may please the court in mclean talk of the office of the federal defender on behalf of mr newton we are here this morning because mr newton is challenging his ninety's tonight twenty four c convictions that were both premised on the pre nine hundred ninety intimidation under the bank robbery statute under the what wasn't watching the carjacking statute wasn't watching the carjacking was bank robbery but has in our court said the intimidation term is treated the same your position i don't understand how watson gets around carter and hopkins the supreme court and prior panel decisions from this court i mean do we need to call this issue on bach in order to deal with this you may disagree with watson and we might disagree with watson but i don't know how i haven't yet heard a distinction from watson well the distinction i make with watson is that it is a bank robbery and that the intimidation is the standard that is talked about in gutierrez is connected directly with the specific intent language that was out in september of two thousand one thousand nine hundred four and so but as i understand it watson is reflecting the pre johnson understanding of intimidation and it's simply carrying a follower of post johnson in light of course here so it's i mean i think you have some reasonable argument that johnson might have changed something but watson seems for it rejects that but the key thing that i think you can distinguish with watson is that it relies on johnson but it also relies on that the the statute the one thousand nine hundred the september ninety four version of the carjacking statu that's right doesn't watson then move away from that and be treated as not required what the problem i think with will go in circles so if you feel that you're bound by watson in that interpretation then we have the problem that it directly conflicts with prior supreme court precedent carter prior circuit precedent hopkins and then i would ask for an initial hearing on bach because if you're bound by it because of those things then we have a huge problem with with circuit in supreme court conflict i think the better reading is to say that watson is talking about bank robbery in for whatever reason and why would we think bank robbery intimidation is different than carjacking intimidation we haven't before can you give us any reason why we would do that is there any difference between the carjacking intent and the bank robbery and historically there's been no and interpretation nothing different about the wording of the statue of the mens rea requirements right well there is in the all in the version of your tears but not in the version that matters here right no i mean that then that's a different problem with and that's why i'm talking about carter and hopkins is that those are prior circuit in supreme court precedent they say bank robberies mens rea element is still general intent which is a problem with  that is one of the problems with the watson decision is that in order to have an intentional violent force which is necessary to be a crime of violence under the force clause you can't just have a general intent crime that someone has to intend to inflict waters th disagrees of that right it does seem to do that i think it is there any reason from the bank robbery statute compared to carjacking statute that we could say watson isn't talking about what we have in carjacking what i think watson isn't talking about carjacking because it is the bank robbery that is there any difference between the two statutes the bank robbery statute and the carjacking statute that would give us the hook for not as far as the language about the force or violence or intimidation language and that's always been consistently interpreted carter is another case that that held there was a challenge in carter to whether the person had the specific intent to commit i think those are both bank robbery cases the specific intent to commit the bank know at the standing here i don't remember the specific details of the facts but the supreme court came back and said that the intimidation language is sufficient if someone just knows what they're doing and forms the general intend to take property from the bank or take money from the bank the card doesn't say anything about whether that's a crime of violence that's no no harder to really conflict with watson it seems like you're concerned that an earlier case in our circuit does well the problem is that these prior cases hopkins and and carter and other cases that treat bank robbery or the old version of carjacking as a general intent offense didn't have to address whether it fit in one thousand and forty or sixteen b or version of a crime of violence the problem is taking that old case law that has not been overturned and then trying to sandwich those holdings into saying that despite that it's just general intent and despite the johnson two thousand and ten and johnson tw fifteen twenty ten says that you have to have the intent to inflict serious bodily injury or violent you know the violent force there's an intent element that johnson the first johnson case requires that's beyond that's more than recklessness that's more than just simple knowledge this is a specific intent to inflict describe an intimidation that is knowing but not intentional well the hopkins case is one where someone goes into a bank and you know hands a note is very polite has no gun makes no threatening comments makes a demand for money and hopkins in that's consistent with the carter decision says that that's sufficient intimidation the mere presenting yourself in making this demand is enough to intimidate the bank personnel to hand over the money and that's sufficient for conviction of bank robbery so in those scenarios that's not sufficient there's no threat of violence there's no actual use of violence and there's no intent by someone acting is the gentleman bank robber this suggests that there is violence and instead a gentleman bank robber it like suggesting that there's a gun in his pocket or something otherwise why would they give the money to the facts it happens in the hold in this case so that there was clear to everyone that the man had no weapon so that's the conflict that we're taking old case law where we said this behavior sufficient is a general intent to get convicted of bank robbery and now that we want to add an enhanced penalty or a new conviction that we're trying to sandwich that in to say that it's also sufficient to satisfy the intentional violent force and that's the problem that it can that that arises it doesn't fit one twenty four c's force clause i have twenty seconds any questions morning your honour's may please the court