of the statute says any device used to mark another person with paint or othe all of us was addressing sort of the defendant's interpretation of the term of art to say that it was a very broad term and it encompass all these things putting a heavy lifting on a term that the court said we don't think that term means that and there's no cases to show it means that so it's when there's some sort of stretching of the plain language of the statute that this court needs some indication that the state applies it that way that's not true what the statute is playing but it seems to me that rodriguez provides that bear w exactly worries go with because rodriguez the defendant is casting that the judge improperly used the functional test in discussing this this crime  to the jury and he and that the judge instead should have used the one ninety three definition and the supreme court came back and said wrong you should use the functional test and granted no relief so it seems to me that what we're really saying again is nevada if they're looking at this statute used as a functional test that's why i thought you ought to look very a guess because frankly it seems to me it forecloses your argument and that's not what actually the defendant argued in rodriguez that the court could not look to this deadly weapon definition in a different statute i and argue inherently which is a limited wind its way right now ford said no use the functional broader version yes and it used the broader version of deadly weapon so that the defendant argued for just inherently dangerous the defend not to look to any other statute and you can only do that and the court said no we will look to this other statute and that's that other statute inhance that statute is where the over breath nature of this offense lies that once you start looking to that statute with the nevada supreme court did it shows that never had a legislature has decided and i'm not sure why there's no legislative history but decided to include these over broad definitions of deadly weapon and that's just the need that's where we're stuck this court is stuck with the st good morning ma'am please the court elizabeth wait for the united states the defendant argues that one can be convicted of battery with the use of a deadly weapon in nevada by touching someone on the arm with a paint brush to which i would say why stop there i mean the tube of lipstick is a device that can be used to mark a person with paint or another substance the statute that is being cross referenced is the statute regarding possession of dangerous weapons on school property that covers the university community college system and all private and public schools so under the defendant's interpretation of this statute it would be a gross misdemeanor punishable up to a year in jail to have a tube of lipstick on the university of nevada reno campus which i think would come as a surprise to a lot of folks on the university of nevada campus there has to be some common sense this this language this thing about the device that can be used to mark a person and as we pointed out in our answering brief it's been on the on the books in nevada in the wording has changed a little bit but it's been on the books for more than twenty three years and search  and unpublished state and federal not once has this language been interpreted or applied so it cannot mean what its literal language says i mean that's the one thing we know it is there is no there are actually exemptions in the statute but there is no exemption for art departments so i mean it cannot be that it's a gross misdemeanor to have a paintbrush on a university campus or a or an about a high school in fact if you go back and look at like i say the language of this has been changed over the years and when it was initially when a version of that language was initially put in the statute in one thousand nine hundred five and it was actually part of the definition of firearm the initial statute had these things and so i think probably it's intended to mean a paint ball gun although now there's actually paint ball gun is in there separately so i don't really remember we're out of focus here just a little bit because what i'm trying to do i'm trying to determine whether anybody argues about that but what worries me is does the vadra law say that the only way one can be convicted of the willful and unlawful use of force o violence is under with the committing with the use of a deadly weapon is under the functional test is that what the embattled law says what  now but if i could just expand on that a little bit i mean water are you saying the vatican law says you could do it there's an under the functional test yeah i think that that's what rodriguez says in and so if they could do it on on other than on the functional test then we've got to go to judge gray's point it's never been done well here's the thing what because your arguments that you just made are that it would be stupid to do it but we're really looking at has it ever not done that the government has not found a single case where this has ever been done i think what the court said in rodriguez is and this is right towards the very end the legislature intended deadly weapon within the battery with a deadly weapon to be interpreted broadly according to both the functional and the inherently dangerous definition now in rodriguez it was a screwdriver and so the judge just  obviously that's not inherently dangerous but the judge gave the jury instructions as are related to the functional to exactly and the defendant challenge the jury instructions saying that were those weren't the jury instructions that should have been given and the court said all contraire that's exactly the in jury instruction that should have been given exactly but again can i read that to say that it's only