judge gregory judge keenan judge floyd we are here today regarding the case of united states versus christopher harris christopher harris was sentenced to two hundred forty months in prison based on the use of a predicate offen that was not enumerated in the text of the event of a political career offender guidelines had he been sentenced without the career offender unhandsome and his advisory sentencing guidelines would have been one hundred ten to one hundred thirty seven months the career offender guidelines provision under four b one point one of the united states and sing guidelines provisions offers two bases for enhancing the defendant sentence using two prior convictions that qualif either a crime of violence or controlled substance offense in this case we have conceded that mr harris has one prior qualifying drug offense therefore if his two thousand and three conviction for north carolina under north carolina he had knapping second degree if that conviction does not qualify as a predicate offense the career offender guidelines would not apply and we would ask that this court remain and this case for re sentencing under the two thousand and fifteen sentencing guidelines there were three possible ways to identify a crime as a crime of violence under or be one point two as a either using the force the force provision or and  offense provision or the residual clause the enumerated offenses at that time within the text of the guidelines were arson burglary of a dwelling extortion or an offense involving use of explosive devices no because the north carolina second degree kidnapping statute does not require force nor does it require serious potential risk of physical injury to another the question today before the court is whether kidnapping by virtue of being listed in the commentary to that section of the guidelines should be considered as an enumerated offense in control your honor there there is a division among the circuits as to whether it would control my argument as set forth in my brief is that it should not control because it doesn't explain the guidelines as compared to  the case of flora's united states versus florence but no we're not of those in which the career offender provision of two l one point two doesn't have any definition whatsoever therefore the commentary is needed in order to assist in understanding what the career offender what the meaning of the career offender definition is in that context in our case under forty one point two a that provision is in fact a definition of career of i'm sorry of a crime of violence and therefore the commentary is not needed to explain or clarify and in fact i have argued it in permit impermissibly adds to the definition that is within the guideline itself there are several cases that that support our position and actually this court previously in the united states versus shell actually undertook a similar analysis that case united states versus shell is not cited in my brief the citation is seven eighty nine f third three thirty five it was a two thousand and fifteen case and i would urge the court to consider that analysis rather point two not who are being one point right but how is that a material distinction for purposes of this case in this case this case that the two the two definitions  distinct from one another and therefore the analysis should be distinct to one point two doesn't have any definition of a crime of violence within the within the actual text it states that someone can be sentenced with an enhancement using a prior conviction for a crime of violence but there's no definition within to a one point two in our case because for b one point two is itself a definition of crime of  violence we would submit that this is a material distinction between the two cases and again several courts have held that way including this court as i said in the united states versus shell that case addressed whether the north carolina second degree rape statute should be considered as a crime of violence and in noting that the second that that very statute the north carolina second degree rape statute had been found to be a crime of violence under two a one point two this court nonetheless found that under four b one point two that very statute did not qualify as a crime of violence again because there are two distinct sections of the guidelines and that the sentencing commission has treated them differently in in analysis there are other cases in other circuits there is the case of united states versus rollins in the seventh circuit that citation is eight thirty six f thirty seven thirty  seven united states versus bell in the eighth circuit eight forty f thirty nine sixty three and united states versus soto rivera in the first circuit eleven f third nine sixty three th cases also followed the and alice's that were b one point two is materially different from two l one point two and that the analysis regarding which crimes can be treated say no your honor i believe it would be different because the the fourth clause requires that the statute itself contain an element of violent force under united states versus jenkins  was clarified that the federal kidnapping statute would not qualify as a crime of violence because it did not have as an element the use of force and similarly the north carolina second degree kidnapping statute does not have in it a an element of containing the use of force and therefore if this were to confine itself to the analysis under the first prong of corby one point to a force cla and if it were to follow the holding in the united states versus jenkins which i cited in my brief that that case is very similar to the case that we have regarding the kidnapping statute they are two different kidnapping the one used in shell in the fourth circuit previous case as i as i mentioned and also noting the other cases that have followed all of which all of which rely partially on  stinson versus united states the united states versus rawlins case that i cited there's a quote in that opinion in which the court states ensure the application notes are interpretations are not additions to the guidelines  themselves and in the case of united states versus bell which i cited the court stated the issue then is whether the government can rely solely upon the commentary when it expand this is the commentary to two l one point two in the commentary to or be one point to a are not the same unless i'm misunderstanding your question i think she'll think for that reason because i understand you're in the commentary that was being referred to different from the commentary into al one point two  that's correct the commentary differed but again