did jury was instructed on count three as i said in my brief immediately right as to that but but that's not important here because we're not we're not talking about a substantive charge on count three on count four which exactly what the judge told the jury the jury had the indictment in basement certainly does not charge that there was a mistake elsewhere in the jury instructions on the substantive charge adding personal injury to count three where it was never charged in the indictment how do you  t the court was looking at yes but we're not challenging a conviction so we're not we're not saying that somehow the conviction on count three is invalid because there was you know that it was not inflated or anything else so what we're saying is that when it's when a specific credit is identified and told and the jury is told this is what you have to find and the jury is is  you know that's all well and good but we don't think it makes a difference in this case they were prepared so it would pass some pretty significant stuff maybe arguably maybe more significant is leaving out of a charged element but even if even if we we proceed to the government's personal injury we i don't think this is a close case and here's why personal injury equivalent equivalent of physical force which is required by night twenty foresee when you look at the text of the statute nine hundred fifty eight nowhere does it say anything about force how physical force doesn't is anything about physical injury like it's personal injury doesn't define personal injury maybe not even bodily injury may be p t s d when the when the shot goes over the person's head and never strikes the person whatever the case how he deals with well not questioning the constitutionality of a statute requiring a judge to look at conduct in the case facts actual facts what happened in the case in judging whether that's rest that's what welch johnson in fact said but that's not what we do  committed a generic straight up burglary and assured me understood that that's the blinders that the categorical approach puts on you but what do you then make of the language from welsh and the language from johnson been pointed out to you by the members of this panel where the court seems to be saying and seems to be trying to say someone phatic lee don't worry about this being the nuclear bomb that justice alito was warned about in his dissent in johnson because we're really just talking about this thing right here in the johnson case don't don't think it's going to have these reverberations across things like nine twenty four c three p adic and sixteen b and others it's not going to you know the shock waves not go in there i mean how do you read what justice scalia said there and how do you read welsh if not a warning to courts don't over read this case it's don't over read this case to situations where the courts are not what what the court said in johnson and what it said in welsh is there's no floodgates problem because what the solicitor general said in those cases was it went through the the u s code and picked out every time any statute mentions gaging repeated reference to that as being the kind of thing that that makes unconstitutionally vague because of that you know that's the that's the decision from down and it's the ordinary case approach and it's the gauging arrest where you say they clearly said if it were really all that clear you wouldn't have split decision within circus and the circuit split right can't be really all that after taylor which comes after all you know any other dissent any other circuit judge who has accepted the government's distinction and i crown welch just last week says well the reason the graben the primary reason  why the residual clause is unconstitutional is because of the ordinary case approach it's not bit there you know risk is part of it for sure but it is again to your honor's point it is the application of the risk in the language you quoted about rationale of the categorical parts that's all true but the number one rationale when you look at tailored the very first thing is it's demanded by the text of the statute and it's demanded by the texas statute by referring to elements not elements you don't look at how it was committed and that's what that's that's how this that's how the categorical approach was that maybe we assume you're right that it's an important feature of the rationality taylor we're struggling with how guy and they shot him what do we do then with the fact that the trial judge in de camp sit and talk a plea admission face to face this that gentleman had burglarize had broken into a building it's not the approach is not just about the fog of distance it's not just about a pretty concerned injury it's just not what the categorical approach is about is first of all and foremost congress is decision position i mean that's that's really the question right the room that's the problem because you're trying to persuade us that congress intended that the categor approach be applied and that congress intended that murder for hire be understood not to be a crime of violence in a your aunt of course the intent but it's a residual clause it came into the residual plea here is that the elements clauses narrow isn't served to preserve your appeal shouldn't you at the outset before the trial have moved to dismiss counts two and four of the indictment nine twenty four c does not apply murder for hire because it's not a crime of violence and you have the duty then at the outset go into the court and say you've got to dismiss these counts because they are  it would have been preferable had pursued him here reading of the residual clause i think you are saying that nine twenty four cannot apply like a murder of hot or higher and we are west welsh require that we look at a situation which is the conduct in which the individual if then it