your time in getting set up let me go ahead and call the next cases these are three consolidated cases for argument united states versus easten case number sixteen dash fifteen for thirteen united straddler whenever you're ready in my understanding use you're going to be representing argument on behalf of all three appellants with mr mendoza mr rodriguez there for support that's correct your honor thank you may please the court or rather from the federal defend herself to some behalf of geoffrey lawson these consolidated cases present a single legal issue which is whether hobbs act robbery is a crime of violence under the career fair guideline for b one point two the rd six and ten circuits have unanimously that robbery can be committed not only by threats of force or fear of injury to people but to property that is what takes it outside the elements clause which is limited to force against people and that is what takes it outside the scope of generic robbery which requires an immediate danger person the only definition left in the one that the four circuits have focused on most is the definition of extortion in the guidelines but that is deliberately narrow and requires a threat or fear of physical injury the ordinary meaning of physical injury requires injury to a person not property people are physically injure property is damaged or destroyed black's law dictionary defines physical injury as bodily injury to a person in addition and most importantly the commission itself has consistently used the phrase physical injury throughout the guidelines to refer to people not property there are about six guidelines that we think conclusively demonstrate that point if i can just rattle them off real quick to disjunctive between physical injury or property damage the latter two are both upward departure provisions the former into kate five k two point two addresses physical injury in her st two victims suffering property doesn't suffer the latter five k two point five refers to property damage or loss so the commission understands that physical injury refers to people and not property you're mr adler you have two possibilities or trying to conclude that a hobby zakk defense satisfies section four b one point two you've got the so called elements clause right and you've got the which i think is what you've been talking about so far no you're on i've been talking about the definition of extortion in the guidelines which has its own specific narrow definition no i thought was i thought when you started you were talking about physical force against the person of another which is the elements clause of for be one and that one has the generic listing of robbery as an offense that's correct and as i've read the cases in other circuits the paradigm is to try to figure out what the generic definition of extortion in the guidelines and that's the one that the courts have had the most difficulty with and that's why i went right to that but your honor is correct that the st two options are the elements clause and generic robbery as for those definitions we think it's a relatively easy decision and the four circuits haven't struggled with them because all you do is you look at the plain language of the hoppes act which person or property and you just compare the face of that statute with the elements clause which is limited to a person and the face and the elements of generic robbery which this court held in lockley requires a danger to a person and that's the analysis that the four circuits have all relatively easily employed and reached the same conclusion and we see no reason why different  about the argument that robbery is a federal codification of common law robbery and you responded that yes your honor we think that may be true with respect to the degree of force that may be required but the issue here goes to the recipient of the force is it a person or is it a property the fact that it extends to property takes it outside of generic robbery common law robbery it has really no relevance to the analysis here to the except to the extent it bears on the elements of generic robbery but this court has already spoken on that  why it's we think such an easy call on that definition there's a case from the th circuit that is not directly on point but it has language dealing with hobbes zakk robbery even if the court thought it was persuasive for some reason i don't think this court is able to follow it because of this court's own precedents for example in the evans case from a two thousand and seven this court held that a threatening to use a weapon of mass destruction against federal property did not satisfy three thousand five hundred and fifty nine precisely because it was threatened against property as opposed to people so we don't think that the house decision is is persuasive and it conducted no analysis and did not consider the or property  issue and that that decision i don't believe not sure if that was a case or not but but we don't think the analysis is persuasive and that my notes reflect that it was but i have said i could be mistaken about i think the  key case that the government really seems to be citing the most is a th circuit case called tell us martinez dealing with california rocked and that is the only decision that i think cuts in their favor but we don't think that's persuasive because the government's argument seems to be in the what the courts argument in that case was was that any time you commit hobbs act robbery merely by threatening property that that necessarily entails a threat of violence or fear of injury to a person there has to be somebody in the crib has to be in the presence of a person correct the taking or obtaining of the property has to be from a person or in the presence in the presence and so that's correct there they're arguing that because it's in the presence of the person therefore that person we would in kind of  and threat to that person correct that appears to be the government