in chief justice roberts said seven or eight applications of sixteen b through the us code and concluded by saying that even one twenty force the appears to be vulnerable but i thought that i thought this question was about the operative provision not the definitional fish and the definitional provision is the one that's closest to the residual clause and sixteen so he understand that's the right the question was about you person who has three previous convictions or not a person who has committed right remember that passage and paler and then again and johnson and so by contrast nine twenty four see that is the provision that criminalizes the conduct that creates the crime sections twenty four c three what they mean by crime of violence and they order the same language from sixteen b those two statutes were written at the same time in the one nine hundred eighty s and congress offered no targeted language to tell us that there is a distinction in the way that your honor is proposing the fact that on a twenty four c does the crime of violence is looked at in the form of a contemporaneous crime that occurs in the federal case itself simply may not be fewer when congress enacted this we didn't have a categorical approach right that's something the supreme court came up with later to deal with the problem of how to how to deal with prior convictions criminal law the kind of the backdrop that would have existed when congress was and acting this statute we find there are a lot of criminal law provisions were  conduct which creates a substantial risk of serious consequence injury to another person or the georgia version which which includes language about constituting gross deviation from the standard of care which a reasonable person would exercise or the florida for vehicular homicide statute which talks about a reckless manner likely to cause death so you look at what an ordinary case would be honor like to take your points in order the supreme court did not create the categorical approach in taylor in one nine hundred ninety it simply interpreted it for the first time but it was always there the court told us in taylor violent felony provision it slightly different but taylor noted that congress quote carried forward the categorical approach that was intended for one twenty four c second in taylor the court did talk about your honor a need to avoid constitutional violations by having a federal judge determine the facts looking backward in time and some other case but that was only the third of the three reasons that the court gave us and taylor for a plan a categorical approach in tailor the for the court let off with the text just as i've done here then got on to congressional intent and finally said by the way there would be correct constitutional issues as you said your honor i get i don't doubt that it it makes perfect sense to apply that categor approach when it when you're talking about and elements cause her numerator defense clause where a court really has to make some kind of leak preliminary legal determination but when you get to something like the risk of force clause what my point is it's not unusual at all for the same kinds of substantial risk questions to be posed to juries for fact finding in the ordinary course and if that 's one way plausible way of inter breeding the language just like it works in other areas of criminal law are we obliged by the canon of constitutional doubt to adopted no your honor here your argument reflects justice thomas argument and his dissent into maya where he made some of the same points that you're making in only two other justices voted with him into my of the that was not that's a prior conviction context this is  about that yes the statute here is set forth in a different context as a contemporaneous notes that we don't have in sixteen b and because it was applied isn't recidivist type statute but the constitutional avoidance question that you pose your honor doesn't apply here it can only get to constitutional avoidance when there are two plausible competing interpretations of the text here we have only one the text plainly requires a categorical approach meyer said so when justice thomas raised this constitutional avoidance argument into maya just as he done in johnson he lost the text but sorry go ahead can i get you to go back to the operative provision that just that judge newsome and judge pryor were just asking you about that operative provision has three definitions doesn't it drug trafficking crime the element clause in the residual clause is a lesser matter and yet we read the drug trafficking crimes and the elements clause as categorical despite the operative provision isn't that right yes or no so it can't be the operative provision that means we look at the conduct in this case it's got to be more than that right that's right your honor in fact it would be  approach to the first two that you listed and yet shift away to some fact based approach for a third i'm not aware of another federal statute with several problems in which they're applied one way where a judge makes a question of law another way where a judge jury excuse but in that i twenty four seek context that's not exactly right because what you because you don't not dealing with a prior conviction it's true that it judge would make a legal determination of elements for example but the judge could decide for example that if it's hobbs act robbery carjacking that it's categorically a crime of violence the jury then makes the determination under the are under the operative clause that in fact the defendant committed a carjacking right yes or so we it still comes back because it's not a part conviction to a conduct based inquiry isn't that right no sir not on the question of whether the carjacking to use your example or hobbs act robbery is a crime of violence as things stand now and as they should be a district court the jury that that question of law is as the court has decided it to be and that's one element or one