clear the the commission always uses injury to refer to person to injury to the person consistently throughout the gaiwan it always uses damage to talk about amendment process the commission if it please said they were limiting the definition to injury to injury against the person rarely do we how many of these are just really abundantly obvious you know you know certain things prosecutors can't say in closing pretty obvious and our jurisprudence really does not describe anything about the categorical approach is obvious and the only way that this that that that this this case works out the whole theory of error is premised on a multi dential and i'm not sure that anything about the categorical approach which has been described by my colleagues is nonsensical maybe even a ludicrous i believe is not obvious you can say something's nonsensical and ludicrous yet at the same time abundantly obvious what do you say to that i think you certainly can say that the criticism of the capital categorical approach is not that it is not that it is just i'm sorry for interrupting but let me just let me just push back a little what's what's left of from to now if prong two makes things like the categorical approach playing if it if it makes other circuits it reach this not exactly the same rationale all of them still playing when we have an absence of control and press that in this circuit still playing what's what's left of playing i mean i mean sh to so so really your honors aside from that rodriguez got it squarely right there is no there is there is no real debate i would suggest on on the merits of this again i already mentioned we have the the the plain meaning as used in the guidelines of these terms we have the twenty six you name it and but i think it's definition you know what he's been commissioned to not go in that direction so i think in that context it's inappropriate to be particularly appropriate but just courts with a poseur the role of the and the area was not playing but i do really want to focus on the air itself well let's let's let's let's just let's just go if you've got four circuits out there one possibly two certainly the th and possibly why not just follow cole here plus we have we have the cherry on the top we have rodriguez which is i'm not sure i would change a word of rodriguez in terms of its analysis well that's certainly something that i honor but this court of course is an independent court and an independent circuit this court has said i recognize with courses that this court has also said frequently that the fact that a argument is plausible the fact that this court may adopt it one day does not make the argument the airplane and even the four circuits have said this my submission is that the extent of the analysis with all respect to the courts is not as thorough and not as robust as what we have advanced at this court and that it would include the extent of the analysis with respect in the rodriguez decision you know what were the orders equivocal about rodrigues other that  zero it's certainly not equivocal but it but it's a it's an error and my main argument that i want to present your honor is that even if we accept that this may be playing error this fails at step one this is not fair robbery is a crime of violence under the career offender guidelines and the other courts are simply mistaken and this court has many occasions broken apart from its sister circuits where appropriate upon taking a careful analysis that we encourage the court to undertake here we what this is all about do you think judge be able was incorrect or rigorous he was incorrect in concluding that extortion the under the guidelines does not include a physical injury to property the classic definition of extortion the the the problem here is that if you interpret the guideline that way if you believe that the sentencing commission and two thousand and sixteen decided that extortion offenses does not include attacks against property that means that the sentencing commission in tw together and not only a limited hobbs act robbery from the career offender guide the preeminent federal statute with regard to robbery affecting interstate commerce but it also a limited every other extortion statute in the country x the traditional definition of extortion is a threat to injure a person or property we quote in our brief the very famous statement of representative hobbes during the debate over the amendment of the hobbs act which he said everyone knows the definition of robbery and extortion and stated the classic definitions that the supreme court and this court have repeatedly stated ever sets the thought that the sentencing commission when responding to the johnson decision and needing to adjust the career center guideline gas together and said you know what we're just going to eliminate extortion even though explore sion is still listed as a regarding the categorical approach as well but this takes it to another level to say that the career offender guys are which is focused on violent offenses and congress's determination that those  got another hurdle and that is extortion for be one point to the application no one talks about the could be force or fear of physical injury or threat of physical injury the exhaustive history of extortion war that we present in our brave it is not that unusual at all but we also have more in the magazine or in couple things i want to mention one is we have the explanation of the commission itself the commission when it made the gave its explanation of this adjustment to the definition of extortion said in the supplement in it's a memo exactly what it had in mind it said its intent was to limit the offense to those having an element of force or an element of fear or threat quote of physical injury and as opposed to nonviolent threats such as injury to reputation so they may hear very clear they are them to fix it to go your way well there's no evidence whatsoever that the commission with respect quote looked at this and decided you know what we're not going to