starting when there are two fundamental flaws with that argument one is as a matter of statutory construction it would render the or property language of the hobbs act entirely superfluous and this court in the cargo decision refused to render an expressed means of commission of an offense to perf lewis and the language and that statute in that case was similarly disjunctive it had alternative means of causing harm to a person property or reputation and this court said we're not going to read out one of those means of commission and out of fact that is what the government's argument would do here but more fundamentally there's a methodological problem which is not properly applied the categorical approach we have to focus on the elements of the offense and we know that person or property are alternative means of satisfying a single into visible element of the statute so whether there is inherent danger to a person or not that's not an element of the hobs act that the government will ever be required to prove or that the jury will ever be required to  find because a person is always linked disjunctive lee with or property so it's not a proper application of the element of the categorical approach which we're all familiar with now the only other thing i think that hasn't come up that i'd like to mention is the december  two thousand eight hundred dollars proposal by the sensing commission which would add hobbs act robbery in as a crime of violence and we think that proposal confirms our conclusion that the closure of the four circuits to address the issue because it would not be necessary to amend the guideline if conform to that to that you herrick and they try to correct that problem we agree they are trying to change the result of those cases but they're not saying those cases are misinterpreting the current version of the guidelines or misinterpreting for b one point two they're trying to they're substantively amending the guideline either parent that at least by including a reference to the hobbs act or in a definition that tracks the language of of the hobbs act so our view is that the commission is saying well the justice department has expressed concerns about these cases we're not saying that they're wrong but we're you think they result might be different and should be different as a policy matter and the commission is soliciting the use of all the relevant stakeholders and may consider empirical data it's going to review all the decisions on that point is going to make this policy judgment but the role of this court is not to make policy as you know it's of course to interpret the plain language of the guidelines that the commission promulgated in the four circuits to have done that have all reached the same conclusion and that conclusion really follows from the direct language of the hobbs act in the direct language of the guidelines whether the elements cla quintessential crime of violence in federal prosecutions across the circuit and it's not and that's for good reason through in most cases obviously the person who's committing if you if you don't don't pay attention if you if you disregard the categorical approach i say ninety nine nine percent of the cases are threats violence against against persons not property and that's why it's been treated as a as a crime of violence for for that period of time but we're now in the categorical approach world whether you like it or not that seems to say that we have to look at whether or not it's possible to violate the hijack and be not covered within that in the parameters of the generic  and that's that's that's your problem and that's what these other courts have held and so that's what that's what i want to see how you get around that is it is a just the presence of the person that you're arguing that even though it's violence against property  person present in there for the some sort of inherent threat to that person well that's part of it your honor our position is that reading context the definition of a hobbs act robbery prick wires a taking from a person or in the presence of a person against that person's well that against will language i think does substantial amounts of work and it really speaks to for example the overcoming victim resistance component that the supreme court found so important in stokely so we believe that there's no way to commit  if you look at the hobbs act robbery when it was an act it mirrored identically new york robbery at the time and if you go into that you'll see that new york robbery on the basis of that language discusses the overcoming the victim resistance component and that's different i would can be can be squeezed into the end of the generic i mean i wouldn't use the term risk i would say using the card is john's terminology it's at least a threat of force that is capable of causing physical pain or injury and that's something this court has said and seen hubert and against with fear of physical harm in those two are not necessarily the same in other words if you have someone who goes into a seven hundred and eleven and asked a cashier for money and says to the cashier give me your money if you don't give me the money then i know that's your car outside i'm going to do some damage to your car when i leave there's no physical threat of harm to the individual well respectfully i would suggest that person is still very much laboring under a fear of risk to up their personal safety and that's how hobbs act robberies have been committed in our always committed which is why i would point out that to me it's direct you to the language of the robbery definition it's says that the force or violence of fear or injury can be to the property of a relative or a member of the victim's family it doesn't say that that person has to be present and then furthermore in the next clause or of anyone in his company at the time of the taking or obtaining so those seem to cover two different factual scenarios one it's a perk it's a