career offender and has much of the guidelines then apply that categorical approach meaning read the statute carefully read the guidelines provisions and compare that inquiry whatever revealed on oprah problem or as this court put it  another case it would have revealed that the crime of violence classification a suspect and finally do the research basic research would have revealed that there was nothing that foreclosed defense counsel from  consider and any variance from that would have to be justified on the record and it would be pretty easy to justify this on the record would not i mean because the argument here under advisory guidelines is we're talking about play the hypoth most technical an arbitrary sorts of lines the guidelines for all particularly when we are applying the categorical method based on hypothetical ways that the crimes might have been committed as distinct from the ways that with the district judge be able to consider the advice from the sentencing commission in its proposed amendments from december of two thousand and eighteen which meet when they if and when they ever take effect would is no longer required understanding that the guidelines calculation as it would apply to petition or the bat is what needs to anchor the judge's initial consideration and that any variance from there actually in a position where no court has a pint on this question whatsoever and still the th circuit finds even before we decided this question definitively it was ineffective assistance to fail to race and so that's the same position that mr bridges  there's no guidance from the nd circuit in fact mr bridges as the argument that other courts of appeals i had already ruled on his argument that the fish of the i think argument is stronger here for that reason  rival you know frank lloyd wright and frank gehry who knows and there are other lawyers who need to lay goes with the step by step directions to build this implicit house it is pretty clear that affective assistance of counsel normally doesn't require more th art you're talking about someone putting together a picasso this was a mike this is really a simple you read the statute you know actual or threatened force a person or property and you compare that to the language of the guy why it strikes many more years as counterintuitive because of the point that judge hamilton was observing about the categorical approach but but it's also complex in the extreme when it comes to the application of the categorical approach and the fault here would lie with the lawyer just missing o'connor right mr bartlett messina o'connor well  i think that categorical approach case those without question it is a spectrum and we're not talking here about arguments will have you know foreseen that an argument about well is a boat a dwelling right these cases that are dividing the courts of appeals ultimately ending up in the supreme your point has to be that under prong one of strickland when assessing the reasonable performance of a lawyer that you have to assume a certain baseline level of knowledge about federal sentencing including about the categorical approach in cases that implicate questions about crimes of violence i think that's absolutely right your honor and i think that's the point that we attempt to make and demand under strickland an attorney you know the fundamental law that applies to this case and then do the basic research and here absolutely for a defender that means the categorical approach is absolutely necessary for defenders who are day in and day out facing these questions about enhancements about where a crime told that they know how the categorical approach works and they know how the law is developing in the area i think that my time is up and i had wanted  guideline suppose we were to find in another case subject to the plain error standard presenting this issue suppose we said not a plain error the kind of thing that a district judge is required to raise himself or herself could we also agree with you and it seems to me that there would at least be some anomaly that needed to be explained if we were going to say not a pla wood are good afternoon you will turn to you in your honor bob what on behalf of the government may please the court there are certain aspects of objective reality that are hard to research and present to the court and as i see this case depends on one in that is the focus  common charge but westlaw silent so the question with the burden being on the movement movement here the question is how to interpret that silence and i would argue that the most natural inference is that no one made over a spot it in the argument if someone had made this kind of a sophisticated argument on the defense side it would have been appealed if they had lost and it would have been appealed if they had won because the government has it's you know we have our argument it is what it is but we're pushing it hard hard enough to stay the course so we would have appealed it and surely a good defense attorney would have a bill that if they had lost there was no record of limiting the circumstances here though the difficulty that i have with this is i totally understand defense counsel's focus on mitigation going in the sentence that makes fine sense to me but when you look at the guidelines calculation there's also no question that the career offender and hants man is doing a massive amount of work in the calculation right and so i think mr mr bridges argument that miss consolidate is quite ably making on his behalf is that a diligent lawyer who i think you have to presume has some knowledge of federal sentencing law  which would include the categorical approach here would look at is there a viable challenge to this career offender and handsome as opposed i think what it kind of slide by and i think mr bridges this point is that the moment you open the jar on that you don't have to go very deep to see that there is a potential challenge your honor i would agree fully that that is the best form of mr bridges are human i think mr gonzalez made it well i think your honor puts it well my response would