good morning your honors and may it please the court my name is meghan miller on behalf of the united states i'd like to reserve three minutes for a battle with the court's permission well thank you your honour's aggravated robbery under ohio revised code section twenty nine  eighty three dollars which i refer to as a three aggravated robbery is a violent felony under the armed career criminal at the statute requires that a defendant inflict or attempt to inflict serious physical harm while the stuff defense is being decided applying the appropriate framework that a three aggravated robbery is in fact a violent felony nd that decision is consistent with how ohio courts exclusively interpret that statute to require the use or what is notable about that decision albeit unpublished is that the full in court applied the appropriate framework both required by the supreme court and adopted by this court that there is a two pronged inquiry to determine whether a state statute categorically constitutes a violent felony for purposes of the a c c yet so st the court in full and looked to the definition and while the serious physical harm definition under ohio law has multiple problems for which encompass of your physical harm but one of which does involve an extreme mental harm component it then went on to look specifically it consistently ringback with the supreme court's dictates and this court's dictates as to how state court actually applied that statute and it could find no state case applying a three aggravated robbery to situations which do not involve the use or threat and use of physical force and we're still in that we're still in that posture no no case has come to light since fall that's correct your honor no cases come to light in which physical force has not been used and in fact a survey of ohio case law suggests exactly the opposite when we look to what ohio intermediary courts have done with a three aggravated robbery we see that appellate courts are up holding convictions only where the defendant used violent physical force consistent with the a c c a when a defendant pistol with the victim when a defendant raped a victim when  defendant murdered a victim and conversely we have a case in ohio law in which the state court addressed the sufficiency of the type of force used and that's the case of loss and and in loss and the appellate court said that grabbing the individual attempting to swing a stick at the victim that wasn't sufficient and they reversed on those grounds finding that that was simply insufficient force to constitute a three aggravated robbery so when we look consistent with the dictates to a value evaluate how state courts are playing the statute we see that there's no reasonable possibility that state courts are applying a three aggravated robbery without physical harm so this  reach the decision of whether andersen should be overturned but for our purposes there was a finding that serious physical harm was categorically over but the difference you would say between a three and a one just so i understand your argument for aggravated one share the mental harm definition the exact same one that's correct the difference between them is that number one there's no case law in like that for that one that that illustrates how somebody could commit this offense with only that mental harm definition and number two it's really hard to imagine short of some kind of you know fantastic hypo how that would have that's right your honor and i think that's just the difference right yes and it's the difference that's consistent with how this court of supposed to evaluate the statute so the full import even though it was decided prior to birth to subpoenaed the burst decision and applied the appropriate framework it didn't stop with that definition and didn't say well because the statute me hypothetically incorporate that definition were done it went on to look at how state courts actually apply it and then even theoretically how might this apply and it simply concluded it doesn't that there's no circumstance in which that mental harm type of physical harm to be committed without violent force perpetrated by the defendant as specially the case gets a little stronger for you after common law robbery and when looking at robbery that would be sufficient to overcome a victim's will the stalking court found that robbery that overcomes a victim's will even if it's a i think the court said a feeble or weak willed victim wouldn't necessarily involve some kind of physical confrontation or struggle and that's because of the relatively quick time frame in which a robbery occurs there requires that it's a limited window of time and looking to that specific window it would be difficult if not impossible to accomplish that type of serious mental harm without also accompanying violent physical harm and that's also again consistent with what the the ohio state courts have found when although the ohio supreme court has not specifically addressed serious physical harm as it relates to this a three provision the guidance that we have from the ohio supreme court is affirming a decision where the aggravated robbery resulted in murder and so looking at both as this court has recognized the best metrics for how a state would interpret it statute which is obviously the supreme court of that state and then if there's no specific on point decision by that court the intermediary appellate courts were guided into the realm of what is actually going on in the state of ohio and that is that a three aggravated robbery simply isn't accomplished without violent force the court hypotheticals that within that armed group criminal act realm this court has cautioned not to engage and simply the inability to divine such secular to hypotheticals proves exactly what is the a three aggravated good morning my name is lori regan here on behalf of her seize wells and this case is about consistency and uniformity consistent with this court's holdings or preceden decision does not control here and should therefore