good morning your honour's i'm kathleen bliss i represent anthony jordan the appellant here your honor we have a little bit of a structural issue i want to address first i'm going to introduce with me at counsel table me a krieger she will be arguing for the meat guy the court has graciously allowed us leave for her to do that right so and i gather you'd like to it's a fairly short argument let's keep it at ten for a minute what we do the sorting out of how  arrange this and i gather you want about three minutes your honor yes i would like once about seven minutes she wants about seven minutes but i'd like to reserve two minutes for rebuttal so at that three you know this may turn out to be a little bit tight so what's to happen is we're not going to cut you off so let's give you about three you're going to about seven and then we'll just see but we will give you rebuttal time very well your honor i think you know ten ten minutes to share is going to be tight so we'll we'll make sure everybody gets amendment but most predominantly most importantly uncritically i believe that we we call into question under johnson one johnson two and now mathis which i would remind the court that it came out about eight months before the opening of this brief about eight months ago and with these evolving supreme court cases i think that this case at the elements of the elements themselves and consider under this umbrella as justice kagan provided that coherence has a claim on the law and so elements elements elements because if you leave  examined the statute without microscopic focus on the elements of that particular statute which is eighteen u s c section twenty one thirteen if you abandon the elements  yes and why is it not a crime violence brandishing a handgun in the course of a robbery being committed actually he was convicted of possessing he didn't have a handgun and you know he never did he was a lookout he got what a seven hundred thirty month sentence versus his cooperate ing principle who only got two hundred forty you can't look at the facts under mathis that's the whole problem when we look at whether or not bank robbery is a crime of violence we have to look at the least culpable element which i submit that is intimidation or alternatively extortion both intimidation robberies he was seen carrying a gun i mean so the question is is he doing in and knowingly aiding and abetting someone who was using a gun during the course of a robbery that strikes me as if he's if he's he knows that he and the other guy are committing a robbery that the other guy is going to use a gun in the course of the robbery i don't see how that's not a crime of violence the dreaded you're looking at the facts of the case yes upon me you're looking at the facts of the saying him you can't do that under mathis you arguing that we should approach this in a categorical analysis and just look at the elements of the robbery statue then take the least culpable way in which the robbery can be can be committed it is that you argue for us to do that in this case your honor i think you have two hundred mathes now my sufficiency of the argument goes right to the heart of what judge fletcher is saying tonight is that did mr jordan did he have before hand knowledge of the gun i call that questionable because not a single witness with respect to those three that's two four and six or the nine twenty four c accounts not a single witness testified that they even saw anthony jordan and the gun wasn't pulled out except on count six and that's where mr mineral and laid it on the counter i thought i thought no no and did testify that jordan was with him in the course of several robberies and he knew that money and had a gun but is a general he knew is that that robbery was not a crime of violence if you make that argument in your brief your honor in my opening brief i argued that bank robbery was not a crime of violence under the residual clause yes but mathis hadn't been decided yet and i didn't even know about mathis until the government raised it in their answering brief and i read the case i was in reno airport getting ready to come home i read the case and that's where then i believe the elements cause you have to examine that and then that drew the attention of the a meek i as well from the movements and from the elements close as you say the threaten under johnson and then to my we cannot forget with the ninth circuit held into my andor section sixteen and it's that risk language that is problematic what is it is it it's too for the application of the nine twenty four c's mr mr jordan is not challenging his convictions for the robberies he's challenging the application of the nine twenty four sees this stacking by one source and that's the united states government remember that's something else that you look at with mathis you look at the jury instructions you look at whether or not there's a single penal application here that has explicitly rude that the robbery is a crime of violence you think those cases are called into question by map and i do your honor and yes i do i do if if i may turn it over briefly and then just reserve a little and then we will allow you time for about you good morning and may it please the court me and craig or on behalf of the me a demand for money does not always demand violence but all bank robbery can be committed in a way that is violent but it need not be and because of that the categorical rule directs the result that federal bank robbery is not categor a crime of violence but what do you do with our cases that say the opposite that bank robbery in its all its manifestations is a crime of violence the cases that say that in the circuit are self and right and those cases have s been abrogated by supreme court authority such as moncrieff that say that you have to look at the least culpable conduct and then consider whether whether that is violent and kept every case can i turn this on you are looking at the statute nine now is a handgun put into somebody for you saying give me your money the threat and use of physical force it is in that particular situation however the threat of violence needs to be intentional and purposeful and that's under in the circuit and i case that demonstrates that it does not have to be intentional and purposeful of ketchum that's the case that we cited on page twenty two of our brief in that case  saying give me your money is a purposeful act it is in that case however you have to look at the least culpable conduct under the elements so there are other cases under those same elements that don't involve that particular act  view counsel what is the least conduct that can be committed under the robbery statute so i would direct you towards ketcham and in that case a person walks into a bank and says to the teller these people are making me do this they forcing me and have a gun please don't tell the cops now that court there held that he had knowledge of the objective circumstances and that those objective circumstances were intimidating to the teller however the court did not