appellate please the court counsel that is we go from the very cool admission of the young attorneys here to having privilege of appearing before you and i appreciate that mr burris challenges his divisible or indivisible and certainly because it's a matter of federal law there isn't any issue or any case law specifically stating whether it is divisible into this void under ohio law so that's for this court to decide specifically it's a position here before the sun bank panel that it is an indivisible statute and it is overly broad and thus it cuts too big overly broad swath based on anderson if you find it is divisible i don't believe that it does in the inquiry certainly it changes the complex in of the way that interest is interpreted in this in the circuit but i don't think need to look to the law that's governing it in here that's ohio then the ohio for one he says assault statute i would contend has two different means for accomplishing that same phony assault conviction  there there isn't anything you know high law that specifically states that it is one crime under a one one crime under a two although because there's some suggestion on how long they were allied although one sentence would apply it's still only one conviction and so i think this court can find that he needs to read in its entirety that phony salt statute  based on the calculation the guy lines here going from eighteen to thirty two it's such consequential effect on on a criminal defendant that then is before the court or is before a district  andersen and they look to ohio state law we know from ohio state law for instance with the hodges case although the government contends that it is essentially an outlier it's not an outlier it's ohio law ohio law says that a mental injury can result in phony to solved conviction and that's a problem because finding that makes it overly broad as it relates to the way the model  in hodges there was no force that was used and that's important because under the federal law force is required in order to hold that conviction as a crime of violence federal also refers to threatened use rights so it is so hard just as a perfect case then to look at because there was no threat do you use of force as it relates to let's let's not talk about these intermediate court of appeals decisions what's wrong with the statutes if all we had were the statutes would there be a problem here is your argument turn entirely on these intermediate court of appeals decisions it doesn't it doesn't turn entirely on what would be the problem with this if we just compare the elements clause including the threatened use of force with the ohio statute we can use a one or a to bring what's the defect in the language of the ohio law right so this is a defect in the in the language of the ohio law that i believe makes it so that it's not a crime of violence is for instance in a one where it is  mental harm is specifically set or threat or uses of physical force can lead to mental harm that leads to hospitalization quite easily and quite understandably and that would make it any less a crime of violence it seems really quite natural well i've i don't agree with that i think that for instance in the hiv case the there when it comes up from behind with a gun and threatens to shoot you if you don't give them everything and you have a nervous breakdown afterwards that's seems like a natural causation from that particular incident right but when touching is nothing physical it's a threat and it leads to hospitalization rate but when we and i don't mean to you're about to go to the state intermediate court of appeals decisions i'm trying to keep you focused on the language in the language it seems to me works pretty well and the rule is the intermediate court of appeals decisions are something we look at but it doesn't tell us what to do and we have plenty of cases th talk about outlier decisions and we don't let outlier decisions negate the language of the statute right well in this particular case there hasn't been any request made for instance under the ohio procedural laws nine point  one that would have requested a certification of a question to the ohio supreme court asking them to answer and so when we look to the statute we need to look to the courts that are interpreted that statute is there a law it's their interpretation and although there isn't specifically  point ohio supreme court case that is discussing we have to then go to the intermediate courts or the language of the statute that's true as well but because this court  routinely relies upon not only the language of the specific statute but also relies upon how the ohio courts are interpreted in their own law it's important to not ignore the interpretations by the higher intermediate courts even if we would prefer to have ohio supreme court stating and speaking specifically on that issue i think when we look to the language getting back to your question judge that the under the serious  serious physical under a one and we look to the definition of that that includes mental harm and i don't think that that when we looked specifically in only to the language of both the  the definitions that are relied upon that we can exclude from that the fact that a non force related injury can occur and yet an individual be found guilty of felonious assault and if we go to the second part the physiological injury i think similarly if the court were to look at it as a divisible statute they could look at and see that physiological maybe anxiousness maybe a company and that's not in that's not the type of thing that requires force and so under eighty two that would permit attempt right and then it would permit a non physical force related injury and i don't think that that's that's what the guidelines intended i don't think that that's what the supreme court of this court intends to allow to constitute a crime of violence and that's why i believe that that's why we're here and of is it in banks hearing to to reconsider this very important issue i want to go back to h briefly again maybe it's considered outlier decision generally however what