ingredient that the judge the jury will then take into consideration when deciding if the defendant committed the carjacking if you possessed a firearm that was in furtherance of that carjacking etc so those factual questions have been walled off from the question of whether that underlying crime is in fact a crime of violence but has on the government here conceded and we can ask your adversary when she stands up and as in the government conceded that under  conduct based approach that question would be charged during the jury would make that determination yes the government has offered that as an effort to salvage the residual clause but it's not enough because the residual clause text requires a categorical approach as i said and we can't salvage it through any kind of constitutional avoidance path to then say let's give it to a jury and then at that point we'll need to make a sixth amendment right for the defendant to have a jury decide what's a crime of violence we don't get to any of that to rewrite a statute this court is not well it is not this court's place to tweak congress's statute in a way that might be constitutional in some other way and so the discussion of how might this become workable for a jury how might a jury be able to accomplish this fairly to the defendant is really beside the point because we don't even get there the text alone answers the question for us and then congress isn't yet met then it could be done that way yes yes or it could be it would be constitutional potentially if congress held you could put it to the jury only if we get there your honor but i and i want to avoid would it not any sixth amendment problem of judge made fact finding if we were in that world where juries were making a decision yes yes he wouldn't have a six the bettman problem if indeed you didn't employ the categorical approach one other rationale that the court uses as you read taylor johnson and my it seems to me to be highlighting what they characterize and this is the court's phrase the order practicability of applying a conduct based approach to prior crimes often decided long ago in multiple for that problem is absent here isn't it when you're looking at nine twenty four c three that particular problem does not apply here that's right so to the extent there are three props one is text you've addressed that i'm talking about the crops that the supreme court used to hold the way they did one was taxed the second was the utter impracticability of applying a conduct based approach to prior crimes and the third was the problem of judicial fact finding in the sixth amendment the last two problems disappear here don't think even if you  they may you're out but again we don't how would they not seems to me the beginning middle and end of your argument has to be the text to answer the question to maya told us what the text means that's the beginning and end that even in fact if it's true there's no problem of impracticability here and even if there's no problem with the sixth amendment judge made fact finding do i have that right yes or ok yes or that's precisely what i'm saying let me ask you another question about about the text as interpreted by justice thomas and his descent into my he says that we can explain nine twenty four c three b s use of language like maybe used and by its nature as simply making clear that the crime need not be completed in other words if it is somehow fortuitously interrupted you could you could still meet the definition of the risk of force  how do you respond to that textual argument that takes a round about way to getting us right back where we began which is what does an offense mean what does by its nature mean it cetera justice thomas wrote at length on this topic and last so his textual disputations with the plurality and to my did not carry the day in the end what i want to know what your answer is though about that text because as we know justice or and that's all the more clear when coupled with by its nature by its nature is the inherent qualities of a given crime but why isn't justice thomas argument at least plausible his textual interpretation promise was taking a more complicated roe than i think he needed to take and i think i haven't we used by its nature for a conduct based inquiry and dodge for the sex offender notification act follows quote any conduct that by its nature involves sexual now in this is actually this one though is placed in tandem with the with the operative clause which is very conduct based  language that follows it that talks about in the course of committing the offense that's that's conduct language that it's in the middle of isn't it not enough to carry the day right or because by its nature and the residual clause is paired with  offense and there's no any conduct language in sight in the residual clause we have to go far afield from that finite set of words to decide as your honor said that were then to leap over to the conduct  that we don't go outside the boundaries of nine twenty four c three b one of the words that you focused on textually come over here was the word offense you focused on in the nature of you focused on the word offense and i want to talk about that word in the job on the holder the supreme court says that and they're trying to determine the meaning of the phrase an offense in which the last sixty ten thousand dollars they hold specifically in that context that it referred to the specific acts involved and quote did not require a categorical approach and they write that in ordinary speech words such as crime of fence felony and the like sometimes refers to generic crimes and sometimes refers to the specific acts in which an offender gauged on a specific occasion hasn't the supreme court suggested in varying ways in different contexts at different times that these words are the words i've referenced sufficiently malleable and open to interpret the debate to yield either conclusion that maybe you'll apply a categorical approach and maybe you won't