involves the arm career criminal act and the tennessee statute of simple robbery which criminalizes the intentional or knowing theft of property from the person of another by violence or putting the person in fear now that statute  come before this court several times in the past and has been considered by this court and we stand before the court today for the terminations as to whether mr mitchell in having a prior conviction that violated that statute qualifies norm career criminal this court should find that mr mitchell does not qualify as an armed career criminal for three reasons first pursuant to the united states supreme court decision in to him which came out fairly recently the tennessee simple robbery statute is indivisible and over broad and does not qualify as a violent felony under the arm criminal act second if this court were to find that that statute is divisible the mr mitchell's one thousand eight juvenile conviction for simple robbery does not qualify because it where your honor the analysis is still the same in terms of whether or not it qualifies as a for a juvenile as courts in the past while he may have been taken to adult court and and if you honor will note from the district court below the decision was made that it was the use of the knife involved that made it a qualifying conviction not any sort of status as an adult or anything else that's one of the reasons why it becomes it comes so foreign to play of course nine twenty four the arm for criminal act statute states did in order for juvenile to have violated the statute there has to be very specific wording is use of a knife that the statute the simple robbery statute only required that a person be put in fear or that a person in some way used violence ok and it was an or right so the district that qualified and what the court did is of course the burden is on the government to establish the elements of any qualifying conviction of the armed criminal and that's been by this court for some time it was established and good  man at least one of them used a knife and then the man later on identified mr mitchell as one of the ones that robbed him but not as one of the ones who stabbed him so the robber if somebody else you're guilty of robbery  you but the difference is your honor they were incurred criminal act under nine twenty four he is very stringent in its requirements in order for a juvenile to apply it has to be that the juvenile involved has the use we read the words again use of a knife firearm or destructive device so this juvenile conviction does not necessarily involve him using a knife a firearm or doesn't say him using consideration of the robbery statute the decision in freighter decided by judges bugs colin sutton came back and said that the robbery statute at issue here involves criminal activity outside the that it does not necessarily involve violence and it falls outside of the arm her criminal act to find otherwise would be to overrule those decisions well i mean they're on published so we wouldn't have to do that this fairly well breaker craker did not address the residual clause which is what the government's focusing on here the catch all provision so i mean for whatever reason maybe the government didn't make the argument there but frager doesn't seem to have much to say about the issue that the governor the argument that the government is making today we are not i think that's interesting that the that the government makes that argument and says that fricker did not address the residual clause if the freighter court and the johnson court reinterpreting and then going and reading the dissent in the bank's case which from judge martin that is directly on point as well but what that those court say is that this tennessee crime of robbery involves conduct that falls within the arm her criminal element and conduct that falls outside of the our criminal act so saying that the freighter court didn't consider the residual clause would basically be nullifying the words of the court there well let me put it this way i mean unpublished opinions are persuasive authority not binding authority and it seems to me that freighter does not have  conclusion craker does not have reasoning in support of that conclusion with respect to the residual clause is that fair i'm not saying it means you're wrong but prager just doesn't have reasoning about the residual clause but in  and i'm certainly not one to quarrel with you judge but i mean if i miss you know it better and i do frankly so if on missing son i want you to tell well i think that the problem that what happened in frazier was that the judge got to the modified categor approach because to be frank with my first argument to camp and come out yet but that being said going back in time i got to the b the modified categorical approach would help to instruct them as to what the actual plea was to and the reason why they got that mount modified categorical approach was that was sort of the step that the step she went through course the residual clause comes last in that that sort of analysis and i think that's probably part of the problem is that if they if the court had gone one step further and said now let's go ahead and speak about clause it would have made it a lot easier but when a to this court needs to take those words at heart that the court has gone through the analysis of the arm for criminal act and the residual clause under the past decisions but that being said under the residual clause this simply does not is not a crime of violence the way that if the court decides this is a divisible statute and we haven't talked about that yet but we can if you're a if your honor for want but on this line when you're talking about the residual cause the analysis is king is there a way that this can this statute can be violated that just automatically causes there to be some sort of every single time that there every single time it gets violated that there must in its at its very root be a danger of violence and so i'm with you are we at this point in the analysis are we doing a categorical approach or a modified or does it matter well that's the thing you're on it when you're told if you get to that point where you're talking about the residual i would argue that the residual clause based on the prior decisions doesn't even come into play but if you go through the residual clause then yes you would be going through the modified categorical over modified well i really to be quite honest