the next case on the calendar today is brown versus united states seventeen thousand nine hundred forty three may please the court my name is david kessler i represent the united states and i'm an assistant u s attorney in the eastern district of new york i was the assistant who handled the proceedings before judge weinstein in this case as well the district court judgment should be reversed th opinion should be reversed the amended judgment should be vacated and the original judgment should be reinstated because the district court erred in concluding that attempted robbery in the second degree in new york city is not a categorically violent felony for purposes of the arm career criminal act as we've laid out in our briefed the text of the new york state robbery statute that applies to all degrees of robbery requires forcibly stealing property to in a manner that overcomes the resistance of the property holder or otherwise compels the property holder to give up that property there's simply no reason to believe that that can be accomplished with any kind of force that is less than the violent force contemplated in of violence and i couldn't do it what do we do one of those circumstances because it might make a difference here especially the hideous i agree your honor i couldn't find a specific clear statement one way or another  say is that the pre sentence report which was submitted you know certainly details the violent nature of the underlying robbery is that the residual clause possibility has really come up only in the text of the whatever the operative habeas petition is i forget if it's the second or the third that's that's when the defendant first mentions the residual clause and it's mentioned in judge weinstein's most recent order but it wasn't something that was discussed during the most recent thousand and six he was convicted two thousand and seven or two thousand it was and at that time nobody made nobody thought they had to make a distinction district words which section nobody was fighting about this until johnson one came on so how do you go back and reconstruct this so you know which clause to deal with especially because as you know as in massey which makes a difference i think the short answer is you don't have to because the robbery statute is going to be categor a crime of violence under the force clause so that's going to apply whether or not the residual clause also applies the issue here and i apologize if r r twenty eight jason mission could've been more clear the real concern here is this kind of bootstrapping problem s petition invokes johnson to as the basis for the hate vs the new rule of constitutional law but then all of the arguments are about johnson one right which which is not is not only more than one year old it was actually already the subject of another he b s petition in this case and the second circuit order in two thousand and sixteen that addressed johnson one as applied to the specific facts i appreciate the point but i wonder what the import of it is here so the statute says you can't file a second heaviest unless you get permission he came here he got permission then he filed the second hey b s in the district court and the third of the ninth or whatever it was and the district court then granted now i understand your main argument is on the merits it should have been granted but suppose we wind up either this panel or some panel that decides this issue before we get to it winds up deciding adversely to the government's position on that is there you making some argument that somehow the is can't be granted even if it was granted on correct legal grounds because somehow the this court was in the air or the panel of this court that granted leave to file the success of a b s was incorrect and shouldn't have done  one panel of this court denied the defendant's second b s petition on the grounds that his prior convictions were violent felonies and then a different panel later gave him permission to bring the claim not not stating that  meritorious was the second but that's because of johnson too that you know then you get this whole sort of issue of the one that was raised in the massey case of you know was is it different or is it the same is he able to the second successive hey vs that the briefing certainly addressed johnson to then there was the request in the district court and then a separate order from a different panel so both of those do implicate johnson two it's not just that johnson two intervened between by mr brown that would seem to be somewhat inconsistent with that now i mean maybe they're just wrong as a matter of state law in the first place is this the kind of thing that should be referred to the new court of appeals to explicate what they actually what the statute actually means it was think about and i don't think it's necessary i think they all reconcile just fine and here's how i sort of scanned the body there are some cases lee bennett the ones that everyone seems to cite that clearly involve the at least the threatened use of force you know the human wall that blocks a pursuer the tug of war with the clerk there's a case patton which we didn't cite originally but that gets address where someone's you know gets a actually it's not robbery but if you look at the older cases and i think those are the two that i'm judge baron in stede relied on lawrence and santiago those cases are not you know someone standing on the street and someone yanks their purse i believe both of those cases are one of those cases it's it's completely unclear what happened except that the court says the second the new york appellate division says that the jury could have believe that sufficient force was used that doesn't tell you anything and then the other case i think this is santiago involves a fight on a train and i believe it was also a felony murder case where the defendant is using the four of the train to get at the curse one of the other cases we cite is also a subway force case for  word so none of those cases are what i think is the concern here i was the concern of johnson one which is you know any touching or any just snatching of a purse you know not being robbery but being more like larceny so i i don't think there's a need to get further clarification from the new york courts obviously their opinions could certainly be longer and have more facts in them that could be helpful but i ask you a haven other hevia let's take take your time let's wrong on your reading of the new york state court cases does he prevail in this appeal because it's a hideous appeal and it's only the second circuit that's decided that rather than well so again i'd want to think through this a little more but i  think the answer is probably because the if we agree that he's been given permission to file this appeal so everyone believes that he's applying some sort of new rule of constitutional law that would get the petition in front of the court and then that the court has to rule dissolve it so i don't think that i don't think the ed to standard or or the sort of state of the law when the petition was filed versus when it is now would necessarily be controlled retroactively problem i don't think that i don't think it would be i mean we're obviously in the hypothetical world where the court goes in the direction