depending on context would that be a fair reading of the word all friends and the meaning of that word i prefer the quotation from your honor in which the court said that the word offense simple wrong no i understand you go back to taylor and find similar stuff as a problem i have is that looking at the spectrum of supreme court cases it seems to me they've used at least the word offense in different ways in different contexts sometimes staking out a categorical position and sometimes not i do agree with that your honor however that's the rub is what is the so i g judge those problems have disappeared in this context you want to see my time is up my answer your question please we must look at this particular set of words that have been given to us in this particular order so in the context of sixteen b and nine twenty four c three b an offense has a meaning that leads us inevitably to decide if we look at how a crime is generally committed there may be other statutes you cited one in these are one in which an offense is surrounded by different words different choices by congress that were meant to tell of a court to target his evaluation of the facts on the ground but here this exact set of words of the congress chose so carefully requires a categorical approach into my told us so court my name's elizabeth nick that appearing on behalf of the united states this court should maintain the categorical approach when deciding whether or not a predicate offense qualifies as a crime of violence under nine twenty four c three a let me ask you some about the text if you take the definition from three c c three b and plug it into c want to say when you strip out some of the irrelevant stuff or at least for our purposes irrelevant it would read any person who during and in relation to any crime that by its nature involves a substantial risk that the physical force may be used it cetera at the time of the case specific approach focus we already know what the crime was and maybe use sounds predictive as opposed to descriptive if congress intended a case pacific approach why wouldn't it have said any crime in which there was a substantial risk as opposed to there is a substantial risk that physical force may be used there are lots of different ways that congress could have drafted this statute absolutely when we look at all of the phrases that they include here and often the phrase by its nature involves and in the course of committing the offense but is but is my colleague just how think made the point they've been interpreted both ways if i've had your clearly and case specific and may be missing that that's certainly one interpretation i think that the defendant's argument is rises and falls on the text and whether or not the constitutional avoidance doctrine is at play here and the defense counsel says the constitutional void  doctrine is not at play because the statutory text is crystal clear and the only time that the constitutional void in doctrine can apply is if there are other reasonable interpretations on how to interpret these words together use is that is one example where the phrase by its nature yes we could interpret it one way as a matter of metaphorical in the ordinary case approach but when we add the may be used then it becomes reasonable to also interpret it as the defendant as judge pryor pointed out the defendant not being able to benefit from the for two it is fact that physical force actually didn't happen so in other words you might have had a stash house ro robbery where everyone shows up with guns or a carjacking where they show up with guns and a baseball bat and it's fortuitous that no one got hurt that no violence was actually used it would it nevertheless be a case where the offense by its nature involved a substantial risk that force would be exactly on the look in that's it's difficult to imagine one of those cases which wouldn't fit under why well it's because it does not have as an element so for example let's take arson and kidnapping so arson does not qualify under the elements cause because it doesn't federal arson does not require that the property and the property has to be of another kidnapping does not qualify under the elements cause because you can commit federal kidnapping through deceit or inveigling and because of that it won't qualify under the elements clause but we know that many times kidnapping is going to be done in a very violent way and so to to avoid one twenty four c three b for vagueness that means that will lead to the absurd result that crimes that are committed in an extremely violent way we can no still qualify under the elements and some might but some might not think for example of a carjacking case were two individuals decide to carjack a vehicle that's a block away they both have firearms in their own car but they like the other car better so they're going to try to get it they walk out of their car they put their guns in their waistbands they start walking a police officer who luckily knows what he's doing figures out what they're about to do and stops them halfway to the other car if you use a conduct based approach right no force was used in that case right right because they got stopped ahead of time if you used a categorical approach you might well conclude that that attempt offense by its nature would create a substantial risk that force would be used against a person or property of another right so they're going to need some they're going to be some of those in coate offenses that are going to fall on one side of the line or the other i think that that could play out that way a substantial attempt may not be the step that involves the use of attempted use of force right and you could take a substantial attempt towards the commission of a crime without getting to the point where you actually use or try to use force you may get stopped earlier than that but if you've done a ton of preparation and a lot of work up to get to that point that might still be enough to convict you of attempt