Plausible construction is one in which the guilt or innocence hinges on how the ordinary defendant might act but a very unusual way for criminal conduct in the context of a jury trial but section 924 c were the only or the first to present the categorical approach and categorically specific. What do you think congress intended in 1986 . They did not think of the question. I dont say had because that is rewriting their intent to. Given the circumstances of 1986 that it was red in the categorical approach they adopted it through the bail reform act that for decades you have said 16 b is better than categorical . A couple of points. Without reference. First of all with the bail reform act we dont agree necessarily that with that categorical approach was not well established to identify a single decision from the Second Circuit with the form of a categorical approach that they were not covered by the existing version congress clearly repudiated that. You say the language was best defined as categorical. There are a few fits and starts with briefs to be filed i would also note the Commission Read the language 1987 to 89 through those fits and starts heading into the approach because that is where the courts seem to be going and because it appeared to be workable and constitutional i know you dont want me to reference these decisions but it is clear it is workable not constitutional so we have gone back to take a fresh look. I think if you take a fresh look at the statute it is reasonably red as where demand to have that circumstance specific approach. This was not adjudicated on a specific approach. That is correct your honor. We think it is harmless but if the court does not agree with us they would go back to the court of appeals there could be a retrial but the operative turn is any context specific way to prohibit the defendant from using or carrying a firearm in relation to the crime of violence. The subsection specific definite definition of crime of violence is best understood and reasonably understood to have that same circumstance specific meaning it is very logical to do because it captures those who are committing crimes and violent ways. So with your theory you say it would have to be a jury finding and what do they have to find with respect to this offense . Do they take account there was a use of firearms. It could be a factor but the only factor that is one of the things that it does in the statute. So for example if a crime he simply has a gun in his jacket doing criminal Business Unit would necessarily have a crime of violence but a violation because he carries it further but if all he is doing is selling counterfeit handbags in a nonviolent way that would not be 924 c violation. This is the inquiry the court made clear as the juries can figure out they are well acquainted to figure out degrees of risk courses of conduct and of 924 c the jury is already finding the underlying offense conduct issued. So that categorical approach gets away from the whole idea to send things to juries to substitute the categorical judgment of the ordinary case of a crime the fact that the jury has right in front of it to easily apply standards of the angloamerican system has entrusted to juries two centuries. Looking at the language of c3 the word offense is a clause for anb and is as i understand the governments position to mean defense charged on the proximate the elements. With respect what did the defendant actually do . We dont read that preparatory language to mean two Different Things of two clauses that follow in fact the government earlier this year argue precisely this point no single word is given a single construction so what do we do about that problem . I think we are giving it a single construction let me explain why because the term offense is always been understood particularly looking at double jeopardy jurisprudence the way the framers used it to mean transgression of the law that is the act the defendant committed in the elements of what they violated to see if there has been a double jeopardy violation to understand the way we are urging here i think hayes is particularly instructive if you look at what was construed there it was even more difficult for the reasons i will get to in a second but the court they are interpreted. Im sorry we are running a little far afield for me but if we just returned to this language, as i understand that you would have offense to be offense as charged on the books but when we get to be look at the facts is that right . Can we agree on that much quick. Yes your honor. You can qualify another minute that we qualify on that. To make just one thing clear on the jury findings to incorporate an element with a use of force so that they find something in both cases. I am not tracking you add all. Does the offense have an element of force . A classic categorical approach analysis and what actually happened . And again i would like you to address that and not run too far afield of other cases or statutes and explain how we give that word to different construction. My answer to you is i dont think we are giving them two different constructions and the reason is another example. Help me where i am. I am on the statute. Offense means a transgression of the law. That has multiple components and an act is the legal prohibition so the court has said that double jeopardy. I will let you go in a second i promise you can go on to other stuff that is fine but we look at the elements so when you keep saying double jeopardy is what you want us to do for a but not be so how does that help me because that needs me to focus on the statute. Obviously committing two different murders look at the specific act he committed each time. But these are not two different crimes being charged. With transgression of the law it is natural to talk about both the elements. I dont think anybody would look askew if somebody would say a youthful gun crime is defined as defense with an element with the use of a gun committed by the age of under 21. In that sense we understand to encompass the statutory prohibition in the manner in which it is committed. So exactly how the court interpreted the phrase in the context of hayes. I am happy to take further questions. Can i ask further questions about the language of the statute . I want to do