and i'd like to reserve four minutes for rebuttal just initially what i'd like to advise the court that mr tibbs sequenom sure is aware filed a supplemental brief raising several issues  i intend to address in some senses one of those issues consistently with the twenty eight day letter that i just filed regarding the career offender application to the hobbs act robbery charge but otherwise just reserve on those and particularly the issue that appears to be foreclosed by this court's taylor decision earlier this year on whether the hobbs act robbery whether johnson would apply that that but we would reserve that nasa court to rule so we could preserve that issue in the event that it becomes necessary later on but the principle overriding issue here is whether christopher tibbs was properly scored as a career offender and relevant to this case that there were two things that the sentencing court should consider in determining whether someone is a career offender first whether the instant  offense and again for purposes of this case falls within the definition under the guidelines of a crime of violence and then second whether there are two predicate offenses that would qualify as either a crime of violence or a controlled substance offen e mr tibbs was scored as a career offender based on one of each as far as predicate offenses are concerned the issue principle issue on that with regard to the predicate offenses involves the michigan offense of armed robbery which was for which he was convicted back in one nine hundred ninety four and it's our position that under the law as it's changed over these last year or so with regard to johnson and to scamps and some of these other cases that the michigan armed robbery offense as it existed at that time does not qualify as a crime of violence for purposes of the career offender guideline well so this may be just sort of a simplistic question but you know how does the robber get the money if not by force i have to admit your honor it seems somewhat counter intuitive and i will admit that but the fact of the matter is in the analysis that has to be conducted to make that determination it's not number one as the supreme court has indicated in more than a few cases now that exactly what the defendant did is not an issue that what the court looks at is the statute and as as we've explained in in our brief and again and i apologize i'm not sure how i managed to initially address the issue of the current or a more recent statute rather than the one nine hundred ninety four version of prescience the government pointing that out in a reply brief does address that but the  basic elements of that are an assault felonious taking of property while the person is armed with a weapon the assault if the court works its way through that the court has to make a determination whether what is under michigan law what constitutes an assault and follow that through one step further through because an assault can be a threatened battery and what a battery is and as we pointed out that under michigan law that a battery can be offensive touching which does not necessarily involve force you're basically saying that under the old statute it was possible for somebody to walk over to somebody with their with something in their pocket that was not a gun but maybe fashioned to look like not show it and simply walk over and say either put their hand on the person shoulder and say hey i want you to give me all your money or say to the person i'm going to touch you very gently if you don't give me your money conceivably your honor yes one of the issues again that we addressed in the government addressed is the question of being armed and in fact the michigan court of appeals has held in the that it's not even necessary for the victim to be aware of the fact that a gun was possessed that the gun has to be possessed and the case the banks case that the government cited really does not address that issue that was a case where there was really no evidence not sufficient evidence that there was even a gun there but there are several cases we cited some of them  of the gun they don't have to know if there is a gun so for example if somebody rob someone they walk away and they find a gun or knife or whatever some sort of weapon after they catch them after the fact that would be sufficient but i think the banks case was an issue where there wasn't any evidence wasn't sufficient evidence that there was a weapon there at all so it but i think the way that this that parsing through these statutes and i think it's analogous to the situation and what the supreme court did in the johnson case back in two thousand and ten with regard to the florida statute that there are certain things that the court has to look at in terms of making these determinations it has to be but again going to the force aspect it has to be according to johnson it has to be violent force so a threat of violent force would take well if if that's what it was but that but it could be a threat of something else or something the victim perceives something that's not violent force again and that one of my and one of my weaker moments i guess and maybe it's something that the government h s talked about law professors coming up with these great scenarios but the fact that if someone were to you know what we used to call back in elementary school that what willie you know going in there and sticking in and i'm going to do this if you don't give me your money or something like that that that would be an offense of touching that it's force it's not violent force but something like that the threat of course accompanied by the presence of a weapon  at least facially reasons that the level of threat of while of course well but it's in some cases if it is a situation like judge white mentioned if if the person is there they see something in their pocket but but you agree that the law doesn't require the victim to know a weapon is present now which is kind of but if that's the state of the law then there can be a threat of violence war even when the victim doesn't know that a weapon is well it but it's true but i think you have to look at it from the point of view of the victim though and that's why that it whether resort law person what law says you look at it from the point of view of the victim well you have to in terms of the intimidation in terms of being threatened you have to look at it from a reasonable person and that i think was well that's basically the bank's only reason herson is a different standard from the victim well a reasonable victim a reasonable person in that situation i mean what through the state cases just what you're telling us a certain vantage point for determining threatened use of force and judge davis is saying you know why why do we look at that from the standpoint that you're suggesting reasonable person or something well i think the that those are the kids the kind of cases that have come up i mean for example a different