in and of it tempted use or threaten use of physical force is if you're a question of law and so at writing no law why well that if there is a six if there is a sixth amendment problem on the risk of force clause going back to judge knowles question about whether you read these provisions together if there is a sixth amendment issue that requires you to submit by its nature maybe use substantial risk all of that to a jury in a risk of force clause why are you not required to submit similar although different questions under the elements clause why should a judge be able to figure out one without violating the six amendment because and not figure out the other us not not not conduct language like committing it's an entire question of law you look only to the statutory text and look at the elements now for a can fly here is why shouldn't a jury have to figure that out in difficult cases if there are there have been numerous cases in the federal reporters were judges have disagreed about the elements of a given offense and there are the use of force clause of nine twenty four see if there are those disputes why shouldn't those for six amendment purposes also be put to a jury so the you're in your answer the juries don't decide issues of the law exactly to the jury would still be instructed on what the elements of the the related offense are so carjacking for example the jury will have been instructed by the district court what the elements are and then will have to find whether in fact those elements were satisfied absolutely the jury has to find first that the defendant committed the underlying crime of violence so the jury would have to find that the defendant in fact engaged in hobbs act or robbery and then the jury would have hypothetical case where you're forced to as you said give the issue to a jury so what would you ask the jury to find all right so a jury instruction for let's say kidnapping or arson or conspiracy to commit a violent  which is where we're saying that the risk of force clause controls we would ask the jury to first find that the defendant committed the kidnapping so the same as before second as the jury to find the defendant  use or carry during in relationship to the kidnapping a firearm or possessed during in relation to the kidnapping a firearm third and this is what's new this is where the jury would be instructed did the defendant while committing the kidnapping was there a substantial risk of physical force would be used during the kidnapping during the course of the defendant's committing the kidnapping of his actual kidnapping actual kidnapping jury that it may not determine the underlying of involve a substantial risk solely because the defendant or one of his compositions had a guy so you know even on some level they do have to  imagine something other than the facts before them to make this determination well so in this court counsel's that the jury cannot ignore the fact that there was a gun and looking at whether or not there was a crime of violence and certainly whether the other elements of that but what our point was is that that is the jury shouldn't assume that just because a gun happened to be present at the crime that the government has met its burden of proving the crime of violence element so on the they've got to decide whether it's a crime of violence so that on the verdict form right now they don't know if they said decide whether there's a substantial risk  it was a gun so my question is what is the jury verdict the verdict form that goes out with the jury say to get out that question well i think that stretch these are the element which you're saying you don't have to give the jury an in iraq get to work right there doesn't have to be a special verdict form but i think that's right to the question is let's assume are you window that everyone wanted to cross the t and dot the i and you wanted to ask the jury more specifically than guilty or not guilty what would you ask if you wanted instead to rock atory that broke it down there with me into three pieces what would you have that say so i asked the jury to first find if the defendant committed the kidnapping then asked the jury to find yes or no if the defendant use your character possess that element and then ask the jury to find if there was a substantial risk of physical force would be used during the course of committing offense but but in your brief you say the court should caution the jury that it has to make that determination without you know not not just because there was a gun involved so the language  the verdict form correct not that you don't think it's necessary to instruct the jury that have gone a long doesn't create a substantial risk correct so what you're saying is if the jury convicts them then you just assume that as a part of the process of coming to the determination to get that defendant they decided based on the instructions given that it was a violent crime they found that every element the government every element of the often charged now just to be clear the jury would be finding this that this element element number three about whether something is a crime of violence only where the government is proceeding in a case where that crime does not fall under the elements well that's not true because in this case you argue that that this qualifies as a cop problem balance under the elements clause and here we are well exactly i mean we we believe that this case can be decided on the elements and that is the department of justice position that we will not proceed under c three b if we have a three a we're not going to make this a jury issue if we have the elements would add that requirement would add that element and then the defendant would have to plead to an acknowledged their heart least agree with the proffer that he had a fact created a substantial risk the physical force would be used ye part of the bargain i mean either agrees to plead guilty to that be a third of the three be are not and the government can