ross pearson from the united states as the court noted this case is dictated by the court's decisions in watson and gutierrez because those cases show that carjacking is a crime of violence because of the term intimidation and this cour understanding of the term intimidation is the same today as it was back in one thousand nine hundred four when the defendant committed federal carjacking so just as this court held in gutierrez that the current statute of federal carjacking is a crime of violence the prior version is term intimidation and its analysis goes through whether intimidation is sufficiently intentional and presents a threat of violent force at the very end after it reaches its conclusion that federal carjacking is a crime and violence only says that's intend so it is that comply with johnson one what's and i believe yes your honor i believe it does because watching continues to say that knowing intimidation means the knowing threaten the use of force and and well there's a difference between more than negligence and intentional that's correct and that's what i'm asking you i'm asking you whether when watson says it's more than negligence has it met the intentional stand her john because general intent crimes are still intentional crimes and they're still crimes that are more than that and that's what this court decided in johnson when it said that knowing intimidation means knowing threatened use of force means knowing i'm sorry knowing threatened use of force so this is something particular to intimidation right like some things could be knowing but you don't necessarily intend the reaction but the idea is that intimidation is special because you can't really intimidate someone without using a threat of force is that the idea that's right your honor and the defendant's example and hopkins does not stand for the proposition that intimidation can be committed negligently hopkins the defendant walked into a bank the teller know it's a give me all your twenties fifties and hundreds and the jury convicted him but that stands for the proposition that the threat can be implied rather than an expressed threat of saying give me all your twenties fifties or hundreds or i'm going to hurt you doesn't stand for the proposition that offending can commit bank robbery or carjacking by intimidation without doing so intentionally and what what's the requisite intent it would be at least general or force or violence yes and i generally intend covers that yes or no and that's because the defendant the term intimidation if the defendant knowingly uses that threat of force that's what intimidation requires under both carjacking and bank robbery that he intend that the person think they're being threatened yes and you get that out of general intent yes your honor and that's out of a lot usually what general intent means  intimidation dating all the way back to self and ninety nine and b s are the same arguments that the watson court addressed whether the bank robbery statute requires intentional use of force and violent use of force and so if the panel doesn't have any further questions we ask i do have a question about whether we have to decide that this petition is timely under twenty two to fifty five f before we can even get to this forced question your i believe you do  t we do in the sense that it's jurisdictional or what do you mean by that that defendant would have to present the claim within a year of it being a new rule made but i hope the question is do we need to decide that question in order do we have authority in our court saying that's not yours i'm not aware of that your honor i apologize if the court has no further questions though we would have had if what is your position a time in that's not the issue that triggers the timing was right right so then the question is what about the johnson tuition so our position has shifted suns and we've taken a different letter yet in position but our position is  that did announce a new rule however the new rule has not been made retroactive to cases involving nine hundred forces and that's because china is a little taking that position so you don't think this is timely right and that's us why it's relevant to whether johnson created a new rule yes your honor at its most basic point is that sixteen be criminal act talk about convictions that happened far in the past where as nine twenty four c talks about the same conduct that incurred in the case where the defendant has been cut a stop to scribe in the same fashion it is our position is that the residual clause under nine twenty four c does not require a categorical approach that the court can actually look at the facts and circumstances you didn't that the categorical approach doesn't apply right yes or so do it now sounds like you think we do you're saying we can skip over that because you think they're going to lose anyways it doesn't matter how they were because you're saying it's not  approach which i don't have my head around because you have briefed it why isn't it still true that there their claim is a claim under johnson to whether correct or not and therefore they get to raise it it's a timely argument they may lose it but the arguments timely know it well your honor it's not whether it's a johnson type claimants whether it would be a new rule if the suppliant well that's right and their argument is rule applies isn't that sufficient for timeliness to decide the question i think the question is otherwise you're just backing the whole marriage until the timeliness question yes that's right i don't think the court needs to reach the issue of timeliness but if it did our position would be that it's not so apparent that johnson applies to nine twenty four because the different help parents would have to be doesn't have to be there are there their position why they're there but the new rule says it has to be apparent to all reasonable jurist and our position is that it's not apparent to all reasonable jurors that what has to be apparent the actual result or what their position is the result that nine twenty four see would be unconstitutional under the johnson analysis that seems totally backwards ok thank you very much yes we'll give you one minute i've just addressed some of the questions you just raised i think timeliness is a firm of defense so it can be waived it doesn't sound like they're doing that i think the proper analysis is that johnson came out the petition is premise generally in post conviction timeliness issues are not jurisdictional they can be waved their formative fences like procedural default and other things that can be waived and he asked no ma'am ok thank you very much united states versus new submitted we