was a murky question but things have changed since then in the past more than two years two decisions have come out one from this court one from the supreme court that now compel the conclusion that you mexico robbery is a violent felony that is because it is impossible to commit new mexico robbery without the use attempted use or threatened use of violent physical force his me i'd like to begin briefly with a discussion of actual forth in this course decision to go first you held that new mexico robbery is categorically a crime of violence under the a c c a and it did so even while accepting the premise that a certain degree or amount or quantum of force was necessary and let's go see it has been abrogated by unbanked decision of this court or by the supreme court there's simply no room to revisit the holding and it brought into question garcia or not it does not call into question garcia so there is a footnote in ash that recognizes that there is a potential conflict between garcia and stokely but that potential conflict doesn't help the laskas here because garcia employed a more demanding standard and it any regard it asked couldn't abrogate garcia only the supreme court could do florida statute we're dealing here with a new mexico statute is there a difference in the language of the statutes that should give us pause of course it's pivotal to look at the state statute and how the is applied that statute and has and and of course how the state applies a statute so there may be two statutes very similarly written that have been given to additional constructions that are different in different states but new mexico employs the same overcoming  take her purse and says give me your purse and you won't get hurt so there is an explicit threat of bodily harm in that case and the new mexico court of appeals never brought into question new mexico's well established leaper requirement that it be the threat or use of force that accomplishes the taking and the court it pointed out there in a very short discussion that the jury had been correctly instructed that the taking had to be by force or threat of force and found that there was sufficient evidence for the jury to have drawn that conclusion now i'm sure that that was a close question for the jury in that case but it's not unreasonable for the court of appeals to open up all of the verdicts there because you may have a threat of force that is sufficient to make the victim freeze up to make the victim not offer any resistance even if the victim doesn't in that nd fuel be a motion of fear the threat can still accomplish its purpose and here the new mexico supreme court of appeals found that there was simply enough to support the jury's finding that regard but there is no indication that new mexico in it  how robbery is a crime against a person of emphasis is on is on force and violence so i do think it helps in in understanding how new mexico views roberts so it didn't really get into the nitty of what we are looking at here which is overcoming resistance you're just saying you know it involves a person but they didn't really get into the force required that's right bernald it not us or apply overcome the resistance or the lever requirement i think the best new mexico case for a a long analysis of the law and overcoming resistance would be the new mexico court of appeals published case in the currently decision victim i don't even see velocity as really to have made an argument that new mexico does not require overcoming resistance he's simply arguing that still in that analysis of overcoming resistance we have to look for a certain amount of resistance degree of resistance and i think the supreme court could have not been clear and stokely that that is not the case and then subsequent just openly in this court in the ass decision also recognize that any overcoming resistance no matter how slight that resistance is is is where the line is drawn between snatching which would be larceny and and robbery and so where do the district court her here at the district court erred here in holding that the that this robbery offense or actually armed robbery  was not a violent felony the district court didn't have at its disposal garcia or stokely into the district court was was focused on actual force but it does seem that the district court believed that overcoming resistance itself was not enough that there had to be something more and that and so here we were dealing with a three level enhanced that's that's what's at play here a sentencing three level enhanced meant that the court denied defendant's actions isn't reasonable under the common law then then there is no robbery offense there is no reason again here to think the new mexico deviates from from the common law nor would such adherence to the common law even be required under the appears to have no in the other hand the other hand is kept hidden from the teller for the duration of the encounter demands all the money in the top drawer and tells the teller not to set off the alarm the last case is implying i believe in his you know give me the money in your op drawer no indication that he was armed you know does that take us out whether this is a violent felony under the  doesn't because you can still look as a new mexico supreme court of appeals had had held at the totality of the circumstances and a person in that situation would be compelled against their will to part with their property because of fear that the defendant ha force or less than a johnson level threat of force but new mexico requires violence in some regard doesn't work to new mexico as a characteristic of robbery to compel the victim to part with that property velasquez has made the argument that if there is no fear under the common law then there's no there's no robbery but the common law actually used the phrase putting in fear to mean something much broader to refer to any reasonable apprehension that would cause a person to unwillingly part with their property it was it was really a useful shorthand in a sense it didn't focus on the emotional response of the victim but rather on whether the fear as as new mexico requires is essentially the lever of the factor by which the property is is parted from the victi and and so new mexico requires that this fear be the lever by which the property is taken and cites no case which involves less than a johnson a court counsel good morning good morning there's been a considerable amount of discussion regarding whether or not new mexico robbery requires actual force as it comes within the meaning of the c c a we're going to rely on our c a robbery for purposes of the f c c excuse me the scored still is tasked with the terminating under harris what the minimal amount of force is or the mentawai out of conduct that would allow a conviction a new mexico rocker and in that discussion we have to shift not just focus on the actual force argument but also on the use of constructive force and when we look at what harris says when we determine what the make contact with the victim in that case made a comment regarding not saying anything or everything would be ok as he reached into the purse the to fix usually the victim in that case testified or stated that there was no time for her to be afraid so we have a situation was it was there touching there was going to no touching there was no touching so in that case we have a situation where the object is taken the there is a threat that is uttered but the threat conduct in mexico does not require that the sheer actually be the lever because in that case indeed it was not does it matter that that what he actually said was just give me your purse and you won't get hurt no it doesn't matter at all because it would almost be as if you said nothing because there was no fear until the object was already taken the object was gone so in that situation it is not the lever the fear that this message still talked about and the on that you can also look at it i believe that hernandez also stands for the same proposition and as your honor where internet is involved individual came in and said give me everything in the top drawer don't don't sound the alarm there was no verbal threat made at all in that case the threat was alleged to have been implied there was no testimony from the victim that he certainly felt fear although the defendant did concede that there was evidence of that the victim may have been afraid however most notably in hernandez is that there is no discussion of the reasonableness of the individual's fear there's no discussion of that whatsoever and under common mom which would be according to step two  versus marshall which was quoted extensively and instantly when there is no putting in fear there must be actual violence and clearly we do not have that situation so when this court is tasked with determining what the minim that mexico robbery under constructive use of force now this is not is not a fit it's not that we don't care or don't understand it just that we have had this issue so many there is a feeling of deja vu in this case yes i just wanted to push back on mr fuchs contention that new mexico has to meet the common law of robbery definition you say a c c a is whether new mexico comport with the common law or whether new mexico is generic robbery but whether new mexico comports with a c c h requirement that it contain an element of the use attempted use or threatened  know looking like a gun but i mean do we really just assume everyone who walks up to a teller and says please give me some money is arm if the person just walks up to a teller and says please give me some money and they're sort of a part like maybe from my account but when you say give me all the money in the top drawer don't set off the alarm something in my hand that looks like a note and can't tell what's on the other hand that creates in the circumstances as  course that with all the trappings of a bank robbery that creates a reasonable fear of physical harm was there anything in i think that was the case or nando's where there was the the instructor not to ring the alarm right can we get anything from that is that i mean don't run law or what is that and is that the i think that's true or else exactly the or else is implied addition to the demanding money because if there is no implied or else why in the world would someone hand over thousands of dollars from the drawer there has to be that implicit threat and i would further know that implicit threats are also recognized under the c c a so there is no mismatch here between new mexico's recognition of implicit threats court has no further questions we would ask it to reverse the judgment of the district court thank you thank you counsel for your arguments this morning the case is submitted our next