bargain it away if he wants to and he can bargain  want in this case other than the presence of the firearm shows that by its nature this condo involved a substantial risk of physical force definitely charge it and argue it that it was a crime of violence so possession of firearms isn't doesn't create a is it a conduct that by its nature creates a substantial risk of physical force but brandishing a firearm does i can't imagine a situation where if someone brandished it there would not be a substantial risk of physical force would be used in this case it was brandished a neighbor came out wielding a gun and shots were fired necessarily require that guns were fired that's what we had here it's certainly an easier case for the jury it seems to be a slam dunk on that element but there will be other cases where it's not going to be so clear an argument is that that is that's a jury question and but isn't it solely the presence of a firearm in that case that makes it qualify as a crime of violence and that's what you were just speaking with judge martin about no and it's ago it's not just the presence of the firearm if you look in this situation the situation i think it would so many used as proved by the fact of the actual use so we get back to what about a case where it was not actually used but yet you're charging it maybe and i will also point out that this element that the government has to prove the crime of violence element is separate from the actual use or carrying of the firearm so something could be a crime of violence without necessarily involving the gun so let's say we just had that here we still have to prove that a gun was used in other ways to further the crime yeah i mean i would have thought that your answer to judge holes question would have been if the posse shows up one of whom they're armed with a baseball bat this is their m o when they show up to carjack somebody with a baseball bat forget about the forty seven that that would be that itself would pose a substantial risk of that right you got to show the gun separately but today to address judge martin's question forget about the gun we're not even going to use the gun to prove violence of the crime the baseball bat proves the violence of the crime that that's when these people show up and jump out of the one of whom is on with a baseball bat even before they whack the little girl in the mouth with a baseball bat there's a substantial risk that physical force will be used absolutely let me ask you a slightly different question are we allowed to treat different portions of the same definition in a different manner when deciding whether to use a categorical approach your conduct based approach you understand the thrust of our question can we treat nine twenty four c three a one way they were considering the singular question of whether the new rated offenses and had to do with the enumerated offenses listed in aca that is to say what offenses could qualify as the enumerated offense a burglary and yet when they discussed the matter they swept with an awfully broad brush the way that i rebooked elsewhere to find the answer so we look at the text itself we look at the context the way i retailer when reason i say it is for example the first thing they say and taylor and i quote the language of aka generally supported the inference that congress intended the sentencing court to consider only the fact of conviction of a given  looks like they were speaking pretty broadly i you know i think taylor when it's looking at the text it relies on the fact that the word involves was not in there we have the word involved in this it also relies heavily on the fact that aca required a conviction for and taylor explicitly says the language doesn't say committed and we have that language here so when you look at all of the phrases together it is a reasonable a reasonably so before before to my we had no reason to think that nine twenty four c three b the risk of force had any constitutional concerns at all we didn't have any reason to believe that section to persuade the majority of his colleagues i would say that course it has asked the government to revaluate and or such as explain i want a robust process on th constitutional avoidance doctrine all there has to be is a feasible interpretation and only after demaio ended the constitutional avoidance doctrine kick in exactly that's exactly right after i thought you were getting around that i don't and i started my argument with that after to my other now serious let me give you an opportunity to respond to something that you didn't get a chance to respond to and brave as you know make  you didn't have an opt in to respond to there and it's well written brief basically arguing the rule of lenity would you like to respond to that now since you didn't have a chance to do it in your brief  i don't think that we need to get there under the rule of constitutional avoidance if there is a reasonable plausible way to interpret the statue which there is based on everything that supreme court has said different ways to interpret the exact words we have here exactly what this how this court interpreted sort of provision because there is a reasonable way to interpret this to save it from constitutional concerns after to my constitutional avoidance doctrine controls this court has a pla the government proposes a number of ways to help jurors make a decision on the residual clause but this court is the ron audience for those arguments congress needs to do that and it has not for thirty years congress has watched federal appeals courts apply the categorical approach to nine twenty four c and has done nothing congress has amended nine twenty four c and many other ways but that has like that's that's like the weakest conceivable indicia of kind of congressional intent right congressional inaction in the face of courts doing thus and such surely we can't be bound by that we've got to get the statute right the courts not bound by that but it certainly strengthens