next we have seventeen dash eleven ninety united states versus jimenez's conviction for attempted sexual assault as a crime of violence under the guidelines and for using the enhanced offense level and guideline range to sentence him the colorado statute says that a substantial step is conduct that is strongly corroborative of a defendant's purpose to commit the crime it makes that a sufficient condition in all cases for well yes i think it does martinez was a residual clause case about the act in dealing with the guidelines issue and the crime of violence the issue we're raising was never addressed nobody was arguing that attempt under the guidelines is broader than generic attempt and that's our argument here it just was not our rest and was saying that the argument that martina's applies  under the guideline commentary has been waived no we're not saying that we're not we're not are we not denying that an attempt under the guidelines of an attempted crime can be a crime of violence what we're saying is that attempts to will house to meet the generic definition of attempt it can't just be titled attempt it has to match up with how the how attempt is generically understood and martinez just did not address that issue the the impact i see in martinez when they did they see a challenge very clearly applied looked at the generic versus the the state the arizona i think it was on but when they turned to the question of attempt they'd just took a look to the guidelines and and said attempt is just a modifier right under the residual clause analysis in martina's the question was how great of a risk a potential risk was the arizona attempt nobody was talking anywhere about what generic attempt was what the only relevance i see of martinez actually is in our favor which is that martinez says if there's no narrowing of the statute by decisional the state supreme court actually we're going to take it at its face we're going to take any step to mean any step here we have not only known narrowing by the colorado supreme court we have the colorado supreme court in let her affirmatively saying that the statute means what it says that unlike the model penal code it actually acquaints a substantial step with any conduct that is unless it strongly corruptly it doesn't say that if it's strongly corroborative then that's a substantial step let me ask you this under on the the model penal code or the generic only if they only have to be substantially similar they don't have to be exact can you think of any examples of when and something would be a substantial step and therefore an attempt in colorado but not under the penal code would yes but first i'd like to say that i'm not sure that there is a rough on its language it's actually similar language in older supreme court cases but in cases like mathis and decamp the supreme court is very clear that if a state statute is broader than the generic that's enough it doesn't matter how much broader so i'm not sure that that really is true i think what the court has been saying is minor distinctions minor differences in terminology don't matter where it's the same basic elements and that's not what the case is here an example might be len heard itself which it which was an attempt to kill a corrections officer at a police officer if in len hurt she had gone to a a gun store and had tried to purchase a gun had been adamant about it and was denied that might be strongly corroborative her in kentwood she had expressed to kill the officers but it wouldn't go anywhere any step at all towards completing the crime or furthering the crime and that might be a substantial step under colorado and not under the model penal code the very fact that one is necessary that in colorado all you need is a substantial is something strongly corr there is in fact a difference if the model penal code had wanted to say any conduct strongly corroborative it could have it didn't colorado then changed what the law was when it amended its criminal code and said strongly corroborative is enough so there there is a gap between those two as this court has recognized attempt cases are it's difficult to draw much from various attempts a says because they are so fact specific but here in colorado a jury would be instructed that a substantial step is any conduct strongly corroborative it wouldn't have to deal with the the furthering of the still being having some value but then it turns back to what the statute says and says in any event what we need here all that we need in colorado is that be strongly corroborative it's more direct in that way than the model penal code the model penal code talks about conduct that is in furtherance of that is a substantial step towards the completion of the crime shows that colorado attempt is in fact broader than the modern generic definition and because it's broader the district court erred in treating mr jimenez as a temp conviction under the guidelines as as a crime of violence and increasing his base offense level from fourteen to twenty and his guideline range from fifteen to twenty one to thirty to thirty seven months let me ask you this if even if we agreed with you on the crime violence issue wouldn't it be easy to find from this record that it's harmless error because the district court pretty clearly indicated that the sentence would be the same even if it were not a crime of violence now ok because i mean why because what the district court the district court's reasoning should give this court reason to doubt that it in fact would have done what it said when it wasn't faced actually with a fifteen to twenty one month guideline range everything that the district court said in imposing a sentence suggested higher than bottom of the guideline range finally got one sentence it talked about  extensive criminal history it talked about his repeated bad judgment and accelerating pattern violence in his record all kinds of things and the court actually said this is what what the government was argue which were these same factors shows that this is worse than in some circumstances that would suggest not a bottom of the guideline range instead the district court followed the government's recommendation to go to the bottom of the  i don't think it expressly said that what it said is you guys are trying to split the baby you're trying to go between fifteen and twenty one and thirty and thirty seven you came up with twenty four this is not a civil proceeding it's not how we do things here it did talk about at censorship  the factors twenty four months isn't enough i mean that's my recollection of the record and it mentioned several notches warns the court mentioned at least twice with some detail that even if this were not a crime my allowance my sentence would be thirty months it did say it was but the reasoning is inconsistent with the guidelines not having in effect and as for what the district court said in rejecting the ple course was before it had decided the crime of violence issue and as we're arguing here the district court got that wrong so if this wasn't a crime of violence and remember the district court said it wasn't going to consider the underlying facts of this case of the attempt the prior attempt because there were conflicting documents it was just going to consider it as on its face whatever the fact of conviction set and the fact of conviction he anything that strongly corroborative of the purpose would be enough and that would not necessarily be the type of violence that the court was talking about so the court's own state an instable lie that the guidelines did not have an effect and they remember it has to be clear that the sentence would be the same which it isn't you know it wasn't she more i mean isn't it fair to interpret what she said was i may be wrong on crime of violence but i don't want to see this case up with the guidelines having an effect on her sentence which they clearly did in this case she she said things that would have suggested above bottom of the guidelines to govern recommends bottom line guidelines that when she goes it's not like it's a case like snow where this court noted that the sentence outside of the got a lot of rain showed some independence from the guidelines but shown here is dependence on the guidelines well we just i think our rule is