below the district court's order granting section twenty two fifty five relief should be reversed or the alternative the judgment should be vacated and remanded for recency so first new york  manslaughter in the first degree and particular subdivision one of that statute is a violent felony under the arm career criminal acts force clause now the relevant felony here under new york law provides quote with intent to cause physical injury to another person causing the death of such per person or person is is first degree manslaughter now the defendant's argument here is premised on that statute applying to a failure  act but under this court's decision in hill he has to do he has to be able to point to a case where it has actually been implied in that fashion so i will grant that there are cases steinberg in which the court of appeals says in dicta that an omission theory would be permissible under that statute however it was the court in both of those cases first in steinberg it actually relied on a combination of formative act the the affirmative beating of the child together with the failure to provide care and then while the court actually reversed the convictions of both defendants because the prosecution there wasn't able to establish  t the passive defendant actually was aware of the the partner shaking of the baby and so under this court's reasoning in hill the defendant still hasn't pointed to a case where it has actually been applied this is not like the kind of thing where the lawyer goes in think of thinks up some crazy hypothetical that's never likely to happen i grant that your honor there is there is a discussion in dicta in those cases but i'll quickly move on then to our principle point even if this court were to accept that as a stablish ing the requirement underhill of being able to point to a case even if that were the case still actors force requirement would be satisfied satisfied here and that follows plainly from johnson and castleman now johnson says that the physical force requirement under act as force clause is satisfied by any force capable of causing physical opinions recognize that it's impossible to cause bodily injury without applying force that satisfies the force cause it's limited to the domestic violence  circumstance and that was not the intent of castle not that part of the opinion your honor and that part of the opinion that discusses the use of indirect force so so this is a passage in castleman which discusses in direct force and it discusses this this famous now sprinkling poison hypothetical which has been discussed again and again in cases so there that discussion were cast someone says in direct force including the hypothetical qualifies and what what the course some appeals have nearly uniformly held and what this court has held twice is that that reasoning applies to aca and the definition of a crime of violence analogously it's not limited to the particular domestic violence misdemeanor that was at issue in castleman it applies more broadly and that makes perfect sense because ultimately the reasoning there is more widely political what castleman decided is that what kassim explain is that the physical force that's relevant is not how one triggers the chain of events it's not the actual sprinkling of the poison into the into the drink or the food causation of a consequence not the physical act of initiating the action that leads to that consequence and so the relevant the relevant fact in this in the poison hypothetical is the impact of the substance the poison on the victim actions that have violent consequences but there is none the less an action that leads to that it causes violent consequences opposed to no action whatsoever as opposed to simply it actually anticipates castleman reasoning precisely and so i think it's important persuasive reasoning so the the metaphor that's employed there admittedly in the context of of the poison it's  the concept of the defendant of veiling himself veiling herself of that force that's happening so in the poison scenario one's of veiling oneself of the effect of the poison on the human body but even in a pure omission case as when as when a child is starved is being starved by the parents or as when a child is bleeding out from some injury and no medical attention is being called upon even in those scenarios one a defendant with a legal duty to act and with the intent to cause serious bodily injury with those elements are satisfied here she is a veiling him herself with the effect the physical effect of those with the disease the injury or the that is that the standard new york for first degree manslaughter it is and that's exactly what the statute says that this is not something that's judicially glossed the statute says it begins with intent to cause serious physical injury so it couldn't be more clear so just returning to the point of how a pure omission could be the use of force i think this concept of dealing oneself of what's happening there when one has a legal duty to act and has an intent to have that serious physical injury results one is a ve but the defendant there did not raise as that is the only hypothetical the defendant also said well what about withholding vital medicine from the victim so and that's a page fifty eight of hill so that is a that robbery is categorically a crime of violence under nine twenty four c under the under the force clause and it rejected the withholding medical withholding vital medicine from the victim so that's an omission through that was approved and help s that conclusion that when one intends to cause serious bodily injury and then the death results even in the emission case of an omission the physical force is being employed by the defendant and just just before we move on  my time is up and but just if i could finish this is all dissolving in response to your question of where where do we get this omission theory from so there are a number of cases from other circuits that have x expressly adopted the omission theories  other words they have said even in the case of a pure omission the force required under johnson and castleman is satisfied and i'll point to a couple in particular because they have particularly persuasive reasoning  specifically with and with respect to hypotheticals like the one here so the people's case out of the eighth circuit so there it specifically discussed the hypothetical of withholding food with the intent of causing the depend dependent to starve to death it's there that's the use of force even though that's an indirect use of force and it relied on castleman and johnson i point to jennings and waters out of the seventh circuit so again in  court there said it talked about the examples of withholding an epi pen from someone who is suffering from a severe allergic reaction again the court there recognized under johnson and councilman that that is of the federal defenders for mr scott i'll quote from three supreme court opinions use requires active employment the various definitions of use imply action bailey we cannot forget the court said in johnson that aca is limited to violent active crimes your honour's a crime that can be committed by inaction does not fit that bill and how to ask them in language that  basically it's impossible to cause bodily injury without applying force and it's hard to imagine more bodily injury and death so how do we