my view on the congressional intent we combine it with the supreme court telling us in taylor about for a long time three times the supreme court of the united states up held the constitutionality of the residual clause and aca before then changing course very recently and johnson so for ninety percent of that period congress was being told nothing wrong here it's all constitutional nine twenty four c is a different context because congress has twice amended the statute in response to supreme court cases that make findings or holdings on twenty four c and simpson in the early eighty's and then in bailey in the mid ninety's and both times congress expressed displeasure with those holdings in amended the statute to write it the way congress wanted to it did not do so it has not changed a single word on the crime of violence definition in thirty years since it created that provision therefore i understand that we are here and we certainly have talked about subsection b do use your client lose under subsection the alternate holding proposed by the government and also a prior panel the court is certainly free to evaluate the elements clause but i ask the court instead to spend its energy on the residual clause in the two questions that were certified here do we look so non energetic you think we can only do one of those things you know and you argued before the panel that it didn't qualify under the elements clauses or is that not correct i did you in the main panel argument was the residual clauses and constitutional and it doesn't qualify under the elements yes i mean throughout this case the defendant has maintained it doesn't qualify because it's an attempted carjacking as opposed to take you can see maintain that today and that's why you want us to first deal with the visitor absolutely and that's not the only reason this court has taken that issue our bond because it has great importance throughout the circuit as your honour's know there are countless cases waiting for an answer from this court if this court sheds the categorical approach and turn sharply toward the fact based it will be the first and only federal appeals court to do so this court will then be an outlier on that issue the government has also talked about the fortuity for a defendant who somehow commits violent behavior but then skates free on a one twenty four c conviction because the residual clauses is gone but that's not entirely fair the district court has plenty of tools to punish that violent behavior and to punish it harshly a court will have a much higher guideline range without one twenty four c's presence the court can depart very upwards from that guideline range is highest that ma why do you think the supreme court routinely adopt the category approach in taylor the supreme court told us first and foremost the text of the text that just to be fair is different right because what taylor said about the text was it refers to convictions not to conduct yes your honor however i do we have the word convictions in the statute no your honor but the supreme court into my is that that is the superficial textual difference that has no effect on the outcome of whether to apply t categorical approach or not and the government has really dropped that part of its argument as well well i thought to my i was talking about different superficial textual differences with all due respect to the panel in this case i think that the maya fairly well demolishes to the textual differences that the panel here are a den of fide but convictions was identified in taylor and then carried through into johnson that's what the johnson court said again quoting taylor this statute is significant because it refers to the word convictions yes and that's what's different in part one of the many things i think that's different about this statute you know my time is up may answer your question you are accurately assessing those other cases however the fact that those that that statute the c c a has the word convictions doesn't mean that that's the only time that this inquiry applies to my expanded it now the on the c c a to sixteen b and as you know that's identical language to what we have and what you're just so in i mean so we're all sort of on the same page back to judge marcus is question you're right that's not the only reason but as i count them up i've got five or six i'm more generous than judge marcus is i'll give you five or six props that the supreme court has used over the years to to prop up the categorical approach one is language like convictions one is the absence of any contrary language conduct based language one is the other impracticability one is the sixth amendment and then the last bit is the by its nature and as i sort of just walk through those the only one that i can see really favors you still is the by its nature language and there you've got judge joe priors question about justice thomas is dissent and why isn't that a reasonable interpretation of by its nature so i'm just at the end of all of this i'm left thinking none of the reasons that the supreme court has thrown out there propping up the categorical approach really still applies to this statute except maybe by its nature and it's sort of like this halfway but see justice thomas plausible interpretation the five or six props that you cited r are not equals the text comes first and the supreme court's told us often that if the text answers the question then we stop there and that's exactly the case here thank you so let me make one announcement before we  take that case under submission probably should have done beginning judge joe flat is not here today except he is here he's been monitoring the entire argument telephone book up had the opportunity to ask a question should he wanted to and he's also going to test paid in the conference so he will be participating in the decision of this case that said thank you counsel on both sides i thought it was well presented in your brace or well written as well i would take