well here the first case stuckey versus honor i believe judge can cited footnote thirteen in his decision in this case but no thirteen in hill explains why the issue of the force clause as relevant to new york robbery is an issue that did not get address in hill considered nine twenty four c and considered hobbs act robbery rather than new york robbery under the force cause of aca or the guidelines as in that case i appreciate that the question is are they sufficiently similar that that will might provide some assistance to us i don't believe so because potentially hill could be disposed of based on the residual clause issue depending on how do my it comes out and as to the fourth cause issue footnote thirteen and held does recognize that that inquiry as to how under nine twenty four sees force clause is a different inquiry then new york robbery under the  reader would understand the statutory text considered as a whole does its our duty considered it's our duty to consider the text and the context of the statute now here we have the benefit of not working on a blank canvas a specifically the forced cause it is you it here at issue here has already been interpreted by the supreme court supreme court of the johnson case said the force caused requires not literally any force but specifically violent force because we recall that were interpreting the phrase violent felony similarly the court in leo cal said not any use will do but specifically it has to be an intentional use of force the cause here therefore requires intentional violence and the question that this case presents is intentional violence by whom would you agree that if your client if it had been demonstrated that your client had been the one who violated clause three or four that would be enough to be a violent felony as a matter of fact your honor i think the categorical clause of excuse me the categorical approach requires that that not be a consideration the categorical approach requires the court to look at the statute and consider what the least of the acts is that's criminalized under the statute now this analysis that your client was the one who threatened the dangerous instrument or display the revolver i would bet that be enough to constitute a violent felony we wouldn't get that for your honor because under the inquiry that we have to use in these cases we only drill down to those kinds of facts if there is an element at issue a divisible element but we know from the new york court of appeals that the issue of who intended violence is not an element of the crime as long as the jury finds someone does it doesn't have to specify who did it the element here is intending to steal but there's no element that says we drill down and figure out factually who is the one we're supposed to go that's right and as we set out in our in the first part of our brief forcible stealing in itself does not require the violent force that the two convictions of your client other three and four we're just looking at three and four here because those different prongs are divisible rest you're finding that there was a display of what appeared to be a pistol or the use or threat of a dangerous weapon but there's no requirement of a jury in new york deciding who did that here in the least of the acts that this statute criminalizes is one individual committing a robbery with a codefendant and then unbeknownst to that individual his codefendant produces the weapon or makes the threat of violence that's the least of the element in dispute but as the new york court of appeals has made clear the question of who specifically who factually displayed the weapon is not an element that the jury has to find as i understand your argument  ok with the forcible part that intent to some force but you just don't think this robbery stretch in the basic element part requires sufficient force to mean that the threshold forcible steve ok now as i also understand it your argument is that for the enhancement if you want to call it that or the not element the brandishing that you have to have intent the statute must require intent there in order to it to qualify that's your argument right order to deem this state offense a violent felony under aca the government ok the basic crime we know you need intent to commit a forcible right robbery even though that force may not have to be may not be sufficient force to satisfy johnson but under three you have to earn through or you have to brandish a weapon and in new york you can become liable if your coconspirator or participant brandishes the weapon you think you have to have specific intent for that item it's not and you think to be part of a robbery where one of the participants had that intent if i have your argument right that is correct your honor ok here's the reason it was written not for simply repeat offenders but specifically intentionally violent repeat offenders the worst of the worst and that legislative history is set out at length and this court recognized in the town case which the government simply that is not enough your honor because the cases make clear and jones held before it was ripped withdrawn on a different basis that that's not enough to satisfy the force cause the quantum of force required for new york robbery does not rise to the level of the violen excuse me yes yes there has to be an intent to commit a forcible stealing but that's simply intended to push shove tug jostle that's not enough under johnson leo cal to make it a violent felony now as we said under briefs yes in isolation brandishing a weapon is a threat of violent force but this is the question of first impression in this case here how do we interpret the statute do we turn do we interpret the statute which imposes a fifteen year mandatory minimum on someone who is held strictly liable and someone who is never shown to intend violence now we submit that that's an illogical reading of aca because we know considering actors context and history it was written for intentionally violent offenders co defendants who are tripped up by a strict liability cork of new york law and that strict liability court is contrary to the federal rule we know that rosemond rosen says if you're going to hold one codefendant liable for another's you rule an accomplice liability under rosemond the answer is yes we should not be interpreted federal statute in line with the state's definition of commerce liability because we recognize that the state's rule here is a quirk not only of new york law because again this is an exception to new york's general rule generally to be guilty of a crime in new york as an accomplice you do have to share all the intent this is a strange exception and that's also why to rule in our favor in this case we're not opening the floodgates to somehow disqualify all new york offenses from being active proctors this is an anomaly in new york law and it's also contrary to the federal rules you have some time for a part of what will hear from th united states on this peel and also to before the district court with respect to waiting on the decision and then to my at the government shares the appellant's position that there is no need to do that here and that the interpretation of nine twenty four c would not necessarily dictate the outcome in the questions presented in this appeal on appeal stuckey has urged this court to adopt a novel new novel rule of law that would render all new york robberies insufficient predicates under aca such a rule is at odds with the plain words of the relevan statutes case law as well as common sense the government there for urges the panel to reject this novel interpretation are you saying why are you saying because  because of accomplice liability would would affect all the parts yes your honor under stuckey is interpretation of the combination of two thousand and johnson and layo cal stuckey urges this court to impose a mens rare requirement that would extend to all participants in the robbery and because of that it would render all new york robberies