looking at the actual facts of the offense in question but rather whether the crime by its elements qualifies as a crime of violence so far jacking under twenty one nineteen has the following and it doesn't have to be carried out the conditional intent to cause harm is only if the victim does not voluntarily relinquish the property so that is only conditional intensive we think that there is yes s but of course the supreme court in holloway and again in castleman has said that even if there's the same language and a statute that each all such a jury language even if it's plain and even if it's identical passed to be interpret intimidation in the context of a carjacking differently from intimidation in the context of a bank robbery and i my argument on that point your honour's is that carjacking has to i think distinct features that makes it much easier for a carjacking for the taking to be accomplished without the threatened use of force and here of those two feature course is that the taking has to be from the person or presence of another and there are many many cases holding that that presence it means that the driver of the car doesn't have to be in the car at the time of the taking they can be ten or twenty feet away and i know personally i'm very bad about getting out of my car leaving after running leaving the keys in the car what about you were what about again yes dr and mcneil you have robbery and you have bank robbery and i'm just trying to point out that i think that for carjacking it's easier to intimidate without the threat because once you're in control of the vehicle if i turn around and i see someone in my car i'm going to be intimidated i would also like to point out that we because it's a car it's our personal property we often keep things in our car that are very valuable to us but may not have any valuable may not be valuable to the carjacker and that gives the carjacker a unique ability to bargain to be put into place in a bargaining position where they can bargain away your acquiesce for to allow the taking without the threat and use of force for example a lot of people drive around with their dogs in their car i drive all the time with my chocolate lab if i turn around and see someone has gotten into my car and my chocolate lab is in the car that's going to be there i'm going to be terrified because i don't want them to take my dog the carjacker can then say look you don't make a fuss i'm going to drive away i will let you take your dog out of the car now the same thing can be true with a child and we see in the news all the time where we have carjackers to get in the car and then realize there's a baby in the your fault but you obviously think that's a valid argument under the supreme court and our rulings are we actually at that point that we talk about whether or not there's something of value in a car to eliminate the rulings on for ce by intimidation you think that that's how far we have digressed your honor and i certainly and i appreciate your concurring opinion and i'm talking about the approach the categorical approach is what we have and so no worry in other words don't blame you blame the categorical well i'm just trying to point out that i do think that is possible only on other cases and in fact look at that language all of the carjacking stay oh yes there was one in that an indication that we think then that carjacking does fall within the gives some credence to the argument that the carjacking statute is the same as the bankrupt bank robbery says he doesn't and your honor i would just simply repeat that i don't believe that this court is found counsel i also have a question we're talking here about a a case that is not we're not trying to figure out a criminal history as we are usually when we employ the categor gymnastics of the counted work whole approach when this isn't a criminal history case where we're worried about looking into past cloudy records and making assumptions and maybe coming up with incorrect conclusions victim of the carjacking the botley injury can occur to anyone just jerking the course of the carjacking so so back to the categorical approach so it isn't elements based approach congress has u we're using i believe the government agrees with me on that point  argument that this court in the meal that didn't have a lot of it didn't give a lot of credibility to i know that bit of the circus certainly here they have your honor they have started courts ok or thank you very much you want to go to arguing that the offense is divisible because mr evans agreed that it was a forceful carjacking and i was just saying that's not how this court applies the divisibility analysis and clearly the that the by force or intimidation is just a means is not those are not separate elements that just means to interpret to to achieve the carjacking so and i would also point out that we are of course appealing our plea agreement preserves mr evans right to appeal from the ins and nial of this motion to the soonest which was well before he pled guilty obviously so we have to look at just what the truck were had in front of it at the time which was simply the indictment which included force violence and intimidation so i would just point that out and i i understand this this court is probably inclined to rule on asked so i would just tell the court that if this court is inclined to reach the residual clause issue i think it might be prudent to place the case in advance pending the supreme court's decision  to use such force in our eyes this case can begin and end with macneill because federal carjacking over robbery of a car uses the exact same force language as federal bank robbery at issue and make same terms congress means the same thing and i think this court would be able to to bring consistency to that by applying macneil simply to the exact same language in this context and i intend to focus on macneil because we think that th case can be decided wholly under it but i do hope to touch on some of these other points to my colleague raised now like federal bank robbery carjacking has this by force and violence or by intimidation language that is a required element of the offense but  crime actually goes further than the bank robbery statute at issue in mcneil because not only is that required but the defendant also has to have the intent to cause death or serious injury if necessary and more than that i think this was mentioned with my colleague i think really we can stick to just the first of those but the defendant must take the car from the person or presence of another by force and violence or by intimidation and judge said you mention that there were two cases in mcneil that was the more case in the eleventh circuit in the mohamm case from the second circuit that this court specifically cited as examples of how to interpret that phrase the court said in mcneil our sister circuits have uniformly ruled that other federal crimes involving takings by force and violence or by intimid defined what physical force means but there's really two responses the first is that the mcneil panel expressly consider the twenty ten johnson case and said that that didn't change the analysis and that they were fully consistent the second is at least in the eleven so if those were no longer good law i think that would be news to those circuits i haven't seen the second circuit suggest that they think mohammad