of violence under the career offender guidelines as we all know there are two ways that an offense think qualifies a crime of violence under the career and career offender guideline it can qualify under the force clause if it has an in this case at dispute is whether or not it would qualify as robbery or extortion under the enumerated offenses clause to answer that question we app permits the crime to be committed by the use or threatened use of force against the person or property and when you compare that using the category of pro choice with the force clause definition which is that loss likewise doing a similar comparison looking at the chair robbery definition is really the same as very similar analysis so you're comparing a house like robbery definition with what this court is defined as this court is defined generic robbery as the misappropriation of property under circumstances evolving and media danger to the person so you've got two problems there one is the immediacy there's an immediacy requirement it's in just a generic robbery definition that we think takes it out here and then of course it requires that that threat of danger be to the person zach robbery is more broad than that and includes a threat to personal property and again all the circuits to examine this issue have determined that under the that's also been the government position and several of these cases yes the government is actually well going to the forced clause in the government that's something that the court's going to examine the issue really dispensed with relatively contention on the merits has been under extortion definition and even though i would say less than it had was probably basically o'connor it ultimately found the roulette of the applied most of the courts did not even go to the rule that the most of the courts determine that the most natural reading of physical injury in that definition means bodily injury and so the general conclusion across the board is that again object robbery is more broad in the guidelines extortion definition and therefore it does not qualify as a crime violence as to qualify and it's clear so so would note that the position taken in this case is consistent with the position taken in the senate which is actually more recent than rodriquez so one might say that the council your council council this is clear in three different circuits the government has conceded that there's not a match with generic robbery and so i am troubled by the united states only gets to have one position and  if you are you suggesting that maybe at one time the government's position was that it doesn't match with generic operate but then after a loss for cases on that point it changed its position and decided that it did match no you general or the criminal division is on this question i do not know today does seeing as you have not attempted to ascertain that before you came down here would apply on the force clause i do understand why there are other circuits have disagree whether the government doesn't know that that authority is out there and believes that that authority would support its position similarly there's a forty that would support the position that would ever take exception to that proposition again i understand that said i i unfortunately i'm not a quibble with the facts that may answer the panel's question which i certainly understand and i i don't want to misrepresent anything and i i don't want to be dismissive either i am not aware of whether the solicitor general has or has not adopted a formal position on this to be got to be  perhaps was not settled in those other cases as well i don't know that that that that helps or or or aggravate the panel's concerns turning back to the to be the  lot on the distinction of person versus property and rights there and i i'd like to speak to that briefly particularly that the government's image here that while it is important to focus on all language of the statute  definition because that in some aspects again turns on the person versus property dichotomy i will turn to the to the explosion argument it's as my colleague noted the course of spend more time on that and the existing at the time of this amendment courts are generally to fighting defining extortion in a broader way based on the supreme court's holding in our delano which defines extortion for purposes of the hobbs act and then they say we want something narrower than that so it sort of looked to me like whatever else would be in or outside this guidelines definition the whole point was to make it narrower then are delos description or definition of extortion under the hobbs act what am i missing judge judge i don't i don't know that you're i'm not sure what you may be missing you you are right that this is a point that i didn't see race d in some of the other courts i i think the commission was proposing multiple routes here and seeking some comment on which perhaps may be the best route forward i know one proposal involve it was seeking comment about what may be the most prudent way to do that i don't know that answers your your question about what they were attempting to do but it's my read that what they were attempting what they're standing there isn't necessarily  parties do it really applies here there's been no dispute here i don't think there's been any speed in any other courts to address this issue before the focus under taylor is an examination of substantial convictions that were qualifiers or the court's determination and those involved what are essentially the same conduct in bali i understand it the court looks at elements not facts it does the defendants argument and his sentencing memorandum somewhat ambiguous although he also cited corals which is about you know and elements based analysis so it was hard to get my hands around but the thing that was really clear was the government's argument in its sentencing memorandum because it argued expressly hobbs act robbery qualifies as the guidelines crime of violence because it matches the enumerated offense of robbery and so i think the elements question was not just big this was in front of the district court and i think the district that was contrary to the position the government was taking in other courts and at a time when at least three appellate courts had rejected that argument and i find i think about how this mistake got me that sort of looks to me like the right way to put this nobody is exactly above reproach either that's all i have to say it seems to me that there was to the extent that this wasn't properly framed for the district courts you know i'm not sure the government doesn't share some of the responsibility for that idea i understand your point judge cares about perhaps some some confusion in the fact that this was not  appeal i would submit that whether you find that it's plain error or that it's a harmless error of you is just a matter of who the burden is upon whether it's on mr reid to show that a lot of satisfied or whether it's upon so long as the record is clear in here what i think it's fair to say that but the court in this case did explicitly say if i turn out to be wrong about whether or not the career offender and handsome in applied will look at this justified something more than even the one hundred and twenty months so while i do judge harris take your point about considering that this could possibly come back i think that the explanation of the sentence itself  sentence going below the career offender guidelines and well above not only the non career offender guidelines but the one hundred and twenty month read upon the end so unless the court has any additional questions for those reasons the government would  error here even though the district court very downward from the incorrect guidelines for age it greatly impacted the ultimate sense which was one hundred and forty four months that was imposed and that's four years over the top of the non career offender guidelines french which was do our work without lawyers like you