member of the person's family or it can be somebody in the presence written in the disjunctive so to me that says the person doesn't necessarily have to be present and therefore wouldn't have a fear of of personal injury injury to the person our reading of that definition is that it does require taking from a person or in the presence of a person and as to the language about their relative it's at the time of the taking or obtaining so it is creating a scenario of physical proximity which we think makes it impossible to commit a hobbs act robbery without at least threatening force in the court of johnson sense and that's actually what this court said in st hubert i'll bet in a different context so let's take let's just change judge jordan's example a little bit what if the person who wanted to rob the store said if you don't give me the money i'm going to go to your father's house and you know drive my car back and forth over his yard we don't know that anybody is home at the house it's a threat of injury to property where nobody is present i would still submit that under those factual circumstances the victim is still experiencing that threat a force that is at least capable of causing physical injury to a person property doesn't stand alone floating around in an inanimate way it's tied to a person in this sense and it doesn't experience injury on its own without that source of fear coming from a person or any threat any threat of harm to property is automatically a initially a threat of harm to the person if it's taken against the will of the individual in the t necessarily the case in every hobbs axin area right so that means that in every hobbs that case where there is a threat to do harm to property you necessarily have a threat of physical harm to the individual based on our reading of the text in context without taking the or property words out in isolation we think that's the case but if your honour's are uncomfortable with that textual reading then we would suggest  applying the generic robbery analysis which under lockley requires taking a property from another person or from the immediate presence of another person by force or intimidation we think hobbs act robbery substantially corresponds to that it's it does no it does not separate work two responses your honor the substantially corresponds terminology come straight from the supreme court decision taylor in other words the categorical approach in the generic sense does not require a perfect word for word match that sort of a threshold point but i don't believe the or property words are doing no work in the statute i think it's covering the type of robberies for example that we see in the east and styles cases here where the defendants walked into jewelry stores with hammers destroying display cases they didn't go straight up to the victims or to the or to the other customers in the store but they nonetheless created a very strong fear of of safety to those individuals who then had to scurry away in fear of their lives so that or property languages doing the work of capturing those i would call them may be more indirect takings but nonetheless qualifying under hobbs act robbery which is i think why the defendants have been completely unable throughout this litigation to identify even one object robbery case throughout the country and forty six act was passed that resembles this pure property application a work of pure imagination because the or property is in there and we can pretty easily conceive of and some of the some of the hypotheticals have been mentioned today about  threatening of a father's property or something of that sort blowing up a building putting mob explosives in a car and saying if you don't turn it over i'm going to blow up this car you know that kind of  thing you know one can one can can even go further you could talk about the person grabbing a someone's dog and threatening that dog which is property and and and and the person the victim and readily have turns over money for all sorts of nations where property can be involved well it should i'm sorry go ahead it's true that one can imagine a lot of hypotheticals but we're still grounded in reality not just imagination it's it's pretty real even though most cases obviously ninety nine point nine percent i'm sure involve violence to the person well two things number one there's been not a single case provided so at this point in our view is that they have been unable to meet their realistic probability burden probability conception applies in a case where you have ambiguous statutory language or potentially ambiguous touched where language you're trying to figure out how far that language can extend to different factual scenarios but here the language of the hobbs act statute is not ambiguous at all because it allows a threat against property so the fact that the government has chosen not to prosecute it doesn't mean that it's not a realistic alternative it probably hasn't done it because as judge walker suggested early on ninety nine point nine of these cases are cases of violence or threatened violence against a person and are easily prosecuted that way and if you have a threat against property than those can sometimes be prosecuted as under the extortion statute so and that's it doesn't mean that the statute is not susceptible of that reach well i would i would submit that the statutory language is that lisa texas sceptical to two different meanings as we see for example in the reasoning in the th circuit to tell us martinez case i don't think the language is so clear as to allow this court to discharge the defendants of the this similar type of argument was raised in vail bail on when there was some statutory language in the florida statute at issue there that presumably would have been construed as clear but nonetheless the court required more than s imagination and i would just reiterate that the defendants have been unable to come up with even a single case which i