that by comparing it to the bill thats currently pending in congress in order to make it fact specific. So rather than saying in offense that by its nature involves substantial risk of physical force may be used instead says based on the fact underlying the offense by its nature and then they change that tends to say involve the substantial risk that may have been used. So by its nature based on the facts to make it clear what we are looking at is something that has occurred to make a fact specific determination about that. That is the way you would write a provision of the kind that you want this is not the way you would write a provision of the kind by its nature clearly what is this that offense ordinarily about . It is inconsistent with the notion that the jury in this case has to look back to determine the particular facts of a particular crime. As a preparatory matter if that language is clear the other answer to the Justice Gorsuch question that would be considering to have that elements clause. In a particular portion in which it tries to solve, yes. Let me just say that is not where the defense could be used in both ways. You have to answer his question anymore. Fair enough. I think that language is clearer and there are a couple of issues for that language as well. First of all i wouldnt put any weight on that tense because section 924 c with those other crimes that speak in the present tense for those who use or carry a firearm but this is the language congress constructed because of this court to render this constitutionally invalid. I dont think that is a fair representation in 1986 and in reference by its nature i do think that term could be used and was use 924 c three b if i were to tell someone dont bring your gun to a situation i think that would be understood without limiting feature. But with the word situation but this is not prefaced with that word as Justice Gorsuch said it is prefaced with the word offense that we know from section a is the statutory context and the crime by its nature, tell me how that is fact specific. By its nature. Burglary. By its nature. I would like to get back that by its nature as a circumstance specific and focuses on the offense conduct rather than the intended if tony soprano is prone to murderous rages at the drop of a hat but that doesnt mean its always a crime of violence. Murder by its nature . What does that phrase mean murder by its nature quick. Then i would want to know if youre talking in the abstract or a particular murder. I am just repeating this language. That is not how we interpret the offense it is the conduct and whether that conduct by its nature through this goes back to the Justice Gorsuch example you dont mean it that way because then section a is incoherent spirit that is the exact interpretation the court gave if i could explain that they were faced with a statute of misdemeanor crime of domestic violence. Im paraphrasing only slightly but it was in offense that is a misdemeanor that has an element committed by a domestic companion the court interpreted even though the offense misdemeanor applied to the whole thing and they took a categorical approach to have a circumstance specific approach i dont think the fact it is a felony. But there was Something Else in addition to the language in this provision but that was true and also with hayes what the court pointed to with Something Else in addition committed by specified persons or defrauded by over 10000 to say that particular language made it clear that somebody knew what had happened. But there was no such language in the statute. If that is a question you are now raising then we can all agree the offense that is a felony could have that categorical approach. It could. But then we are on the question of section 934 cb can reasonably be read to invoke a specific approach and by its nature both what i said of the offender and also to capture the idea of the word otherwise. This court said in rosemont what the statute is going after is trying to prevent a defendant from upping the ante to bring a firearm to a situation that will otherwise present risk. Im just a little concerned during your presentation. As i said earlier it cannot just be the firearm itself but it is already a hazard by its nature i dont think that is clear. Sorry justice alito. No. Im interested in the Practical Implications in this case how many contemporaneous crime statutes put in jeopardy if we affirm . Very few have subsections specific of crime of violence. The courts decision here will would be held of that categorical approach but would invalidate 924 c3 b and also the bail reform act but then there would be other consequences. Number one if the court does so based on the arguments that the juries cannot possibly figure this out because its too complicated for them that we call into question the hosts of other statutes that call into questions matters of that degree. We know from johnson exactly the fallout to invalidate a provision like this and what it will be. Hundreds of thousands of very violent offenders in the system challenging their convictions if they are under direct review and challenging their prison term this will also increase the amount of litigation under 924 c3 a calling into question if very Violent Crime that congress would undeniably i think wanted to include. That the government and all of these cases keeps upping the ante. But if you rule this way they will fall then we do then you have to come back you have 40 given up all of those others. Case after case i thought you would be more interested to say there are plausible distinctions so you dont automatically stack the odds against you when the next case comes up. The only federal statute i think we would see next if it came up was the bail reform act there may be some discussion of that. But the main concern we have here will be the practical concern that i was just mentioning with the defendants seeking release and not to be dramatic they are violent offenders. This is a case of tremendous importance to the community. While re sentencing could be required for a large number of persons and significant changes in prison sentences is low that this is usually an Additional Charge thrown in stacked on top of others. I dont think thats correct. Although a core is entitled to