vacate his hundred eighty month sentence on the basis that he is not guilty or no longer qualifies for the enhanced sentence pursuant to nine twenty four each also known as the a arm career criminal act the a c ca there are three issues noted the brief based on this court's on bond hearing of missouri robbery just a few days ago in swaps i would propose to to submit that issue on the brief or submit it pending disposition in swaps and simply address the kansas robbery issue and then the assault convictions well what's the issue on the assault convictions in the district where you didn't dispute that the two assault convictions remain violent felonies and judge we disagree with that characterization of the record of what happened just reading from your premier motion of those offenses only the assault convictions remain violent felonies in the absence of the residual clause so i take that to mean judge when an ordinary reading of that meaning that there are two assault convictions certainly certainly the language there could have been more precise however if the court does look at warranted and appropriate in that case but it was clear based on the pleadings as well as the government's response that the two convictions only counted as one conviction for a c c a predicate purposes because they did occur on the same occasion likewise in how do we know they occurred on the same account what evidence did you put on to show that they were only a single we relied on the p s i i which miss the pleading refers to miss concurrent which means at the same time the government's response referred to them as a single assault conviction singular that was that's their conviction that's d c district court document five show that these were i think it goes and judge i guess i would just rely upon the original designation of those two as concurring counts of assault in the second degree and the government failure to rebut that or challenge that and instead to basically concede by referring to it as a single assault conviction and likewise to request to submit that they're not no evidentiary hearing would be required sing hearing additionally this issue was never not only was it conceded by the government had it been brought up certainly in the reply brief it would have been challenged specifically and the p s i could have been admitted the sufficient and if the court finds otherwise than at a minimum allow a remained of the case and we can present those exhibits are we should you say the government conceded it but there their response has robinette argues that only his two prior convictions for assault remain violent felonies that's consistent with the what i was calling the ordinary reading of your pleadings on the where do you say they conceded that it was just one  and it's in the introduction it's there i believe it's the second page there is a sentence where they refer to when they're listing all of mr robin it's convictions they refer to a prior conviction for assault that's also noted multitude of convictions that all counted there were the burglaries that counted there were the robberies that counted there was in the scape there was an armed criminal action so there was really at the original sentencing under current law there is really no question that mr robin that had at least at least three so that there wasn't an objection to argue that well he really only has seven rather than eight and those should be counted separately i guess certainly more precision could have been used but at the same time i believe the solution would be to remain the case if the court is inclined to feel that this argument there's some confusion or ambiguity regarding that issue certainly based on the  assumed by the original pleading as well as the government's response that the assault conviction was not being was not counting two x two predicates even though there were two convictions so if the court is inclined to think that there's some ambiguity for that we would we would simply request the remain and allow us to introduce those those records because that's that's what we're confident that that will show it was on one occasion and that those were concurring convictions as alleged as alleged in the indictment or as alleged in the original petition i'm already close to my referral time i did want to at least address the kansas robbery issue i would ask the court to rely and to note on  the case cited in the twenty eight day letter refers to nicholas and although nicholas was unpublished and it certainly wouldn't be binding on this court in any event nicholas provides i very helpful roadmap regarding that issue and it is the nicholas that's decided in reverse by the tenth circuit so wrecked i don't know the intent there but certainly the cases that they cited are clear i would point out just the difference between miserable one one difference it may be helpful i know kansas does not have stealing from a person unlike missouri so kansas doesn't have that hybrid in between theft and robbery offense that missouri does have so it certainly makes sense that kansas would define the majority of the time i'm going to take here is involved in the nicholas case if we spend our time in it i think you ought to go to the assaults because right well you can get two or one there and it can make all the difference you could all convictions remain violent felonies they never discussed the assault convictions nobody there's no analysis in their motion regarding the assault convictions is no mention of it other than that when the the p s r if you take a look at that when it listed the number of convictions that qualify this defend it as an armed career criminal it mentioned the two assault convictions when the district court issued his order he found first of missouri robbery was a violent felony and then he said ok that will really answer the question because you still have the two assault convictions now it is one conviction for guideline purposes because it occurred on one document but fo eight purposes obviously it can be two different convictions because they could occur on occasions different from one another there's no evidence one way or the other about that all we have is what's in the p s r but it was never raised by the defendant never discussed by the defend it never objected to by the defendant and there was never any proof by the defendant that they occurred at the same time just as a charging document district court did make a finding on two versus one i think it did by that statement