is no longer good law at all and so what we're asking is is for consistency because what the defendant hasn't offered is any reason that the same language in twenty one nineteen should mean something different it's literally a couple pages back in my u s code book and i would also know that carjacking is the newest offense it's at the end of the chapter it was added in one nine whereas many of these other robbery offenses came about much earlier in around the ninety's late one nine hundred forty s so congress knowing those that language existed with these other robbery crimes added a new robbery crime and used the same language that and the supreme court in cases such as sneath has said has rejected the notion that it should interpret the same language to somehow mean something entirely different in different sections of the statute i think that reasoning would be well applied here my colleague offered a couple of new things today that i was not expecting about how one might could actually commit carjacking in a way that wouldn't involve threatening to use force i don't think we have to get too far that's actually the way bank robber is committed and it's certainly not the way we see bank robbery as committed i think that point would be well taken here because i see no evidence of someone actually fulfilling the elements of carjacking by taking a car which were the drivers twenty feet away with the car running while their dog is inside there's no point not only are there no cases i don't think that would fulfill the elements of the crime because i don't think that would involve intimidation you can certainly have a taking of property from someone  robbery if you take the property without force and violence or intimidation and i think misplaced in the examples that she offered this morning would be simply theft of a car there wouldn't be car robbery otherwise known as well what will i do yes to have somebody twenty feet away i'm just thinking about this screamed and ran toward the car saying leave my dog alone that might be proof of no intimidation that that's right i think that's a pretty bold move for someone to do i'm not saying i wouldn't do it myself but i don't know and i think it would be a lot you know why now right now i don't want to admit to a crime in front of the quest now and certainly not that i know we're on camera but we're still in court on the point is if it requires intimidation if somebody challenges warnin challenges a person attempting to commit a crime that might be strong evidence and i bet a defense lawyer would say that's strong evidence of lack of intimidation i think that's right your honor i think that would be the argument because the government is going to have to prove this intimidation and frankly the mcneil case informs that as well because mcneil says that intimidation in these statues is the threatened use of force so that would mean that the government would need to prove that the what this language means and we and we just think it should mean the same thing and then of course in this case i don't think that you need to reach that this this next point but this defendant actually caused bodily injury that's an element of the crime that he pled guilty to and so at the end of the day what you would have in order to say that this crime doesn't count as a crime of violence you would have a defendant who robs someone of the car intending to cause death or serious bodily injury doing so by violence or intimidation and actually cause a serious injury and in the conclusion would have to be that is not a crime of violence and i think i think that might just go too far and i'm mindful of judge wilkinson's concurrence and the doctor case a couple weeks ago that whatever congress meant when it t park convictions it did not pass a statute and it violent acts only to have patently violent acts called by some other name carjacking facially is one of the more just clearly violent acts in the federal it doesn't always result in injury but the fact that congress actually added to it that you have to have the intent to cause death or serious bodily harm if necessary goes beyond most robbery crimes and the supreme court my colleague mentioned the hallway decision hallway wasn't about the issue we're talking knows that person beat up somebody everybody knows what happened i mean edges may not matter on the catacomb categorical approach pages i think it likely doesn't matter you have to look at the elements of the crime i certainly agree that you have to look at the elements but i think the things i listed there are the elements of the crime you have to have the intent to cause death or serious bodily harm that's an element of the crime in the case of this defendant you have to actually have caused serious bodily harm that's an element you  take in the vehicle from the purser presence of another by force and violence or by intimidation that's an element of the crime so what we're saying is that you can look just at the elements and reach that conclusion and i and the supreme court holloway when describing the carjacking statute said and i'm quoting from the case congress intended to criminalize the more typical carjacking carried out by means of a deliberate threat of violence now hollow it wasn't about the categorical approach it was about this issue but when discussing what this statute was intended to do congress said what i think everyone on the street would think carjacking is a violent crime it is accomplished by the use of the threat of violence and so i think as i said at the beginning of the argument this ca sure do don't don't that but murder to know is qualified does it while i'm not aware of a case but i am worried about murder and whether it would count and that actually will in torres me get we talk about poisoning somebody not qualify let's treat people on the street would think that's crazy don't you think i do i do think that and i think that brings the problem not come at all no no i'm not commenting on the case now i'm commenting on your standard of what everybody on the street thin think you know your honor i do think that there should be some relationship between i don't think obviously we don't take a poll on whether something is violent to determine to the categorical approach whether it's fall or not but i would suggest that and i think the supreme court's case law is consistent with  that there should be a relationship that i think i think it does harm to the work that we do when people on the street can't recognize when what is and is not a crime of violence particularly when under aca what is undoubtedly a crime of violence is breaking and entering there's no quite a violent felony rather under achatz a numerated offense north carolina breaking and entering counts whereas common law robbery doesn't count and that is certainly the way the law works sometimes but i do think there is some value in assessing the relationship between sort of what we would expect and what we would and i do think that if the the end of the case law is that first degree murder is not a crime of violence i think it calls for examination of the case i do respect sprinkling the poison in his example is not the force that the force is the using poison to cause this harm to someone so the supreme court's decision in castleman i would maintain is directly at odds with force and go and that is why the ninth circuit