simple robbery two for domestic assault and two from making terroristic threats so as i understand particularly looking at the government's brief and in light of massa the third group if you will the two terroristic threats are really off the table we're not talking about that anymore we agreed that these are methods not elements correct the parties agree to them so very least so we focused the case at least to that extent yes and  hoping to do today unless the court obviously has any questions on that front but it's our contention that the government the court erred in concluding that the simple robbery and the domestic assault convictions are categorically violent felonies under for purposes of the you know we would have to over rule two decisions to go with you wouldn't we correct your honor right it's an uphill battle with  guidelines but relying on the forest fires in that in the guidelines and yes you saying oh or threatening the use of force with intent to inflict bodily harm or in such a way as to place them in fear or you know in in such fear of harm or even death johnson cases requires very significant physical injury and i have read it as it may be at a lower level mean certainly the pope could be offensive touching the things that under the common law would have been regarded as batteries are not enough you know so if i don't want to judge him he doesn't want me to poke him in the arm you know i haven't done a johnson twenty ten problem that maybe it's a common law violation but some of the things in your examples you know like ripping the necklace off so that the neck is bleeding or biting or less force the than that that amount of injury that would be caused by a scratch on the neck or or a bite there i mean science can be terrible actually i mean you seem to minimized bite certainly well and i agree that it applies ultimately in both contacts what we have here is there are there as there is convictions for robbery which where there is a use of force that doesn't result in any injury such as jostling someone in an elevator to distract them so that they don't notice that they're being pick pocketed there is evidence that people have been convicted  when they just you know if someone where otherwise so you have a snatching of a person action would have been a theft from a person it's elevated to robbery the second the person holds on a little bit tighter and there's a little bit of a tug of war there is you know so that the first part of my argument is that stan affair is misleading in terms of this element of  requirement of bodily harm and here's where the law is is somewhat unclear and i think that there is a an ambiguity regarding sort of the level of force so certainly johnson said it needs to be violent physical force capable of causing an injury and then later we had castleman that distinguished the level of force needed to shoot to constitute  there are certainly levels of biting and and i think in castleman they castleman was referring to sort of lesser injuries but i don't see why we need to read it that way again that's just gets us to where is johnson tw drawing the line biting as judge cheney says can lead to all sorts of injuries whether immediate injuries whether because somebody has got a dirty mouth and it gets infected or you know they're there all sorts of things and i don't think that the supreme court  johnson twenty ten was trying to rule out the you know nobody sex slashing your arm off but it's still a significant injury to certainly and i think that the issue here is that whether or be well you know certainly there's biting but there's also you know a slap or pushing out a black guy a black eye may rise to the level and now we're looking at you know different there's going to be a different violence under it like a classic domestic violence statute is going to require a lower level of force is using or threatening the imminent use of force on the first one and the domestic assault and act with intent to cause fear and another immediate bodily harm so you don't actually have to follow through on it to be good morning or afternoon your honour's you might have slipped in just barely manage my name dr anderson i'm i have the privilege of representing the united states in this matter i prosecuted mr jennings on below observation to reach their result if they ask you to overturn not one decision of this court recently not two decisions but actually i think in their argument about in their in their reply brief and their arguments here about the degrees of injury to over rule three recent decisions of this court which wouldn't wouldn't clue gates yates yang and maxwell and the district court correctly applied the existing precedent in the circuit in reaching its conclusions and imposing the sentence the stand when we are making that suspicion say about the minnesota statute should we just look at the language of the statute in to what extent do we need to push into the minnesota appellate decisions to see what the minnesota courts think those words mean because when you get into the decisions i think mr mays pointed out some of them seem to require a very low level of force of that which is where they're arguing about the opinion and castleman which is referring back to johnson as well he said hitting slapping shoving grabbing pinching biting and hair pulling none of those actions bear any real resemblance to mere offensive touching which is what you had in johnson all of them are capable of causing physical pain or injury which is exactly what we argued about and each decision the degree of have the capability of causing physical pain or injury which would happen in that case the minnesota simple statute is a violent crime because to be committed it in it's inherently has the lesser included of the fifty degree assault and means under minnesota law which is under that statute language you're either inflicting or causing fear in another of immediate bodily harm or death death is obviously a violent level of force but i guess the defenders are going what about the bodily harm i guess that's the point of their argument that's again where yates come yes it is instructive to this court in yates this court held a statute that references the bodily harm defined by physical pain and injury which is defined in wisconsin with the exact same language as it is in  clause in the kurdish johnson case the first johnson case back in two thousand and ten capable of causing physical pain or injury to another so your view is it doesn't really have to be too much physical pain or injury correct and someone a prisoner throwing urine on a guard and that caused a burning and irritation to the guards eyes that's what was pain and injury in the eight so as you can see the gates decision has an impact in both the simple robbery statute that they're arguing about it also does in the domestic and sort of domestic assault statute is why is well i think that's why in their reply brief they seem to disagree with the aids opinion itself although we never they never mention or yates directly but there's no no compelling reason to overturn either maxwell or yates and similarly with a domestic assault statute it's a violent felony because it has the element the use attempted use or threatened use of physical force and so  robbery well let's look look look at jennings this this incident the jennings was convicted of himself although it was a felon in possession of a firearm he possessed that firearm in the context of putting that firearm toward someone's head and threatening them to get to get money from them now he didn't he didn't injure that individual but there was certainly the threat or their fear that that person would be bodily harm door injure so and with a domestic assault statute almost all you have to do is is read the language of the statute itself a person's guilty of domestic assault if he or she commits an act with intent to cause fear in another immediate bodily harm or or death intentionally inflicts or attempts to inflict bodily harm so we're back again to the bodily harm death or causing fear of bodily harm or death and yet circuit came to the same conclusion in the schieffer case regarding that the minnesota domestic food from a child wouldn't be that probably be child neglect charge rather than rather than some type of battery are you aware of that and the simple robbery cases that are before the circuit given the recent events and the district court's in minnesota simple robbery  same way the my point here and then in the gates case as well was this argument about degrees of the interviewer are suffering bodily harm if there isn't a bodily harm or there isn't an injury suffer by the victim it's going to be something that either the that's not going to be charged as a as a battery or order of the offense or the judge or jury looking at the jury instructions are going to find a conviction based on on that because of the onus just aren't going to be there seven zero three five the district court in that case actually agreed with my contention here that the amount of force is so minimal for a simple robbery to elevate a theft sure simple robbery that it really cannot qualify under johnson because not only does it i mean it doesn't involve any amount of force that would imply injury in that it can