the analysis that was undertaken in us vs shell noted the difference in the use of the commentary and that the offenses should be treated differently under the two provisions at least that was my interpretation of the of the opinion in the united states versus jail your honor would know much better spear number seventeen to twenty five that was issued on march nineteenth just this year in that opinion the dissent notes that the united states supreme court is increasingly inclined not to tolerate lawmaking by agencies and in so noting the court states that that law making by agencies transfers the judge exercise of interpretive judgment to an agency and it results in an accumulation of government powers by allowing the agency that promulgated a regulation to change the meaning of that regulation at its discretion we would submit that that is what has occurred or what did occur in the two thousand and fifteen guidelines section four b one point two a where the sentencing commission used the commentary to impermissibly add to what had already been defined within that subsection of the guidelines and now implicitly the sentencing commission has recognized that and has taken the proper steps to include kidnapping within the body of or be one point to a so that change could be interpreted as as an implicit recognition by the sentencing commission that it had overstepped previously  adding to the provisions that it had it had set forth and the sentencing commission is not authorized to add to its provisions without congressional approval as set forth in u s versus mis cited in my brief the sentencing commission only has the authority to issue its sentencing guidelines once they've been approved by congress the commentary has not been approved and therefore we would submit that that treating the kidnapping under the two thousand and fifteen guidelines as an a numerated offense would be a mistake it transfers the authority of the sentencing commission it transfers too much authority to the sentencing commission and removes it from the judicial issue but i would like to note that that the reliance on beckles is misplaced in this case because we are not addressing the constitutionality of the residual clause in this case were we were focused on the enumerated is with contained within the government's letter relies upon a footnote from justice ginsburg's concurrence and within her footnote just as skins burb wrote i would accordingly defer any more encompassing ruling until a case we have agreed to take up requires one i would interpret that that statement of just askin ginsburg to indicate that the enumerated defense analysis is not part of that case at all and any suggestion that it is is something that justice ginsburg reserved for a future case in her foot n overly broad for this for the purposes of four b one point two a given that the history of interpreting a crime of violence has been to require either an element of force or a serious potential risk of physical injury to another that has been the case law throughout regarding four b one point two as a therefore we would urge the court  to use any a definition as broad as flora's granada's but rather to focus more on the model penal code or the fifth circuits or perhaps something more narrowly tailored to the crime of violence definition as we know it under four b one point two as a thank you so much counsel overrule a published decision of a prior panel unless that decision rests on authority that subsequently proves untenable we do not have anything that has happened since flora's grenada's was initially decided to show that the her brief cited mathis as a possible reason to come back before the court this court has had at least one opportunity to address that and it held in united states versus harper that's six fifty nine appendix seven thirty five that was a case where appellate counsel had conceded that north carolina second degree kidnapping was a crime of violence then asked to supplement their brief post mathis that was not allowed and in the court said that moreover even if this issue were deemed forfeited rather than waive it would not entitle harper to relief because any error in this respect is not plain then specifically compared mathes two floors greneda so at least on one occasion host mathis this court has recognized that mathis is there but that it has no effect on the previous holding in flores grenada's given that then again because of what we have in williams in the clear law and that there is no reason to disturb this court's previous holding the north carolina second degree kidnapping is categorically a crime of violence instructed that it ought to be matched the type of cases that the numerator is related to some nexus you agree with that yes you're out of fact pose a commentary just listed something that was totally totally but seemingly out of line with something of violence or serious risk but we have to way to do because if you're going to accept it can't have it both ways if if you say we have to consider commentary as it is if i numerated then we would do anything no matter how attenuated might be from what seemed to be what congress passed the violence or serious risk which is it do we have to accept it is numerated or do we still have to do some violates the constitution or federal statute or is inconsistent with or a plainly iranians reading of that guideline so we have that analysis put out there one of my violate the constitution of congress passed in someone else not  or violates the constitution or its law or if it's inconsistent with of or plainly erroneous reading of that guyland guidelines so the court has the ability to do that that's been in place for some time the court was aware of its ability to do that someone could be kidnapped and not even know that's correct in this court is also held that that is part of the definition of generic kidnapping by force threat or deception force there to move that person or force is the force that takes the role of bad it is but it's still force and it's always there so any force is enough to be a serious force i think in your example i think it is especially when that now yes you're on it but i live just a force of muscular taken a bad down there violence the person is asleep see that's the problem with the states don't care about what the federal interest they did they want their laws as broad as possible so to have a wide net to prosecute people who are trying to shoehorn these things in congress gave some guidelines and now we say oh i'm going stand with commentary and then we wrists those words mean something and so now we get we're comparing it to a statue where you could