proceed absolutely it's the old home week with all of us as many as please the court good morning the court has granted a certificate issue that has come to our court i think there are thirty cases waiting for us to say the same of course there are lot being held for the ambiguous record issue as well but i am more than happy to address attempt approach looking at shepherd authorized documents to determine which of the two predicate offenses mr taylor necessarily did to within the nine hundred and twenty four dollars c count and therefore what the elements of that offense are now one thing that i do want to note is that even in a two thousand two hundred and fifty five dollars proceeding the burden always remains on the government under the modified categorical approach to produce shepherd authorized documents and that and then  h that those documents necessarily show that the relevant offense is a qualifying crime of violence and that is in this court's tuckered decision from twenty can so when a defendant pleads guilty t chapman and that is true unless shepard approved documents establish that the defendant necessarily pled guilty to only one of those alternatives we know that from the van decision so in this case we ha contains facts that support the elements of both offenses but as a result that is precisely why it does not conclusively established that mr taylor necessarily pled to only the attempt as the pr for the statement of facts does not rule out in balance conspiracy the fans consequently this court must assume that the conviction rests on the less serious of the two predicate and that is the conspiracy because it does not to me that since actually should be a pretty simple issue and i think the fact that judgment indicated that the court perhaps would prefer me to address the attempted hobbs act robbery does mean that it's a straightforward issue so like conspiracy attempt isn't in coed offends it requires the intent to commit all elements of an offense combined with either an agreement to commit the offense in the case an act of robbery is not a crime of violence because there is nothing about the making of the agreement that requires the use attempted use or threaten to use of force the same thing we know because there is nothing in the purchasing your the obtaining of the gun for the obtaining of other you know a mask there's nothing in those acts that necessarily requires force and so i know i think that that actually is a good example in a pretty difficult sample five of an attempt defense so i know that that is our  attempted use or threatened use for work and we think that because of the way congress has worded that to put the word attempt or is an attempt or conspiracy to do either one but that's not what congress did and we can compare it actually to another statue in which congress did that they simply zachery them and that's in the and the st part of that definition gives a laundry list of specific offenses that includes robbery it covers state incentives as well as federal and it includes robbery as described in certain statutory provisions and then at the end of that it specifically includes the language or attempts or conspiracies to connect any of the above offens could certainly do the same thing here and in fact i think it would be very important to do it because one thing that is really important to keep in mind is that to not simply because of  clause is gone and there's no question under the residual clause that attempt would count because it would create the list before there with that force could be used but with the  i think the government somewhere along the line in terms of providing notice th amendment notice th amendment grand jury right where there are multiple possibilities at some point the government would have to a lab which have found and so i think that there would be problems if an indictment simply sa always are invariably require the floors then simply taking the substantial step with the intent to commit the complete or the template not sufficient and that's no different than having an agreement with the intent to c intent to commit to commit the actual offense and i think that these courts don't address this kind of plain language argument that we're  please with court richard cook on behalf of united states and i'm going to ask a quick morning i'd like to start with the attempt issue whether federal attempt crime satisfies the elements clause of satisfy an attempt satisfies the definition because you are using the same definition and let me express your view the four i think overarching reasons why th follows the st is when congress uses the term with the well settled meaning and the common law it adopts that meaning and so when nine hundred and twenty four c three a use the word attempt d was adopting the same meaning of attempt that we see in these federal crimes like one hundred and fifty one a that have an attempt provision and the nd is if you go and you look at a pla language definition of attempt the legal meaning of attempt that you find in dictionaries like black's law dictionary is again the common law and federal definition of attempt which is an overt act that is done with the intent to commit a crime but falls short of completing the clock crime and this takes me to my rd point which is the weight of precedent you have  every circuit that has addressed this issue has ruled the same way the government is urging the court to rule here so the th circuit and anger i'm specifically held to the time petards act robberies satisfies nine the th circuit just most recently ruled this way and smith for dealing with attempted murder so then what do we do you counsel with respect to the categorical approach which you may not be issue correct i want to make sure i'm following correct yes ok so we absolutely agree that categorical approaches used to and here's the critical point classify predicate as a crime of violence or not the jury never decides for example whether attempted hobbs act robbery as a crime satisfies nine hundred and twenty four c three a that goes back to this court's opinion and atkins and as your honor just pointed out the supreme court and davis has just reaffirmed that the categorical approach governs the classification of prior offenses but critically the jury is still making the factual determination once you've identified a putative crime of violence whether that offended committed that predicate and so when you have as in this case two different predicates conspiracy and attempted hobbs act robbery the jury is file that would decide whether either or both of those predicates are proven and that this court has consistently said that no court has ever said to my knowledge that the jury doesn't decide whether the defendant factually committed a particular crime of violence  a drop right and there are there are definitely cases where the jury is given a specific verdict form and the judge floyd's opinion and hair illustrates how you can have even in the absence of a special verdict form evidence that shows that the jury accepted one of the particular predicates and in that case a drug predicate and therefore you to the and hair of this court and have to decide whether a hobbs act defense counted under nine hundred and twenty four dollars c three a because you could look at the record and tell that the jury found specifically that the drug predicate was proven and so that is an illustration of the point that i'm making here which is that the jury decides whether or not a defendant committed a particular predicate that's an offense element that the government has to prove at trial it's not a question of law that the court just says to the jury and i tell you that the government has established that this defendant committed the predicate for the nine  then doesn't that mean that attempts to commit a heart attack robbery can be completed without attempting to use force right so let me give you an example if you had a let me give you an example sure that all of the  various factions will circumstances at the dissents in the other circuit cases have brought up and we know that those acts in preparation for hobbs act robbery is meeting together gathering instruments where you go to judge floyd's example but they don't involve the use of force ok so this is back to the question about whether the