thank you thank you may have please the court this is binjie mcmurry in salt lake city on behalf of all three petitioners the government in its recent filing its twenty eight day letter made a critical concession if hobbs act i quote if hobbs act can be committed by harming intangible property rather than by using physical force then it cannot categorically be a crime of violence this year honors is the very reason why the court must find in favor of the petitioners on hobbs act robbery this morning now the government rather than the government does not risk refute in any way the broad number of authorities that we've presented to show that hobbs act robbery can be accomplished by threatening future harm to economic intangible property  they don't have appear to have any dispute on the contours of hobbs act the only reason they have for opposing our claim is they look back at this court's precedents only some of this court's precedents mind you to argue that you have already decided in the government's favor to explain why the government's analysis is so flawed i'd like to start with a brief metaphor perhaps you've heard of the parable of the blind men in the elephant in this parable blind men discovered an elephant for the st time one man feeling that year thought he was feeling a fan one man feeling the tail thought he felt the rope  was feeling a rope one man feeling a leg thought he was brushing against the truck of the trunk of a tree all of these men none of these men realized that the thing that they were looking at was an elephant because none of them could see the totality of the features of this beast that was before them and that's very similar to what's happened here it is true that this court in prior decisions has examined true this court said that the level of force required has to be violent if it's a if it's a forcible object robbery it has to be a violent degree of force in jefferson this court said well the fact that the statute says or injury doesn't by itself mean that this injury contemplated is something different than an injury against  person that look at the statutory language itself was like looking at a leg but the thing that this court has never done is to look at the trunk of the elephant which is what we've pointed this court to in this briefing the act robbery by its terms by its definition encompasses even threats of harm to intangible property now jefferson actually give us a good guide jefferson gives explains to us how this court ought to proceed at page one thousand two hundred and ninety seven dollars of jefferson this court says looking only to the statute of conviction the hobbs act robbery we ask whether it can be violated without the use of attempted use or threatened use of physical force that's the question it goes on and says whether the statute reaches conduct not satisfying the elements clause depends upon whether each of the means in the nd element actual or threatened force or violence or fear and injury can be satisfied without the use threatened use or attempted use of force that's the question before this court and government ignores the significance of this court's decision and o'connor o'connor is a very important case because o'connor deals with a related question and it  studies the hobbs act very carefully and as you know o'connor ultimately held the hobbs act robbery was broader than the force clause of the  guidelines because it could be accomplished by threatening harm to property o'connor make some important points that i think this court needs to keep in mind that page one thousand one hundred and fifty two of o'connor this court makes the point that the robbery of the california robbery statute at issue in o'connor could be achieved through threats to a person well a violation oh excuse me threats threats made to a person meet the generic definite definition of robbery while a violation of a robbery crime based on threats to property corresponds to now what we what we see in and it that's actually discussing the custodial case which goes back even further what we see in o'connor and castillo is the close connection between between robbery cases and extortion cases and we see an o'connor the recognition that robbery and extortion go hand in hand and certain types of robbery so they talk about a threat give me a one million dollars i won't hurt you but i'll blow up an empty building you own the government this contends this scenario describes classic extortion and would be charged as such then this court says importantly even so such conduct also satisfies the basic elements of hobbs act robbery which is our inquiry under the categorical approach that is this court o'connor recognized that a lot of conduct that we would we might describe colloquially as extortion actually fits the definition of hobbs act robbery and can be charged as such and it doesn't matter that the government may say oh we would never do it that way o'connor makes clear that the question for this court is what is the reach of the statute mr mayor murray this is home let me just get my procedural straight here this the claim was timely but if if it wasn't timely the court well what the government said is that if anything the case should be remanded on the  timeliness question and then the district court could do this analysis and then one of us could appeal and then and then this court could reach these questions and so i guess i got there are only two statutes at play  one of the questions had to do with whether the due process challenge to the nine hundred and twenty four c convictions were timely that's the question that was granted and then the nine when you  indicated that with respect to nine hundred and twenty four see the new rule was announced any day this would you agree with that short cake so don't aren't you supposed to file your petition c won't expire until june we filed this claim back in two thousand and sixteen so there really i don't i just don't see any argument that we're late you filed a claim in that but the claim is plain that the claim itself is is still a due process claim and the way i would encourage you to analyze this is to say that look we brought a due process claim in two thousand and sixteen the problem at that point was at least is this court has applied the statute of limitation case law the