next case on the calendar is united states v johnson morning your honour's i'm out larson of the federal defenders for mr johnson your honour's much of this case will be determined by one that has already been submitted to the court last month and april in us if you do pre that seventeen eighteen forty six a panel of this court consider the same question here namely whether attempted new york robbery aided by another fits the force clause of the guideline and or is generic robbery as a numerated in the guideline and in fact i just listen to the argument yesterday the panel referred to yet another case that had been previously submitted on the briefs that may also control this case so for the purposes of today's argument i'm only going to talk about the third issue in this case which is which version of the guideline applies here and as set out in our briefs it's our position that the deletion of the guidelines residual clause was a clarifying amendment that does apply on direct appeal and therefore the residual clause is not available in this case now when deciding whether an amendment is clarifying or substantive this court has set out this court has said there is no bright line rule one where the other but the courts as we look to three important factors and again this is all in our briefs the first two factors i think go hand in hand it's the language of the amendment and the purpose and effect here what the commission did was delete language in order to resolve ambiguity the commission made abundantly clear in its reason for amendment that it was deleting the residual clause to quote alleviate considerable application difficulties associated with the clause as expressed by judges probation officers and litigants the court said i'm sorry the commission said we received text we've received extensive comment and we're aware of numerous court opinions expressing the view that that our definition of crime of violence is complex and unclear and so we're going to strike the residual clause because also the general rule is you apply the guidelines in fact at time of sentencing that's the general rule but this court has said that if there is an amendment made to the guideline it issued pending a direct appeal if that amendment is a clarification of the guideline then that is applied on the direct appeal and so we've set out our reasons why the commission has also made very clear that its decision to strike the residual clause was it was a decision made to resolve ambiguity there was complexity there was confusion there was widespread discord across the country as to what the residual falls meant and how to apply it and they said to resolve this ambiguity we're going to strike this unclear cause not a clarification or is that simply a deletion it was a deletion but the dilution itself your honor can be a clarification and i talked about this in my brief originally the guideline used a different definition of crime of violence and it used eighteen title eighteen section sixteen's definition along the road in amendment two sixty eight the commission decided to strike that clause they deleted the cause and they wrote a new one the one additional here the commission said this is a clarifying change this court and brown said it is a clarifying change and the court said it's a clarification notwithstanding the fact that language was deleted here in deleting the the court did not delete enumerated offenses as it did with burglary and i talk about that in my previous well by deleting the residual clause all of the commission did was delete confusing ruby ridge that had stymied courts and litigants across the country it did so in order to clarify the scope of the crime of violence and hansen and if we look we see there is consistency the old guideline has the force clause the new guideline has the force clause the old guideline enumerates robbery albeit in the preeminent cases the argument that mr johnson is made here was not made in jones or smith so this is a novel argument that we're making here but we've cited the case law explaining why this is a clarification of the scope of the crime and violence guideline rather that the career offender godless this whole issue could be academic during the pending it could be your honor it could be if we lose the first two issues in these other cases this will be academic but if we win the court will have to decide which version applies and this was a clarification this court has said many times the commission's view of its purpose in revising a guideline is entitle to considerable difference we've cited a case from the eastern district of tennessee girding where the judge sets out in a very  why this particular change is a clarification rather than the substance of amendment and why it does apply on direct appeal so subject to the court's questions in my opponent's comments i'll reserve the balance of my time my name is james kim i'm an assistant u s attorney in the southern district of new york and i represent the united states on appeal the judgment of conviction should be affirmed in this case because the defendant's two prior convictions for attempted robbery qualify as crimes of violence under the honor so what i what i would say in response to that is that in jones and smith the court has considered whether or not robbery in the first degree and robbery in the second degree qualify as a crime of violence because robbery is a numerated under the guidelines and in those cases this court has held in those cases this court has held that robbery does constitute a crime of violence because it's a numerated in the commentary but so those cases honor but with respect to the numerator clause and also the residual clause those those issues have been addressed by this court in jones and smith and so in response to mr larson's points about the residual clause and whether or not the deletion of the residual clause is substantive or or if it's a clarification in this court in in jones has addressed that issue and so and so this court in determining that the residual clause does actually apply and in noting in footnote one of that opinion that the commission did not take a position on the constitutionality of the residual clause in it applied the residual clause even though it wasn't something that was addressed below by the district court but in addition the amendment to the specifically discuss this issue it did not specifically discuss this issue but  it noted in a footnote that that the commission wasn't taking a position and so in addition there are other and isha that show that this is a substantive amendment and not a clarifying one first and foremost it's the deletion of an entire of the entire cla and so if this had been a clarifying amendment it would've actually clarify but content of that of the residual cause others who commentary definitions explanations what is the difference between something to them  clarifying them and how do we tell which is why yes so this this question was addressed or has been addressed by the circuit recently in nearly in twenty seventeen and in that case the circuit discussed the hallmarks of a substantive amendment which include whether or not the changes to the text or if it's to the commentary whether or not the commission actually expressly says we're clarifying this it's not a matter of substance  and also whether or not the amendment is included in a list of retroactive amendments and so looking at those and in addition to the fact that the entire clause was was deleted which in and of itself shows that it was substantive here the commission said that the amendment was a matter of policy the commission did not note that this was expressing a clarification the change was clearly to the text and not to the commentary and the amendment was not included in a list of retro active amendments and so because of all of this and of of a substantive change and because the commission did not express we say that this was a clarification of the government's admits that the residual clause still applies as it did in jones and that for that reason the the court the defendant's prior convictions qualify as crimes of violence unless the court has any other questions thank you i just want to point out one thing this can was just talking about the eleventh circuit and its test but there's a test here in the second circuit and it's in our brief it's the brooks case it sets out the factors for how we tell the difference between clarifying and substantive and we explain in our brief while all those factors favor construction here at the deletion of the residual cause was a clarifying change the commission made this very clear when it said the reason we're doing this is that the definition of crime of violence is complex and unclear we're dropping th alleviate considerable application difficulties it had stymied courts across the country litigants probation officers and like you know what we tried this it didn't work we're dropping the cause but in dropping the cause sound something to we're dropping it because it doesn't doesn't work but your honor what they dropped was confusing verbiage that no one could agree as to the meaning of they did here's in contradistinction as said in our brief when they dropped a burglary of a dwelling they said you know what in the past this had counted as a crime of violence but you know we've changed our mind our thinking has evolved we don't think burglary is that bad or at least it shouldn't be in this guideline as an enumerated crime of violence we're dropping burglary we're dropping this enumerated offense that's a substantive change here all they dropped was confusing language that no one knew what it even meant in order to resolve this ambiguity that it's the courts we still have the force clause we still have enumerated robbery those issues will be decided by a prior panel but here if the court does reach this issue the commission is made very clear the eastern of district of tennessee and girding and the sixth circuit and kennedy have said this is a clarifying amendment the fact that language is deleted is not dispositive again the brown case in our brief when the commission dropped its initial definition of crime of violence under a sixty eight it said it's clarification this court said it's a clarification the mere fact that you're dropping language doesn't necessarily mean that it's a substantive change because if all you're dropping is language that no one can even decipher consistently it is a clarification so if the court reaches this issue your honour's we have a test here in the second circuit the factors explain why this is a clarification the judges who have looked at this closely have explained cogently why this change is a clarification and so should the court reach the issue the court should find it is indeed a clarification