it please the court mr morris pled guilty to being a felon in possession of a firearm his base offense level was enhanced from fourteen to twenty based on a prior federal conviction of robbery under section eighteen c twenty one twelve that stance you states whoever robs or attempts to rob another of any kind or description of personal property belonging to the united states shall be imprisoned for not more than fifteen years counsel how do you get around still struggling is difficult to get around i think and i'll be honest i think the only way that i can get around when in the course of the taking there is a use of force violence assault or putting in fear the florida statute actually has an as an element the use of force therefore it can be obviously found to be a force closet offense under and contrast that with the language of twenty one twelve that i just read whoever robs or a rob another of any kind or description of personal property shall be imprisoned there is no actual force element in that statutory definition do you have to have that when you have a new movie to c generic lobley and in that instance we then go to this court's opinion in united states versus house which defined generic robbery as aggravated larceny or the misappropriation of property their circumstances involving immediate danger to the person so i think the key phrase there is what is the meaning of immediate danger and i have not been able to find a circuit or other case that specifically defines that term but in the enumerated offenses clause robbery appears alongside the offenses murder kidnapping aggravated assault forcible sex offense ars that robbery conviction was up held because the defendant pulled a key chain off of a belt loop a postal worker in depass and third circuit case cited in my brief the defendant and again that was a twenty i won't say completely nonviolent but but a nonviolent offense a pull or a shot and yet that is in that and so that is what twenty one twelve permits it permits a conviction of that lower degree that lower but there is no use of force clause in there has any other court limited scope for sleep like you or you should do i did not find authority suggest and there's the other problem is that there's almost no authority interbreeding the section twenty one twelve now i would also point out too though that that you should look to the statutes that surround section twenty one twelve if you look at  twenty one eleven twenty one thirteen and twenty one eighteen you see that same language requiring quote force violence or intimidation and that is specifically omitted from twenty one and so i think twenty one twelve is is far more nonviolent or not violent at all a essence of that crime includes an element of violence records true but then still going i think also went on and talked about how the common law definition would include an amount of force sufficient to overcome a victim's resistance so you pull in all of those cases where maybe a year or two you're snatching a purse from a person's hand or you're you know kind of pushing them aside as you did you grab a piece of their property and run away so common law robbery is not particularly  there necessarily buy obviously there are buy out robberies but it's not necessarily so and i think the same is true of twenty one tile now still cling as is just force clause and i don't think you can use that to  notion of shit pushing someone aside or snatching their purse it's putting them in immediate danger and that's where they believe it's different from stuff the only case that i was able to find that even interpreted this particular issue is united states versus the northern district of california case in that instance they were actually applying it to section one twenty four c and that case is relied on the two that i mentioned before rodriguez and the past in their court and bell said the amount of the use of force the amount of violence  substance impose or scuse me the sentence imposed also has to be substantively the guideline range without the enhanced in this case would have been twenty to twenty twenty one to twenty seven months as opposed to forty one to fifty one months the court actually imposed a sixty eight month sentence which is roughly three times the low end of the correct guideline range i don't see where we get a sentence three times the guideline range for this particular case i will concede that the chase referred to by the government and its brief on the harmless error analysis  it says it says what the government says it sets it appears to be that the language used in that case is similar to the language the judge used in this case i would arrive at the same i would arrive at the same sentence regardless of what i decided on all of your objections here but you can't cases in which harmless error is found to save the sentence have to be considered each individual it's not the fact that that language issues that then insulates a particular sentence even though a guideline range is incorrectly held it must also include substance  reasonableness that an assessed under what the correct guideline range would have been as opposed to the sentence actually imposed  of twenty one twelve is that the elements are a common all robbery and stokely is very clear that common law robbery has sufficient force to satisfy the requirements of the force clause and i just want to read a couple of congress made clear that the force required for a common law or robbery would be sufficient to justify an enhanced since under the new elements clause so it says under the force cause of course because it is in a in effect today  the force required by common law a robbery is so official i think that is dispositive of this case but also the court further goes because the term physical force in the arm her criminal act in compass is the degree of force necessary to commit common law a robbery and because flora robbery requires the same degree of force florida robbery qualifies as an armed her criminal act predicate under the elements cause same as the force cause under the guidelines and so for those reasons stokely does control individualized determination of the appropriate sentence carefully went through to defend its history went through mr morse's partner fences with you mr morse's prior sentences which was a very troubling nature of mr morse's offense the court spent a considerable amount of time discussing what troubled him a what trouble to court about the defen occasions says that he would impose the same sentence however he rules on the guidelines but there's one portion i think really sums sums that thought up and this is the court speaking at sentencing so that's part of our analysis and you know these guidelines i'll tell you i come to the same conclusion regarding of my rulings if i would have sustained all of your rulings all of your objections i come to the same place right the guidelines we fight about but i always tell people they don't control as much as people think they do judges i think if we're doing our job we should consider the guidelines but they don't this is not some robotic decision making process they give us an idea i go below the guidelines ago above the guidelines that's i think it's important as far as you dish will independents and everyone everybody's different mr morris is different everybody is different than everybody else it's hard to put everybody a little box and so the guidelines are something i've considered in this case but they're not determinative and even if i could have sustained your objections i'd come to the same place under eighteen u s c section thirty five fifty three this wasn't the court making a a a  as to the portion of the sentencing transcript the counsel referred to earlier the judge had commented that on a previous conviction mr mor had been sentenced by a different judge to forty months imprisonment and then he had to serve in the national twenty four and supervised release was revoked on that offense adding up to sixty four and i think what that tells you is that sixty eight month sentence in this case is tied to the amount of time he did on a prior conviction and as i had said in my main part of my argument in harmless error analysis there is also always subs