good morning may it please the court my name is joan morgan i'm from the flint michigan federal defender office i'm here on behalf of drain cheney i've asked the court to permit me to reserve two minutes for rebuttal we are here today to determine whether or not judge shun cox in the eastern district of michigan erred in determining that michigan's attempt to an armed robbery is a crime of violence under the armed career criminal act in order to qualify as a crime of violence the parties agree that the court should use the categorical approach that the least objectionable contact permitted under the statute is what the court must look at in determining whether or not the elements class has been met and in order to determine that the offense is a crime of violence the court must look to whether or not the offense was capable of causing substantial physical injury my position is that it was not judged chi x relied on this court's decision in mathews and i understand judge batchelder you wrote that opinion and  doesn't apply because mathews addressed an armed robbery in michigan and this case involves an attempted armed robbery under michigan's attempt statute matthews i don't think is presidential although judge cox indicated correctly that it was the only decision at that time that dealt with michigan's an armed robbery statute but because it was not published i think under this court's law it's not presidential and of course it was a two one decision but my main argument in terms of distinguishing matthews is that this is a different statute this is m c l a seven fifty point nine two which is michigan's generic attempt statute and under that statute in michigan the only requirements are that a person attempts to commit a crime and that he or she commits any act towards the commission of that offense and so what i've tried to do in my brief particularly on page eleven of the brief is cite michigan appellate decisions dealing with this statute the attempted an armed robbery statute and i think that if you look at the factual scenarios in those cases you see that they do not meet the crime or  passage which i think is an important case hicks which i think is another important case on michigan appellate decisions where the following kinds of scenarios have been held to be sufficiently sufficient to meet the elements of attempt an armed robbery in michigan there are there are offenses where the defendant attempted to grab a person's purse strap and when the person resisted that was sufficient for an attempt an armed robbery there are decisions where during the course of an escape from a theft security guards tackle the defendant and he or she respon to the tackle and that's been held to be sufficient to meet the elements of attempt an armed robbery i don't think that those scenarios are sufficient under johnson of the cases that i cited in my brief is chandler from the michigan court of appeals and in that case what happened was the defendant approached a vehicle which a man was driving unfortunately for the defendant the man was an after the police officer who was armed the defendant told the driver to get out of the vehicle or he blow is head off and the driver then produced a weapon and that was the end of the scenario prior to the defendant's arrest i think that is exemplifies the kind of conduct that can be sufficient under michigan law under the attempt an armed robbery statute but i don't think it meets the johnson definition of violent force what if you attempt violent force so it clearly what you're wanting to do is violent force but you don't do it something stop you from doing that and if that's not it doesn't meet the requirements them under i don't think so no it doesn't meet the requirements i think that the definition of violent force under johnson is sufficiently clear what has happened since this court's decision is in matthews is that two of our district court judges in the eastern district of michigan have ruled that michigan's an armed robbery statute is not a crime of violence both citing matthews but distinguishing it argument mean that no attempt crime met force requirement willy nilly i wouldn't go that far what it sounds like you are by your argument because if if if you attempt something which clearly meets these use of force requirements but you don't actually use the force you're just attempting then you're not using force seems to be your right because that seems to be the type of case you're talking about where they actually that the force never got used just got attempted to be used and so therefore it isn't the use of force that seems to be your argument and i'm having trouble seeing why that would apply across the board whenever you have an attempt because in i'm not arguing that there is no scenario under which an attempted offense could not constitute a crime of violence i think that what the michigan appellate court that you would say i gather that the very attempting the attempt part of it has to be violent not just what they attempted  was i think you have to look at all the circumstances of a particular case but unless there was violent force used during some part of the offense my argument is that it is insufficient under johnson but well that it isn't a tear up it's probably the actual commission of the i think that would be the normal scenario where the violence would occur was during the commission of the crime but there are certainly a lot of michigan appellate decisions that have less than a completed offense and say that that evidence is sufficient for attempted armed robbery where a step is taken because that's our that's the nature of an it right absolutely standard i'm right and i'm not making that argument i'm saying in this case attempt an armed robbery under michigan is not a crime of  johnson threshold but i'm saying that this offense understand but but but why not were meant when we're making a question about doesn't your argument have the effect of doing what you proport not to do i agree with you that you're not arguing that but it sounds like if we have if we adopt your argument that will be the effect why not i see what i'm asking i hope so and i'm going to try to respond and if i don't please let me know if if we agree that the categorical approach must be used and we agree that the least offensive conduct under a particular statute is that which must be considered and we look at the michigan appellate decisions evaluating what is sufficient under this statute my argument is that the elements of this statute do not meet the of violent force i understand that but the question you'll get from an appellate judges if we rule that way will that mean that we have to say the same thing about every other attempts statute in the michigan code in the article in the kentucky code and the answer you say is well we're not arguing that well no you would argue against that i'm asking for the argument against why doesn't it do that do you see what i'm saying because the rationale that you're using seems to be we don't look at the violence of the thing that's attempted we look at the violence of the action that constituted the a town we looked you could there's lots of ways you can attempt something you can go and gathering the rocks you're going to throw at somebody i guess i not but when you start throwing in mess it's