case that should be decided on the merits and i want to explain why unlike many johnson cases that we see come before this court this is mr so tell us first section twenty two fifty five petition determination it's an assertion and in this case mr sotelo had no opportunity to challenge his career offender designation before johnson versus united states which is exactly the scenario that the court had in mind  stanley when it thought if you can show a connection between your failure to raise an earlier claim and the residual clause that was invalidated by johnson that is a johnson claim so in this case had sotelo challenge his conviction as not being a crime of violence under the elements clause or the enumerated offenses clause the only effect of that challenge would have been to move it to the residual clause as we say and of course both parties agree what the court likely meant was attempted extortion this is not completed exploration but the application notes are interpretating the residual clause that's the essential reasoning behind united states justice ginsburg later in baucus would say you know why can't we go case by case why can't we say well in this case it's clear that explores in his numerated attempts are in the application notes it's clear there's no vagueness concern that majority and johnson rejected that approach to vagueness the majority said yes there are going to be easy cases where it's clear that your conduct falls within the statute but when the residual clauses spatially unconstitutional vague that means that cannot apply in any circumstances even if reasonable people could say well look he was on notice right that's essentially what what we're worrying about the johnson rule that mr so tower has invoked here application notes are not the guidelines the commission doesn't go through the same process to the next application notes as they do for guidelines the application notes are interpretations of not the additions to the guide so i had to quote it from the his sentence may be unconstitutional in light of the new rule in other words we don't have to show that this was the only reason why you know only the residual clause justified this at the time convictions when you only need three two or invalidated by johnson and two were invalidated by mathis but still he was allowed to go forward even though there's a reasonable argument to say none of his convictions were affected by johnson or his his d nation wasn't because he had four outside of johnson the fact that the sentence may have relied on constitutionally valid designations means that he is entitled to a marriage determination under twenty two fifty five and that it's what happens at that sentencing what matters is on the merits on a first twenty to fifty five years the petitioner servings in the legal sense so that's why at this pace should be decided on the prosecutions jury instructions whether the penalties are the same or different and each of those factors and in this case shows that section eight seventy six and b and c have always been interpreted to be indivisible statues it's about the mailing of a threatening communication and in the case of subsection b with the intent to extort there are no that's one crime there aren't two crimes there and indeed the united states itself has filed indictment with that theory that this is one crime that somebody can issue a threat to injure or to kidnap and that would constitute one unit of prosecution because it's indivisible it has to be a crime of i think the best example to think of and in terms of legal terms and but again the categorical approach is concerned with elements if the elements don't line up that's the end of the story but real life examples you might think of like the land case we cited where if a person threatens to kidnap their own child that's it that doesn't next not a threat involving force and certainly a threat to kidnap if that you know person does not have parental rights anymore the top the child but it does not have  kidnap you don't think that carries with it the threat that course he's well it certainly doesn't as an element and because you don't have to prove that element the government saying well look in all cases you're that's go and that's not analogous but i don't think so because it's the example i gave you know if there's a very contentious divorce and the parent was brimful rights and says you've got the car if you don't give me back that car i'm go kidnap that the child i don't think that involves a threat of force to the child there's no indication that they want to harm the child but they want to explore it something using a threat of of kidnapping so that's perfectly consistent was section eight seventy downright t d m the categorical approaches about elements of the government has to identify where in this statute it says as an element you have to prove the threatened use of force the under the elements clause or be one it's really instead of a time when this issue the question is whether that was the johnson error in other words whether the sentence at all relied on the residual clause and then bam can then the government can see that there was a johnson error in that case because it was a burglary that only qualif every court consider the issue says this qualifies under the elements class because it as a crime of violence and you know mr so tell argues that it would have been pointless to raise an appeal in one thousand nine hundred five challenging whether this fall don't know how to read into and bagel someone in a writing do you i guess you say you know if you don't give me a million dollars i'm going to trick you into this room on january fifth two thousand and eighty and then kidnap you that way i just don't think there's the realistic probability of that but i think another thing that separates the threat from the substance that sense and that's what this report talked about a little bit and puritan is if you look at the elements of what the government had to prove in this case the government ha the first amendment threshold with these statutes and that's an element right there than volved threaten use of force and that's what differentiates a threat to kidnap and to kidnap but we're also not just dealing with a threat to kidnap here we're dealing with someone acting with an intent to extort and again when we're talking about extortion we're talking about as the court instructed the jury wrongfully inducing someone else to pay money or something else of value by threatening injury such payment is not made aftermath is that both found that this is a defensible statute and it's not enough to say that a threat is a threat is a threat when it comes to this actually and all threats are treated alike the statue itself shows that you know subsection eight seventy six as a ransom note which is a threat and that's punished differently than subsection b which is a threat to kidnap and try to injure which is injure a person which is punished differently than subsection d which talks about a threat to injure property so congress is telling this court a threat isn't a threat they're not all saying you have to look at what the threat is and the reason that there are going to be many cases out there where the courts are going to delineate between the two as i'm sure your honour's are well aware of is courts don't necessarily think about these different things as elements in a statute before map this because there really wasn't much of a reason to at it you know the language isn't circuit split and find its indivisible this court to reject that approach let me just briefly touch on the guidelines your honor mr sutton our position is that everything under the application notes defining crime of violence has to clause here we're talking about after you know want a completely different application no it says the terms crime of violence and controlled substance offense include the offense of aiding and abetting conspiring and  the point my friend made it at the end there he said that they think and i'm betting a controlled substance of fans could not qualify that's exactly what the d c circuit just found several months ago the application it may very well substantially you know present a suspect substantial risk those of physical injury but that's that's the court's interpretation in the record on our appendix page forty six in the sentencing j again what think can and how it was that if the sentence many have relied on an unconstitutional residual flaw then then johnson relief is appropriate one more clarification that the government suggested mr sotel