court this case involves at least two issues st the georgia armed robbery statute does not fit within the ac ca's violent felony definition even after stokely because the crime does not categorically involv active employment of force required by the account secondly the collateral attack waiver of mr jackson's plea agreement does not bar johnson relief today because the sentence exceeds a statutory maximum and once this court a count the district court will be able to bundle the entire sentencing package and revisit the sentence on the bank robbery count as well unless the court prefers otherwise i'll begin with the georgia arm robbery statute arm robbery statute matches the latter prong the violent force pran there is no longer any daylight between the georgia robbery statutes force element and supreme court precedent if that were the only issue before the court we would lose today but that's not the only issue the statute fails under the independent violent felony problem the act of employment of force under leo cal the georgia arm robbery statute simply does not match the act employment requirement an offender in georgia may accomplish an armed robbery without intending to use force against the victim ga courts measure an arm robbery through the eyes of the victim if the victim reasonably apprehends force whether or not the offender himself intends force an armed robbery has occurred we know this both from the text of the georgia robbery statute and also from to putting that statute the last line of the georgia arm robbery statute speech volume's here the georgia legislature defines arm robbery and then at the end it sticks on an important event them that the lesser included offense of arm robbery is robbery by intimidation the georgia legislature could have selected one of the other variants of robbery it could have said lesser included offenses robbery by force for example but it didn't it shows robbery by intimidation intimidation again is measured not through the eyes of the offender but through the eyes of the victim that's true both in georgia law and then that makes all the difference later when we compare it to federal law and we account we know where the  judge explicitly relied on the element or the residual clause so what do we do well if it's under the elements do you lose if the district court below relied on the elements clause we still win as i said because we don't fit under the elements clause because this crime does not involve the act of employment force elop if the district court below used exclusively the residual clause of course we win after johnson and this question from you judge siler brains to mine the government's brief in which it offers this defense it's the new beeman rule here in our circuit where we have the burden of proving that mr jackson's a c c a sentence was based soley on the residual clause this court is not in a position to pass judgment on the merits of that question here and now why not the district court didn't do so the district court in fact issued its decision in this two thousand two hundred and fifty five motion here even before beeman arrived so the district court did not engage in any of the beeman related historical record inquiry that is required now in all twenty five motions but didn't you just concede that we don't know whether the court used the elements causes a residual cause why should we put the district court through the make work of coming to that same conclusion if you've already conceded  ell judge granted didn't mean to concede the merits of that beaman request i simply meant to say that the record below at the moment is silent meaning the sentencing transcript and the p s r do not eliminate which clause the district court used back in two thousand and seven but that's not the end of the story and the beeman inquiry beeman also instructs courts to engage in a inspection of the historical record that can include the sentencing transcript and the p s r but it includes much more it includes case law contemporaneous with that original sentencing what case law was on the books not only in the georgia appeals courts but also here in the th circuit that would answer the question of which clause the district court must have used where you have a national good case there that should go back for the district court to make that decision it should go back to the district court to make that decision but once we return i expect that will prevail because the contemporaneous case law it two thousand and seven at the time of mr jackson's sentencing hearing established that the governments clause could not have been the proper home for georgia arm robbery it must have only been there is it will cause the ga cases that i cite in my brief raimi joiner and the supreme court opinion and we all arrived before two thousand seven before mr jackson sentencing if the district court had engaged in the inquiry that we're doing here and now it would have had to find then that the arm robbery statute did not fit in the elements clause other panels of this court have recently  the district court to engage in the beam an inquiry under the facts just like we have here most recently in u s vs picking a published decision about six months ago the district court record below was silent on the question of what is the contemporaneous case law at play on this particular predicate offense in the panel there did not feel equipped to make that merits decision on a beam and instead passed it back to the district court to do that in the st instance and so if this court is inclined quintessential example of the least culpable conduct under the categorical approach that can max a georgia arm robbery statute enjoin or the offender