the intent to commit a crime of violence to further on a lawful activity and thereafter committed or attempted to committed a crime of violence in the jury instructions were always the umbrella term crime of violence those were the elements decide that he if whether or not he used a firearm in furtherance of that fear they were just told he has to travel with the intent to commit the crime of violence to further their unlawful activity he then traveled in interstate commerce and here that's crossing the mississippi any information in the indictment beyond just the elements of the offense is surplusage that the government is not required to prove a trial and decamps makes clear that what we cannot do is and then they were told that he had to travel and that he had to then commit or attempt to commit a crime of violence they were not instructed advert that as an element of the offense to convict mr haynes they all unanimously had to agree think made this as clear as they possibly could when they were discussing and discrediting the ninth circuit's opinion in the camps where the ninth circuit used the weapons hypothetical a statute that the where you had a federal court in penalty  weapons that is incorporating by reference any weapon in the world that exists and we can go back and look at the way the government charges the case we can look at the indictment we can look at the jury instructions we can look at the prosecutor case and if we can confidently find that the the weapon was a firearm then it counts and the supreme court said absolutely not so can you not do that so part of the problem mr pim is we're looking back twenty years here yeah and in that time from remembering this correctly the supreme court has also come out with rodriguez merino which deals with venue but also seems to tell us that under section  did grab the guy in texas but didn't have a gun i think until his maryland but even there the screen court said the one twenty four c k o had two elements commission of a crime of violence use of a weapon in furtherance if kidnapping marina does not support the government's claim that the nine twenty four c incorporates all of the elements of the underlying offense because the supreme court's at the one twenty four seats out in rodrigues marino had two elements only two you committed a crime of violence with venue venue is based on where the factually where the offense occur so it just they didn't discuss the categorical approach at all because you were looking at facts on the venue so i just i don't think rodriguez merino really adds anything understand what you're correct he would need to be re sentenced as to all remaining convictions yeah but on that there would be a forty five year minimum correct but the judge would not have to do one day don't know you know on the r correct or on the robberies yes he could redo the robberies and if he thought more time than forty five years was necessary right there if i could reserve my last minute for  good morning runners may please the court and the great walters on behalf of the united states the travel act by incorporating a crime of violence element necessarily encompasses multiple offenses and the only way to identify a particular fence is to apply the modified categorical approach by looking at the indictment to see what was charged and in this case the underlying crim robbery which this court has held meets the elements clause of whatever definition is used it has an element the use attempted use or threatened use physical force against the person another mr pat focuses an arresting weight on the jury instructions in a case in which he claims the modified categorical approach shouldn't be used aside from looking at the definition of crime and violence what he's using the jury instructions for your honour's is to try it is really corny now what it was i believe a jury instruction air and light of the subsequent case rodriguez florindo in which the supreme court explicitly stated before saying it requires a proof of only two elements to prove the charge nine twenty four c one violation in this case the government was required to show that the respondent used a firearm that he committed and that he committed all of the acts necessary to be subject to punishment for kidnapping so in a ny twenty four c conviction just as in a travel act case the government is required to prove the elements of the underlying crime of violence so the fact in this case if the jury wasn't instructed in the one nine hundred fifty two town properly there's not a johnson issue that's a jury instruction issue there's nothing about johnson that opens that up for review by this court statutorily and we submit and now of this supreme court case authority and common sense or sound reasoning should tell this court tells the government that this is a crime of violence statutorily your honour's there is no reason no principle basis to construe ninety nine hundred fifty two a to b differently than the supreme court has construed the crime of violence elements in one twenty four c or that this fourth circuit has construed the crime of violence element and of violence against women act section twenty two sixty one of title eighteen  the problem i guess i'm i'm struggling with on this mr walters is that looking at for example language into camp blue the supreme court seems mainly interested in being confident whether the jury found unanimously and beyond a reasonable doubt the elements of that underlying crime here they did they did find the underlying crimes but the instructions didn't make the link right between the one hundred fifty two charges and the related robbery back robbery charges right correct i'm back with respect to the elements clause them being instructed by the elements clause we agree sometimes we sometimes keep an eye on things i don't know but there was this court's opinion though if it were to find that we look at the definition of crime of violence to determine whether that statistical as opposed to the underlying charge or the underlying crime of violence would have a critical impact and let me give you an example take take it out of the context of this case based on mr pattens argument there is not a nine twenty four c conviction preexisted johnson that would survive and why is that under his theory because the government could have prior to johnson relied on the residual clause or relied on the elements clause of what he sessions the minor but this court has regulate in the context of nine twenty four c p at the indict to determine what is the underlying crime of violence that is the predicate offense for that night twenty fo that is a