go into whether he intended to threaten the teller with violence i think the more logical reading of those facts is that he intended to get money from the teller by making the teller feel sorry for him not by threatening the teller with violence and i think that case shows that you can be convicted under the bank robbery statute without intentionally use threatening violence so but that case involves the issue of whether or not robbery is a crime of violence it's a no a circuit case by the way right we were using that case to demonstrate under duenas alvarez that there's a realistic probability that the that these kinds of facts would be prosecuted under the bank robbery statute i would like to address some of the arguments that the government raised in a supplemental briefing first to our arguing about whether extortion is in divisible from the rest of the first paragraph of two one one three eight i believe the government has misunderstood our argument in matheson's well we have not conceded that hobbs act and two one one three  same i don't think that defeats our argument in any way but i do want to clarify how hobbs act is related to this argument of the decision that the court needs to make in this case the hobbs act and two one one three are different in terms of their structure robbery or extortion and then in the next sections it lays out the definition of robbery and the definition of extortion counsel was the argument about the visibility made by the defendant i believe it was made in the reply brief by the defendant at least and of course that was aftermath as could come down i believe mathis makes this argument available in a way that it wasn't available before let me ask you this is it your position that the least culpable conduct under the robbery statute is intimidation our position is that the least couple book conduct is by extortion as a means of wrongfully obtaining money from a bank employee if the court does not agree with us that the statute is in divisible in that sense then the least culpable conduct would be by extortion i'm sorry by intimidation looking at such cases where intimidation occurred however the person did not intentionally threaten force but in right  conduct and we've said that intimidation is a crime of violence in how does moncrief change that well intimidation and mental state attached to intimidation has been defined by the supreme court and carter and that was and two thousand and carter said the mental state is knowledge of the objective circumstances surrounding the intimidation and it wasn't right after two thousand i believe right was also in two thousand to be honest i'm not sure which one of those cases occurred first but a right did not consider this issue did not do any analysis on whether knowledge was a sufficient mental state to make something a crime of violence ketcham as a case that came down in two thousand and eight  i can't speak to whether the exact cases that were in existence in two thousand and whether that could have been made that argument could have been made in front of that court however that wasn't an issue that was considered by the right court so i don't think it's proper to rely on someone's face and threaten to harm them with it i don't that's correct what if you do in this circumstance that you would do it that could be considered intimidation and that could be considered a crime of violence but you have to look at the full range of conduct under the under the categorical rule and that full range of conduct includes other kinds of facts that do not rise to level of intentional intimidation with a firearm do you have a case that has how you want to deal with it will give you two minutes for a bottle thank you the residual clause in this case we do not get to the residual clause because twenty one thirteen meets the elements of nine twenty four c three the elements clause here as held by binding circuit precedent under mathis you consider the elements of the offense so what you look to if you look to the elements of twenty one thirteen and the elements of twenty one thirteen bank robbery are that it's an offense involving force violence or intimidation there must be a dispossession of property from a person in this case it would be money from a person and the individual who is accomplishing that dispossession must know that his or her actions would place a victim in reasonable fear of bodily harm of injury that meets the standard in johnson one which both amaechi well it's really only a meucci argue in this case petitioner didn't raise the johnson one argument in their opening brief and it also means the standard that was first articulated by this court in cell phone back in one nine hundred ninety reaffirmed in right and then reaffirm sense johnson in united states versus howard which is an unpublished opinion of this court every court of appeals to have addressed this issue and it's a court of appeals at this point if you consider the unpublished decision in howard in this circuit sense johnson have held that specifically since math is certainly sense jonson to once defendant started making the arguments that hobbs that robbery invent robbery do not qualify because of the argument that the residual clause of section nine twenty four she is also susceptible to the vagueness concerns and johnson to as we noted in our brief the government does not concede that johnson to or this court's decision in demaio apply to section nine twenty four c three b so if the court were to reach that issue the court would still have to consider whether nine twenty four c three b is unconstitutionally vague but the council's argument is not regarding the residual clause it's regarding the elements and the argument is that under the elements clause if you go to the least restrictive the least culpable manner of committing bank robbery and apply math that there is not a categorical match what is your response to that argument the response to that your honor is that two courts of appeals have considered this in length at this point the seventh circuit in our more as the case and the fourth circuit in a case called united states versus mcneil they've both held that the categorical match up between section what twenty one thirteen a bank robbery and nine twenty four c three a is straightforward bank robbery requiring the use of regular requiring force and violence necessarily requires the use of physical force and bank robbery by intimidation necessarily requires the threatened use of physical force the extortion argument that's raised really only by amaechi and therefore the government contends that that argument has been waived it is not a persuasive argument now there are several cases which we cite in our brief as well as the legislative history of the statute that indicate that courts treat extortion under both the hobbs act and bank robbery excuse me extortion and robbery under both the hobbs act and the bank robbery statute as separate offenses they require separate elements they are separate crimes under mathis bank robbery requires