st that the law of the case doctrine does not apply in the district court erred in not reaching the merits of our contention that mr benjamin no longer has three acca predicates and then the substantive question if this court reaches it that mr benderm does not in fact if three aca predicates and the law his changed a fair amount since we brief this case and i believe that one of the ways in which the law his changes and bring not that we also have the issue of whether or not the motion to sort of take these procedures and i don't mean to get you out were right but i think we will certainly address all of them so the hodge case indicates that the only predicates that can be used to keep mr benderm enhanced are predicates that were identified in the p s and there were four of them connecticut st degree robbery connecticut nd degree robbery north carolina discharging into an occupied building in connecticut nd degree assault  think the government would concede although i don't want to speak for them that discharging into an occupied building after johnson two is no longer a predicate i will concede that the connecticut of soul the particular provision under which she was case the district court failing he was an armed career criminal and there were four predicates listed in the p s and want to end we don't know whether the district court in that case relied on the force or residual clause but i will say it had to rely on the residual clause because none of the other aca clauses can apply to that there's no indication this court's burrell domingo's decision makes clear no indication that that requires any sort of use of force against a person so there is one of the predicates that the district court relied on johnson to by getting rid of the residual clause was a change in applicable law by the supreme court which then lets us get into court so i think and then you know that when this court's winston case said twenty to fifty five motion we object to and that's during appendix thirty eight we challenge all three degrees of connecticut robbery because again it before rd degree could have come back in so we challenge all three degrees of connecticut robbery connecticut nd degree assault in north carolina discharging a weapon and that's a joint appendix thirty eight so we do in our twenty to fifty five motion challenge all of that and it just so your honors are where the way these sort of work procedurally mr benderman filed his motion our office then was appointed and then i think it was maybe technically in reply to the government's response but we sort of provided the upon appointment substantive argument and all of those arguments were before the district court before it made its decision so i do think all four predicates were adequately challenge in our two thousand two hundred and fifty five and the law of the case dr and in some ways i don't think after how much this panel needs to reach that because if you look at what then are men one what we attacked in bannermen one it was only connecticut st degree robbery so even assuming the connecticut st degree robbery with its aggravators is a predicate that still only gets us to to the nd degree assault in the st degree robbery so this court does need to address on its face the merits of whether connecticut nd degree robbery is a violent felony and of course the government i think what's going to dominate this argument still cling cases come out and i want to confront stokely head on because i do not think that it is nearly as much of an impediment to relief as the government thinks it is this core had come out already in gardner in winston and it applied johnson one in johnson one the supreme court held that force does resistance in florida robbery met the force clause this chord already gone there and done that this court and or applying winston applying gardner said no florida robbery still counts and the reason is even though we all every state uses this term robbery you have to actually look at what the crime is in this court and hammon looked at new york robbery and said no new york robbery it's more than personage new york robbery requires some level of active or is it sort of active resistance at the supreme court said requires the use of force and stokely nothing about that disturbs this court's holdings in gardner and winston  carolina and virginia common law robbery and respectively that just because there is some use of force and some de minimus use of force it is not good at that level so the real question here is what does the connecticut playing i probably wouldn't be up here this would have been a per curiam affirms but we do have the connecticut supreme court and the connecticut supreme court in right really took a look at this statute and had to look at connecticut robbery categorically because procedurally a very strange but interesting posture the defendant there was attacking connecticut robbery under  equal protection and i think the court also look to due process theory saying this is unfair you're punishing robbery less serious than larceny from the person personnel and that makes no sense because obviously robbery a more serious crime in a connecticut court said well look look at the structure of what we did we've divided robbery into multiple degrees and when you get to these real aggravated robberies that can be your st degree that can be your  level of force required in our robbery statute categorically could be nothing more than the threat of a pinch and that it can be less offensive than that would then that is what is required for a person at which everyone agrees is not nec a prick the nd circuit in should not was on his right actually applying the robbery statute in that case so your honor it was not applying it i think in the way you're asking in the traditional sense of the defendant was convicted honor i would i would respectfully disagree i think on this since it could be more illuminating because unlike what this court normally has to do which is look at a state supreme court applying a particular set of facts and do some extrapolation to try and divine a ca here because the court was asked to look at learn any and robbery categorically in some ways that already did this court's work for it so it was a more pure analysis of state law the nd circuit i would say your honors even though at the end of the bonds which i think both of us cited in our twenty eight dollars days would disagree and if this court comes out the way i believe it should it would definitely create a circuit split which will be on the correct side of that circuit split your honour's because the nd circuit which is obviously very