walked up to a cashier at a convenience store stood in front of her and demanded money he did not show a weapon he did not tell her he had a weapon he did that gesture in any way however as he spoke to her he had a hand in his pocket the record doesn't even stablished that he put his hand in his pocket or did anything in particular with that hand in pocket it could have been entirely coincidental as far as we can see from the joiner opinion what the joiner court said is that this is still an armed robbery without a firearm without a gesture or a threat because we look only at the victim perception of the offender's actions if i can quote for just a moment so the court can get a sense of what the joint a court said this was an arm robbery because the victim testified quote she believed the joiner had a gun because of the way he held his hand inside his jacket she was frightened because she believed he might have a gun and gave him the drawer from the cash register under lia cal the supreme court has told us that an offender must actively employ force well it can still be an armed robbery if i don't hold a firearm and pointed at the victim and there are very gradations on that spectrum of how far we can get from an actual brandon a firearm in here the jointer court said it's still use of a firearm even if there isn't one well as long as the under joy no it looks like the question was whether evidence he was arguing that no evidence that he actually had a pistol didn't have a toy gun and join yes you had to after the fact after the robbery was over when they later arrested mr joyner he had a toy gun that's right but the victim herself the evidence of that moment in time when the robbery happened was that there was no weapon shown or gestured or spoken up at all it was simply hand in a pocket there are other ga cases where there's some sort of gesture some sort of action by the defendant that's intended to tell the victim i'm armed and for example wrapping a gun or wrapping a hand in a towel or taking a hand in  pocket and actually pointing or moving it around none of that happened in joyner mr joyner didn't say gesture or hint at a firearm at all he simply demanded money but it was the victim's own perception that was enough in an aliyah cal that means that please the court every moment of the united states as the panels already discovered this case is controlled by the human versus united states and beam and set forth to requirements that a twenty to fifty from twenty to fifty five petitioner needs to show in order to establish a claim under johnson the st requirement is the historical question was he sentenced under the residual cause solely at the time as original sentencing in two thousand and seven that's a question of historical fact and respect we disagree with my counterpart as to whether that's properly before this court this court has the full record that it needs it has the sentencing transcript it has the p s r and my counterpart just told you that the same case law he would rely on at the district court is what he has brought before you today saying we don't have is district court recollection of what it may have done you're one of the seven sisters if a district judge tells you and this may and the as i said to mr dodge this may not be the right case for this paradigm because of the length of time that it's passed but if you have a case that is you know two to three years from sentencing and the district judge perfectly recollects that he or she was using the residual clause for these offenses exclusively at the time and yet when it came up on appeal you had the record before you and you could tell from the record self of course this defendant is not going to be able to show whether it's silent record and the state of the law at the time that a i'm sorry i don't know which i think it was an aggravated assault conviction in that case that he was going to mail to meet the birth the burden under him and the same is true here we have the record it's silent there's no dispute the sentencing judge is gone so the only thing he's going to build argues that somehow in two thousand seven twelve years ago before curtis jackson before her johnson excuse me that georgia armed robbery as a matter of law couldn't qualify as an element of cause offense there's no basis for that there was no court of appeals from this court there's no supreme court decision that would have told a district judge sitting in two thousand and seven that he could only use the elements clause is never going to build to meet that burden whether we do it today or whether we go back to the dish record and waste that court's time finale and judicial resources are the are the there to you then if there's a remained given the lapse of time it's simply the use of resources both hours but but the district court respect for the district court and i think that's been part of why so many panels of of this court have have reached the issue when it's sufficient a number of cases over the you know demon took a while to come out there's a lot of cases that came up not having that governing but we brief this issue below we cited in raymore which is the predecessor to be human mr jackson had an opportunity to respond we cited it in our brief in this appeal and rather than respond and try to explain to this court in his reply brief why he could somehow meet that he just said it's not before the panel i don't think there's a good reason for that he knows he's not going to be able to meet that burden and this is it's just an effort to push off this question or that this record had the opportunity to take up your offer to rule on in or a more grounds and chose not to so why don't we talk a little bit