like in a town well but if you keep it you would say well in this case they missed so in other cases upheld the salt when they miss so therefore you actually have to hit them it sounds like with the given says you actually have to commit the crime which could be an argument maybe it's right but i'm just wondering why it doesn't have that effect if we accept your maybe i'm going too far in thinking this through but i'm thinking for example in michigan and attempted murder there may be steps that are taken towards the commission of that offense that would meet the definition of violent for so without thinking through all of the criminal offenses under michigan law i'm not able to say that every attempt doesn't meet the johnson threshold you set up a trap gun and time it for when you expect your victim but yes i'm assuming that that would meet the attempt requirements of most statutes on the particular law that would be an attempt to kill someone who doesn't show up or doesn't get it committed when there's enough there to set in motion killing the person that he might be tried for attempted and that would be pretty violent if the bullet i actually meant hit the person but it didn't you but if you look at what the thing that's attempted it's pretty clearly violent if you look at the actual setup before it happens it's not it's not violent in a so violent and what it's trying to  mean but if you say oh well now that's not enough that's not a violent crime because actually setting up the gun in the timer wasn't violent and i think i'd say yeah ok maybe that's the law and maybe that's not a crime of violence on the statute but if you say that's not then you're in effect saying no attempt crime can be a crime of violence because clearly attempts and not include the violence that they're attempting or am i missing something i guess my response as to this statute an attempted armed robbery i don't think it meets the definition of violent force i'm not sure if an attempt for every criminal statute in michigan would come within my argument or not because i haven't thought about all the other statutes my time is up thank you thank you good morning mark testing for the united states as the court noted from the beginning of this morgan's argument we're essentially here to revisit what this court already decided in two thousand and seventeen and that matthews case that the michigan armed robbery statute requires the use of physical force as the supreme court to find that in the johnson two thousand and ten case this court's opinion in matthews relied throughly analyzed the michigan law including a supreme court case of people versus randolph and other cases from the machine courts of appeal as well as sister circuits in the lamb and her all cases all of which indicate that this court's decision  matthews was correctly decided nothing has changed in the last year to alter that analysis and that fact i have not heard a lot of argument here today that matthews was incorrectly decided ms morgan said is that this court does not have to find that matthews was incorrectly decided but rather could look only to the attempt issue so that's that's where i'd like to focus i think there's there's sort of three pieces here that need to be clarified as the ground work on the attempt question number one i think maybe ms morgan misspoke when she said that the statute the criminal act requires that the force be capable of causing substantial physical pain or injury and just let's get that right that's not what the supreme court said in two thousand and ten at page one hundred forty of the u s report's version of the court's opinion they said capable of causing physical pain or injury there's no requirement that it be substantial so that needs to be kept in mind but on the question that judge rogers was asking and also judge givens an attempt to think the answer really lies in sort of two pieces of this puzzle number one the are per criminal act itself in the elements or use of force clause says use attempted use or threatened use of force so even if the michigan law allowed someone to be convicted of attempted armed robbery because they attempted to use physical force but did not actually use physical force it would still qualify under the plain language of the statute itself or if they threaten to use physical force but not did not actually use physical force the second piece of that of the puzzle is cited in our brief the michigan and judge cox noted in his opinion under michigan law the attempt portion applies to the taking not to the force of mint so it's an the type of force which she contends does not comply with johnson to twenty or twenty as you noted in that case the robber approached a car in it and threatened to blow the driver's head off that's a definition of an attempt or a threat to use physical force it was an attempted armed robbery because there was no weapon seen and he did not get the property of the car because the the driver produced  so it really needs through the heartland of the arm per criminal acts definition of the elements clause in an attempted use of force so i think that that should clarify the question a posing as well are there any cases where the courts have held that a crime needs the elements of force requirement but attempt to do that very crime does not permutation of state law where an attempt isn't really an attempt but i think that that the court's matthews opinion as i indicated earlier was was well grounded in michigan law  and and i would miss morgan has alluded to it and as we often hear in these cases once the court to focus on the least objectionable conduct which is clearly the law it's also the law that the court is not supposed to speculate about crazy i guess to go back to the point about you know if there were some strange state law case out there with an attempt that doesn't really need to definition of attempt i don't think that that should control the court's analysis in any event i judge rogers i am also not aware of any cases that have distinguished attempt versus the substantive offense in terms of a johnson analysis if there were that would substantially i two to some extent last year but they're just coming up and so i think it's the we should start the train well yes but i wan talk about one can this at your door with the word right there in the statute it's there i will still say that the cases that have looked at what i think the government is arguing is the more clearly established crime of violence which is an armed robbery as opposed to simply an armed robbery has been found in a number of cases not to meet the johnson violent force test so my argument is that the attempt would be a stronger argument for my side but i want to cite the court to the yates decision which is a little bit more recent i think it was decided earlier this year and in that case this court decided that ohio on armed robbery which i think is pretty much comparable to michigan an armed robbery was not a crime of violence because it permitted the offense to be committed using any violence and the cases that i cited in my brief also indicate that michigan appellate decisions have said that where there is any amount of violence that would be sufficient under the attempt on armed robbery statute thank you thank you counsel this will be submitted recall excuse