with you this is the difficulty of arguing this case after the camp came out so recently when you consider the camp and the case that really came out very recently from this court the covington decision which i i will be happy to send another letter it's just to be honest with you it just came out and we are trying to see whether it even applied but i don't even need to use covington b honestly to be unsure and go back to the camp and the way that  camp applies to camp was a decision by the united states supreme court there was one dissenter which is extremely rare we know these days especially in these armed criminal cases and what justice kagan said in that decision was that when you're looking at a statute that is not your typical what you want to call generic statute in that it falls in the generic elements of the model penal code the court has to look at whether it's divisible or indivi that is whether it can be broken up or whether it stays together and what the camps what the courts and the camp is that only divisible statutes enable a sentencing court that's a district court to conclude that a jury or a judge in a plea hearing has convicted the defendant of every element of the generic crime now the problem that occurs and that was only in divisible statutes are true though i know only divisible so well only divisible statutes enable a sentence in court to conclude that a jury has convicted every element of the generic ground indivisible statutes never even get to the modified categorical approach and the thing that you can't did is that it brought back into focus that in shepparton taylor the focus of the court had to be on the elements of the representing the united states in this matter i show the court's exhaustion with your incur criminal act because at this point we're now arguing whether the felony offense of robbery is a violent felony under the act our argument is very simple we don't have to get to the modified categorical prochoice we don't have to get the desk camps we don't have to get all this stuff that councils been talking about the simple issue before the court is whether or not robbery is categorically in all instances of violent felony under the residual clause that is our sole argument this morning that's what we're relying on you think you say that's a threshold issue and then come out your way then we don't need to get in my it's absolutely correct absolutely correct and we don't have to get to the modified categorical approach i mean that the process is the supreme court is laid out as is i don't want to use the word simple but of course the threshold issue is whether it's categorically a violent felony under either the use of force prong and if it's not then we move to the residual clause and of course robbery would apply under the residual clause because it's ultimately a felony that involves property just like burglary of course you are taking this property from a person but it is a i felony offense involving property just like burglary is and so there's really three cases that the government relies on and it's in its brief that the court this all the court needs to consider and that is james v united states that sikes the united states and  there is also the maccie act decision that this court had it's also an unpublished decision like for aker and all three of those decisions support the government's argument in this case and james of course the supreme court in two thousand and seven looked at attemp attempted burglary and tried to determine whether or not it was a categorically a violin a felony under the residual clause and the court came to the conclusion that it was it said that attempted burglary qualifies because there is a possibility of confrontation between the offender in the victim and it's a we don't need to get in all these hypothetical defense counsel's talking about or i'm sorry appellant counsels talking about you know well we need to look at all the circumstances where there could be committed without violence or without we don't have to get into that we're talking about the categorical pro choice we're talking about whether robbery is roughly similar in cond as well as in degree of the risk posed by the enumerated offenses under the residual clause and the closest one obviously is burglary an argument in this case is robbery it presents an even more potential risk of serious injury than burglary does because you're always going to be taking property from the person burglary there's only the risk that you're going to encounter the person inside the home there's the possibility in the robbery context under tennessee law you're always taking the property from the person of another of the defendant  johnson i don't remember the defense citing that in their brief but in the franker case which they primarily rely on i don't know why the court didn't get the residual clause i think judge kepler's brought that up i don't know if the government just didn't make that argument but that would usually be the reason i think i'm assuming that's a good buy and i don't know why they didn't buy it in freak or the only the only part of the back and that is addressed is the use or attempted use of physical force as an element and the court quickly dispenses with that because they considered you know the the chance that you could commit this by fear that that didn't require physic foresaw i mean mr bell is correct when he says the court's description of the statute is sweeping and does say it includes conduct not you know within the scope of the a c c a well that's under the as an element test and you know that the court's been dealing with that some recently in castleman and other decisions whether you sir tempted use of physical force what that means when you say it's as an element of the if it is and as a categorical test it is it is the same as the categorical time that's the test that you're wanting us to apply well i want you to apply the categorical test to the residual so when we get to the residual clause we're not asking whether robbery requires use or attempted use of physical force now we're asking if robbery in all instances i ordinary case like james says in the ordinary case where they would all instances it poses a similar roughly similar in kind as well as in degree of the risk posed by the numerate offenses such as burglary and james says that burglary attempted burglary is always a violent felony categorically under the residual clause because there is a