that it hasn't gone in so far in any of the cases we've cited from the second circuit or that we're advocating here because ultimately the question is just going to be what you know what is the law and i i suspect there's no retroactivity problem if the ruling favors the defendant you know because he's not going to be held accountable for some later development in the law that's to his disadvantage but again i haven't haven't completely or to his advantage but my sense of the retroactivity issue is it's normally when there's a change that disfavors the defendant and so he's sort of worse off than he was for no reason that he could have expected i mean here there's just a legal question and we think the answer is clear for the reasons we laid out but the court is going to answer the question one way or another and that's going to apply here and you see no error also between the attempt analysis and the actual offense and i don't we've we've laid it out you know that there are actually at least two second circuit i believe they're both unpublished but post johnson one decisions that involve second degree attempted robbery and williams and bogle or corn we cited them so this court is actually looked at that you know the text it all just sort of collapses because you've got the use attempted use or threatened use and then you've got t use or threaten use in new york state attempt means you have to come dangerously close to completing the action you know i tried thinking of an example where you could there be some sort of attempted threatened use that somehow wouldn't really work and i just couldn't come up with one because they all just collapse together and it's clearly the conduct you know that is robbery in general is clearly the conduct of that the army career criminal act has always been directed to you know sort of find parsing and trying to cook up a hypothetical where maybe once in awhile you could imagine a scenario where it doesn't apply i think is not the thrust the law and in fact there's guidance from the supreme court that the question here is you know the realistic probability that a crime can be committed in a way that isn't a violent felony not a theoretical possibility that somehow there could be some concoction that you could try to get around that so i see no they're very good ok we'll hear from counsel thank you thank you please the court my name is kristen santillan on behalf of the nation brown and we would submit that both the second circuit correctly granted mr brown's leave to file his successive petition in front of the district court and that the district court correctly decided the issue of whether second attempted second degree robbery in new york no longer qualifies as a violent felony under the arm career criminal act after both johnson one and johnson two now when this case was initially decided the parties did not have a reason to litigate this issue and therefore as your honour's already noted the record is not clear on which  under which clause judge weinstein made the determination that the prior convictions for second degree attempted robbery were violent felonies but the counsel had no incentive to litigate those issues because even if it didn't fall under the fourth clause there was such a wide swath of activity that was covered by the third clause the residual clause and that's why it's essential to mr brown's claim that johnson two invalidated the residual clause and that has sort of pulled the legs out from any conceivable ground that his prior convictions were violent felonies under the arm cruel criminal act so we believe that definitely turns on whether or not the forced clause you know for simple stealing underneath new york law which in this case is basically what the court has to decide so attempted second degree robbery that mr brown was convicted of just requires another person present and so that is the very narrow inquiry that will decide whether or not judge weinstein was right and i do agree that you know there has to be there would be no there has to be no basis under which it was appropriate for mr brown to be subjected to the violent felony in this case if even the initial attempted second degree with another person present qualified or didn't qualify element that this all turns on is effectively the same as a third degree robbery which is the force because of that's present in a way that would satisfy the then it would be a forcible but if that degree of force is not sufficient the aggravator that makes the second degree robbery scene for both sides agree that the accomplice is not something that changes that that calculus yes i agree i agree with that premise although i do think that some of the discussions of of having the accomplice present demonstrate that well there's more than that says is aided by another person actually present that's what makes it a second degree robbery third degree robbery so obviously the new york at legislature thought it was a more or bore a violent crime to have somebody else there doing the robbery with you who  in that robbery yes that's correct or they just thought it was a more serious crime for would be because two heads are better than one because why conspiracies are dangerous it's if you have multiple people involved in a crime that aggravates the guilt in some way it doesn't necessarily mean the new york legislature thought it was more violent where that is inherently more violent to have two people participate in a non violent think that's correct i think it aggravates the penalty and it has been determined to be more serious in that at least that would be your your position i don't i think i did not think the government was relying on the accomplice as a critical issue here but i guess that's f said no i think that i think that as judge weinstein analyzed the issue the real question before the court is whether for simply stealing under new york law satisfies a level of violent force that was  pressly set out in johnson one i mean we might think a reasonable person might think that having an accomplice present and aiding increases the risk of violence but the supreme court has said no reasonable person could possibly make that decision and that's why the risk of force residual clauses is too big for us to answer that question yes and there have been some in some ways having another person present who is n necessarily engaging in any force much less violent force actually sort of expands the involvement of another you know of conduct that doesn't rise to the level of violent force that could come into play in connection with it can conviction under that statute you saying that having somebody else there who's aiding the person doing the forcible stealing makes it less potentially violent if you just say i'm as i'm thinking about it as we're talking about those questions i do think there are some circumstances under which having another person present or being the other person present who is who is involved in the statute would potentially create scenarios where the other person present is not involved in force that is well i mean to gang members right the senior gang member takes the junior gang member in the junior gang members post to prove himself by doing a person satisfy the a c s right i mean that wouldn't make it the fact that somebody told