dispossession from a person directly the immediate threat of force extortion does not require that it can it can be accomplice remotely it does not require the direct threat of physical force extortion is also accomplished with can set the example that's given in the legislative history is somebody holding a bank tellers family hostage that calls in a request for money and has the money dropped off somewhere else that's a consensual action by the victim in that case robbery requires a lack of consent and this derives all the way back to the common law and supreme court precedent holds that congress when it passed the bank robbery and hobbs act statutes intended to incorporate the common law meanings of these terms so you're getting back to your honor's question about the least culpable means here at least culpable means likely are intimidation but as every court of appeals to have address a r m o u r your honor and if you think that in your brief we did yes your honor and i can get you the specific citation if you'd like ok that's all right i didn't see it in your table of authority it is it's i believe it's it's certainly in our supplemental brief i believe it's not a public opinion of this court but this court in howard reaffirmed that holding that was also held and right stating that twenty one thirteen a bank robbery and its requirements of force violence and intimidation means the elements clause of nine twenty four c three that the government's best for i think at this point your honor it is binding precedence we would say in this circuit yes it is our best case right also excuse me right also and how are the unpublished decision in terms of a broader base of legal reasoning for i post johnson johnson one and johnson two as well as incorporating the categorical considerations of mathis into camp and taylor and that line of cases i would say that the fourth circuit's opinion in mcneil and the seven circuits opinion are more have a very fine analysis of the categorical questions that are raised by by mostly by meucci in this case can i ask you about the length of this sounds i mean we got someone who was not himself armed least insofar as the record shows seems to have been a lookout certainly aiding and abetting i get that you just send him effectively to a life sentence that's an awfully long sentence yes right why did you charge it that way there was a substantial sentence in this case but if you look at the broad swath of conduct in this particular case mr jordan and in a broad variety of these cases was an aider and abettor he was the lookout for this bank robbery episode he did personally commit an armed bank robbery in which he stuck a gun into tellers face in the december bank robbery the first bank robbery that he was charged with and counts count fourteen the rest of those yes  was the lookout he was not the gunman but under the supreme court's precedent in roseman as reza rosemond indicates an individual cannot escape responsibility for the extremely violent crime of bank robbery just by not being the gunman and by aiding and abetting the crime mr jordan played intrinsic role in this case i would say that one of the good examples as i believe was the famous footwear robbery where you're not quite answering my question the prosecution i recognise has an enormous range of discretion as to how to charge cases what sort of penalty the result what sort of penalty to ask for and so on but it strikes me that i may not yet heard an answer that satisfies me as to why this  not personally involved in the prosecution of this case of the trial level nor the charging decision so i can't speak on behalf of the prosecutors themselves what i will say is the district court did acknowledge during in saying that these were very violent crimes congress has treated has chosen to treat these crimes in an extremely serious fashion with a mandatory minimum consecutive sentencing scheme that it is set forth and therefore congress clearly believes that these punishments are appropriate there have been other crimes in which individuals regardless of whether or not they were the gunman were involved in bank robberies and what was the sentence that none of them got he received two hundred forty months i believe your honor but he did testify on behalf of the governments he did provide important information that was critical to the prosecutions of both says lee williams and mr jordan here to see a sentencing disparity or because the one who is the more active participant in the robberies got a much wider so well you're out of the defendant doesn't raise that argument he does not claim that under section thirty five fifty three i there's been a disparate treatment between these two particular defendants so any argument to that effect would be waived all he raises a constitutional challenge and this court has repeatedly held that as long as a sentence is within the statutory maximum it cannot be susceptible to an eighth amendment challenge defendants routinely bring arguments that they're section one twenty four see the connections and i understand the argument you're making and i'm not consulted with my fellow panel members on this one but i think the amendment argument in there is there's a loser what i'm after and i think you understand it is i fairly strongly disagree with the length of the sems that you charged and then got  for i understand our bank robberies a bad thing i understand that it is in the ordinary terms of a crime of violence however no one was hurt no guns were fired and this is all small potatoes  yes please i would be happy to communicate that message back to the u s attorney's office your honor but i would like to also say that considering the facts of this case and mr jordan's behavior mr jordan was not exactly an innocent participant in this he did i understand he's not a boy scout was just very briefly i wanted to first point out i did raise that it's indivisible bank robbery in the opening brief that's it page twenty four again that was before mathis with respect to again going back to the elements this is this is the problem and the court's discomfort with the type of sentencing that occurred with no discretion whatsoever i couldn't raise thirty five fifty three because the court had no discretion whatsoever the mandatory stacking that occurs when you have three hundred twenty four season for possession that's what eliminates any discretion by the court that takes us back to elements and as justice scalia in examining extortionate conduct in johnson he and it's at page twenty four also of my opening brief he looked at the indeterminancy of extortion as well as my argument about intimidation i'm intimidated by the court just arguing here because the  this that we look at the elements only because when you get into these severe severe sentences that are created by one actor united states government if you don't look strictly at the elements themselves to determine whether or not this is a crime of violence then you run into sixth amendment issues you have printed this this circuit's decision in