deal with that castleman as judge swain and several other jurists and circuits have recognised does not speak to this issue because the question wasn't presented in castleman and kassam in the court was considering the tennessee assault that requires quote the application of force on the victim there was no offense alleged in castleman that can be committed by an action mr cassilis argument was that he can commit assault indirectly and that should not count the court rejected that argument as did this court in the darkest decision several years earlier but your honors here we're not talking about the indirect use of force we're talking about no use of force someone was specifically addressing was the district court's view that one can cause bodily injury without the use of physical force and it complete discusses that in then concludes it is impossible to cause bodily injury with out applying force in the common law i don't see how we can ignore that and now we get to whether or not force definitely kills someone when they're when they're merck and whether a person who intends that that result intends for that injury and omits to take action that would stop it basically adopts the force that's going to going to kill the person you're on or you know counsels argument from one of the cases he cited was you know someone's go isn't that you've adopted the force that kills the person you've made it your agent your honor i agree with you that in some sense one can say the person used torre's because language is elastic and words in our language can mean almost anything but when we are interpreting statutory language we look at the words and we give them their ordinary meaning now consider the circumstance where a caregiver such as a nurse or a homemade is caring for an elderly person in their home the elderly person has gotten on the nurse nerves for weeks and driving crazy with complaints and requests and suddenly the elderly person begins to experience what appears to be a mild heart attack now the nurse does nothing says here's my opportunity you know this person deserves it they've been aggravating me the person suffers this mild heart attack the person does nothing the person is guilty of new york manslaughter but if that elderly person should die in ordinary language we would say the person died of a heart attack we wouldn't say the nurse used the heart attack to kill the person when the force is independent of what the individual does there is no initiating of the force in the villain to waive a case when the court was talking about use of force you talked about initiating things setting things beginning a chain of events setting them in action but here act you may have to take place precisely but here with this offense the force can be entirely independent of what the individual does now injure  it's uses force your honor uses force and so i've quoted the three cases from the supreme court that define what use means it's active use and the chain language i just quoted comes from this court's decision in vargas army anto on page one seventy eight and the initiating language comes from the villain way of decision from the summer so that's how this court is interpreted use of force there has to be action it can be slight and it can be indirect but it has to be action here near the offense is in action that is why this is different from the other cases the other offenses that the relevance of this is a mandatory mandatory sentencing provision that's certainly relevant lenity you would also suggest if there's a question here about how we best interpret the language and the draw goes in mr scott's favor given the harsh penalty at issue here mandatory minimum of fifteen years it certainly is relevant your honor i mean there's nothing that that that stops the judge from sentencing  at the mand at the level that has been set as a mandatory minimum and indeed well above that when the facts call for it and indeed under under current sentencing it wasn't true before under current sentencing of the prosecutor the government can appeal an inadequate sentence and cause it to be raised by the by the court of appeals and certainly here the government has not alleged that the sentence mr scott documented while the facts of mr scott's life in the eleven plus years he's already spent in prison warranted his release now and he's now on supervised release so it's certainly relevant your honor yes we're dealing with a a draconian minute minimum here and we have to be very careful especially not the poster boy for leniency and instancing i was talking more generally about the fact i mean it's arguably a good case can be made that the that the sentence of scott was was inadequate and was appealable on that basis regardless of mandatory minimum but as a more general proposition the justification for mandatory minimums which they're only a fact is to compel judges they're only effect in the world is to compel judges to give sentences higher than they otherwise would have given because of the judge would have given that serious a sentence because of the facts of the case of the mandatory does nothing i would agree with your honor's general point that this this offense manslaughter is not necessarily the poster child and i share the court's or some observers you know frustration in saying wait a minute manslaughter is not a crime of violence but the problem is that this is the supreme court's doing manslaughter was and is a crime of violence under the residual clause of aca and always has been and involved a storm into this very court said this very offense fits the residual clause of sixteen section sixteen that would just be correct as well so here the supreme court has struck down the residual pauses and the  government has now pivoted and tried to shoehorn offenses that have always fallen into the residual clause into the forced clause and many courts of commented on this and it may be frustrating to observers and it may be something that congress needs to fix this is a gap to fill but it's a gap to fill you i mean you can understand that as as a citizen as a member of the community yes i can understand and certainly when i try to explain this to my friends who are not lawyers it may sound crazy but this is a very technical area of law and your honor commented in her opinion in finland a waiver that especially given the mandatory penalties especially given how complex this is this case you know feels like a law school exam to me but given the complexity it requires as your honor said meticulous attention and we have to be very careful and here we explain why use requires action but this offense can be committed by inaction the government decided no case saying that an offense of inaction qualifies no peace in the circuit i should say  hilton is the standard here your honor hilton or i'm not sure of the pronunciation but helton v sessions an opinion from last year it says we do not use the realistic probability test we do not ask for a case when the statute on the face of it is overbroad and here it is the statute requires two things intent to cause serious injury and result in death there is no element in the language requiring the use of force moreover we have new york's highest court telling us the defense doesn't require the use of force because it can be committed by omission it is the way a book aslam and tells us you can't have