morning your honor some it was the court by name is alexander but since i'm here today on behalf of the defendant appellant mr smith this case presents an ineffective assistance of counsel when all we are proceeding on direct appeal with this claim mr smith myself  not look like there's enough evidence in the record he would request that before a lot and withdraw the the only problem with that that i saw you said something i found in your brief is i mean it's fine to withdraw an argument but to take the extreme case you can't withdraw if you've lost right you have to it has to be ex ante that you do so and if you would like to withdraw it at this point you are certainly free to do that in prison i gather your client has in fact filed a twenty to fifty five is that correct i believe so you are  and if it would if if there's any reason at all to add this his appeal waiver just not preclude an ineffectiveness of counsel point i'm sure that's why this is what you're saying now because otherwise you would be flatly barred by by the waiver but i i have some reservations about the idea that you're just going to go forward and do the whole thing and figure out which way the wind's blowing if you think you can do that i'm not sure you can but and then make the decision there have been some cases where this has been allowed before after oral argument shriner's you can withdraw it after oral argument but it is not appropriate to attempt to read our minds argument you get one try not to i think you will find that we are not going to tell you how we will rule you have to make your choice exxon to violence and that this value to object satisfies the two prongs of strickland efficient performance and precious if these two connections are not crimes of violence mr smith not of been subject to the career offender enhancement under the guidelines and either if you is a conviction or as a crime of violence in light of spring or precedent and such crowd travel should have objected first neither conviction should be a crime of violence under the definitions residual  johnson two thousand and fifteen the supreme court held that the residual clause of the arms career criminal act is unconstitutional today the crime of violence definition has the same laws although of course previously held that the guidelines are not susceptible to v so no i think what you if you are more discusses for the what you need to focus on is the elements that's correct or well focusing first on the domestic battery conviction shouldn't be a crime of it does your honor and why doesn't that require the proof of the use of physical force well causing bodily harm your honor is a result of certain conduct into camp the supreme court reemphasized the importance  considering elements of the offense resident and i'm saying and you can call somebody a name and that might hurt them but it's not bodily harm only harm you know was a black eye or something bodily harm is something that results from physical force which looks like it satisfies the elements test causing harm is is not the same as is using force to cause that harm how do you do it this is getting metaphysical how can you cause bodily harm without taking an action that results in the harm in physical harm to another person well first this was discussed a little an earlier case and they discussed intellectual force to some extent that's not the same is violent force as to cause harm but yet we're focusing on this illinois statute if we're talking about the domestic the second conviction for domestic battery in illinois and it appears to require the prosecution to prove the use of physical force because there's a statutory element of causing bodily harm but that harm can be caused  by any statute and any means she would seem to include scenes such as intellectual force or deception i don't see well ok and robbery we've also said includes an element under the sub part a one of using or threatening the use of force so there's another elements argument for robbery that's correct your honor he presented support tells us that the information charge mr smith with taking property by the use of force however in illinois case law is defined in the use of force to include force where the property so attached to the person or the person's clothing that it creates resistance however slight this isn't a violent force required by the two thousand and ten johnson case that is force capable of causing physical injury or pain to another person but about the threat of imminent force  the threat of force or force necessary to overcome the resistance of property attached to a person or clothing is not necessarily force capable of causing pain or injury because it doesn't reach this this threshold level of neck necessarily causing physical pain or injury or ours i don't think the robbery should be construed as a crime of violence now mr smith is also going to need to demonstrate walter is on behalf united states judge would you you asked counsel to focus on elements actually i think before we even focus on elements we have to focus on what is the standard that were before the court because i'm prejudiced standard i i have not found a case in which counsel was ever considered deficient for not raising objection that is contrary to establish circuit law and then to show prejudice what he would have to show is that the district court would have disregarded this court's precedent and ruled in his favor on both objections only one of which we had to prevail on and we time and time again that whether domestic violence under the first prong of the domestic battery statute or batter aggravated battery of the first prong of the battery statute whereas the causes of bodily harm prong this court is held consistently that that requires force or the use of force or threat and use of force and is held so as recently as united states versus waters in the spring of this year so for him to prevail he would have to show that the district court would disregard circuit precedent and rule that felony domestic battery is not a crime of violence he simply cannot show prejudice what he is doing is he is shoehorning and really an attempted to novo review and issues to get around appeal waiver though he's raising it in the context of ineffective assistance of counsel and again he cannot show cause because counsel is not deficient it's not really so much causing me think what he was trying to argue looking at strickland was that counsel's performance was deficient by failing to to raise these two points obviously the responses if the if the points had no merit then there's nothing deficient about that half the council took it i take it that that's your argument that's my argument about congress whether we l performance cannot be held deficient when counsel then carries a concert following that would have been is contrary to circuit precedent so he cannot show either element well not if you actually could get past contextually prejudice is showing the outcome would have been different had killed your argument is just that the outcome wouldn't have been different because the first step isn't met and dealt it's not if you sort of granted the first step i know that's not your position but if you granted the first step a lot hinges on that first step but your point is as i understand it that under our circuit law the district court made no error the lawyer made no  not raising a objection that would have been a frivolous objection etc my argument is that the outcome would not have been different because the court could not have disregarded precedent and so this guy is saying that really belongs in the performance not ok well ultimately what he has given this court has no basis to overrule it so president on a theory of an effective assistance of counsel there's there is no in waters this court absent an intervening supreme court decision it has no reason to raise look at its holdings that causes bodily harm necessarily involves the use of force there has not been an intervening supreme court decision on that issue since this court decided waters this spring and so we are asking the court to affirm the judgment of the district court that we believe he has completely failed to show ineffective assistance of counsel in the context of this court's precedent there is no element requiring the use of force in the domestic battery statute it allows the harm to be caused by any means further the physical force described in the two thousand and ten johnson case that is force capable of causing physical pain or injury to another mind that to another person undermines the ports conclusion dickerson and robberies of violent felony there is sufficient force to commit robbery under illinois