engages that it could be a crime demonic case pointed out and deal in the johnson case they don't even mention cal it's a unanimous supreme court opinion it's applying sixteen b the language of which is very very similar to the night or see  so much which not so much as a peep about week out so that doesn't bad indicate to you that maybe nine twenty four c and sixteen b they're just not in the same ballpark with aca at all as far as i'm aware own of the supreme court does not routinely reach out for other statues not in this unique case and say oh and this may fall too and under our reasoning that might fall the court doesn't do that so i would not read any either failure to cite legal cow or failure to mention sixteen d in that into anything into sixteen into issue here if it were me it were mere silence maybe that would be true but in the face of specific language they do include tying the aca residual clause to  with retrospective problems the practicality of requiring a sense in court to reconstruct long after the original conviction when you put all that together doesn't that imply keep this happened don't predicate situation now it was forty two p two which is which is just structurally the same as my twenty four c but what i'm hearing from your honors is the notion that when it's in the same case when it's contemporaneous question you're saying it doesn't and that's the question does it or doesn't it mean if we thought that johnson was change the landscape we would have to take him back we well it doesn't you're only because johnson a part of the category approach  we've got the circus let's we've got we've got some fusion about what johnson welch i mean already can it really be said it's plain they are here was a plane well i think so because i think well in terms of the circuits but but i get it it's relevant but i do think well it's clarifies it because welch says when you look at the reasons that when the judges who have accepted the government's position it's all about the second part of largely about the second part of the johnson office that how do we gauge the rest you know great offenses all this kind of stuff and what wells comes in and says is the primary issue here is the ordinary case problem because that's logically prior the first thing you have to do in applying the categorical approach is dream up the imaginary case then you're saying how risky is that and then compare it to how risky this is just even as you're going through that this and that start to indicate t maybe this isn't really an area of the law but some of that plane and so they are maybe not on that plane i think the air is clearing off to great really share your honor and if it's not if this if this if this court really if it comes down to the court if this if a court really determines at the end of the day that my argument founder's on clarity i would suggest that the case should just be held for for a decision on this because we should have a decision on the marriage will say should be held no you can't give this up but is the is the most watch a collab come here to say we don't have to get into any of that because if there was air it's not plain don that would be the easiest way to take care of the saudis for so i tried to make it look like an  recognize that that is there isn't there it makes one almost uncomfortable to rely upon that reasoning at the same time here what we have is and i think i want to be clear about the various residual clause we have and why we have the a open to the possibility that though the the error is still unclear even at the time of the appeal in that case and it will be the cases well not every case but we talk about the three residual clauses almost as if they're interchangeable and they're not there's a residual clause an acura as its own unique set of problems you have been sixteen b which in we have how the court emphasised was now or in the residual cause an accident b is not as broad as aca and then you have here a residual clause for a compound offense nine twenty four c that's even now more because it's for compound offense i submit than sixteen and so and finally the last piece of my playing this argument is one court and one court at the how it level has reached the constitutionality of the residual clause ny twenty four c three b whether it's  that that maybe that addresses the player point but as a practical matter if you were to say if we were to say one twenty four c that's different it's narrow or you don't have a problem we don't have a problem with that can't do that for aca but when it comes to one point four c you have to imagine your ordinary case and then having cooked up the ordinary case in your imagination now you have to start assessing risk in other words are we are we were the other elements of let's call it a smarter for hire committed but that an injury actually resulted in so we'll need a misunderstanding a question or yeah i'm not so sure i'm asking such an elegant question though i'm trying to get at is this if we accepted your argument that nine twenty four c three that's different that's different than aca sure johnson kicked back up but like we foresee narrower don't worry about it ok we accept that then do we not end up stepping through the very same analytical process which was what the supreme court pointed out most dramatically in johnson saying two problems ordinary case and then risk assessment and and that's what we end up doing the ninety four c how is that any different then the analytical construct that you went through in johnson i appreciate that your hon it doesn't it doesn't i still have to do were very case and i still have to do risk assessment if i'm going to follow a categorical approach under night when i don't i yes you do if you're going to follow a categorical approach in th department has never taken the position that you don't follow that