affirm the district court's finding that mercedes wilson's conviction for serious physical harm aggravated robbery cannot constitute a predicate felony under the a full was overruled by burress and williams but even if it was not the court should find here that it simply does not control judge oliver below found consistent with the birth reasoning that by that i mean my recollection from birth is that there were two or three actual ohio cases that the defendant pointed to and i think the court pointed to that illustrated how mental harm could be part of the offense in that case like one of them was a young child found the body of one of his parents or her  parents i forget which can you take one of those fact patterns from one of those cases that that we relied on and a purpose and explain how those facts are something you know basically the same could cited below and talked about in that case there was and it was used in film to say that the that must be done in a short window of time and we could not find a hypothetical that would let you know we have these two or three cases are out there that illustrate this mental harm definition i think part of their argument is i think that was assault that that offense alone is a sop yeah this is robbery aggravated i think kind of what they're driving at is it's easier to to have mental harm as part of an assault that is to have mental harm as what aggravates a robbery and i'm just seeing if you can if you can take the facts from any of those assault cases that we relied on and say look you know you could have the same sort of mental harm supply the aggravation so to speak for robbery because i i struggle to see how there are those that you know that kind of  oliver did below and what he looked at is by analogy to say if one were to threaten someone with let's say something like exposure of personal information that he could see that under use of threat in that case not use of threat of force but of use of threat of something else in that case a personal information exposing that publicly correct exactly i think he may have even used that word that that one could suffer serious psychological harm at the same time as a theft offense but i would also guide the quarter ask the court to look at the full in case itself and say and i note that it it suffers from the same fatal flaw is anderson and the reason that the burris court overruled anderson was in part because anderson just looked at the ordinary definition of what serious physical harm is and it said of course if one is causing serious physical harm well that must be a violent felony but what anderson did was it failed to consult the ohio or vice codes definition of what is serious physical harm and of course there is a mental harm only subcomponent of that element will fullam suffers the same ways one of which is the misuse of a credit card and one is which one of which is the falsification of identification cards so a essentially identity theft in ohio is if after the fact and there is nothing to suggest that identity theft must occur in a short window of time and there's nothing to suggest that one could not suffer serious psychological or emotional or mental harm if someone's identity was in fact stolen from him or her so for that reason we would ask that the court disregard fill in here because it's simply i guess what i would call to use any ohio court system so has has st as a prosecutor charged identity theft as aggravated robbery and then has an ohio court upheld that because presumably although i don't know of the ohio statutes presumably there is also an identity theft offense in ohio so those seem to be the relevant questions because you know moncrief to all those who are not supposed to engage in wild speculation so the question is is there a realistic probability that st such  aggravated robbery identity theft would be charged as aggravated robbery that the i don't know that kind yeah there it's charged like that i do not know right so if it's never charged like that in the can then you never have a conviction in the conviction would never be upheld well so you don't have any case that you can point us to in which aggravated robbery has been charged there's been a conviction the convictions been upheld in which only mental harm resulted and there was no and there was no physical force however slight under the stokely definition i don't well i would answer that in a couple ways i don't know how it would charge quite honestly in ohio how is charged in ohio but what i do know is that what we're looking for here is a realistic probability and we have these felonious assault cases that see the element the element of serious physical harm we're doing in elements analysis and we're looking at the element of serious physical harm and we see we have those felonious assault cases but we have to take that element and plug it into the particular statute right so in purus the question was assault and it just said knowingly inflict serious physical harm so to knowingly inflict serious physical harm when you take the definition knowingly inflict mental harm  serious mental harm to the could require hospitalization or whatever but here you have to not just do that but you also have to take the property of another using force or threats of force right so there has to be the taking of the property the one edition will be there has to be some kind of theft yet that's what the statute says so what with full of what i'm sorry what bullis burris did was precisely what we're asking the court to do here there were only three following us out statutes but it applied it to aggravated assault and you see on page three hundred and ninety nine of that opinion in footnote eleven it says pacifically that although it's a different offense we understand because it's the same an element that the ohio courts would apply in the identical way so burris has already paved the way for this court to do exactly what we're asking the court to do here and so i mean and so you're saying now we just have to all we