situation bank robbery that from the tellers point of view that they that it doesn't have to be intimidation but if the teller if a person that reasonable person in the tellers position would be intimidated by what happened then that would be sufficient to meet that and i think that someone who again that is we believe the cases show the michigan case getting to the point where you can commit a battery by simply laying your hand on someone which again in johnson holding a you know forty five caliber pistol perhaps you know that that that's absolutely true but the the analysis that has to be conducted here under disk that we have to look at the generic statute what it is and that to the extent i don't think there's any dispute that if i were to walk up to someone on the street and hold a gun to them and say give me your money that's one thing that would be covered by an armed robbery statute i mean that's not the issue i mean let's say you go up to that person on the street and you show you you press against maybe t shirt and you show the profile of a large pistol in one nine hundred eleven years now i understand that and that and the person is kind of slow all right and they don't really get the point of that gesture and and you say give me your money and they do it but they're oblivious of the fact that you've just shown the outline of a pistol does that mean that it is not armed robbery then again it would be up to the jury to decide whether that was this i guess i mean i think we're miscommunicate ing on who decides here we're as i understand our task in this case were interpreted for b one point two s and particularly in this hypo threatened use of physical force jury's not going to answer the question whether what that means whether the hypo i just described satisfies that and so would you agree that the hypo i just described  notwithstanding the person's lack of understanding that they are in fact being threatened with violent force that would satisfy the threat and use of force i think that probably would yes so why wouldn't judge davis hypo satisfy as well where the person might not have any awareness that the guy is armed and the guy does the can plug in kind of the stuff you are saying some seemingly benign physical threat but he's got he's got a pistol was why isn't that a threat and use of force just with the threat perhaps being the person isn't subjectively aware of it but the offender is i think that that is something that would fall within in terms of criminal liability for committing the if ounces one thing but again it's as the supreme court said and  camps that if the statute is not categorically in that case an arm career criminal offense then the fact that it's committed in a way that would constitute a crime of violence doesn't mean that it's a not a proper army career criminal offense you're saying that in those situations in michigan the person could be committed could be convicted of armed robbery but that it doesn't necessarily include taylor and some of these other cases but this is not whether johnson applies to the hobbs act or whether johnson applies to one twenty four c definition this is the application of the guidelines to the hobbs act and the government agrees in the way that it was instructed to the jury here that the hobbs act definition once that initially the statute is divisible because it's either robbery or extortion but you can use you can determine which one of those was the offense and you get to robbery and at that point the robbery statute aspect of it is indivisible and the there are numerous ways that it can be committed and the difference between under the four be one point one for the definition or for b one point to the definition of a crime of violence that it has to be the use attempted use or threatened use of physical force against a person and under the hobbs act that it can be it's uses different terminology to start but basically threatening using force or so on against a person or property and because looking at the statute and i think this is an issue that may be resolved at least generally in the math case that's currently before the supreme court about the distinction between means and elements but the means is that the government acknowledges that all of these other things how you do it if you're threatening someone or threatening their family or threatening their house or whatever that if it's property then that's that's a means and that means that the statute is overbroad and so it's a similar situation to what arose and to scamps and the hobbs act although it may be a crime of violence for purposes of just generally speaking that it doesn't fall within the definition of the crime of charging document wasn't in the charging document in this case whether the threat was against person or  property but even that but it still is an issue that of whether what the what the statute says and what the jury was instructed here was just the statutory definition of robbery being and again i don't have it in front of me but the use or the threatened use of violence force violence or fear against the person of another or their property or the property of someone else or their family and all these other things are we were reviewing this issue for plain r i don't believe so i think that the government some i acknowledge the fact that the proper busta question wasn't raised at sentencing i don't know and they would also argue that that doesn't mean well but even if it even if it is plain error i believe in light of the paul act decision johnson in these other cases that has this question was this issue or was this argument ever brought to the attention of the district court no i don't believe so those both independently and together make it very clear that before the amendment in two thousand and four armed robbery michigan could not be committed but without the use attempted use or threatened use of force first the issue of assault assault can mean theoretically offensive touching but that's simple assault and that's the mr minor simple assault that involves things like poking spitting and so on assault in the armed robbery context is not simple assault but rather fo in which the defendant asked for a jury instruction on the issue of simple assault he has been charged with armed robbery and asked for the jury to be instructed alternatively as to simple assault and the michigan court of a lesser included as a lesser included that's correct your honor hundred seventy s case and the the discussion was very sparse ok was very different there were later cases but as i noted i haven't given mr nelson those cases so i'll be happy to provide those cases for your clerks as to cases they reiterated this but i think if we also just look at the jury instructions in michigan there is a distinction between simple assault and flown assault simple assault does include not offensive touching language that is theoretically problematic but a jury instruction for following us assault