federal standards for attempts are going to generally fall short of what nine hundred and twenty four dollars c three a means when it says attempted use of force and our view which i think angered domingo's st hubert and smith except is that when the word attempt appears in nine hundred and twenty four c three a it is not saying meaning that somebody actually applied having the intent plus a substantial step toward completing the offense and the examples that the center and the manga's and st hooper were using are examples  that do satisfy the definition of attempt but are not themselves what amounts to a use of force  word attempt for a use of force this court's got to figure out what's the meaning of that word attempt and we say in order to find that term go and look at the subtle the legal meaning of the word attempt that's how you define the word attempt in nine hundred and twenty four dollars c three a what do you think that says a legal meaning is and that settled legal meaning is the federal and common law definition of attempt that you would get that is so that requires a specific intent to commit the completed offense and an overt act that constitutes a substantial step toward completing that offense and you can get that standard federal attempts that is a crime of violence so that if you can you satisfied the federal law of attempt and the object crime is a crime of violence that's going to count as an attempted use of force maybe it would help if the defense says look what the government's trying to do here is rewrite the statute so that it says the elements clause minus the attempt language and then it says and any attempt to commit an elements cross clause offense is a crime of violence that would be a different way to phrase the provision but the one that they used is perfectly acceptable and i think this is critical this would be my th argument in addition to weight of precedent plain meaning and the rule and say can are the courts use subtle common law meanings to interpret terms in the federal statute like nine hundred and twenty four dollars c three a is the limited application the defendant's view would result and for that attempt language on the defendant's view every federal attempt crime is going to fall short of satisfying nine hundred and twenty four dollars c three a because all the federal attempt crimes can be committed by having the specific intent to come clean the offense an overt act that constitutes a substantial category it does because that's how congress has to find an attempted use of force that's what these cases like angry the mangas saying hoover and smith are saying as well as you know the recent unpublished opinion from this court  collins that they're what they're saying is that attempt is a is a legal term of art that means the federal and common law definition of an attempt and you know so the defense says ok no you actually have to have used force and fallen short of causing an injury is essentially i think what they're suggesting the word attempt is going to mean and they can only come up with three crimes that they think would fit that standard in the federal code categorically the st is eighteen elements clause them through in the word attempt based on language that didn't exist that just doesn't make any sense now their nd example is the obstruction statute has some provisions in it that they say would be covered and i think that it is fair that the statute although it was structured differently back in one thousand nine hundred and four that they could make their same point but the idea that the word attempt to peer to nine hundred and twenty four c three a soley to cover provision and the obstruction statute and nothing else is deeply implausible when the supreme court and castleman was construing the definition of a misdemeanor crime of domestic violence it rejected an interpretation that would render the statute ineffective and ten states this is far worse and more extreme than that the defense is urging the court to adopt a an attorney protection of the term attempt a nine hundred and twenty four dollars c three a that would have that word function constituted basically reaching the obstruction statute plus they say well maybe there's some a similar crimes out there that's it that's really not a plausible way to read the language of nine hundred and twenty four dollars a c three a that that's the function that the word attempt was there to accomplish was to capture that tiny and pretty esoteric category of offenses the dramatically more persuasive reading we think is again that congress w somebody has to die so right i would be an alien choir's the use of a right and attempted murder invariably involves the attempt to use force but attempted robbery need not involve t use the courts then do it by intimidation so an attempt to commit robbery doesn't necessarily involve an attempt to use force right the problem well i'm sorry there may be a problem with it but what i've said is correct right the here's what i perceive as the key problem so for an attempted murder you couldn't complete attempted murder  by say going out purchasing the gun with the specific intent to commit the murder and travelling to the place where you commit the murder and then not committing the murder and so there's and that but there's never been a use of force cell even though their crime rate up requires the use of force sure but the does and so to attempt to commit that crime is necessarily required to use force i it commits something that has an element that is the use of force attempting to commit it has the element of the use of force but the defendant's definition of attempt would exclude because the attempt scenario that i just described where the defendant never actually even shoots that somebody is not one but doesn't give the defense its explanation of that particular point might be or or i mean every now and again we lawyers make errors right but it wouldn't be an error that would be fatal to its position here which involves a crime straight up hobbs act robbery that does not require the use of force point but but the defendant does not make the law sure but i i don't think i don't think that what he's urging the court to say turns out to be coherent i can't hear you i'm sorry i don't think that i can go back to i don't know that we necessarily with have to adopt the view that he or she is espousing with respect to murder to offense and then the point is well look robbery doesn't involve a use of force and on that i think really involves the use of force right and then i would direct the court to what the supreme court overcoming the will standard is violence and violence is force and that satisfies the elements clause and so i would resist the court's starting premise that that a robbery offense is actually different than a murder offense because of what's said about how we understand the common law standard of overcoming the will and so you can have an example where somebody say attempted victim who is lightly pushed and then surrenders the wallet because the person says to him or herself if i don't give up the wallet i'm going to really get seriously injured because that's what the what the robber is trading on and the supreme court said i know it looks like just you know the light pushes in a lot of force but that's violence we know that because that's i think the government it's trying to basically a lie a jury's finding that a defendant committed an offense with  clarity in that the in the hair case that's not what's going on here the facts to which mr taylor pled certainly show that which does not qualify turning to the attempt to issue judge mocks i i agreeing with you i and would like to i think adopt the kind of narrowing of our argument that we wanted to get back your answer to judge king right yes i would like to thank you so i think that the government ignores  was take from the person fine means of actual or threatened force it doesn't say by means of actual or attempted use of corps or threatening force that's what ends up happening is that you know the government says that what we propose totally knocks out all attempts will be we obviously disagree with that but the but they have not attempted to use force and they have not threatened to use force so in conclusion on that we ask the court rule for us on both issues