about the statute at issue here on the merits punishment if you don't mind absolutely your honor and that's another reason not to remain because even if we put aside the st requirement of being a man and we move to the nd requirement mr jackson fails there and the nd requirement is he has to show that even if you could meet this historical test that he does not have at this time three convictions that could continue to qualify as aca predicates under the surviving clauses and he can't do that because all three of his convictions are for georgia armed robbery and without a doubt george are armed robbery is the quintessential elements clause offense with with just the panels had a discussion of stokely today with our counterparts from alabama but georgia arm robbery has this additional element it's not just the force or intimidation it's the use of an offensive weapon which is defined as an instrument or a device that is unlikely to let me stop you for a nd on its face the georgia arm robbery statute does not require the use of force before you get to the use of an offensive weapon or a if i if i take put aside the weapon for a nd if i take the property from the vicinity of another from the immediate presence of another can i do it without force no you're on wait so if if someone a friend if someone has a wallet on a bench right next to him and i come by and take it have i with the intent to commit theft taken property of another from the person or immediate presence of another have i done that you are that the georgia courts tell us that the phrase taking i want you to go through let you tell me about the georgia courts in a nd but i want to go through the statutary statutory language itself st understand i have in my hypothetical with the intent to commit sefton taken the property of another from the person or immediate presence of another by taking that wallet no your honor what have i done the word taking is defined by the georgia courts as requiring actual force or intimidation so whether in some colloquial sense you have taken the wallet i might concede but our interpretation of what that word means is irrelevant the question is in applying georgia's armed robbery statute what does the georgia supreme court say a taking is and it says that  taking requires actual force which it defines as personal violence or intimidation which it defines as requiring some you to put the victim in fear for their personal safety and i'd like to stop from an respond in particular to the argument that somehow intimidation isn't enough under leo cal because it focuses soley on the victims point of view this court has already addressed that issue multiple times there are a number of federal statutes robbery statutes carjacking statutes that have an intimidation element so if you look at for example it horst and us the horse thing which was six hundred and seventy eight federal pet appendix nine hundred and forty seven this court said is viewing it through the object a victim is fine this doesn't act issue because you are defining the act through the effect it had on its victim and by making it an objective question you raise the standard sufficiently so when you look at joyner versus state which my colleague rel on so heavily what it says is that the use of an offensive weapon if it's not actually shot at the person of it's only constructive force the test is whether the defendant's acts create a reasonable apprehension on the part of the victim that an offensive weapon is being used this is part and parcel of this is the same intimidation standard these see throughout federal law throughout georgia law the common law it's in florida law and as the court addressed in the previous case stokely doesn't seem to have a problem with that so that's my subject of response i think i'd also point out i don't think leah calloused properly before this court it was mentioned only in passing and the briefer mr jackson we did not have the opportunity to fully briefed that issue what is the proper standard after  states we think it was waived we think the effort to not rely on it is understandable because of the damage that the still going decision from the supreme court has had on the defendant's case but they don't isn't that the same sort of argument that the dodge is making against you with regards to beam and below that you made a passing reference you didn't make it but you made a passing reference without a fully developed argument what would become the beeman argument if that's the argument he's making he's wrong if you look at our tw thoroughly discussed i mean our the boat of our argument is that he failed to make a showing that his sentence was under the residual clause if you look at i think that what he tries to say is that because we put it under the guise of a timeliness standard that we therefore failed failed to raise it we fully briefed it below mr jackson's entire twenty to fifty five reply brief is dedicated to exactly that question what is his burden he tried to argue that the in re chance alternative because this is pretty beamin those are the two and of course it's the principle argument in our brief in this court and the fact that he fails to respond to it meaningfully i think is is quite telling and i would it would join or say would you say that the georgia courts have interpreted taking to require force what does joiners say about the use of force in that case so joyner is about is is on an intimidation side obviously and what it says is that and what joyner is about is it's not the force or or intimidation aspect it's the use of the offensive weapon because as had been previously discussed the question was given that he didn't have a weapon and didn't take his