said that there are two assault convictions to go along with missouri robbery so i do believe that that's what the just a court found because offenses without the use of the residual clause yes that's what you're referring to that put i believe so and i think that i thought it was language in there that you know at this point we've got our three convictions but he went ahead and kansas robbery conviction now the kansas robbery conviction is i like the district court's rulings on that issue before the tenser got a hold of it in the nicholas case but what about the murder and aggravated robbery in connection with a murder and then a separate what they call i think believe the target a simple robbery and in that case the did victim stated that she was walking with her purse and the defend it came up pushed her into or against a car and took the purse from or defendant told the police that he didn't pusher but he did take the purse from the question at the at the appellate level was whether the judge should have instructed on the theft instruction and the mckinney court decided that no there was a sufficient showing of force and threat of force a threat of bodily harm to justify a robbery you know without the push apparently without the push now the mckinney court opinion is about thirteen pages long and the discussion on the robbery is one paragraph and in that one paragraph the mechanic blackout there were two persons on a table and the thief ran off with them what actually happened in the aldershot case is there was a blackout there was a purse on the table and the other purse was in the lap of the victim and the thief the robber thief as as it was concluded grabbed the purse off the table and grabbed the purse out of her lap and ran out now what the aldershot case was really concentrated on was when she ran out after him into the parking lot she grabbed his shirt he turned around and he punched her in the on but what they said was that occurred after he had already acquired the property and therefore that violence which  would suggest under any definition would would be a violent a taking by force occurred or of a forceful act occurred to far after i guess the acquisition the property of count as robbery and that is really what al shaab does but in that in that case it analyzes the difference between more city or theft and robbery and really the amount of force necessary for that much snatching the purse without the push is considered to be a robbery and they claim they say that that was enough force under under kansas law  about using force during the robbery and in that respect i guess the argument could be made that any time you are taking property from another individual in their possession they're holding on to it not maybe during a a blackout where they can't see anything but during the daylight when you snatch a purse when you grab a person that always has the threat of bodily harm associated we look mckinney as well and yeah i think that is it true under the federal law is that enough to be a threat of force under the federal i think i think it is i mean i don't think the threat has to be explicit i think the act is an implied threat if if i was i get answers that johnson says he has before cable causing physical pain or injury yes and cancer says it doesn't have to be physical pain or injury well it has to be well or the threat of bodily harm you think the kansas case meant that there was a threat of i think that's i think that's what they're saying that there was a threat of bodily harm well as they said both actually i said they agree with the state correct the prosecutor that it's a threat of bodily harm and then later on say that it it was force there's almost no analysis of mckinney i i i don't really understand or i don't really agree with with basic decision on the kenny case because if there's nothing to allies the amount of force involved in that case i would suggest you know the briefs the briefs are on westlaw in mccamey for what that's worth to you and the briefs the briefs are clearly didn't push didn't inflict injury or or otherwise use for what she said he did i mean that was the car and that as i said is an issue because mccann he simply doesn't have any analysis involved in it but to go back to the threat of bodily harm issue i think any time that somebody takes property from another individual there is a threat of bodily harm if somebody comes up to you or two people come up to us a give me your wallet but what this is just the snatching now i mean is that i  eye you see cases where it's a simple person actually in but the victim's shoulder gets hurt you see cases where he grabs the purse and her finger gets injured what johnson says is well is that it has to be an act it is incapable of causing pain and we see in a number of person asking cases when there was a struggle or when there is resistance that the pain occurs that injuries occur i arm or shoulder that is an act that is capable of causing physical pain all right thank you for your argument thank you mr moss we'll hear you in brief reb ok well you see there's there is progress here i but any i'm sorry we're taking your time but it is an important point ok three says he doesn't dispute but five says the way it's worded the as he is on page seven footnote five he has assault and robbery convictions plural i don't believe i don't believe how it's phrased it by in the order denying is determinative of what happened and how this court should review it just to reiterate the initial pleading says concurring the government reply on page two says prior conviction for assault singular had the government argued that those were t was just regarding the kansas robbery the two points that court dealt with first of all kansas does apply to a person or present which is different the missouri robbery and certainly forced from the presence so the idea of them having property and then running past another person as the owner tries to grab them would constitute robbery in kansas but not be the violent physical force required of johnson and then secondly there is authority in kansas that says any bodily harm generally is going to elevate the simple robbery to aggravated robbery which necessarily presupposes that there can be force and taking without bodily harm which in kansas can be slight can be trivial can be minor so we ask the court to follow nicholas and if the we think the record is clear that it's one single occasion and we think an evidentiary hearing would be the solution here it