problem in two thousand and sixteen was that johnson hadn't framed a doorway for this type of a claim and so these petitioners filed before the doorway was there but now davis has framed the doorway and tw fifty five says that if you want to go through that doorway you have to file your due process claim within a year of davis that is what i'm just the judge in an exercise caution  and the utah mine right and i'm unfortunately i think we lose that one so you're conceding on that yes based on this court case law we have course disagree and  we don't we don't abandon our argument but we do recognize that this panel is bound based on them and already well if you can see there is own and you talk lines then as i said as it relates to the topic robbery that you're talking about where's the feel way for that well again i think that the judicial economy encourages the court to accept the request of both parties to take the merits now i think the government's brief essentially concedes are essentially waives any any timeliness bar and well let me just stop for one second and let me just be clear i thought that the government appeared to be a concession or waiver of timeliness would allow us to reach the arizona and utah crimes is that right well i guess i'm not sure what you mean by reach the utah  two minutes to be your full time is expired will determine the nd go ahead finish your point and then let's hear from the government grant you at least two minutes for there to  all of these predicate act are they have various characteristics that could take them outside the forest clause the nd c l a grant had to do with the issue of whether a reckless crime could be respect but that concession does not apply to all aspects of the due process issue with respect to utah and arizona because arizona robbery for example can be a little bit like what i said if you want to go ahead and in which we make that point and then we say quote in theory this court could stop there and that really would be the answer to the st question but what we have been done is recognize as has been done in other similar cases that in light of subsequent case law specifically when the other cases from the circuit what would then happen is this would go back to the district court and they would be able to file a subsequent successive petition and so the district court would in that getting the instance i don't i don't think so because it's it's a legal question the question of whether jefferson holds quite clearly that the question of whether a particular statute is a crime of violence is a legal question this court isn't just as good of a position as the district court to determine whether object robbery is categoric crime of violence but beyond that and this this really does fold into the merits of that argument we don't think there'd be any utility to sending this back to would not fold it into the currency away grants but we have asked you to affirm on an alternate ground because that that would spare the parties the necessity of going back to the district court to essentially arguably a question you could just of the mansour in the expand the c e o way to pick up the hobbs act robbery issue yes and that's consistent with the approach that this court has taken we gave you the string cited in our brief that this has been done in a large number of cases  this exact reason that if in the light of bowen i mean we would not be asking you to do what we're asking you to do but for bowen but the bowen sets the stage for district court to then get successive petitions on this exact same question anyway and so if that's going to be the case and this court can affirm on an alternate ground then it should particular where that ultimate ground is so clearly settled by current case law and that's what this court has done in a large number of other cases and we think that that would be the most  argument from the petitioners on this when you have said in those past published cases that it is categorically a crime of violence that necessarily rejects the argument they're making now because they point out on page twenty one of their opening brief is whether quote all the conduct prescribed by the statute including the most innocent conduct matches or is narrower than the crime of violence definition so when you said in  the force element an object robbery can be satisfied only by a violent force patently inconsistent with the position that they're taking now which is that it cannot and so if you were to accept their argument by definition you wouldn't just be distinguishing marks from baron jefferson you'd have to overrule those cases the panel of this court doesn't have the authority to overrule those cases may come back in their reply brief and they hide us a little bit for not engaging with them on the substance of this question but i don't think we need to because we have to publish cases from this court to say that it is categorically a crime of violence which is fundamentally inconsistent with the argument they're taking and that settles the question now the more particular claim that they're making here is that the courts and you don't need to look any farther than jefferson to see an example of why it's not true in jefferson the defendant likewise raised a new argument he made in elements versus means argument that had not been addressed and acknowledged that but it then said quote even if we were of a mind to we are not at liberty to ignore malakar cabrera it remains the law of this circuit absent on box reconsideration or a superseding contrary decision by the supreme hobbs act robbery is categorically a crime of violence because those are both published cases in because that is completely inconsistent with the approach that the petitioners are taking you're bound by those decisions absent this absolute superseding contr decision from the supreme court or on back reconsideration so that settles the question the fact that they have raised new arguments if you think about it in thirty decisive times a litigant could always come forward with a new argument in a new case why ineffective assistance climate i'd be happy to conduct i think it would be helpful yes ok let me turn to the ineffective assistance claims he has raised a number of ineffective assistance claims and in brief our answer is as follows that