the first case is united states versus terror's johnson counsel may it please the court in richardson for the united states and your honor i'm happy to answer any questions questions on either the government's appeal or the cross the defendant's cross appeal  district court as we now know after back calls erred when it determined that the guidelines were unconstitutionally vague and that the guidelines commentary definition of the inner miranda defense of robbery could not apply to the defendant's two prior new york state robbery convictions now beccles has clarified the law and made clear that the guidelines cannot be vague we know that that decision was erroneous and the case should be remanded to the district court free sentencing consistent with the appropriate guideline sentencing range is fifty seven to seventy one months instance and makes the argument of which guidelines which value of the guidelines to apply to that i can your honor the original the version of the guidelines as applied in the district court was the two thousand and fourteen guidelines version and that was applied because mr johnson argued there would be an ex post facto violation if the two thousand and sixteen guidelines were applied to him he now argues he now agrees on appeal th two thousand and fourteen guidelines should not have applied to him below and in fact the two thousand and sixteen guidelines should apply and that is what the government is arguing so we agree that the two thousand and sixteen guidelines  the generic definition of robbery as it applies in the two thousand and sixteen guideline is narrower worth than the new york definition of robbery and that's specifically with a focus on the person or presence requirement i know that issue has been briefed i believe this panel earlier this week in the camilla love case and it was also argued before a prior panel in the dupr case the latest in a series of cases and we are waiting for a presidential opinion from our  court for that and understood your i'm happy to answer any questions that this panel has about that issue i can also answer any questions that you have about the suppression motion or you say that he didn't argue one of your points is he didn't  below the generic definition right that is that is correct he didn't not that was one of the arguments he did not make the judge made a reference that it was conceited and they take issue with that but i didn't see them saying that they actually argued the matter but they did not actually argue the matter below and i i believe given the of volume of sentencing litigation that occurred in the district court when the in this court said conceded i think it he meant more forfeited just because there had been no argument on that score in the district court but i as mr fields had pointed out i did not find myself in a specific concession in the defendant's sentencing papers national common law robbery premised on how the states to find it or majority the states find it's kind of an interesting idea of federalism well it's just that it's  generic robbery is just how the majority of states define and majority states define robbery the way new york is defined roberts will take from the person or presence of another it's the personal presence element that was always a part of the common more robbery so i walk into your house and i pick up your wallet and start to walk out and you say hey stop and i smack you and drop drop you to the ground is that a forceful taking from your presence even though you were in another room when i picked up the wallet in new york yes it is and so i walking down the street and i come upon you and i know that you live next door and i and i grab you and i beat you so that you can't preclude me from getting in your house i then go in and steal something is that stealing from me is that generic robbery that is not generic robbery and new york legislature had concerns that it would result because new york guarantees that there has to be force it does but so but you'd say it and that was the primary concern of congress the fact that force an injury to an individual but you would say that because it doesn't have to it has to occur the force has to occur yes you're right for it to be robbery but because it doesn't have to be immediately in the presence of a property taken somehow the policies behind the policies behind finding a reason to aggravate the federal sentencing not present it seems like a curious result but taylor says that you look at the generic definition and the generic definition is what the majority of jurisdictions define the often says it's not the common law it's twenty six states we have thirty one states you know if they defined it that wa the i mean but the definition becomes the result oh i'm sorry i guess when you write ok you're right i know it's it's down in the queue but i'm just interested that yes you're right or so the majority of states define it is person or presen you're absolutely right and the generic has to be from the person or presence i mean the government cites a couple of shoplifting cases from other states but those states also have that their property has to be from the custody of the person th be taken from the person or presence of the owner and everything to introduce threaten had to be to threaten the owner everything you had to have an ownership interest in the property whereas a new york now you don't have to have no ownership interest so that's  case where someone burglarizes an unintended store and a good samaritan comes by and stops the burglar and the burglar pushes the man and then that in new york is robbery even though there is no one saw the taking from the store the store is empty the person it is not an indication that the good smyrna had any ownership interest was a custodian was a security guard he was just a good samaritan but in new york that is robert in the general case in these other states with generic robberies that's not a robbery those are shop within cases the government cites from california and alaska those of all security guards people who have custodial of property you don't need to have possession ownership or custody in new york new york wanted to be tried he wanted to capture things that were in spirit robberies i believe was the phrase in spirit robberies but the one from the person pres been robbery but it is robbery in new york now it's robbery of new york if you compel somebody to give up a safe combination and you go and rob the safe twenty miles away in new york that's robbery under the generic robbery that's not entries don't show anything about having cited a gun in mr johnson's wace he he also he doesn't recall a cell phone conversation that took place later on  looks at the state statutory law but it doesn't treat the state decision a law on the other states and the dues decisions of the state's highest horse in the intermediate courts of appeal tell us somewhat different story about how the personal presence requirement is applied across the country and i think after you consider those decisions which are discussed in the government's brief it's a standard and it's an element that's applied significantly more loosely than the defense suggests in fact and a way that is consistent with how the new york courts have applied their own law i would also note that when this court first considered this argument united states v walker it looked to the model penal code the model penal code does not include a personal presence requirement so i  don't envy your task it's going to take some time and in the meantime we'll be filing briefs on the subject as well i can i can also i can also respond to some of it to answer judge chin's question there's no reason not to defer to the credibility terminations the district court the district court was very sensitive to all of the arguments that were made by defense counsel as to the credibility of the three police officers who testified he considered carefully all of the attacks on their credibility that the defense made and the defense made possibly every single attack they could think of but after that after considering all of those arguments the district court found absolutely nothing wrong with the testimony of officer burner and crediting officer bring us testimony that defense position wasn't that the judge had to find that bruno had gotten together with his lieutenant and he had conspired to lie i mean the defense counsel specifically is asked by the court is there a middle ground other than find conspiracy and she responds that there is a middle ground she's not saying that there's any grand conspiracy and if you look at our supplement appendix from pages six forty three through page six sixty you'll see that throughout defense counsel's argument she's challenging bruno's the accuracy of what he said not his honesty at various points she's not arguing that you absolutely have to agree conspired with his lieutenant to tell this story but if you look at the fact that his memorable countries don't record things and that he doesn't remember certain things and he was his first day and he could have been influenced by suggestions from his lieutenant that that's why