had a horrible approach even in this context i recognise many district courts and i know members of this analytic questioning and i am sympathetic to those questions i understand why why are we even constrained by a strict categorical pro choice you're assessing a compound offense like nine twenty or c when you're in the case in which the conviction occurred it is another way of looking at anyone twenty four see offenses that it doesn't just have the element of presence of a firearm and then the  be from what might have been in congress as mine back in one thousand nine hundred four when it first and acted this definition of crime of violence remember taylor shepherd those decisions come out after one nine hundred eighty four when this definition is and acted but i'm assuming for purposes of today that the category of approach continues to apply i guess what i'm for and i wasn't doing a good enough job explaining why it's that's not a problem the court didn't say in johnson that any statute that have requires those two inquiries is in of itself point as vague and the court also said in response to justice i just as alito concerns about the nuclear explosion and the government's listing of many kinds of offenses and here's why i'm going to go back and get with me your honor the government  none of the cited laws link separates such a substantial risk to a confusing list of examples and the justice league doesn't rest there he adds that memorable quote the phrase shades of red standing alone does not generate confusion or unpredictability but the phrase fire engine red light pink maroon navy blue underscore or colors that otherwise and all shades of red shortly does have but if you go to the next set of that begins with more work it does and then it lists the two offense has to be the open nature the kind of offense that in the ordinary case would be facilitated by the presence in some way requisite way of a gun and so let's take an example  from well it just just the nature of that you can't have a conviction in less in less the gun itself the silicate it in skin in the not only to find ways facilitated the underlying predicate and so and this is why it was started and perhaps i should have been more clear context i think matters here this isn't just a general definition as in sixteen that applies to many different sections of not only the criminal code also in the immigration context this is a specific crime of violence definition embedded within a statute that requires that not only firearm be present but that the firearm in a meaningful way facilitate a predicate offense and so i'm drawing from that it seems to me in an implicit limiting principle you don't have really the concern there's a the most clear statute it seems to me of all of these we've been talking about is not twenty four c one twenty four c three b c three stephanie action of crime of violence section sixteen is broader because it's broader and application arises in many different contexts but the the fifth circuit for the for its sixteen b case that's up has the record briefing even on given the presence of a cow isn't that present that we have to require even if an argument can be made that johnson has  honest i understand the gut check point murder for hire murder or anything else got checks or about the residual clause and there about the normal ordinary case methodology now if it we accept that johnson has undermine it's been thrown out unconstitutionally bay so it shouldn't surprise us that there are enormous results when there what's raft is the the leg of the statute there was hardly ever doing any work from the very beginning  issue of whether the jury actually found that but if there is a jury finding that would solve the sixth amendment component the sixth and then portion of the problem into why the categorical proceeds ists but that's not all that's not the whole reason in fact the categorical approach was born ten years before how many other statutes that have been held to be like this courteney have been held to be crimes of violence under the residual clause so congress is intent here is scrambled no doubt but that's what happens when the supreme court throws out these iris i respectfully disagree your honor taylor is squarely and we'll collar squarely based on the requirement of allen elements in the text and that and the nature of the offense and what it would i would point out to you on this is when you  going anywhere and when you look at the nine twenty four c cross it doesn't say conduct this is neater that's more that's that's more driving towards the notion of how to approach than anything in the  would suggest to the court that the textual basis which has always been round zero for why the categorical approach applies remains to this day the fact that it comes up typically in prior conviction cases is not the driving force that has to do with the fog of looking back injury findings about a pretty tailor was ten years before a pretty that's not the issue that is a issue but that is not your argument centers on the assertion that congress really congress thought was that we did not want to look at conduct that's why congress chose the language elements and by its nature so taylor says that's why we look to that's why we look to categories that's why we don't want the facts don't want to conduct not missing that that the supreme court saying that now then we have a primary and then in shepherd justice souter comes along and says well a prime to give us an additional reason to follow the categorical approach and that's because we might want to foul the six of them it but that is not that's not where the categorical approach came from for the fact if we do which i'm not concede you have a jury finding here that does not undermine the approach i would strongly urge this court against being the first court perking with every other