whether we have to speculate on whether she would have reached the same sentence and i don't think we need to speculate here doing you do if her reasons don't match up with what she did if she says i would do the same thing but her recent poll either and that's what is the case here was talking about the guideline that was the guideline portion of the discussion correct not the a c c so why can you just dismiss the application no is being irrelevant in this case we're not dismissing the application at all we agree that an attempt to commit a crime that is a crime of violence is a crime of violence as long as it is generic attempt well but said martin is focused on the language of aiding and abetting which made it much broader guidelines well what martinez was was principally concerned with in its guideline discussion was whether it was an argument that the commission had gotten it wrong about whether there was a risk of violence from an attempt and what this court said was that's not something that would create a conflict between the commentary and the guidelines the commission may have been wrong in appear to matter but that's that's not something we fix there's no inherent inconsistency between the attender standard guideline but how does that make that part martina's in our what we were trying to do is determine whether the base fence level was properly calculated because or to because this was a crime of violence because martinez never addressed the argument that we're making here it just was not part of the case and i don't think that  for close the argument you're making not at all it just was not advanced as an argument and as this court the supreme court of often said issues that merely work in the record are not deemed to have been decided and to constitute a holding and it's not even that here it just was not made except for that they focused in the a c c a challenge are on the very issue which was the definition of attempt under the state law and went right yes but they what this the on any stat language of the attempt in arizona they said they didn't look at that definition from arizona and they said we just go to application one i mean aren't we bound by the analysis there not because the when they were looking at the a c c a issue in martinez it was a question of risk that's all it was nowhere was anybody talking about a generic match what whether arizona matched generically that we're talking about does arizona law create make attempted burglary given that it says any step does it make it something that creates a poses tensional risk under the residual clause of the s c c a nobody anywhere was talking about what's generic but is that rewriting the application note and saying we inject also the  please the court paul farley for the government if i could i'd like to just a moment to touch on judge mchugh's question about harmless error and then we can dive into the guidelines issue just want to make sure we're clear on the back story of how the district judge reached that sentence the government did not argue or advocate simply give us a bottom of the guideline sentence at pages sixty nine and seventy of the sensing transcript the prosecution says if one of the guidelines this is the range we think thirty is the right number on the next page prosecutor says but if we're wrong about the range we still think thirty is the right number and advocates for that and so what we had was the government saying we think thirty is the right number however you get there and then judge krieger picked up on that went through the analysis and likewise  think i think thirty is the right number however you get there and importantly she noted the accelerating pattern of bad judgment and decision making so she was focusing in on this particular defendants not just the history in his behavior but the pattern that started out with driving under restraint and issues with alcohol and ending up with attempted or actual sectionals offenses and she also noted his conduct in this case since the beginning of the case is indicative of that because even after that this case was pending he was violating the terms of his release and so and that's something obviously the guidelines don't wouldn't necessarily take into account so she's looking at his entire history and accelerating bad behavior even while awaiting disposition of this case so we think that her her independent determination that thirty is the right number for this defendant is well supported by the record and i wanted to bring those couple of points out turning to colorado that tempt the parties don't disagree on the meaning of colorado law rather the issue that's been presented is the definition of the generic contemporary meaning of attempt and what this court has said in the garcia case quoting the supreme court and taylor to ascertain that we look at whether the statute roughly corresponds to the definitions of crime in a majority of the states criminal codes as well as criminal law treatises in the model penal code now what's important here is we're it's a broad brush analysis is that still true aftermath i think i think it is because what i think what this this rough correspondence language is telling us is is we don't get into the word salad rhode island expresses it this way in illinois expresses it this way and the model penal code and professional if they both recognize that and so we have to look at what th purpose we think that those are test expresses that rightly and expresses the same principle that the colorado temp statute does the discussion about if statute precisely lines up with the expression the model penal code we think is the wrong test the model penal code is one of the things we look to in order to determine the generic meaning of attempt and so even the model penal code is not the end all the model penal code itself describes three different types of attempt that are prevalent in the in the jurisdictions in the country today one of which is the substantial step  planetary note says that the subsection elaborates on the preparation attempt problem and the concern was generally that in any substantial step jurisdiction you need something more than mere preparation and so subsection two with a strong strongly corroborating language elaborates on that problem by indicating what is meant by the concept a substantial step contained in subsection one c so subsection two strongly corroborating is a definitional subsection which is exactly what the colorado statute does we believe as as our briefs make clear that the colorado statute actually clearly expresses the state of the law under substantial step in the majority of jurisdictions that strongly corroborating is what makes a step substantial professor  treatise i think underscores this we agree there's almost two dozen jurisdictions that have some variety of the substantial step formulation and the key distinction that professor levey draws is between the eleven that entirely admit strong corroborative all together and the twelve that include it and he doesn't regard that as a distinction that makes a difference and so in terms of the defense hasn't pointed to a case where colorado has applied its law of attempt in a way that's at a variance with the generic model penal code practice is the government have a position on martina's this application  not persuaded that the arizona courts have confined the scope of attempted burglary as much as the florida courts have and might take away from that is we don't have an instance where the colorado courts have applied attempt in any way other than the generic we are engaged in word salad here about how is it expressed here how's it expressed there we don't have cases that demonstrate that the colorado statutes being applied in some sort of outlier fashion and in that regard we would point to the supreme court's decision we quoted in our brief that for a state law to be outside the generic definition there needs to be more than legal imagination it requires a realistic probability not a theoretical possibility the state would apply its statute to conduct that falls outside the generic definition we don't have that here that case ever arises  if there are no further questions i will sit down and counsel thank you may see time excuse in the case shall be submitted