call the first case he's number sixteen forty one zero three and sixteen forty one fifty five united states of america versus more oral argument not to exceed fifteen minutes per side darden for the a morning or honors may please the court in orissa darkman on behalf of the united states i forgot to mention the for balance counsel if you have reserved time or if you haven't but wish you had please let us know at the instructions to sentence more as an armed career criminal for three reasons first this court has already decided that ohio's aggravated robbery statute under ohio revised code section twenty nine eleven point zero one a one is a predicate offense for purposes of the a c c a in united states versus paterson second moore's conviction for aggravated assault under ohio revised code section twenty nine zero three point one two a one is also a predicate pursuant to united states vs anderson and more recently confirmed by this court in williams versus united states therefore unless the court has any specific questions on those issues i will focus my remaining time on discussing the third issue namely while high o's robbery statute under ohio revised code section twenty nine eleven point zero two eight two is also a crime of violence and a violent felony for purposes of the a c ca and the united states sentencing be a base offense level over twenty the government believes that he should at a minimum be resentenced sent back down at three sentenced and found to be abrasive ensemble of a twenty four since at a minimum the aggravated robbery statute and the aggravated assault statute has already been found to be predicated offenses for purposes of the sentencing guidelines but obviously the united states believes that robbery would also be a third qualifying predicate which would in effect the base offense level  well there are several reasons why a robbery should qualify as a predicate offense first reason being that this circuit has decided in an reporter decision in the united states versus finley that a two robbery is a predicate for career offender purposes under the force clause that was supported by patterson's decision as well because patterson cited finley and also they determined that the act of inflicting attempting to inflict or threatening to inflict physical pain or injury to another person is sufficient for satisfy the requirements under johnson won the two thousand and ten case this court has also held in mitchell that tennessee's robbery statute is a violent felony and ohio's robbery statute is actually more precise and its physical harm language than that of the robbery section discussed in mitchell under tennessee's law third the eighty robbery in ohio is distinct from a three robbery as analyzed in united states versus yates the six circuit court decision because the eighty two robbery is actually a heightened requirement in the a three robbery and requires an offender to use force sufficient to inflict or threaten physical harm which is higher than the use of force as described under the a three ohio statute and finally your honour's the cases cited by moore in his brief for his initial brief that discuss robberies physical harm definition under ohio law is overly broad and not persuasive in this matter and the other circuits cases decided by me cited by more are not persuasive because many of them examined statutes from other states with language akin to the a three ohio robbery and not a two i can focus very briefly news my remaining time just elaborating on a few of those points specifically your honor is the patterson and finley decision i think are most instructive in this matter because the eighty robbery has already been found by the circuit to be a violent felony under the elements clause as i stated the obviously the family decision though i reported is instructional guidance because it specifically held that the language of aid to meets the requirements under the force clause of the united states sentencing guidelines but perhaps also instructive is the dicta in paterson which discusses the lesser included a two robbery of the a one aggravated robbery the court explained that any one committing aggravated robbery necessarily commits the lesser included a two robbery which requires the proof that the defendant inflicted or attempted to inflict or threaten to inflict physical harm and in fact the patterson court found that one could not commit the a one aggravated robbery without also committing the aid to robbery since the use of display the use display or brandishing a weapon necessarily encompasses the language of inflicting or threatening to inflict physical harm and that's consistent with ohio's interpretation of both laws under state versus evans in the ohio supreme court i have talked a little bit about michel will skip to discussing the cases that mr morris cites in his brief the examples that he cites from the state law are not persuasive to this court for a couple of reasons one the examples are generally not specific to a two robbery and we have there was only one or two cases out of the several that he cited that were specific only to the eight to robbery in juvenile matters the other matters only assess whether specific facts satisfy other statutes use of the term physical harm which isn't necessarily instructed to this court as it's specific to a two robbery also moncrief tells us that we can look at the minimum conduct criminalized by statute but it's not an invitation a possibility at least in the williams case i do jeff so just speaking purely hypothetically no decision has been made in the case with respect on if andersen were to be or will be decided by another level yes or if the other level were to decide that way what would we do in this case were to decide that i have to say it correctly the statute that's at issue in anderson should be decided the opposite of the way it was decided in anderson so not whether your specific question is whether the decision is granted and then they somehow invalidate the aggravated  robbery aggravated assault statute under andersen what would then be the remedy what would we then do in this case we'd have to just follow well what would that mean if we followed such a hypothetical decision and sure so i understand so we don't have to have you come back in are you in this case however likely or unlikely it is that that happens what's your position thank you for clarifying hypothetically if aggravated assault were not to be found a violent felony under the  we would still affirm this case because this case aggravated robbery and robbery would still be qualifying predicates under the united states sentencing guidelines and and i'm sorry we should not affirm we should still remand because aggravated robbery and robbery would you need three well you need two for the united states sentencing guidelines purposes to stenson to twenty four so i do minimum you'd have to we've asked the court to remand him for sentencing purposes since the district court found that he was a twenty and only the aggravated assault qualified her to create two point one here we're saying the aggravated robbery in