him to do it and is therefore a present president and accomplice is present at the scene doesn't make a told person b there's the person you should drop now and i think that's that's kind of your position right that yes it doesn't it doesn't automatically  forcible that a second person is present as an accomplice in some way given particularly the breath of aiding and abetting yes but i think that sort of brings to mind this better example where that second person could stand in front of the door and be doing something violent but also participating in a way that if there was just one person who was doing it they might have to do more to the dots that was sort of what i meant by having another person present in th conduct may not be as actively violent as they contemplated in johnson one i think the one thing that the government has relied on is sort of parsing these elements of the statute they use attempted use or threatened use of force in the new york robbery statute and comparing it to the aca and saying that these are very similar but i think that that does is sort of it ignores the context of the supreme court's decision johnson one which specifically emphasized that the interpretation of the level of violence that was necessary  under the aca has to be viewed in the context of the fact that it's a statutory definition that states that it's a violent felony and that is not present in new york and i think that you know when we interpret that language we have to view that context as well the absence of that framing and i think that the cases that judge weinstein point to and that new or other numerous other courts have pointed to not because they're the only three cases with because they're great examples of how robbery can be accomplished in new york with less force than is required under the aca bumping tug of war and walking someone's way i'd like to make sure that i address any procedural issues that you have from our perspective because i do believe that when we sought permission to file a successive petition in the second circuit this issue of the residual clause and whether or not it was implicated was specifically addressed to the second circuit the government raise that issue we noted that there was no clear record in the pre sentence report in the indictment or in the court in the two thousand and eight sentencing and others have said some different things about that how is that fair when nobody cared about it in two thousand and eight how did how do we resolve it if we have to as to which prong of nine twenty four he constitutional law then that's houseflies the gatekeeping function of the hevia statute and i believe that that's the correct analysis under which the court should consider whether or not this was a properly brought and in this case mr johnson's claim wouldn't have been right unless johnson two had been decided and there be no basis to validate or invalidate his sentencing enhancement neither johnson one johnson two or any other case requires a state statute to use the word violent or describe force in a particular way the question is just is the force that makes someone guilty violent force and as we've laid out in the new york robber statute makes it clear as do the cases in new york state and i just wanted to emphasize that there are actually fair number of cases in this circuit that post date johnson won most of them are unpublished us of the miles which is twenty fourteen is published  bennett williams bogle and kornegay are all cited in our brief they're all unpublished but they all involve different panels of this court concluding that a robbery in many cases of attempted robbery or second or third degree robbery qualifies as a violent felony and it's sort of hard to believe that this issue was dismissed seven or eight times and not thought about by very different panels of of this court so i think there's a fairly substantial second circuit precedent on that point i just ask you about the question the judge will  would ask yes and that is does the presence in the second degree statute of he is aided by another person actually present does that have any relevance to the degree of violence of second degree robbery or not so we haven't argued that it does but on the spot i would say it does because the concern is more people involved are more likely to cause problems that is i think that's what the likely to cause problems is exactly what the residual clause is about it's not about the forced clause in other words i get them and i have i always had difficulty understanding johnson because it always seemed to me that the risk of force is one of those things that judges and juries deal with all the time like what's reasonable and what's not and i understand why that's so vague but you're talking the language of the residual clause which is you know in other words the fact that somebody else is present i might well agree with you increases the risk of injury in these situations though has an interesting argument the other way but that's how you would analyze that the question is is it more violent just because there's another guy there so let me address two things first of all i think the risk of force you're right that sort of harkens to the residual clause but the threat of force by two people instead of one i think is almost always going to be more menacing greater or more of a problem with more people but fundamentally the court doesn't have to reach that issue and you haven't raised that and we haven't we haven't argued that you know whether it's this case is functionally the same as the third degree robbery case from your standpoint if the if for example another panel were to decide that third degree robbery is sufficiently violent then it would be a for sure at a minimum that this is to if there came to be a precedent that the degree of force required  by new york robbery generic robbery third degree robbery is insufficient to satisfy the a c c a that would defeat would control this case as you've presented to us i think that's fair except i would add that there are panels of this court that have already found third degree robbery to qualify as an a c c a predicate the one of the thing i just want to mention was to address one of judge lynch is your questions from before about the  granting of the right to file behaviors petition so i'm just going to read from massey and i didn't have this off the top of my head but this is i'm looking for the pin site at on the second if it gets to fifty one or two fifty two  y panel said although this court previously authorized the district court to consider massey's most a motion this court's determination that massey has made a prime aphasia showing that his motion satisfy the requirements of twenty eight u s c sections twenty t forty four and twenty two fifty five h was not a finding that massey actually satisfied those requirements and it does not prevent or review now so i don't think that that tells you how to rule but that does tell you that the issue is still before the panel to the extent the panel wants to consider it and i haven't read the third circuit perez i'm not sure there's anything for me to address there i will point this court to the six circuit perez judge sutton's very recent decision that i think kind of lays out carefully essentially the same