consider the fact if there is 924 c3 sentence added on, a court will lower a sentence of the 924 c3 excuse me if that conviction is vacated. We didnt see every defendant get that and some were released. With this impressionistic argument maybe its not as close as we thought . Will your friends argue it wont change much at all . But we dont seem to have a lot more than these rhetorical arguments are a lot of facts before us. Fortunately we havent faced this collateral litigation but numerous defendants are filing for release and we do expect quite a few of them notwithstanding are urging the courts to impose the same sentence that they cannot in every case that we do think some will be let out this will also increase litigation in the lower courts under that categorical approach 94 c3 aletter if a rule against us in this case. One of your points this would significantly lower the sentences of many violent criminals. There will be cases we cannot get and for those defendants those convictions will be wiped out and probably lower sentence sentences. And this is one of the concerns you have to confront squarely dealing with 924 c. Your response to that and what congress was thinking about in 1986 with respect to why congress wanted long sentences for these types of Violent Crimes. I think that is Crystal Clear that congress wanted the text of the statute they wanted the additional term of sentences they would receive for any underlying crime of violence also charged for the 924 co fence what the respondents approach would do here is essentially radical eradicate that judgment the only defendants who will have that judgment anyone falling under 924 c3 b thats not the right approach to take when it could plausibly be read with that circumstance specific approach with that the only defendants have relief are the ones that actually committed their crime nonviolently. That is exactly the result congress wanted had understood what this presumes that the categorical approach of it even imagined one would be held unconstitutional if i can reserve the balance of my time. Thank you counsel. Mister chief justice may it please the court. This case is about following the text of a statute that when necessary requiring congress to speak more clearly on what is prohibited. There are three reasons why the 924 residual clause should suffer the same fate as 16 be. First, it contains the language giving rise to an ordinary case of a categorical approach and second they share a common history suggesting similar treatment under the law and third the approach lies beyond the reach of constitutional avoidance. So this is a concern about the jury protecting the right of the jury to find the facts that concern undergirded all of those cases that fifth amendment concern as well as a practical concern to relitigate what happened many years ago that is totally absent in this case. Right . Your honor the constitutional concern is absent in this case. s you agree with me that under greater one undergirded johnson and taylor quick. I disagree that play the integral role taylor versus United States. It specifically identifies taylor as a concern on page 601 of the opinion where it talks about the right to a jury trial. My reading of that portion of taylor it is raising a question of judicial economy dealing with the paragraph of concerns is simply raises the question now are we faced with the problem of every defendant appealing to say they were denied a jury trial quick. I think the prior cases interpreted language in a way to avoid the constitutional problem with those convictions and that reason to stretch the language in one direction is not here as i see it. The case was about the jury than they could apply it here. I want to be able to answer your question clearly. In taylor when the court first raised the question to apply a categorical approach the very first statement was we are persuaded by all the circuits below that reach the categorical approach. Are not one of those is there a mention of a constitutional or the application of constitutional avoidance. So what are the other interests . Taylor began and then went to the history the noted workability concerns. But then did not discuss those concerns at all but rely solely of section 16 to reach a singular conclusion that the language by its nature with the absence of conduct requires a categorical approach. But say that statutory provision comes before us and its possible to read the language of this provision in two different ways to argue which is more strongly supported a couple and would we not think that congress is likely to have chosen the interpretation or have meant that is workable as opposed to unworkable . I am aware of the presumption of constitutionality im not talking about that. Im talking about the rationality. I think that is relevant when construing the statute. I would agree with that but ultimately the way it is read in the workable way. As opposed the unworkable . We would choose that is what congress meant not something that was dead on arrival. We must agree with the text workability has to be a secondary or tertiary consideration the government has proposed a new reading conflict based approach that cannot be reached simply because it is not broad. Let me ask you this question. Subsection buppercaseletter so when the Court Determines an offense by its nature is the requisite risk, is it not askin asking, do the elements involved that risk . Isnt that what it boils down to quick. I disagree under this language. So then what is it besides the elements of a typical case quick. This has been construed it is imagined an ordinary case and we get from this courts opinion to note the dual inherent language that is present. Lets take burglary a classical definition unlawful entry with a commit a felony. So now the ordinary case of burglary, what do i think of beyond that quick. You think how it is typically committed and you are asking the question what is the risk associated with that. What is typically done in a burglary quick. We cannot answer that question so to explain as many times as we try with a common offense. I understand that but. Justice breyer, please. If you cannot tell me what beyond these elements of burglary that i take into account with the typical burglary than under your categorical a