in please be seated have a very long calendar this morning but i do understand that all counsel present and so all dispense with the calling of the calendar before we proceed to the regular you may counter we do have t courts grant of the defendants he vs motion should be summarily reversed in this case the court erroneous lee concluded that robbery and attempted robbery under new york law did not categorically constitute a violent felony under the arm career criminal act in stoking the supreme court ruled otherwise holding up a term physical force in act a compass is a degree of force necessary to commit tom in law robbery as a result common law robbery categorically qualifies as a predicate felony under aca and this score in three or relying on circling clues that new york robbery and every degree including attempted robbery and  saying in terms of just sound usually ministration why would we want to wait to see what happens when the supreme court does with that case that raises this very question well the defendant here who is subject to a mandatory minimum fifteen year sentence was till the supreme court decides what's the difference between now and waiting and i think the answer to that your honor is is the that the countervailing interest is returning to send a vigil to prison as as swiftly as possible and so you believe  he presents a present threat of either either flight or danger to the community not necessarily your honor i think the government's interests as expressed through the congressional interests and opposing a fifteen year mandatory minimum sentences having good morning honest the government is asking for an unprecedented relief here this case deserves full briefing this court has not granted some reversal before the two cases that the government and there are also others that i would like to brief in a fully briefed appeal thrower decided narrow question about attempted new york robbery that's just to make sure i understand so you're saying that you would prefer to go ahead and silly brief i'm not saying that we shouldn't wait for the search petition and thrower to be decided and if it's granted for the supreme court to render a decision on the merits right yes or definitely the court should wait until pro or until the supreme court addresses whether or not they're going to consider thrower and the court should also grant full briefing in the normal appellate process that's what this court's rules are and precedents require this court has not presumably you'd have both going on at the same time unless you're proposing something else i agree with with the court that a stay would be appropriate to see what the supreme court does in thrower but after that when the court considers how to decide the motion i the court should deny the motion for summary reversal and grant full briefing so that the court can consider the issues in the regular appellate process that's how this court considers appellate issues and in this case it's not a small matter mr austin is fifty two years old he's been out of prison for twenty months he's had no difficulty he's been working and complying with the conditions of his release so this is not a circumstance where this court should for the st time grant some reversal of the contrary of that that would be an unprecedented decision by the court and there are issues that mr austin should have the opportunity to create in his appeal not just the argument about attempt and the statutory elements of attempt which were not addressed and throw or throw or address whether or not attempt to use existing attempt to threaten to use force was sufficient it didn't address this elements based approach which a connecticut district court has recently held in the connecticut context afonso and which is being fully briefed by my office and other cases that is a non frivolous issue to raise to a panel in a regular appeal mr austin also has other issues which the government hasn't addressed for example the lack of shepherd documentation or simply his due process rights not to have been successful rehabilitation up there and then after a lengthy delay and putting him back in prison i don't know whether or not will prevail on those issues but they desire fall and regular briefing this court should not circumvent that process for mr austin finally just to address the government's assertion that they have a compelling interest here and returning the star austin to prison even though he has not violated any term supervised release there are many similarly situated people who  released under the aca decisions before thrower who are not placed back in prison and the government didn't appeal their decisions so this raises a question of arbitrary enforcement and how long the sea been  twenty months here on the humans will be two years around christmas and he's doing well he's really appealing rehabilitated after about eleven years of incarceration this is a case that deserves serious consideration and full briefing thank you very much thank you for the reserve decision