we don't know is how many people have pled guilty because that's what the law in the state of ohio is and and the only way we would know whether or not that that's the case is do ask every county clerk every circuit court clerk to provide from a subpoena records of everybody that has pled guilty to that charge and then look to the facts underlying that and that's your argument but you can see that our review is for playing there and i'm i'm just a bit puzzled as to how a district court and commit play in there when the court is following a point published decision a bar court well would it when it gets to six men or rights i think that that's the type of thing that plainer is specifically related to and why we're able to revisit that issue and i i don't disagree with you that it been raised in the district court what the court would have been confronted with however had it been addressed in the district court time the sentencing these types of arguments could have been raised could have been flushed out how do we get to the same effect when you court you know the district court at the time was relying upon only those things that had before you and so when it's raised on direct appeal which is what we have clearly error quired clear or obvious  i think it's clear obvious given it had been raised in light of the scamps in memphis i think that that's the exact type of issue that the district court would have been able to to contemplate and consider on some of our judges now well i am not sure i agree with that i would say that in the williams case the panel that was considering said that we are bound by andersen and so we can't reverse the circuits on preceden so i would disagree with you to the extent that it's saying that the issue you're saying that a district court should have done it vontae without it being raised but that the court of appeal know which is what we most specifically have to talk about the issue was never raised although i believe that it's the type of thing that is clear and should have been raised and constitutes a violation of the sixth amendment rights now when we get to this court and it's consideration of williams first before burress this court said we're bound by andersen we understand that there are questions related to andersen but this is understand the logic of that is the district of the circuit doesn't have to block its own precedent but you're asking us to create an arche within our circuit where a district court can revisit our precedents on its own  know i'm asking this court to clarify what the circuit's position is on the issue of andersen and light of matheson disc cams i'm not saying that it is that there's lack of clarity i'm saying that there isn't any binding precedent coming out of the circuit for district courts to rely upon this struggling to see how it helps your client i mean we could agree with you that andersen should be overruled and let's say we do that i mean just hypothetically how then do we go further and say moreover the error was plain and and your client's entitle to really pretty tough on the district court to say the court there was plain following our press and found well it's certainly is on that issue however there are other issues that were raised by the the government for instance the residual residual clause that i haven't had a chance to talk about but that's been done in the briefs and so to the extent that the residual clause has any role in this it would be our asking some of this court to remand it for resentencing so the court could then consider whether or not i i'm not sure that what this court would be doing is overturning in or so in as much as clear a fine for the purposes of the circuit what what this court's position is court can say something was clearly wrong and that just fixes the whole problem that's what the that's what happened in the u s supreme court so they said something was clearly wrong that allowed plain error even though the courts up to then had been following precedent and that got around the problem by i suppose assessing my difficulty answering the question as it's it depends on the way that the court frames its decision in this case just has to say it's clearly wrong right  qualifies as a crime of violence under the gun lines as well as a violent felony under the armed career criminal act specifically there are two different crimes that ohio criminalizes in the in  felonious assault one is the a one serious physical harm variant and the other is the a to physical harm plus a deadly weapon variant and to answer judge rogers question that was last post to  y colleague the physical harm variant clearly qualifies under this court's precedent in refeeding among other reasons because it's not only physical harm but it's physical harm plus a deadly weapon and when you have those two things in combination that satisfies the johnson two thousand and ten force as i believe judge moore wrote in the refuting case and in particular with respect to counsel's point about whether that involves anxiety or not the legislature in the one nine hundred seventy four notes when they first in acted i believe the first and acted the serious physical harm and physical harm definitions clearly said that mental harms are not part of physical harm they are only part of serious physical harm as defined in only serious severe mental harms qualify under that latter definition now the government  written that you can say that it's clearly erroneous say we did say that and we grant or we if you did say that then then yes you could consider it on the merits however i would note specifically in the term it would be plain was rightly decided could be a debatable question it is certainly not plainly erroneous and i would submit they given the language of the statute as well as the precedents upon which it is are that's construed it that you can't find it to be clearly blown essentially in this case history thank you so possible that mr burris waived his argument here because sensing memorandum he conceded that these guidelines applied to him and we have this case called united states versus ruiz