think is quite telling about how hobbs act robbery occurs in reality and whether it's even plausible to imagine a scenario that wouldn't involve at least a threat of physical of force against a person if i could move now to the sort of generic drug dealer reason by the way just before you do that it seemed to me that the guy in the sense of commission in coming up with fo as such as robbery and that's one of the reasons why they make they may have assumed that well maybe it doesn't vava crimes against property but if so if it's just a threat against property assault the kind of person we want to and the fact that that the commission didn't use that language i think is just because they really didn't think that hobbs act robber ever would be on the chopping block but now of course here we are and i think at a minimum there's the hobbs act robbery generic component plus the generic the sorry the guidelines definition of extortion that if this panel is very concerned about the or property language they can very much pick up that by using the definition of extortion in the guidelines  counterparts on the definition of extortion also focus on physical injury that is equal injury as a commonsense matter means injury to the person well respectfully physical injury doesn't say to a person and if we want to go for example to black's law dictionary physical just relates to things relating to material tangible concrete things and injuries just any harm that can be redressed in law there is no reason why we must construe the term physical injury to be limited to people only and if you do that you're not only jeopardising hobbs at robbery but you're seriously calling into doubt the large majority of state extortion statutes that threaten property and always have and i don't think the commission when it made that amendment and when it used the yes but but a ruling here in this case that generic extra that extortion is defined in the guidelines covers only threats to people would cause serious damage to the many states no it's not the holding the holding  guideline is meant to cover and therefore it doesn't but that would require determination that guidelines extortion covers threats to people only and our point is that guideline extortion as defined still covers threats to property that's classic extortion and nothing in that amendment written by the commission when it cites nor delo and threats to refutation should be read to x clue threats to property which is really core extortion and i think if the commission had wanted to take such a drastic step it would have said so it would have used the words to the person for example it didn't do so and i don't think that reading is compelled in law and it would create in our view some serious anomalies were not only hobbes act robbery would be disqualified but you would largely be discarding the difference between robbery and extortion the only difference under their reading is that extortion will cost cover future threats of harm to people versus robbery because it covers threats to people in the present that injury cases and robbery would be present injury cases and that would be the sole distinction apart from what your honor has noted with me ask you a policy question if i could we don't get to do policy much here because it's not our our gig but you've got three circuits squarely addressing the question in going one way you've got the sentencing commission proposing an amendment to the guideline why create a circuit split now well i would say number one the lay of even if you thought that were the case i would say the commission in its amendment i don't read that amendment as saying that they ever thought if i read that on not reading it one way or another i'm reading it neutrally i'm not saying the commission thought that these cases were right or these cases were wrong or anything they're just they're proposing an amendment and if that amendment goes through the law will be as you suggest it should be and so my policy question to the extent we're able to take that into account is why create a circuit split in this sort of scenario well i would say you're not creating a circuit split because you have the th on the th on your side they don't address the the expert they question the th circuit for example addresses a california statute that very clearly says fear of person to person or property so it's materially indistinguishable in our view from the hobbs act robbery issue we're facing so you're not alone if you make that choice and i think it's really quite telling that over the course of this litigation there's not been a single case matching their pure property hypothetical and these cases of course don't help them because in all three of these cases the defendants acted violently and certainly created a threat of physical force against the victims and the jury store or the innocen t hotel clerk whose life was to if that if the categorical approach didn't exist everything you said would make perfect sense but we're living in an artificial world and the supreme court has put on the chopping block things that no one thought would be on the chopping block that's true your honor but we still can prevail we believe under the categorical approach and the supreme court recently has been quite hesitant to take decisions that render statutes largely in applicable  little off the law here i can certainly understand and this goes back and i can't you know you can't really rewind the clock but the categorical approach seems to make much more sense when you're dealing with past crimes rather than the crime the charge offense because the whole the as i understand it the reason for the categorical approach is because of the due process concerns that are involved with regard to the the individuals who are process the problem earlier prosecutions where the person could have anticipated maybe that it was ever ever going to be used to enhance a sentence at that time and that would so that