hand out of his pocket did he meet that element to take it up to armed robbery itself i think clearly it was a robbery i think that the issue in enjoying it was was it an armed robbery given he didn't the gun out of his pocket and what the panel there said in this is true and raimi versus state it's not enough just to possess the weapon and just i'm going to read straight from the opinion the test is whether the defendant's acts and this goes back to the political aspect the defendant has to act and whether the defendant's acts create a reasonable apprehension on the part of the victim that an offensive weapon is being used the use of an offensive weapon it is clearly the use attempted use or threatened use of physical force mr mr jackson's counsel doesn't try to argue that use of an offensive weapon isn't enough he's arguing that somehow the georgia courts have allowed something less than use to pass through but that's just not true in a rainy versus state it's not the fact that he had a knife it's back there right before he robs this woman he assaults her with a knife sexually assaults or ties her up and then at some point puts the knife away before he takes her keys and so what raimi tried to argue is well at the moment i took her keys that knife was an act so it can't be armed robbery because the use of offensive weapon has to be contemporaneous and the and the court says no did your apps create reasonable apprehension on her part intimidation and of the answer was obviously yes she's testified that he had just had a knife out i was intimidated by the knife the fact that he puts it in his pocket for a moment doesn't remove that from being the use of an offensive weapon and the same is true in joyner versus state if he's got his hand in his pocket and the teller reasonably apple hands according to the jury who are undoubtedly properly instructed that that cause is convinced that intimidation alone wouldn't satisfy the use of force requirement that we disagree obviously we think it's the same as threat use of force but to the extent the court was persuaded by that that might be a problem for a georgia robbery by intimidation conviction but this isn't a georgia robbery by intimidation conviction this is a georgia armed robbery conviction which separately requires the use of an offensive weapon as we laid our brief we believe that there are two elements that satisfy the elements cause the offensive weapon and the understand your argument you've separated the use of force element which you say comes from the word take and the use of an office of weapon which under georgia law elevates the robbery to an armed requires the use of an offensive weapon as defined here which is a weapon that has that is likely to cause death or serious bodily injury and the offense that requires a defendant intentionally to use an offensive weapon to accomplish it necessarily involve on the beam in question there's simply no daylight here between this case and mr pickett's case the panel opinion a few months ago in which the court remained it for the district court to go through the historical record inquiry which can be comprehensive the government's asking the court or anything in the record that you would benefit from if it was remanded and if this court i mean you don't have the same judge that's right we don't have the same judge going back on to remain and we will have an opportunity to make a fresh start on the contemporaneous case law in precedent your honor we didn't have that opportunity from the district court before and while it may be more efficient for the government to ask this court to pass judgment on that on that question the district court ought to do that  on the use of a weapon in question in the georgia arm robbery statute intimidation simply doesn't match leah cal mr mendell suggests that we didn't raise this properly in our brief but on pages twenty six through twenty nine of our initial brief i led with intimidation i described intimidation in detail the georgia case law about intimidation and even cited leah caliph course in that three or four pages of the brief we certainly did raise that argument in that  not carry the day here for the government stokely didn't talk at all about the act of employment of the violent felony definition stokely didn't so much as cite or mention leah cow neither did the panel  welsh on the alabama robbery statute as miss k said in the earlier argument this morning just to score such spoke for three pages in the transcript with the estes office about this question and seemed very troubled by the idea that intimidation could lead to a robbery conviction in florida but in the end that wasn't raised the issue faded away and it wasn't part of the stoke lane calculus these two different problems and they c c a violent felony definition each stand on their separate apart from robbery it robbery is simply a theft by taking with something else in addition to that the use of a weapon for example so they are distinct from each other the taking alone is not nearly enough in use of a weapon is also not enough the defendant must commit some act intentionally but that act may not need be the intentional employment of force rights of joined as a good example the defendant clearly intended to put his hand in his pocket before he walked in that store he intended to do that once that happened all bets are off it doesn't matter whether he intended that to be a threat whether he intended that hand to overwhelm the victim's resistance it's irrelevant we simply shift over and look at the victim's perception is she recently put reasonably perceive that act as a threat it's an armed robbery all right thank you thank you very much thank you both