insufficient as aca predicates ok i do believe this is the step beyond johnson who lay a cow together but  why is the fact that they would all be rendered nonviolent so important i mean if that's the way it is that's the way it is is there something particularly i mean we are used to be they were all violent crimes now law is well maybe some of them are and some of them aren't and so why is that important ok so if they all are not if we can't tell and so therefore none of them are qualifying why why is that a big deal the government's position your honor is that firstly that would be contrary to the existing statutory regime and also contrary to case law it would be in this application of play ok now and for that reason first and foremost it would be inappropriate in this case in addition in addition to that the government's view is that that would certainly be  with the it intention of congress went out and acted aca with respect to the government's position that all new york robberies mylan felons yes your honor that is the government's position and the government's view is that that is consistent with a long line of one broken decisions up until drones which of course this panel knows was vacated it means therefore nobody in brown this court held that under the elements cla third degree robbery was sufficient in terms of the force clause under aca that was all before johnson that was before johnson in this in the united states first miles which was after johnson this court again cited brown for the proposition that under the new york forcible stealing under the general provision for new york robbery is consistent with two thousand and ten that's correct your honor there are two grounds on which the government could prevail in this case the appellant has presented two arguments the first is that forcible stealing under new york law is not sufficient in terms of the required use of force the government does not agree with that the plain words of new york's robbery statute are nearly identical to what's required under section one sixty point zero zero requires the use or threatened the immediate use of physical force upon another person of course aca requires the use attempted use or threatened use of physical force against the person of another they are nearly identical and the government smits that the force that is required for all new york robberies is the same and needs what is required under a a but if new york interprets its statute to find a lower level of violence efficient then it doesn't matter that the words of the statute  cases which in the government's view simply stand for the proposition that there was a sufficiency of the evidence for the jury in those cases to conclude that those cases in fact involved the use or the threatening to use of immediate force upon the person of another and stuckey's read of those cases ignores that there's a continuum between intimidation or threats of force in the actual application of force and under stuckey's view the cases are simply in two buckets it's either there is the application of force or there's the threat of force so that simply can't be the case it if ways the categorical approach is what applies here the court has been absolutely clear that you agree that the categorical front line yes your honor and consistent with judge  below under that approach the court is only permitted to look at the elements of the statute of conviction the court is not permitted to venturing into some sort of analysis as to what a particular defend prison provisions for example under nine twenty four c wanted a subsection roman numeral three there is an enhancement if if the gun is discharged even if there was no intent what's a weather for the drive gun to be discharge and the defendant or the defendant's coconspirator could have just intended that the gun be used they could have put it on safety the plan could have been there will be absolutely no use of that gun and then it gets charged and there destroyers excuse me and they would be subject instead of a five year mandatory minimum they would actually be subject to a ten year mandatory minimum the government's  sentencing enhancement under aca which is only concerned with looking at prior convictions and the elements of those convictions is consistent with that principle which exist in other areas of federal statute there was and there was no use of force however when you look at the elements under subsections three and four there is the use of force and that is not something that either party can dispute in this case you're saying there is use of force but it doesn't matter whether it was the defendant or the pope it's the that's correct your honor and that is consistent with the categorical approach the approach that is focused on looking only at the elements of the prior convictions and not at the underlying conduct with respect to those convictions as well as other similar sentencing enhancements thank you for your the your honour's mr fawley said case law and congressional intent is on the side he identifies neither of supporting his construction the statute he cites no case construing aca in the way that he wants to he cites no piece of legislative history construing act the way he wants to we have copious legislative history set out in our brief showing that act was written for the worst of the worst intentionally violent recidivists not unwitting schlubs who get tripped up by a quirk of strict liability law would he have been convicted excuse me robbery let me modify that no he's a robber he intends to rob he intends to use force to commit a robbery which he doesn't intend to do is use a weapon what he doesn't intend to do is use violence or threaten violence  or by someone who is a part of the congress and the use of force simply is not enough to make it an ak a prior because force as we know from the new york courts does not rise to the level in every situation categorically as violent would if he had not intended that there be at the splaying of a gun someone could he be convicted under subsection three or four if you had not intended yes absolutely and that's what we know from all of the cases set out in our brief it is a strict liability offense your honor judge can recognize that he cited the cases from new york saying it does not matter if one codefendant did not intend to use the gun was unaware of a gun had no violent intent you're strictly liable so the question here is is this kind of strict liability offense a violent felony under aca now we know that aca has been interpreted very narrowly by the supreme court not just any force violent force not just any use intentional and we know also because of the pronounced mandatory minimum of fifteen years we apply the rule of len is it clear that aca has to be read the way the government says no it is a guess to say when congress wrote the statute they wanted to sweep in people who never intended violence we know that's a really bad guess because congress said just the opposite when they wrote aca and we have it all laid out in our brief we are writing this statute for intentionally violent people the worst of the worst the problem with this quirky new york statute is that it's not limited to those kinds of people it sweeps in the person who yes wants to commit a robbery but he doesn't want to use a violent force and this kind of person who does not intend via your view is we now in order to be convicted he wants to use force and your problem is that you think there has to be a separate intent for a violent force or the defendant facing the enhancement yes your honor that's the only logical reading of the statute judge and can recognize that it is indeed illogical to read this statute that was written for a particular kind of defendant says the supreme court to begin it would be a logical to extend it to people who never intended violence and to call an offense that does not require the person to intend violence a violent felony it's an illogical reading and at least there is