be asleep and someone push you a bit like you say well that's force judge and i think  where there are cases where the government doesn't agree with the opinion there's cases where the appellate doesn't agree with the opinion and there's cases where members of the court don't agree with the opinion but the fact of the matter is it's a published opinion and our law says it and we're stuck with it right william says that only an unbiased you're not stuck with that but you have to at least have some authority that comes up after the fact that subsequently proves that untenable and we don't have any authority post for her well i don't i don't just i don't know that it shows defective or the possibility that it was it was done in a way to alleviate the issue we're having today and so if you say kidnapping is good do not go now because it's a numerated in the actual text of the guidelines but it wasn't good enough when it was in the commentary despite the fact that we have the law about commentary being authoritative absent certain circumstances i think at a minimum you create an issue where potentially and may or may not affect anybody but timing of things somebody who gets sentenced right before the guidelines changed get if the ruling is  to at page four ninety three seem to be very interested in distinguishing or calling the north carolina statute a crime of violence based on the fact that it says because the statute requires a specific and various purposes for conviction even second degree kidnapping is well within the definition of a crime of violence how does th nefariousness of a purpose play into this analysis i thought that was you know a curious reference i hadn't seen that before i may have to ask for some clarification there judge keenan in terms of page would begin your page for ninety four floors granada's do you have a copy there i have a copy yes your honor ok it's the language where the court says here because the north carolina statute requires a specific nefarious purpose for a conviction even for second degree kidnapping it is well within the definition and us it is categorically a crime of violence and i was just wondering if you could relate to us what you see to be the role of nefarious purpose in analyzing a crime of violence well because it in that same case florist greneda chose to define kidnapping is unlawful restraint or confinement to by force threat or deception three code and some other states and other statutes and interpretations some have a con jump to where they have to have a nefarious purpose and substantial interference a lot of them have that you have to have one or the other so that's where that comes from and that this court defined kidnapping is needing either in a farias purpose or substantial interference with the victim's liberty because north carolina's kidnapping statute requires  nefarious purpose the court said it fits well within the generic definition of kidnapping and is a court also noted that the statute requires the perpetrator to specifically intend to heinous criminal act the worst of the worst went on to say that it would be astonishing if it goes on to say that this failed to constitute generic kidnapping and then it said because it's limited to conduct for a specific nefarious purpose  criminal activity well within the generic definition of cap kidnapping well it goes that it says that the statute is what we mean when we say kidnapping and a lot of crimes on the farriers on things they are and they're not violent they don't necessarily have to be just seems to mean various is kind of in the are in the eye of the victim in a way you know  it i mean i understand your point about it being precedent being growing but it just seems to me to rely on a new theory its purpose arguably strays from the essence of what a crime of violence is  don't understand the court's concern but i would just say that i believe floor as great as it was it wasn't just a quick opinion i think there's a good analysis in there was i they believe that is an element i would say given that merriam webster defines nefarious as wicked i would say so i would two interesting if there are no further questions  i think that at this point the court is is faced with a choice as to whether to re evaluate florist granada's in light of the recent  cases that i have that i have cited and many others and particularly in light of the fact that the residual clause is no longer a part of the sentencing guidelines provision under forty one point a which do include kidnapping whether they would be assessed also against the requirement that a crime of violence be a crime of violence and that it have some element of as as the court noted violent force not just force but violent force and if the if this court undertakes a new analysis today that that will be binding in the future i think it's important to keep in mind that in the future there will be no more residual clause analysis under that guideline provision and again i think it would be unwise to take on such an analysis given that the analysis could then lead to application under the new guidelines if if this court were to determine that the kidnapping offenses that were as reference in the two thousand and fifteen commentary need to be analyzed under an enumerated offense analysis then presumably that analysis would continue through cases that come before the court in the next several years include almost anything the kidnapping statute in question today the north carolina second degree kidnapping statute in addition to the nefarious purpose the only other requirement is that is that someone be unlawfully confined or restrained they don't even have to be removed it says confine restrain or remove so someone could conceivably not even be wheeled down the hall in the example that was cited earlier they could just have someone come in and lock the door and they're confined to the room under the current north carolina second degree kidnapping statute with an unlawful purpose which again under the cup any sort of common sense analysis defies logic as to how that could be a violent crime sufficient to enhance some one sentence and again in this particular case the impact is is significant mr harris under the career offender guidelines w sentenced to two hundred forty months based upon the rear fender guidelines whereas without that enhancement his sentencing range would have been one hundred ten to one hundred thirty seven months so again i would urge this court not to undertak offense analysis today it's not necessary given that the kidnapping offense at the time of this crime was not contained within four b one point two a any questions that