the robbery statute would qualify as two predicates under two k two point one so i minimum he would be he was in appropriately sentenced under the guidelines a but not the sentencing guidelines we would still ask to remand the case for appropriate sentencing under two k two point one because aggravated robbery and robbery would still count as predicate offenses for sentencing we were to says we would affirm but because yes your honor the district court erred in that case because originally the district court only found one qualifying predicate under two k two point one as a twenty year correct ok we would still be advocating relief them what what your point has right now so i croak that's correct so really you can cross appeal you can defend that sentence on the same ground but that's not really it's a cross  were to find that if well but but it will if you get what you want it's in a firm it's a flat out firm it's you have there's no case in which you're going to you're asking for more relief that's what you have so it strikes me my colleagues could correct me it strikes me that that's not a situation where across a just formal question i'm asking you can still raise the argument in fact it serves to your advantage because you don't even have to fool with with whether you filed your cross appealing time if you really don't need a cross appeal you're just trying to defend it on what you say might be off to alternative grounds so that's correct and pursue the understand your honor and we just wanted to meet all of aggravated assault was properly addressed ok may please the court jeff lazarus federal public defenders on behalf of darryl moore the court the district court properly found mr moore not to be an armed career criminal as he does not have three qualifying predicate offenses and we would first like the court to know that mr moore has completed his custodial sentence and has been released from the bureau of prisons an adverse ruling in this case would require him to go back to prison for twelve years when he's home now with his fiance and infant son we just want the court to be aware of those facts just like the government we want to focus our arguments on the a to robbery we believe that this is not a properly qualifying arm per criminal predicate and we rely most definitely on this court's holding in united states versus yates yates is a very instructive court case written by your honor judge gilman and it talks about the idea that under ohio case law these there are these de minimus force acts such as bumping and nudging and jerking an arm back when you're involved in a  of theft that while it is a violent offense under ohio case law it is not a violent felony under the arm for a criminal act and ohio's a two robbery is very similar to this and we cite directly to are cases cited in our brief specifically on page twenty six and twenty seven in which there are ohio cases that are very similar to the a three robbery in the big deal with person action cases in which a perpetrator is bumping or nudging or making a shove in an act of resistance not an act of force we're not talking about the patterson robbery where it's a strong arm robbery where we're trying to use force or violence in order to take the property what in ohio we see this all the time where we have these state robberies where someone is committing an act effect such as a shoplifting and as they're leaving the store or trying to get away they step on someone's foot they bump someone they know someone they know they flail their arms to try to get away and they scratch a security guard for example these are robberies in ohio and the government points to this mitchell in these tennessee cases but this court under the categorical approach and under precedent has to look at the ohio state cases and these ohio state cases make clear just as this court noted in your case that these diminish de minimus acts of force that do not constitute a violent felony and i also want to point isn't the language different in this case from the language in yes is different and was in the yates court kind of distinguish situation a situation that's closer to this case from its holding weather force i mean the a three robbery says that a the it which is not what we're dealing with which is yates is that a defendant in the act of committing a theft uses uses threatens or uses the immediate use of force towards  agent didn't the robbery case that issue here in robber statute issue here deals with causing physical harm to another person whereas the gates robbery is force so it's different we have to figure out whether the difference makes a difference well if is not force under then how can physical harm be force in this case and what we have to look at obviously this court has held that patterson is violent force yeah and itself and victim that if it poses actual or potential harm to a person that would be a crime of this court relied upon and in gates and gates this court cited to cases like carter and grant where it talks about under ohio law a bump alone is an act of violence and this court held that that was not sufficient that that was not enough to constitute violent force under the arm per criminal act but these cases cited in my brief show that in a two rob really robbery can similarly be committed through a bump or a nudge or a minor shot to the victim these are the same de minimus acts now as the score points out and as you can read by the statute a two and a three robbery are textually different and they are different statutes but there is a significant overlap in the type of conduct it is committed and because there is overlap we have the same problem in this statute that we do in the gates robbery and specifically an issue is the term physical harm to another person and if you read the annotations for that definition  ohio revised code twenty nine zero zero one point zero one the taishan cite to the legislative history and the legislative history says in the context of criminal law a precedent trauma is not viewed as a necessary requirement before it can be held that personal harm is cause or threatened such as when an offender deliberately through other than traumatic means sets out to drive his victim mad or arranges for his victim to contract pneumonia and these are this is part of the legislative history and it says that physical harm isn't necessarily a punch or a kick but it can be these de minimis physical harms such as a scratch a nudge or even further you have these nonphysical acts such as trying to drive the victim mad not even laying a hand upon someone or trying to contract pneumonia causing them some sort of a sickness not a physiological trauma now that is important because johnson the supreme court holding makes clear that this hat in order to be a violent felony there needs to be a specific violent active act towards the victim so ohio's definition of physical harm caused is over and includes these nonphysical acts such as driving a victim matter causing them to contract some sort of illness or disease this is not what congress had in mind in passing the arm kirk criminal act and we would