include have zach robbery and then they came back two years later and said well maybe that wasn't such a good idea after all there is no proof that the owner i mean and i mean i mean the problem is this is when you make amendments you sometimes change from one well intended change for one reason and then there's an unintended consequence of that change th changes either overbroad it removes something that you needed for something else so you could say all day long this is what my intent is my intent is only to change for this one isolated reason but it's the way that you change it brings about a broader result that just means he you need to change again not to say hey well on are your intent your narrow intent when your change was inconsistent no no doubt if nothing else doesn't take us in  there's uncertainty here i mean that i mean does does the rule of lenity do any work in your view i don't believe so your honor because again i don't believe one can make a credible statement that classic extortion is not a crime of violence and no doubt certainly it's absolutely correct that one can make a mistake in a moment but the commission here explicitly told us it was not making a mistake it was simply property damage and if it wanted to include that language having used physical injury don't we need to look to the context in the guidelines and the consistent meaning of that that phrase again around i believe in this context regarding the career offender guideline the categorical approach to hobbs act language that the term physical here does apply to application to property and given the history it's the only sensible explanation and i want to make one more point if i can well made before my time runs out about the language of the guideline i do need to reference the reason this year case the end back decision of this court of course as a court is aware the government disagrees with the conclusion in this year regarding the force of the commentary and and the court has stayed the mandate in the government is of i within what you do but assuming that in a serious correct it has a very important application here which is the holding of the sirrah of course is that the commentary to live guidelines does not control unless there's a clear ambiguity in the text itself that the guideline that the commentary is is addressing and here what we have in the text of the guide is the word extortion the word they represent of have said everyone knows the meaning of and of course everyone does know and if that's true then to then take this commentary which ambiguously uses the word physical to say that we have now eliminated every extortion offense from ever applying under for we want and we've eliminated have zach robbery the preeminent federal robbery statute but that's not a proper application of the commentary consistent with th the sentencing commission in two thousand and sixteen did not sit down and decide we're going to have lemonade extortion even though it says it as an enumerated offense in the guideline so there are numerous angles if you come at this from an appraiser back to the same place which is it is not a credible explanation of this guideline it is not fair it's not certainly not plain air given the ambiguities that we've discussed and we do respectfully disagree with the other decisions which we believe with less analysis have come to the incorrect inclusion the th or should provision in brief says instead of fear of a school injury take up this sicko and you said in effect fear of injury to a person or property you'd be right that's not what it says use of the word visible any time in the way we use standard english quote physical violence to any person or property so there could be statute itself contemplates quote a physical action against property and there is no reasonable way to look at the history o let's just say that physical only applies to something effect effectuated in the bottom right this is called violence to personal property doesn't which would mean violence was bodily inflected inflicted by another person to another person or property it describes kind of the it describes violence more than it does the object of violence under hobbes is that is that where you're coming at this from are you saying something different well i think stepping back in iraq coming at us from is that the purpose of the habs act is we lay out an operation everyone knows ways to address violence against people and property in order to extort the racketeer the mobster the illegal labor organizer the people who damage property or threatens a damaged property in order to secure their illegal and that has been a focus of federal law enforcement for one hundred years and there's nothing that the sentencing commission has ever said that suggests that it does not view that as a parent take matter crime of violence instead we have this obscure amendment here in which they explicitly list extortion as an enumerated crime of violence and then we face these arguments to say well they eliminated it anyway that is just not a sensible reading of the language of history of the the offense level would be twenty one dollars looks to me like it would be night team well i think this firearm go about well in this case without actually dealing with a career event or application but the use of the definition in the f guidelines that guideline imposes a base offense level of twenty four if a person has two previous crimes of violence or controlled substance offenses if the hobbs act if this person's prior have zakk robbery is not a crime of violence then he does not have two prior predicates he has one which was a drug conviction and that's a base offense level of twenty two dollars and so that's why i think the parties are in agreement his offense level would go down by two and that by four thank you able to simply the outcome no i think that's very important and i think this court would consider every factor been that the basic question here is you have a district court that is faced with an issue and no objection is