familiar with connecticut robbery you know describes the offense as saying notwithstanding iraq actual use of minimal force that would not itself cause pain or injury so it's describing force i think the exact way we describe it in our briefs the way the connecticut supreme court's described it in right in crum minimal force johnson one force this extra level of resistance force then where i think the nd circuit respectfully to them just gets it wrong he says nonetheless this is an act of predicate because it inherently carries an implicit threat of escalation and that to me that implicit threat that's the residual clause when congress drafted this law many years ago it did want to capture offenses i would submit like connecticut robbery this implicit threat of escalation and it did that with the residual clause and we won't go into the history of it but it turned out that that clause was so hard to interpret it was struck down so you had aca it was sort of a three legged stool in the residual clause was bearing a lot of weight and then the supreme court cut that leg and what i think the nd circuit was trying to do and the same hand the stool does not work anymore and people that we think need to get this fifteen year to life sentence aren't getting it so we're going to try and put  jury instructions and i do believe it could be divisible because the way the connecticut jury instructions read is you have you have that division between either compel someone to give up their property or the resistance standard and it could be divided in as much as district courts are instructed to use the appropriate one of those now i would submit your honor that it ultimately fails to divisibility test because i think under either neither of those is enough but i do think your honor if this court were to find that one of those two prongs satisfied then i do think that the court's treat them separately enough that we could go back and look at shepherd documents and honestly your honor though from what i've seen from the documents in this case which isn't much that i don't know if we could determine in the same thing goes with the nd degree robbery conviction and i think we noted it in the p s r to the extent this court believes that some of the some of the nd degree robbery aggravators are predicates in your honour's i honestly don't think i could dispute that we know at least one of the nd degree robbery aggravators isn't a predicate because it's simply that another person be present so you know if my robbery is categorically if my taking three hundred dollars out of the cash register in that state be crum again very similar in fact i would say less serious than the fact situation in virginia and winston where a clerk was pushed out of the way and made to fall down sneaky crump's another connecticut case your honor someone told the cashier to open the register push the cashier out of the way grab three hundred dollars went out no active resistance and by the cashier in that case and i think if we look at still cling so what's this distinction why is gardner come out one way why does hamman come out another in stoping says it's going through its scribing and what do we mean by the level of resistance necessary to push this into a predicate it says it's robbery that must overpower the victim's will because it necessarily involves physical it's not just any force so when does that resistance tip us over when does it become enough freezes in the supreme court in that no threat i mean if you're just you stop and use force that's also the threat of connecticut also compel someone to give up property and again that that could be i think the right case talks about the threat of a pinch the threat of a slap which i would say doesn't rise to the level of the threat of enough for sure honor but it it could be level isn't violent force isn't you go to jail for fifteen years to life level force and so why does a crime like this why does a robbery offense not counting i would say that's like this in just saying well it's it's enough force for us that's not what you need to do what you need to do is apply the law as written say that he is not an arm career criminal and i think we would all appreciate it some point congress getting in to replace that leak on the stool and i'm sure my colleague and i would disagree as to what law we would like written but in any event it's not up to this panel to rewrite this law you don't think  see the threat of a pinch isn't enough and i do think there's some tension with the castle in case i will be how do we gauge that i guess i'm troubled well and i think that the connecticut supreme court went on in that  saying how do we gauge what they could do they said well if this could be in a it's a great example they use for our federal purposes this could be even less offensive then a person etching and that is sort of  example that everyone uses to say ok we know what kind of theft from the person doesn't count as personally in fact this court has looked at the fact that you know states have like in new york and hammond has sort of a separate person statute say we are robbery must cover something different but structurally the connecticut legislature decided that basic rd degree simplest form robbery although it's not really  remember it really says the legislature could reasonably have concluded that this is less offensive whatever that word means that person actually isn't actually saying that it is or it would be it's just i would say the reason it isn't different is that if you or i or anyone other than the connecticut supreme court were to be applying a rational basis test to see what this week legislature might have meant then that would simply be we're not seeing it means that we're saying that the connecticut legislature says it could have meant that but this is the one entity that has the final say on the meaning of that statute and i don't think that the connecticut supreme court would find the connecticut legislature's decision their rational unless it felt that was a fair reading of the law and the correct reading  focusing in on stalling and we're fools stokely the supreme court made very clear that it was not looking at the degree of course it said however slight there was no distinctions between gradations of violence it was all about overcoming a victim's resistance per se johnson to us does not require any particular degree or likelihood or probability that force will cause physical pain or injury only minimum if a defendant has three predicates this court has said over and over in cases that that is not discretionary district court must do it and say no in