our broad answer is that we think  can adequately briefing is an effective assistance claims in his opening brief there's three pages devoted to these issues two of them are procedural because he did not include those facts in a state challenge so if i could be more specific i think particularly  full understanding of my rights acts and circumstances of the case and the consequences of the pl history we can see that she actually thought that but but even for these purposes accepting that she did say that what it appears by his own account to be part of is there discussion about whether he should in fact move to withdraw his plea and when you then look to the statement that she makes at the withdrawal hearing you see what her concerns are gigi puts this on the record this is all in five of the record of page five she says quote i wanted to make sure that it was on the record that this was against legal advice just because of the time he's facing my concerns about the evidence  trial my recommendation is that he let the plea stand and he still wishes to have it withdrawn and so she makes it clear at this hearing that she's telling him don't do this you're going to get convicted and you're facing a lot of time and yet he then proceed anyway so the extent that were accepting this sort of claim that she she called him dumb the context is there that that's why she allegedly said this is because she thought this was a dumb decision and she's explaining the reasons why and that that's the record to refute my claim that the part of his ineffective assistance claim that i think to the extent that there's any sort of legs to it it would be about the mandatory minimum aspect and i wanted to address that just real briefly i could very quickly please write if i'm correct i think i've got two minutes left so i'll make it work he has to show prejudice under the law for frye standard meaning that he has to show the outcome of there's a reasonable probability that the outcome of the plea process would have been different if you'd gotten the effective advice the problem he has on this record is that the record doesn't support his claim that his decision to withdraw his plea had anything to do with the sentencing exposure he's informed of the mandatory minimums at the arraignment and in his own twenty five to fifty five affidavit he alleges the council did tell him about the mandatory minimums earlier in the process and according to him she gave him inconsistent numbers will what that says is that he knew that they existed he knew that he didn't know what they were and yet he still decides to withdraw his plea anyway so that begs the question why and he answers that question in his affidavit he says that the reason he moved with rossley is because one of his fellow gang members asked him to so that they can go to trial and help each other at trial and so if we know on this record by his own account of it he knows that there are many mandatory minimums he knows that he doesn't know what they are he knows from the arraignment what they are in the original plea affidavit he acknowledges that he knows he's facing up to a life sentence and then that the plea withdrawal hearing defense counsel says she's telling him not to do this in part because of the time he's facing if you put all of that together and then he still moves to withdraw his plea there's no reasonable probability that the sentencing exposure was what was driving his thinking and so that would be  reference to counsel providing quote unquote no advice to him in connection with that withdrawal would how do you take the statement that were made in open court you know well it has to you need for a private driving his claim in that respect i think he's taking a very narrow approach to the staging aspect of it in effect because i understand him to be saying as she had to give me this all of this advice in the plea withdrawal stage and so  he's really trying to construct something of a vacuum and trying to exclude from your analysis what happened in the other stages but that's not the way that the fishing performance kinds work strickland's talks about considering all of the circumstances of a claim for his case law that says you look at all the circumstances and that's particular purpose here to call this really the answer your question where the plea process itself happened just a week earlier i don't see anything in the strickland line of cases that would allow you to so narrowly focus on what happened on a particular day or a particular hearing and not also account for what happened a week earlier and so i think that answers both what he's thinking and what our response to that  agree thank you counsel we're ready thank you your honors i want to start with the ineffective assistance of counsel claim right now the government criticizes the sparse briefing let me just note that this was three consolidated appeals with holmes touched on it mr common hail a stead that there was there was no legal advice given with respect to the merits of this decision instead it was on that point we do have to consider the didn't didn't account for mr comey haley's facts and and in the face of his claim that he received no advice mr tenney asked why we focused so much on that day that's the day that the decision was made when he made that when he went into court and said yes i want to withdraw my plea i understand what's happening the only advice that was given was was hurriedly given in a derogatory fashion in a lock up for the jail and he gets a  court i know you had a lot of issues but the point is critically for me i didn't see any argument about prejudice expressed we made in your opening brief with respect to the issue and i think that's a significant baling if but unless i'm missing it where did you make such an argument well the the prejudice was and again i apologize if it was not clear or amply stated but the prejudice that if he if he had understood really what was going to happen at trial if his attorney had taken the time to explain you're going to lose and you're going to face these mandatory penalties and you know if she had admit to an attorney helping him through this and that's that's where it went wrong had he had an attorney he would have he would have withdrawn his plea and you counsel nothing nothing further thank you