be that although you know i just there is no way that i know of to research or find this data i've talked to all the districts this argument has and still to this day i talk to all my colleagues criminal chiefs of milledge chiefs and all the districts in the circuit in one district they seem to be seem to have made this argument a few times in two thousand and nineteen that's the central district of illinois and then in the northern district of illinois they made it maybe they think that they don't have a record of it but they think they saw at one time but not briefed in two thousand and twenty and then in five districts they haven't seen it yet and in every one of these instances it would be a crime of violence not and every one of them would have been necessarily a career offender big boost to the guidelines like you're talking your honor but in some of them surely it would have been in all of them that would have been an increase of some magnitude so the the problem that i have with defining the question at the high general level of generality and this case does exist within the high level of generality in the sense that the stakes are high but that doesn't give a proper attention to the prevailing norms professional norms a scuffle and also didn't attend to and it also just doesn't take the case on it on its own terms or at least it doesn't suggest a rule that would kick take cases on their own terms but i do get the point the stakes were high the categorical approach categorical approach is very convoluted less so here but it's intimidating for a lot of lawyers the in terms of professional prevailing fashion all norms mitigation arguments are the norm in at least in my communicated to the people in my office that they need to find a way to navigate the government's steadfast refusal to confess error across the board on this while alerting the court that this is going to probably come that this would be ineffective assistance well  i would say that on the most persuasive authority across the circuits and i don't think there is a specific authority on this point in the circuit but i think this court would agree that when thirty three courts of appeals and around the country that should raise it to a level that they have they have agreed essential that might also make sense and i appreciate the answer but i just i  would have thought though that once o'connor comes out of the th circuit the national network among federal defenders immediately alerts everybody to this issue even on the assumption that other folks haven recognized it's funny your honor i had actually written down an argument along those lines but it didn't feel right to to you know i don't know i don't subscribe to the federal defender's publication service i don't want to malign there the way they're handling this practice i'm  but i also found a little suspicious in cuss words and they took for granted this intrepid federal defender from denver saying you're a lawyer made the wrong decision in this case but how many cases must the federal defender service in colorado have handled in the year leading up to that and which they didn't make the argument i just i don't know but i don't have a really great answer for when this became ineffective i'm sorry  town that's been a neighborhood damaged by fire traitor and said look at all the physical injuries done to the building i had knowledge that your honor but the but the point is the government strongest point in this regard is that the guidelines used bodily injury when they mean bottle injury and what is this we don't know what this physical injury term is other than something in between property damage and bodily injury and if it is coterminous with bodily injury why have two terms that mean the same thing and on the other hand we also have the argument that physical means material which can mean a building and then finally they are guidelines argument is that to refine our delo in the way that the commission did and you know as one of the panel members alluded to earlier we're all hoping for a quorum in the sense a commission to clarify all sorts of these things but to do that in a way that keeps arson in the guideline talks about violence that doesn't necessarily exclude damage to property even if it's referred to as physical injury from that guideline that's that's exploiting that we have that and i have nothing  example that civil strategic reasons in choosing to emphasize mitigation or should we go straight to a new sentencing hearing well you know the government made one point of reference to the seriousness is these sorts of issues for a lawyer his reputation and i would be remiss in not advocating for at the very least giving mr the opportunity to say this was about in our you know there were these we had a sense that they were he was going to have even more homes their charges are you know i don't know what the strategy was in his mind i think i don't quarrel with the point that there's not a strategy in evidence now but i think the opportunity hearing makes sense if that's the point but then all the attorneys around the circuit not elsewhere what would have to i think make the same sort of have the same sort of soul searching even if not in front of a court give you one minute to close down here thank you very much i appreciate that just very quickly on the point of how many attorneys were racing this you know it's tempting to try to get to look at those facts however the available and it's also for the client this is junctures the techie the fact that you know every in that case it was the fact that every attorney in indiana was failing to raise that is no excuse to deprive a defendant of his constitutional rights and i will say that the evidence here is you've been west you know mr woods discussion of how he's been trying to find those data by my count there's actually more than half of the cases where attorneys were raising this argument that not and so it's not like we're talking about just one public defender cleverly thought of this and it really is was both counsel will take this case under environment and go to our