then the functional test when were related to this or if i can read it more broadly and that it could be other than the functional test then at that point i'm stuck with have they ever done way because that's the only way otherwise i'm going to say this doesn't match they had a gork like they have there and i believe that there have been some cases that have found battery with a deadly weapon where someone was where the weapon was a b b gun and the b b gun is also cross referenced in this school statute it's actually that's not defined as a b b gun but something that can can project a metallic or something where the grade is really not dead on point because great it was looking at a california statute and they said categorical match but if i take your approach then it's not just the functional test it's also the other test out of one ninety three you could have either test and there is a possibility that this would not be then before you did that well i would say no and this is where i go back to  sort of the fundamental point this goes back to converse and when you're talking about the use of a deadly weapon this is different from parnell it's different from worley it's different from those where were statutes say that if you're in possession of if you commit a crime while in possession of a deadly commission of a crime indicates that the instrumentality must have been used in conscious furtherance of the criminal objective so we're talking about using a deadly weapon to commit a battery and then the court said in culver send this is also a nevada state supreme court which is what where we're supposed to look that in order to use a deadly weapon for purposes of this statute there must be at a minimum conduct which produces a fear of harm or force by means or display of a deadly weapon in aiding the commission of a crime so what we're talking about is intentional use of a deadly weapon that creates a fear right and that by definition is at a minimum the threatened use of force it could be the actual use of force it could be the threaten or attempted use of force but either one of those fits within sixteen a i mean sixteen a covers all of those so i think that you know they say that the exception that they carve out is oh well it could be a paintbrush to which i say no it couldn't but even if it could i mean i would love to see an eighty eight try to prosecute someone for having a paintbrush or to politico i mean there would be a constitutional vagueness challenge to this statute so fast and they'd win because when i first saw it i had no idea what it meant if you go back in the history it probably means a paint ball gun but you know but who knows in any event they say that because it could be done with with a paintbrush it doesn't apply but even then what the you know what this nevada supreme court says is that it has to be used in conscious further ends of the battery and at the very least has to produce a fear of harm or force by means of display of a deadly weapon so so you simply cannot violate this statute without at least threatening the use of force that is capable of causing physical pain or injury the other there they and the brief they say that we didn't discuss the other definition which is the so called trapped up definition in their opening brief they had said oh it's overbroad because it compass is so called traps but there was no argument about why that would be overbroad and i think the supreme court has made clear that it doesn't have to be direct force if you if you set up a gun to shoot someone when they open your the door of your house that is in direct force but like the court said in castleman you know sprinkling poison isn't violent physical force itself it's the using of that force to do something that's going to cause pain so i think that we do go to doing this alvarez you know that what the court said in doing this over as is that the categorical analysis is not an invitation to legal imagination we're not talking about hypotheticals there they have they have to point to either their own case or some other case of course you can't point to his own case because he steps someone with a knife in this case or someone else's case where it has been applied in that non generic way and there simply isn't one here this court very recently i mean within the last couple years i think invade or tease sort of looked at that applied that rule  to the california that was a california drug statute that was divisible to the point of methamphetamine and the defendant said oh well even methamphetamine that's still overbroad because the federal government has an exception for el methamphetamine which is a non narcotic form of methamphetamine that's used for nasal decongestants and california is just as methamphetamine and doesn't have that exception and what this court said is the defendant would have to show a reasonable probability that someone could be prosecuted and convicted in california for having l methamphetamine and there isn't a case and there's got to be some how many cents or i'm over my time unless the court has other questions thank you i appreciate that i'd like to just make two quick points first the government still has not recognized this court chava so lease case which said quote when a state statutes greater breath is evident from its text there need be no case that applies it in that manner and that's where we're at it which brings me to my second point that the government and it's the literal language of the what i'll call the paint brush provision means just that it is not the federal government's position nevada and that just means that under the categorical approach it's not a match and that's that's just one of the side if that's just the reality i guess of the categorical approach everything must have a specific offense and this is not and it