from two thousand and fifteen in which we seem to say that with eating in your send thing memorandum are the district court level that this crime counted he argued that it overstated his the extent of his criminal history but he conceded that it did count and they are then we wouldn't be talking about plainer although both of you seem to think playing error it's not at your your honor as you point that out i agree your correct the government did proceed on the idea that this was plain error bud one even when i think about the distinction between forfeiture and waiver i do believe you're would focus here clearly as requested on the force cause although i do believe the other two clauses in this case the residual clause of the guidelines which was in in place at the time as well as you know write a clause also would mr versus conviction also  to those but focusing on the first cause it can't go through qualifies because it necessarily requires proof that the defendant used force capable of causing physical pain or injury  his argument focuses on the ultimate result that happens to the defendant and he force if i could ask i'm sorry where's the boars in the ohio that was so is this court has pointed out in numerous different cases to include collins patterson andersen itself that you don't need a stand alone element of the statute it is long as that force is essential a big into the requirements for the defender commit that to the commit the crime littering this can throw all of our prior precedent or were to the side in the question is using supreme court cases and is that there is wars required yes wired wouldn't get that up because you're under the type of force that that serious physical harm definition requires is it because i'm sorry the type of harm that that serious physical harm definition requires cannot be committed it cannot be or i'm sorry necessarily requires the defendant to engage in johnson two thousand and ten type force and so because the defendant must do that in order to cause the kind of severe mental trauma we're talking about we're type of things like p t s d and you can't cause p t s simply by looking at someone cross eyed acquire crosswise or doing something that's a minor and doesn't satisfy johnson two thousand and ten for suppose you know there's an ohio cares and i'm now going to sort of change the facts a little bit suppose that someone knows the dead mother is lying on the floor but he didn't kill the dead mother somebody else killed the mother and the person leaves that body on the war that could cause a mental illness or condition of gravity and could be a basis for polonius assault under ohio law is that true or not i think i would say no and for a couple reasons so first of all i would back and little bit more than half those i believe are eighty two cases and roughly two thousand those are a one cases and i bring that up because out of a well i haven't read four thousand cases in all of the various ways that i've researched this i've come up with three possible cases possible cases which i would define as outliers that assess that possibly might not meet the johnson two thousand  and as your honor is of course well aware you know we don't court has been counseled by the supreme court not to engage in i think the term is in flights of fancy but certainly to look at what the law actually is but nonetheless respecting your hypothetical i would note that in that case there's a heavy emphasis on the parental duty then that that in the court repeatedly in that case acknowledge how unique of a situation it was and you know i believe  undisputedly the facts of this case are your niek research reveals no other instance of prosecution for a mental injury caused by the defendant's failure to act and so really that that case is unique but nonetheless i think if you have so i did interrupt you i'm just absolutely i'm just not following so i think of johnson physical force case and the question there is what kind of battery what need for physical force is needed i don't think of it as a threat case so that's what's puzzling me a little bit if it were so focused on johnson but the statute does talk about threat and of course it's quite natural that it would be threats that would be much more likely to lead to serious  that's not improbable thing at all and i'm just not sure what johnson has to say about that your current down or new why ok why didn't you respond to just more by talking about thread or i feel like i must be missing something so i guess i maybe didn't get there and i apologize for of going in a round about a way no i thought wrong and i absolutely apologise for going about in a roundabout way because as judge sutton is keen in to the point is that chances are that the definition under the force clause is use of force attempted use of force or threat and use of force and johnson to does focus primarily on that use or exclusively on that use of force and that is the nonetheless the force capable of causing  severe pain or physical injury and therefore none the less to leave them so let's let's say that's a better way to think about it not johnson then what do we do about you call him a liar cases they call him hartley in cases where it's hard to look at those fact patterns say they were threat prosecutions while i would say that there are a combination in the minister and the woman that would what's the threat so one thing i would point out in that particular case is that the top i'm holding in that case the court says is it is about physical actions by the defendant that the jury could have recently concluded that the victim's priest in their past the defendant was aware that his kind of probably would result in certain physical harm to the victim and then they go on to talk about the severe mental harm so i think if you look at the actual cases that involve this type of thing almost all of them with the potential exception of hodge's and or eliot in they they still involve physical violence but with those potential exception the crime that is cause it's resulting in the mental harm is a combination of physical force and it's