actually excludes that offensive touching it defines battery in this context as forceful or violent touching it does not include that language of offensive touching contractually as well as the case law it's very clear that assault in the context of armed robbery does not mean flowing so salt in fact assault in this context is essentially a shorthand for what the legislature in michigan has stated is an armed robbery rather and that's simply from one in the spectrum we have force or violence and on the other end of the spectrum we have fear assault is really covering all of that and has in the legislature in michigan actually has defined a number of different types of assault everything ranging from assault with a deadly weapon with right thought with with actually assault so no your honor i believe that was defined in the gardner case in michigan and that is where it defines it as either attempted battery or apprehension of a battery and that is the definition there but the legislature has then said all of the with everything from with a dangerous weapon up to with the intent so that's the first issue that assault does not mean simple assault so the theoretical possibility and frankly that's all that mr tibbs can offer is this theoretical possibility that the supreme court has reiterated over and over the court is not supposed to go into there's not a single case you can cite in which offensive touching is the basis for an armed robbery and in  fact the classic example an offense of touching is spitting i can't find a single case in any of the fifty states in which armed robberies committed by spitting that in and of itself resolves the issue because assault by itself in this context involves the use attempted use or threatened use of force at that point this is a crime of violence but let's turn to that armed element and make this even more clear that the statute create two thousand and four amendment and i note that distinction a number of times because afterward it becomes divisible and the language is i would not i would still submit that is crime of violence but it's the language has been much simpler preeminent armed meant one of two things it either meant used meant it's possessed plus in other words there's not a single case in which i'm aware in which a defendant possessed a gun or some other weapon and it was concealed but did not have to say something else in fact in other words there's not a situation in which a robber was armed came from behind rob someone and the victim was never aware that there was some sort of weapon the statute makes clear in the case law supports th that if the person isn't using the weapon in other words brandishing having an on on there are other their side or something of that effect when it's concealed they need to be some sort of reason that the victim becomes aware of this either the example of hand over your belongings or i'm going to shoot you or stab you or so on alternatively you need to be some sort of objective evidence so for example if a person would have his victim learns of the presence of a weapon thirty he reached into my pocket and took my wallet out of my back pocket and he turned into a room and there was an officer around the corner who grabbed him right away and the gun fell out of his pocket would that be armed robbery that turns on the type of threat is an example where he walks up and  will on the jury for such a case and you've got the instructions that michigan gives you would say that was an armed robbery i would say that it required to be there armed or needed armed required either the instrument to be used or fashioned in such a way to lead the person to be need to use or fashioned or you need to be some sort of objective evidence to put the victim on notice i don't think mission is under michigan law in any michigan trial judge would have instructed the jury just because  what are the cases that say that that's not arm robbery your honor i think that the jolly case is actually very instructive i knew that mr to earth that they they offer hayden for the proposition that a defendant can satisfy the armed element by merely possessing the weapon seen or unseen but in jolly this is actually clarified to say that in the end if the weapon is only if it the weapon is not seen by the victim then in the evidence sufficient only if the defendant was armed in order to armed with an article fashion to induce the victim to believe that the robber was armed in other words mere possession there need to be something in order to lead the victim to believe he's armed a statement for example  that's because armed robbery in michigan has up to a lifetime imprisonment so there are very strict on the definition of earth to the level of evidence sufficient to meet that in jolly two people walked into an arby's a man and a woman and the woman said give us all your money or we go or he'll shoot you pointed to her companion and that right there preacher thousand and four was insufficient just or representation was insufficient without some sort of plus factor some sort of objective evidence beyond that  that had been rejected actually previously in the sains case and others in jolly the court said the evidence there is sufficient not because the victim believed that there was a weapon present just that or representation wasn't enough because the subjective belie victim is not enough the the cashier there look to the man after being told that he would shoot and so a bulge in his mid vest area and from that there was a reason to give weight to that threat and that was the minimum amount of evidence sufficient in order to support an armed robbery now again things have changed in after two thousand and four but i would submit that the cases as michigan has interpreted armed robbery are very clear that it cannot be committed  this is a forceful taking it requires intent there is this is not a negligent standard or reckless there is no question that involves the use attempted use or threatened use of force and if it had been there was a single case would have offered that they were left with just the theoretical possibility and that is just flat out insufficient in order to hold that and so for those reasons i would argue that his or his own arms to be rejected and i gather from your brief that you think we ought to review this only for playing fair because you make this argument to the judge you're correct i do think it should be plainer your honor i think that bostic was not intended to give someone an escape clause in a situation where they had ample opportunity as i read bos c it was intended to provide the parties an opportunity to put on the record any objections to the sentence just imposed that this was a pre book or rule but certainly it was not a rule that could supplant the requirements in the criminal rules of the rules of criminal procedure for example rule thirty two that requires you to object to the p s r before hand and that's exactly what happened here he