presented where the supreme court has told us over and over is that we're not going to go back and correct an error the no parole proceedings are not perfect we don't reckon there unless all of these stringent standards are met including that it's plain and i think what you have to consider is the lay of the land that's facing the trial judge at that point and certainly the fact that you have other there are other decisions in other circuits it's important but it's also important that the reasoning in those decisions is sometimes in and it's also important that i think insist that you have to look at the lay of the land that the court is looking at in here certainly it's now plenty and certainly when there are such powerful compelling player rule and i think complexity is very important if you have a clear if you have a clear uniform statement of law certainly from this circuit or perhaps from the overwhelming number of circuits on a complex question that would make the airplane  but if you don't and you have something that is this difficult and suggesting a result that the that is this absurd i think that does have a very important role of play thank you very point the court to for instance united states versus evans one hundred and fifty five dollars f there to forty five dollars where it was the situation was was even less clear in the sense that there weren't circuit other circuit rulings there was in fact one other circuit that arguably went with inconsistent with what the rd circuit eventually said was plain error on that on a basic statutory interpretation issue which is is like we have here but then  from that if i could address the merits just for a moment it's really important i believe that we can't just throw things out there no it's not true there's no explores and statute that would ever be  covered as as judge craft as you mentioned at the oral argument rodriguez the oregon statute appears to be divisible by type of threat any sort of divisible statute the arizona statute  statute also you know this is all been this is hope been covered and this is all living a id's very same party in rodriguez and so it's not good enough to just to sort of come out with these blanket statements has it's not it simply is not the case that of course the sentencing commission didn't even think about this and they were totally blindsided when when the two thousand and sixteen amendment began with a publication from the sentencing commission saying we're thinking about removing every property offense from the definition of crime of violence that's eighty federal register four hundred and ninety three one thousand ok this is not fun you know unthinking you know crazy who knows what will let the chips fall where they may a situation this was a carefully calibrated amendment process where offense for instance they retained arson so there are there are some sort of property type frind that the commission deemed were so dangerous that they should still be included but extortion writ large no believe we're in agreement with respect to that if i think i find if you agree that it should be twenty one i will i would say that i would say that i don't think anything turns on that in terms of prong three or prong four of plane air or molina martinez one thousand area morale is both make clear that a wrongly calculated guidelines circumstances and leading other circuits and evidence cole other cases but also if i don't i don't think they didn't hear it i mean in harris i've got it in front of me so i don't need t something i have they have in front of me but the quote i have is the supreme court has never ruled on the writing of these questions and until either until now neither has this court in a presidential opinion and it it doesn't do a survey of other circuits basically said no supreme court ruling nothing president from this circuit granted there was application of fact a lot there wasn't just a pure election law but but but in that context not a pure question different things but you know whether you will be looking at through the lens of the prior precedent role and the long standing the long line of cases where this court has looked beyond its borders and be on the supreme court  from that perspective and the prior president roh or just sort of common sense that this is this is a totality analysis where we're looking at is the sufficiently clear and just because the methodology and  i'll grant a greater honor than categorical approach can can you know have some blind alleys and be a little bit difficult to navigate but the complexity of the methodology is one thing the application in and a particular case is something there's no objection and then we say oh we're going to reverse because without any objection the district judge a trial judge should have engaged in a seven step element by element for an individual offense reduce biz weapons we have different cars analysis should have done all that complexity on the fly without the least bit of objection and so it strikes me that when there is no objection just as a practical matter if something involves seven steps of legal gymnastics some of which are counter intuitive i think maybe at least to me a speak just for myself some of which are counter intuitive it strikes me that we are giving the meaning that supreme court has said plain mean which it is obvious to anyone in that courtroom including the trial judge the defense multiple delaware state statutes about sex offenses and everything else and and and that was not a barrier so it's so if if if you're if you if the court thinks that not sufficient weight is to the reasoning and whether there's consistent reasoning among other circuits not not simply to the outcome i know i don't think that is actually dispositive maybe it comes into play a little bit in the sense of judge s mentioning of complexity i mean if you have a i can imagine situation where of course are all over the map in terms of how to get to where is all that would suggest the issues that you might weigh that in somewhat but but