a dead body without the use of force whether the defendant used it or not may be a question but that the crime necessarily context you're saying oh but you know the defendant may not have been the person who set in motion the actual force however much he may have intended it and i'm saying to you where has new york ever used the statute in those circumstances the question under the categorical is whether the the offense itself is overbroad when compared to the federal offense or maybe i'm not understanding what you mean because i thought the hill opinion suggestion was we don't get into possibilities that are outside the realm of the real and and so even if the language could be construed that way we have to see whether whether new york is ever prosecute right we don't get into legal imagination and crazy hypotheticals when the the reach is unclear and there is no case law but as this court said in high alton and this is in our briefs a ninety seven  fifty seven a page sixty three the realistic probability test is obviated by the wording of the state statute which on its face extends to conduct beyond the definition of the corresponding federal offense so that is what we have here in steinberg the cited this statute and also section fifteen of the new york penal law which says you can commit an offense by omission and it said you can commit new york first degree manslaughter by omission by doing nothing on its face the statute is there for overbro therefore under hylton we do not look for cases we don't have to dream up crazy hypotheticals because we already know because we look at the statute we see it's overbroad and we look at the new york court of appeals york said that in a case where the defendant  initiate the action that ultimately cause death beat his daughter on the head where have they ever prosecuted one where they weren't the initiator and then guilty omission we submit santiago fits that bill it's in our briefs but even if the court disagrees as your honor noted in her concurring it in her opinion in full in a way you've given that over ninety percent of cases result in please we don't necessarily have manslaughter if not murder case the example you're hypothesizing doesn't seem to exist anywhere in press will we know that the question here is not whether a prosecutor has brought the case dreamt up scenarios where you could commit hobbs up robbery by throwing topless sauce on a passport or something things that don't exist in reality because the they did they simply don't hear there's not this lack of clarity we look to a case and we require the litigants to find a case when there is doubt as to the reach of the statute we're not sure if it's a match or not here we are sure it's not a match because new york's highest court has told us so it says you can commit this offense by doing nothing whereas the federal requirement is that you do something it is overbroad and in this case when it's clear as the court said as the supreme court said in mathis the increase is over in math as the court said the elements of mathis is crime iowa burglary cover a greater swath of conduct then generic burglary under aca and that disparity the court says resolves this case we don't have to look for a factually identical situation because we know from the statutory language and from new york size court that the offense is overbroad if your honour's would like me to talk about the guidelines issue well that doesn't flow from the aca sure absolutely because treat them offense in new york fits three different numerated offenses in the guideline it seems to have abandoned it's murder argument in its reply brief because it makes no argument that this offense lines up with a generic murder so it argues that it's first of all voluntary manslaughter but as we said out of the briefing generic involuntary manslaughter meaning how most states define it is an intentional killing you intend to kill the person that's what distinguishes voluntary manslaughter from involuntary manslaughter and therefore it's not a generic matter because the new york offense does not require intent to kill it requires intent to seriously injure it's overbroad when compared to the generic offense as to aggravated assault again the proponent of trying to impose guidelines and and handsome and here the government has failed in its burden because it is not identified twenty six states which define in action as aggravated assault the typical definition of a solved or aggravated assault is that you do something right in the common law is the apprehension of a touching or threatening someone you're throwing a punch and battery completes that and as the common law came into codified law courts say in order the defense counsel refers to you know congressional purpose and plain language i think if we take a step back and do a luke allen johns and say what are we defining here so that we're dividing a violent felony let's let's use some common sense there because of the same thing for crime of violence we're defining a quite a violent felony here so the notion that congress intended to exclude murder and manslaughter from crimes of violence when when the elements that encompass new york first to remain and slaughter in other words intent to cause serious bodily injury causing death a majority of states define homicide offenses that way the fact that some called a murder and some call  irrelevant so the supreme court said that in taylor it said do not rely on labels so it actually gave an example at page five ninety two it gave an example of a michigan statute which called it's traditionally what we know was a burglary they called it breaking and entering and the court said we don't resort to labels because there are states like michigan that call burglary breaking and entering what we look at are the elements and that's precisely what we're doing what we've offered in our brief you on our twenty eight states define murder manslaughter to include the elements of new york manslaughter in the first degree subdivision one and just just to finish that point here it's particularly probative here that the sentencing guidelines the the enumerated offense used to say manslaughter and then it replaced it with voluntary manslaughter the commission said we're doing that we want to ignite we want to exclude involuntary manslaughter we wan keep voluntary manslaughter as an offense that triggers the crime of violence for purposes of career offender but the settled case law at that time recognized that distinction under new york law so this court in the and so case law like this court's law recognize that distinction in terms of what's in compass within the concept of a crime of violence for the guidelines the sentencing commission said it wanted to adopt that principle it didn't cite those particular cases but it said we want to recognize voluntary manslaughter counts involuntary manslaughter doesn't and so here that's precisely what is coming within the scope of the generic definition thank you  why didn't you appeal on the grounds that these substantively on riis well your honor we ultimately it's a combination of a number of factors i think one of the most important ones is that you recognize the incredibly difficult standard of establishing substantive reasonable mess and in addition here the procedural on reasonless is in our view so clear in terms of the district court's