request  dischord take note of this legislative history because it sheds light upon what ohio's the the volume of ohio's law and just how far the robbery statute can go that it is not a narrow strong arm robbery and does not include these acts the government cites to the river we've case and i'm not sure i pronounced that right but that's a case from this court that deals with and the government relies on that as being mandatory authority however would caution this court not to rely on for we because it will cites to the federal statute and the federal statute defines the element as a serious bodily harm not harm but serious bodily harm this is the salt statute and should not have any bearing upon physical harm ohio differentiate two types of harm these are the robber statute talks about physical harm but felonious assault which would be causing serious physical harm are the much more akin to this where we have a case we believe that the government's reliance upon that is overbroad and doesn't have a bearing upon this specific robber statute request dischord not issue a ruling on the instant case until the williams on bach petition has been satisfied and that motion has been ruled upon because we think you could create that makes inconsistent decisions well no i'm sorry you know taken but we are obviously waiting we're not in a position to speculate as to when but it will happen well one way or the other well and we'll leave that ramp on banker they want and we believe that the argument s forth and williams is equally affable to this aggravated assault statute today the same statute it is the same statute and it presented have problems all the same statute well hard to have a different result so it would make sense for one court of this or one panel to say the statute is a crime of violence and for another to say that it's not we have a categorical approach and it's the same statute that's correct but your honor we think that the aggravated assaults that you and gets into the same problems that we're seeing with this robbery statute which is that ohio law is very that's right closed unless stompbox granted that's correct but when i point that out your honor to just sort of let the court know that these issues of how high would defines these terms theories physical harm and physical harm are relevant to all these statutes and it shows that ohio's drafting and how the federal how congress what the high legislature meant in passing this statute and in defining physical harm and they defined it broadly because that's what they want to do but in defining it broadly they have allowed nonphysical acts and nonphysical harms to come into the point this out because this isn't these idea of mental harms and nonphysical acts isn't just narrowed to this physical harm but we're seeing it throughout ohio's legislative history and we're seeing it through various statutes and we just want the court to understand that there is a mismatch between how ohio defines their criminal statutes and what congress requires and that is why ohio statutes are so overbroad and why they don't think they don't amount to violent felonies and there are obviously acts that a person could do that would be violent but there's also no acts that are overbroad and don't qualify and that is why we believe that the district court properly found ohio's robbery statute not to be a  it would be a violent you know solve the physical harm but i gather you're saying well bit of a categorical approach we can look at no that's correct your honor this was a mr moore was already detained on one of his other predicate offenses and while in the jail he got into a fight and someone the other person got hurt and mr moore got tragedy activated assault and i believe that it bears noting that all three of the alleged predicates in this case were combined for the purposes of a single plea hearing in which all three cases result and he did one single prison sentence so mr i'm not arguing that as a basis for decision in this case no and under this court's precedent they because they were separate acts they can properly qualify we just want the court to know that mr moore  criminal because of one prison term just is inherently mitigating and we asked the court to consider that and he's not one of these criminals who goes to prison gets out goes to prison gets out goes to prison has a record a mile long judge gilman is saying if you're going to look beyond the statutory terms and look beyond the law and try to do justice sort of cuts both ways because the categorical approach refers to some crime that he didn't commit some set of facts that there's not a set of facts that's either way you're making things that are not precisely relevant to the inquiry well that's correct your honor and that's why we have one sort of cuts one way one sort of cuts the other way but even so we're not supposed to look at either one so where that gets us really to be can robbery force is defined as any violence compulsion or constraint physically exerted by any means upon or against a person or thing and aids which is clearly a lesser standard than the physical harm definition under it to which is any injury illness or other physiological impairment i think the distinction there that your honors were king in on is the active and purposeful conduct required under eight to as opposed to a three which has a much more broad definition of what constitutes force yes or and the discussion that mr lazarus was having about the to minimize force that is encompassed in a two i think is inappropriate or ill cited because the cases that he cited in his brief all in fact involves violent physical force that is force that's capable of causing serious physical injury in in re stole twenty dollars so the inquiry that mr latham's has focusing on was the resulting injury behind the force but that is not in of itself the only indicator or arbiter of whether violent physical force was used you have to look at the force behind the resulting injury and again the statute both under the a c c a under the sentencing guidelines under johnson doesn't require that there be a completed injury it simply or if threats for example are allowed any type of threatening physical force would be allowed you know the the purse snatching cases and those things i think they're outliers under the age to the eighty three statute seems to more incorporate that type of behavior but to say that you know a step on the foot or jerking of the arm back isn't violent physical force it's capable of causing people physical injury i think is is wrong frankly because that is certainly violent force particularly in the commission of a offense and that's that's demonstrative in the case law both under johnson which said johnson two thousand and ten which said that a slap would be enough to constitute violent physical force and the concurring opinion in castle twenty because of anderson and patterson so we're asking at a minimum that the court send the case back to the district court for re sentencing as a base offense of a lot while twenty four but really the crux of the government's argument is that the district