calculus wasn't part of that of that deliberation at that time that doesn't seem to be true of the charge defen e the charge defenses known to the defend it the possibility of future the possibility of a sentencing and has been based upon past crimes albeit used in the applied in a categorical way as known to the defendant so it's seems it's always seems strange to me that the categorical approach is being applied to the charge defense which is being litigated i agree your honor and i think at this nothing we can do about that i gather i mean i case that mandates a categorical approach in that instant offense of conviction in korea have not been defined what i think typically we view them as the same but i think what you're saying makes a lot of sense in the same concerns that were raised in ohio as i doubt th contemporaneous offense would be valid here the only issue and the issue there and you know vyas for example had the by its nature language which we don't have here so well when and i don't know whether the supreme court has ever addressed because pretty upset about the categorical pro generally part of the problem is that the or why is rationale didn't hold up that's correct but a different scenario in one thousand and four season aereo which also involve the charged offense and but i think the real reason why it didn't is because it used the words by its nature in the statute and we don't have that problem here so to the extent in the future there can be an analysis of the instant offense of conviction and whether it really requires a categorical approach i think is a very sensible course because we know facts and the facts here are clear and know you we know the facts the defendant knew the facts when he when he was i mean there's no due process that is it's hard to think of a due process problem that's correct your honor all three indictments hearsay threat thank you just to take judge walker's point last the government not only did not make this argument in any of the three cases here in expressly disavowed that in footnote seven on page eighteen of its brief and by the way there is no textual basis to differentiate between instant offenses and prior offenses if you look at no two in the commentary to forty one two they're treated exactly the same way and always have been throughout the gov that's true but that doesn't the guidelines don't address categorical approach versus non categorical approach that's a separate concept approach has been interpreted by the courts to apply to the guidelines and indeed in the december th it applies to the guidelines generally speaking i'm just talking about the charged offense versus the best offense that a you t we do i don't think it's a do i don't believe it's a due process concern that gave rise to that i believe it was partially a statutory interpretation of the a c c a specially with respect to the elements clause which has as an element in the text and the supreme court in taylor has always used the categorical approach with respect to enumerate offenses exactly the same way we have in the guidelines and in the december th commission is currently considering whether to do away with a categorical approach for the guidelines and we think that should be allowed to play out as a policy matter just on the extortion point real quick the government has suggested that this would ruling in our favor would get rid of all state extortion statutes the commission doesn't seem concerned about that because in the december twenty minute does not propose any changes to the definition of  extortion even though it has clearly read the circuit opinions that have held that object robbery in nevada robbery doesn't qualify there under i would as to the other definitions the government has no response to the superfluous argument that we have raised or to this court's decision in a card oh i cannot think of any way that they're reading would not render the or property language entirely superfluous and unnecessary as for the no case not identifying a case this court's law is very clear there's four published decisions which say we don't have to do that at the plane where the language of the statute is plain and i think judge jordan is correct this court has required cases and rejected hypotheticals in prior cases where the statutory language was not plain and was ambiguous and the touching required could be satisfied by a mere tap or whether it required something more so that was the ambiguity in that case the last point i want to make is that i think this court should not be baited into doing this definition of serious drug offense in the a c c a and that definition is very different from the ones we have here because it uses the word involving and so what the solicitor general is arguing in that case is that the state offense for a state of vents to involve certain conduct you look at what it necessarily entails and that is what the government is trying to do here but in that same brief the solicitor general has expressly distinguish between that serious drug offense definition and the violent felony definitions in the elements clause and the new breed of fence clause the exact same definitions that we have in the guidelines so i think the government is trying to change the in alice that we do under the categorical approach in this context and lastly i would just say to judge jordan's point there is no reason  to disrupt the uniformity in the case law and start creating unwarranted sentencing disparities among similarly situated defendants across the country that is something that i think the sense of commission will address as a matter of policy moving forward but there's no reason for this court to start creating those disparities under the current version that remains in effect there are no further questions we ask that the court vacate the defendant sentences and remand for recessing without the career offender and hansen thank you thank you both very much was very helpful