a combination of physical i'm sorry it involves physical force and it's a comma nation of physical harm and mental harm and i would point that the it's circuit and look in at the an iowa statute that involved a very similar definition supreme court has spoken on this but these are intermediate appellate courts and while they certainly provide guidance to this court they are not binding and we would submit that if this issue were presented to the ohio supreme court that the result might andersen at all what andersen does find it in treated the statute indivisibility because it found that both components the a one and a two qualified and so i certainly think you would reference andersen but it's not the same it's certainly not the same discretion to the jury button's earlier question i mean is there anyway to use a deadly weapon without it being a threat of force i cannot think of one and i to say that the that the ohio supreme court has spoken on that particular issue i apologize i'm not going to be able to pull a case off in my mind but i think in the patterson  this court decided they referenced ohio supreme court case law where they were talking about the brandishing use display of a weapon and how that you know by its very nature is a use of force because it's a you know it's a it's a deadly weapon in so if you get though to the a two prong of that i think under the roof e d decision and certainly the risk reasoning that was written there and adopted by other panels of this court you've got a physical result plus a deadly weapon and that's sufficient to be force capable of causing pain or physical pain or injury and clearly satisfies johnson two thousand  you didn't argue that the i believe we did argue that to the panel the panel in this particular case this issue came up sort of backwards initially it wasn't argued by arguing f honor but but your honor i'm at the time that the government was looking and initially at this case anderson was binding precedent and it was before panel which couldn't overturn it and then the government then looked at some of the concepts relating to divisibility and particularly looked at that the high idea of alan offenses of similar import upon this court granting and back review the court the government did a much more thorough analysis and looked at the various guideposts that mathis asked direct this court to look at  of that mr mr versus asking this court to take is looking only at that resulting harm and not looking at that baked in requirement of nessus of violent force johnson two thousand and ten level force in order to commit of knowledge being that there are different levels shouldn't the statute say what it means or them people having to rely baked in elements that are not statute your honor i think if you look at what the legislature is getting at here you know the statute is following the assault and it's helpful loney assault by accident right that's what the ohio legislature called this thing and when you look at  and while i know that a title of a statute it doesn't govern the supreme court in the yates opinion that's that fish case with i'm section fifteen nineteen but in that case in particular they look at the at the  title as giving some clues to what the legislature intended here and this salt has always it's understood as involving a battery or an attempted battery or a battery putting someone in apprehension or fear and so when you look at that and look at how ohio has limited this to situations that are involving that would result in either a severe physiological harm or also a severe mental trauma just bought by its very nature it requires a forceful action i would note that in these cases virtually all of them that i've at least looked at in victim who has p t s d and p t s d if you look at the generally medical accepted definition of that under the diagnostic and statistical manual the d s m five it requires exposure t knowingly cause the serious physical harm so in that case the defendant knew that his six year old son was upstairs and was the only other person at that house that defendant knew that he left his wife in a pool of blood a horror scene downstairs and knew that that son was the person who was going to find the find his mother and in is a small child and that combined with that parental duty is what will have been silent one i'd have to think that one through ten around here but i would further note that the ohio supreme court the close is that i found that it's got to talking about this is the brown case and in brown they talk about serious physical harm and the purpose of that stance atory definition and they define it as to prevent physical harm to persons so when you look at that through the lens of you know using force or attempting to use force or threatening to use force that is capable of causing serious physical harm i think you get to the point where this statute qualifies looked at over the co very briefly we got a lot of questions out the first time and then i heard what you're asking of counsel for the government but unfortunately i disagree with the governor when they talk about the phony society may not be full and he says oh by accident that's exactly what happened the elliott case he he was charged with felonious assault because he failed to prevent his child from coming downstairs a similar circumstance could come around where let's say someone murder somebody in prevent bystander let's say the murder takes place in a public way or something like that and fails to prevent a bystander for coming to see this body similarly not some think it's a threat of physical force to see a dead family members body down on the while i'm not sure that the child coming down would necessarily drawn that correlation between who was a perpetrator who just saw the body and so for all intents and purposes of using the terminology of the government said it was a similarly be brought against someone who caused the death of somebody but then prevented a bystander from coming by and seeing that same body it's just not there that's not what the model penal code permits as far as a crime and