this case didn't have the benefit of stooping and the answer would be yes because in winston and garner the court specifically looked in garner at the north carolina verbal threat i think that if you are threatening somebody with harm and they don't know whether or not you are if you have a weapon again you're compelling somebody i don't want they don't want to give up their property so you are overcoming whatever resistance they have by compelling than three or four spots and threats of violence so you give so i think it does fit within stowing it is just another way of overcoming resistance the  so i take it your position would be if you paid somebody money we would naturally view that as being compelling them to part with their property we just pay them for their stuff right right and so i take it it really turns on like the interpretation of what the word compel me and we look at connecticut and maybe it's a pinch but at least connecticut suggesting to us that compelling requires the threat of some type of physical  and in this particular case i knew that this just yes raised the question of the beginning and we didn't get to what you're calling about timeliness and why we should or should not i guess in you're on the government's position in the brief has been the law of the case find that there was a procedural error and i st i'm reminded of my counsel saying that the the argument actually break with respect to the discharge of a weapon and the assault they were that was not fleshed out but the others were flushed out the sports clubs those were he was based on down to mine he had the ability to challenge the love of the force as soon as this court made its ruling did it he didn't from the district court and then in two thousand but take the hypothetical and i'll call it a hypothetical it may actually be this case but let's call it a hypothetical where the court in two thousand and fourteen decides st degree but doesn't decide  rd degree even though the rationale would explain rd degree it doesn't actually decide sides st he then comes in and much later says well they didn't make clear that rd degree to even though obviously all of the arguments here about johnson why why wouldn't that getting over the threshold d of timeliness even though really in reality nobody here is talking about there's a development in the case but because the questionnaire right is like pre johnson would it be reasonable i know this in the task but just intellectually would it be reasonable for the defendant to challenge his rd degree robbery conviction after johnson one because he knows the residual clause has got him hook line and sinker regardless of whether you prevails on the  practice your honor i understand that while there may be procedural bars that should be applied the court is also very concerned with the actors the integrity of the process here and in this particular case even what the defense would like you to do is say now that this court has while the case applies connecticut robberies are all violent felonies layered hodge on top and don't let the government the government would argue that it should be open for resentencing and that the government be able to argue every predicate and the court because i think end of the day the district court must impose the fifteen year mandatory minimum if there qualifies predicate in light of the decision and corral the discharge of a weapon that's that's an open question but the court relying on that the government relied on that in taking its position that it did so in terms of notice issues the government didn't have notice that there would be there is a change in law for we should have the opportunity to substitute something there requirement five years later so give the government the opportunity provide that notice and actually litigate and actually conform with the law in this particular case he if that were finds that the connecticut the government asked the court to rely upon a th conviction and the court there held that it would not do that would it make a difference since the government now is asking to  if we were to get this issue to vacate the sentencing and send it back for a whole new sentencing so in other words is the question we're hotch in in essence didn't ask for that remedy and then that rd filing was where we fleshed out our arguments to a larger degree i would submit that everything was before the district court and the government had opportunity to respond to that but if you were exactly correct was that context and i will also say as a practical matter when these johnson claims were coming in it was a true situation where we were trying to get the motions filed by the one year deadline and then so that would explain your the firearm offense the assault offense qualified there on challenge and i were only then need to find one of the robbery offenses to qualify and we would have the two supplemental briefing on that exact questions are to the extent this an alert even the full court is wondering how that's reconcilable i just want to make sure the left hand in the right hand understood what they were doing one of the assumptions that my colleague when she was up here talking is she talked about how we argued divorce clause in the st benderman appeal and we did we didn't we didn't argue the forced clause this is the st time we're arguing the force your honor i would not go as far as to say resolved in the forced clause we made one argument in two thousand and fourteen which was that the structure of connecticut robbery allowed someone to be effectively accessory after the fact so unconnected to the actions of the crime that it could not be a predicate this court rejected that but we did not at the time make any argument that the substantive crime if i'm the defendant who committed it wouldn't have counted this court did say it involved st degree robbery involves the use of force but i would submit that that could have this court could have just as easily said falls under the residual clause that no one disputed and i see you have some confusion to if this court right now this panel believes that connecticut robbery is not a predicate but will apply it will nonetheless refuse to reach the question simply because another panel of this case in a pure curium p c when johnson won was in argued use the phrase force clause when it could have just as easily used the phrase residual clause in the parties have never had that discussion then i would say that meets one of the exceptions to law the case which is ultimately the manifest injustice standard thank you thank you your honor to come down and counsel and proceed to our final