have to do in this case is in vision a reasonable reasonable probability that that same kind of mental harm karrar as in the course of a there's also no actual physical force because if there were actual physical force used then it wouldn't matter whether you had many files under one of the other subsection and physical force under stokely can involve like if you're if i'm carrying my handbag and someone that robber snaps my respect to remove that that's physical force right correct way but the distinction in this is why the government's case is regarding how much force how little force those all fall by the wayside and they're not instructive for this court to make a decision here because those i'll speak to subsections b through each of the series does not harm element they don't speak to only mental harm here we're we're not talking about the degree or level of force that's a different inquiry than what we have here we're talking about mental harm right but the question is how you can inflict soli mental harm in the course of committing a  realistically now maybe in your identity theft example but we don't have any case in which identity theft is charged as aggravated robbery we do not but at the same time we don't need to have a super wealthy corporate executives and and then that kind of goes sour and the person who's having the affair you know let's just say it's the executive is a man man who's married and other person is you know person if there's a woman and then the the woman says well i'm going to tell your wife unless you let me have prearranged with the america that one american express card and then the guy you know like has a nervous breakdown that in your view we would be hypo that that satisfies this that could be charged under the provision we're talking about yeah absolutely your argument here yeah that's correct and that is precisely what judge oliver argued or he can argue with what he stated below that was his hypothetical that you could use some sort of threat of exposure personal information and that would cause someone serious with with no touching or force whatsoever that would cause psychological or mental harm and you see so that is one example  of psychological or mental harm sufficient to land a person in a hospital for an extended period of time right i mean that that is i don't think judge example just discounts that that that could happen if you suffer a mental breakdown may well be hospitalized we see also if you look not only at those hypotheticals and you can use by analogy as judge oliver did the felonious assault cases we have the intent of the legislature and we also have the jury instructions here that critz across the ohio apply juries apply the identical instruction for felonious assault as they do for aggravated robbery it's applied identically and so therefore this court should consistent with that apply it in the same manner that the element of serious physical harm mathis also how do you look at the statute you look at it does camps and mathis it talks about how the a predicate felony analysis involves quote an element based inquiry and here consistent with the precedent in burson williams the court should apply the element a serious physical harm as the ohio legislature intended it and that is uniformly so the district court here or the the court here should therefore affirm the district court's finding that serious physical harm aggravated robbery as an element  specifically talking about a three aggravated robbery serious physical harm robbery so while it's possible that your situation would inflict some type of mental harm i would submit probably not the type that results in an actual case it says there must be reasonable probability now the case law is eleven dollars datapoint certainly for that but if it's if it's not hard to imagine it doesn't seem point but let's let's say that at least i think it's not dispositive share and i think that if if a few factual scenario is plausible seems reasonably probable and that's an area would satisfy the statutory elements that it's a violent felony and so i guess what i'm wondering is why doesn't this blackmail hypo check those boxes it doesn't take those boxes because that definition is out the court could have socalled but the court didn't hold and we were complaining that the court went farther than needed to in that case i mean that the court didn't say by the way three is also you know one way or the other i mean that i don't think that's true in germany i disagree around and i think it's because we need to look at how it's practically applied and so it would be one thing to be engaging in a realistic probability in a vacuum if there were no guidance from the state law then from state courts but here we have that guidance and it's specifically in how the state courts are actually applying the definition of serious physical harm to a three are graded robbery and they're doing so in a way that a defendant cannot be convicted of that statute absent using physical force can't be convicted under the other subsections of physical force they haven't by any means they can't be convicted under the mental harm subsection hi paul i'm talking about now maybe the prosecutors choose to bring extortion case but maybe that just shows an extortion is more serious and that's and that's not inconsistent with saying that this generic portion of the ohio arise the revised code so forth multiple multiple possibilities for how that term can be interpreted and it's necessary to do that because those terms are then incorporated throughout the ohio revised code for a variety of situations but what's germane to this analysis as to how that definition is applied in a specific situation that situation being a three aggravated robbery and again consistent with the birth course own outline that you look to that definition and yet on its face it may be overbroad but then you go forward to see how it is actually applied in a specific situation that's what we have here and a three aggravated robbery simply requires