had three opportunities he didn't object to the p s or he could have said in the sentencing memo and when he started the proceeding the judge said are there any other junctions he did not object there the fact that the judge botched the question which happens all too frequently does not allow someone to escape clause and it's but regardless of the standard  issue of hobbs act robbery in there are really two issues there are two issues here first is whether hobbs act robbery is a crime of violence under nine twenty four c there's no question it is after taylor although i must concede that whether taylor will be around in two years i don't think any of us can say i mean certainly judge what you dissented in that case you know sixteen b has identical language in the seventh circuit in one circuit already held its residual clause is not valid i would strongly urge this court also ruled that under the elements prong of nine twenty four see it is a crime of violence otherwise i'll be right back here in two years arguing the same thing i understand that when you win well i'll be back here whether i win or lose short circuit the whole thing you could you could save me a trip one way or the other the  the second issue is whether it is a crime of violence for purposes of the conviction and whether that would make him a career offender whether or not a crime is a crime of violence for purposes of the instant offense there are three ways first is there are numer offenses these may be in the commentary but this court has made clear that there are numerator defenses and the case rodriguez comes to mind from two thousand and twelve saying that the those are numerated offenses the second way is the elements prong and the third way would be the residual it's unclear to me why mr tibbs believes that all of the application to it should be thrown out i would note the soto rear rivera case in which he cites from the first circuit that case involved possession illegal possession of a of a weapon and the case was a machine gun and there the government had made the position that you can still rely on the application to and the first circuit said well no this would conflict with the guideline and so we have to rely only on the guideline here's an offer that here this is no different than a johnson where we strike the guidelines commentary it's included i am your honor that's exactly what i'm saying robbery is a numerated as one of the offenses that is a crime of violence but it's not a gore plea independent of the elements prong or the residual clause i would note and but there's no basis for it now i'm not sure i understand your question because it was not relying on the elements or the clause or the residual clause that's that's the problem mr tibbs is assuming that robbery was an enumerated offense under either the elements this use attempted use or threatened use of force or under the residual costs but that's not the case it is a numerated and then we look at in fact application one starts with clear if we look at that and it lists it says you don't have a case that says what you're saying right now i don't have a case that says this exactly on point granted i did not start looking at this until monday when the twenty a day later was filed because that is not an issue that's developed in any sense in his brief supplemental or otherwise but i know i don't have a case that says that but i would note that the amendment that takes into effect august of this year an amendment that i'm not suggesting would somehow change my facts but i think it is certainly instruct e in the sense that says as has always been the case such offenses this would be an offense including robbery qualifies crimes of violence regardless of whether the offense expresses expressly has as an element the use of attempted use or threatened use of physical force just one very brief point your comment earlier on about asking someone who was i forget the phrase you used a bit lacking awareness about what the defendant was doing that happened to me someone came up when i was delivering say people versus croup or if it's three forty michigan one fourteen sixty four north west second six twenty nine thousand nine hundred fifty four but it says whatever the elements of force are putting in fear enter into the taking and that is the cause which induces the party to part with his property such taking this robbery and then the next sentence this is true regardless of how slight the act of force or the cause creating fear may be providing in the latter circumstance of the party rob  reasonable leave that he may suffer injury i mean that these cases the the michigan courts have addressed that on page ten eleven of our reply brief but we do cite cases if you  force and that's part of the problem we think that the the force as we said can be the slightest force which you have in the the two thousand and ten johnson case it has to be violent force well how do you respond to his the jury instructions back at that time the that they did not include that that it was more of a general similar statute or the jury instruction listing the means rather than elements as far as the hobbs act issue was concerned i just would like to point out page twenty two eighty three of descanso one thirty three supreme court of twenty two eighty three just camp says that the statute sweeps more broadly than the generic crime conviction under the statute does not count as a as a career criminal predicate even if committed in generic form i think if you apply that to the career offender guidelines which the supreme court has suggested in which this court has agreed has ruled that it does apply that if instead of the statute that the for the hobbs act is sweeps more broadly than the guideline and because you can and you can commit the hobbs act robbery by a threat against property that's not within the guideline it's not unlike people who when on claims that they're not career offenders when they have burglary but it's not burglary of a dwelling it's burglary  some other kind of building and so that's our position that the guidelines just simply doesn't cover that can you you just the court will indulge how would you commit a hobbs robbery threat against property it's just give me give me an example i mean how would i do it no not you but how about how would a stupid quinnell do it i'm going to smash out your windows if you don't give me money i'm going to go but the person is right there yes ok so so it's robbery because robbery requires deprivation of possession right from a purchase person's got to be present yes and under your response i appreciate it the threat specifically is i'm going to smash out your car windows or whatever it is and you would say that doesn't encompass a threat against the person it's not a threat at it i don't apply threat against the person because goes beyond the scope of the guideline thank you thank you very well thank you the case of the submitted clerk may call the next