possibility of confrontation and robbery there's always going to be a confrontation and even note that in tennessee even if robber committed by fear the courts in tennessee have said that fear is fear of present personal peril from fi wants or impending violence so we're talking about the situation that judge seidlin brought up which is if you commit robbery by fear it's fear that i'm going to shoot you i'm going to hurt you and so it's always going to pose a risk and in fact in slowing the state which we cite in our brief the tennessee criminal court of appeal when said that robbery by fear is to intimidate and frighten the victims into nonresistance fear of death and bodily harm so again we're talking about a city way ssion in which you're taking from a person in the serious potential risk posed in all instances under the residual clause for robbery or the same for attempted burglary and the key act picked up on that and a key to decision the court correctly outlined the process it applied to categorical prochoice never got to the modified it didn't need to and it said categorically robbery under under michigan law was a violent felony under the resume and the key and got to the head in fact the robbery statute in michigan is similar to tennessee's in that it can commit it be committed by fear of violence or putting a person in fear in that it adds the third of of assault but the court said in the key act robbery quote presents a greater risk of violent confrontation than burglary because it always occurs in the victim's presence and the offender may be prepared to use violence if necessary to carry out his points and we also note of course in our brief that robbery under the the u s students and guidelines is defined i mean this as a crime of violence it's listed as one of the enumerated fences under four b one point two a course the court applies the same analysis for purposes of sentencing guidelines in that section as it does for aka i do want to move on to the act of juvenile delinquency which i want to address just briefly this argument was never made at the district court level that the night teen eighty eight can robbery conviction was an act of juvenile delinquency and i don't think that argument was made because it flies in the face of the case that one case of the defense even which is u s b banks which we also cite in our breeze and in banks the same argument was made the argument was well the defendant was seventeen when he committed this adult offense it was convicted of this adult fits and thus it was a juvenile delinquency require this proof of use of a firearm or knife or what not and banks went on to say that if it's an adult conviction there is no need to get into this issue of proof of use or caring of a firearm knife or destructive device and all because it's an adult conviction and so in this case of course plain error would apply the defense has offered no proof that this was a it was not an adult conviction in fact as judge sauer picked up on it as we made in our brief or cited or brief this was in shelby county criminal court he received an adult sentence of eight years they're not even contesting  it's an adult conviction they're just trying to say well he was seventeen and we want to look at the reasons why it was removed to adult court i'm not aware of any case law that supports that argument i would submit that banks in fact it is in direct aka and we filed a response to that and i think they filed a reply and then we had this big hearing at the sentencing and we discussed it at length this argument was never made at the district court level it's being raised for the first time on  appeal so the court had no opportunity to address that at all the united states had no opportunity to present any proof as to that and the defense is conceding it's an adult conviction so i submit that the the issue is really i'm not was it was raised that it was a juvenile offense but not that it whether it was a juvenile versus adult conviction that is she was never brought up at the district court level was never brought up by either side to be frank with you that's plain error of you on that one well  i'll let the court decide that but i disagree that that's the only issue when it comes to the one thousand nine hundred eight conviction if your honor does not find that this statute is invisible and goes through the elements of the modified categorical approach whether this court decides it based on the fact that it's a juvenile conviction or whether this court decides based on the fact that in finding that in reviewing what the plea colloquy is where no one ever really admits to anything and in fact the facts that brought out is that a group was involved in an attack and later on and someone stabbed the individual but it's never identified to be mister mitchell then that's a situation where again you're dealing with the same issue was it by robbery you have a certainty of confrontation why doesn't that decide the case well burglary is a person's home and there's a difference there i mean it's worse for you because it's face to face by definition as well your honor let's let's let's consider just for when talking about what the elements or the need to be satisfied here and what was satisfied or at least what the police colloquy talks about when it comes to the mitchell conviction about just at  disagree on when an individual if an individual takes an item from a person ok simply by using fear there is no requirement that an individual use a particular type of fear to see apparently says fear of violence or peril of pending bodily harm that's what some tennessee cases have said in interpreting the statute but again when this court has interpreted the statute this court is obviously interpreted differently when deciding that some of these acts on non violent and i think it's interesting that the government simply wants to ignore frager altogether the makita yet case that he cites to is a case now involving statute from the state of michigan and that case came out just to make sure i have the dates right that case came out in january of two thousand and thirteen after the maccie the case the johnson case came out from this court again which reaffirmed the freak her decision which stated that the  her decision was on point when analyzing tennessee aggravated robbery versus plain robbery and so this court has said time and time again that there's elements of violence and elements all right thank you very much for