jury instruction issue and johnson did not open this up for examination of whether the jury was properly instructed what we're looking at is what were the elements of the offense charged and of the fact that the jury was not properly for each of these traffic counts and we would suggest that object robbery in light of angling is a crime of violence so the fact that the jury did not make a finding on whether this was under the elements clause or the residual clause we would suggest the based on the state of the walk they should have never been instructed on that particular issue which at least under the elements clause is a question of law for a court to decide not for a jury and tonight i have to be careful given the government's changed position regarding nine twenty three d but so i don't want you to hold it against me in something else i briefed but i was speaking of the elements clause that is a question of law so i see it is very in consequential that the jury was never fully instructed on the elements of hobbs act robbery when they were with respect to the other counts and then there is no dispute in that must exist at the time of the interstate trial and with respect to the crime was committed by i've to the interstate travel that the crime of violence element is divisible and i think that they have to have an intent to commit a crime of violence that i think it's the same the same crime of violence my reading of the statute that when it when it says in the in the clause with the intent to commit a crime of violence and then performs it or attempt to perform element in the same way that nine twenty four c is divisible because of the crime of violence element that incorporates multiple alternative offenses there is no  same crime exact opposite of that that which is a crime of violence today is was a crime of violence in one thousand nine hundred six when this was committed so for those reasons we are asking the court here is specter of the potential jury instruction there which we believe johnson does not open up for review that when we look at the elements one nine hundred fifty two act robberies that they say the one nine hundred fifty two eight counts are based on occurred in the southern district of not the central district of illinois that's why they're not charged as hobbs act roberts you look at the jury instructions to decide whether or not in statute is divisible as to whether or no we start with the statute you start with a statute but this supreme court has said one thing you can look at it ok look at the statute statute says it's a crime of violence and what the supreme court says umbrella term they say then something you can look at the jury instructions because if it's not divisible likely all the jury is told is you have to find on brother terms which is exactly what happened here they were told or the option is to say what you ought to do was instructed as to a specific crime of violence and there was just an error in the instructions because that's not what the statute says the statute doesn't the statute says the element is crime of violence in section sixteen then defines it says what a crime of violence it is jury have to agree on which crime of violence no and certainly not unanimously on what the intended crime of violence would be no because it's not an element of the offense the statute talks of crime of violence and that's the whole discussion the supreme court said about a statute that just says weapons the jury doesn't get instructed on that they have to find unanimously unanimously beyond the reasonable doubt the particular weapon that can disagree as to what the particular weapon is in still find unanimously beyond a reasonable doubt that a weapon was camps in math because the camps in math folks say one way to try and answer the divisibility question is to look at the jury instructions because in they say if the jury instructions used an umbrella term that is a sign that it is not divisible because it is not telling the jury that they have to be unanimous as to the actual means as matheson's the term means of satisfying the umbrella element so so next month for the defendant makes a trip for illinois over to iowa for jurors think it was to meet an underage minor for sex for think it was to commit a robbery and for think it are if there's more than one set of facts that could support the conviction of a single crying you know your point is that this is an indefensible statute it's a single crime doesn't create multiple crimes correct so you would not be arguing to the district judge for a unanimity instruction that the jury had seen and mislead green what crime was intended and what crime was either attempted or committed after the interstate travel i sure thing that but i'm not going to get it because with what specific crime of violence that the jury all just has to agree that there was a crime of violence can that be squared with rhetoric us media because it's exactly what decamps says the camp says when you get instructed on in the camps again it used  weapon example they said look some of the jurors might have thought it was one type of weapon some of the other jurors might have thought it was a different type of weapon but as long as they all agree that there was a weapon if they were unanimous that there was a weapon what exact type of weapon doesn't matter because the element is weapon not gun or knife and that's our position here the element of crime of violence whether some of them think it was a ls beyond a reasonable doubt with all the elements of that offense you know honestly they did jury i don't know that i agree with the last one your honor because it's it doesn't come up in one night in one thousand foresee cases because we say it's a question of law for the judge the judge makes the decision ahead of time so the instruction the jury gets for example the nine twenty four c instructions here say just find the jury the government has to prove the object robbery is charged in count one for example that the count to one twenty four c based on how object robbery so the jury instruction tells them in that instance first the government has to prove count one if not they're told find that he had an intent to commit a crime of violence and then find that he traveled and then attempted or did commit a crime of violence the instruction they're instructed totally differently and i think mainly because of that in the nine twenty four c context because we say it's a question of law for the judge decides to decide before the question even gets to the jury it's just not a question of the jury only as the judge makes that determination and gets