has express any idea why the supreme court said that was not forced to sprinkling of the boy why do you think they declined calling that force i think i think that's well taken your honor i think what they were saying is you have to look at the whole picture all that but i mean i misused this civically do you have any idea why they would decline from calling that displaying cling the force and it would be a force used with an indirect result what do you think they did think i actually think that maybe what they were functionally saying because in another example they talked about how if you accepted that poison wasn't wasn't force that put them shooting someone wouldn't be forced either livesey this did you think it might be to cover the situation where there was not even indirect for shoes so you talk somebody into walking out of the door and falling thirty force so another way you think the court let that open so that even it's broader than indirect force i mean it just may be you just talk somebody a put somebody in the situation where you have nothing to do you know it is set in motion in other words you have somebody to step out and pick you in the from the middle of a road you did met in make theme you didn't do anything to push him in the road but yet you know a car is going to come by in two minutes and the car hit some and you still might be guilty of some degree of murder you think the court was trying to even broaden out that whole concept get beyond even direct force being necessary i'm not sure of the answer to that your honor i think i think that's a very good point and i don't want to overstate the court's opinion  castleman i don't know that they they reached that and i don't know that they thought about it in that much detail i know that they said the poisoning someone is and what they said is it is that the that the harman they were time it into right force which i think is what you were getting to judge said right that the harm occurs indirectly rather than directly as with a kicker a punch does not matter that's the quote from councilman and i think that at the very least it is something that should be taken as as their definition of force the candy and read  t and i don't think the court would need to reach tourist miguel i will say that it comes up a lot it comes up frequently in our cases and we're constantly on the district court level circuit court level assessing whether force miguel is good law and right now opportunity to to definitely you know to definitively decide that i think that will be useful for practitioners whatever the courts answer as we think it should be that it's no longer good law but whatever the court's answer will be useful i would then it must  any questions about those things i would briefly just discuss the visibility and light in less the court has questions i only wanted to touch on this very briefly because it came up i don't think the court needs to reach divisibility but just can and i'm mindful out in our preferred i think tries to recognize the things that you are talking about because it's contemporaneous conduct we can tailor indictments we can narrow it and i don't yes it's never been when i was talking about our contemporaneous a sense not contemporaneous conduct and i was suggesting because the indictment we knew the crime for which he was convicted he was convicted of subsection two so it wouldn't be that different from sayin need to go there but simply where you have a contemporaneous offense of conviction why go through i don't know that we have any cases that say you have to do that certainly falls the council cited approach but i don't think we have any cases that say you've got to do it and i'm just wondering what's the logic if you have the indictment in front of you not conduct but the the offensive conviction and i  i hope i didn't misunderstand earlier but i am also talking about the categorical it's about elements and not conduct because i think i think i think we may be talking of the same thing i hope that we are because what we're suggesting is if there's a question about whether force and violence versus intimidation counts we could have an indictment that just says force and violence we can take that indictment to the grand jury and they will never hear about intimidation if it goes to a jury trial the jury instructions they will omit intimidation that can certainly be done and it's been done in cases in the eastern district of north carolina so then when you go to look at it under the categorical approach you look at the indictment and you know it was an intimidation crime because it's not in the indictment it's not in the jury instructions it was only force and violence and i'm a big believer in no room for doubt and that's what the categorical person does exist for reasons that relate to the sixth amendment and avoiding many trials but its purposes we have to yeah we're not really but if you had approved documents like his statement of what approach which it could still look not just what could be charged in somebody's fantasy i had been charged but you could look under approved documents like separate tale or whatever you want to do to see exactly what the person did in this instant back then and if you don't have those approved documents then it doesn't count but if you know exactly what they did you would counted and it seems to me that would make sense on the your common sense the twenty one thousand nine hundred two that's an element so we're not looking past elements to know that this defendant cause harm so i don't think that's even even a step forward but in an appropriate case i will say that we are we are narrowing indictments when there's any question as to whether some of these elements count and some of them don't we're narrowing indictments when it's clear what was done in the case and if it's some point the court may have an opportunity to tell us whether that's something we can do in its contemporaneous charges or not i see my time has expired just came and i did want to make sure was just very briefly i just wanted to make a couple of points one mr evans and i and that does include intimidation he was indicted for force and lives and intimidation so i i don't think there is any question here that that intimidation was a potential route for him the other point i want to make my colleague mentioned that i haven't shown the court any cases in which a carjacking h achieved through without the threatened use of force and i would just point out that respectfully i don't actually have to come up with a case for this court because the realistic probability test does not apply when we're california threat statute through poisoning someone and that the there was a lot of argument at oral argument with the government saying well they haven't shown they haven't given you one example one case where that has happened and judge marx was very clear on this point that you know that that only applies always talking about trying to figure out whether a defense would qualify as a generic defense under the  decision that did toryism ago could be overridden without an impact decision but i don't think that the castle back and there i don't think there's any education you may not think no you may not think that but i'm saying it would require an inventor decision court regardless of of the location and i suppose that we can just do the virtual handshake