risk. justice alito: well, an offense that prohibits the possession of the sawed-off shotgun has an element. so you'd have to decide whether that element creates the 13 risk. i do not see a vessel said. menendez: under my solution, we're possession of a shark barrel shotgun would not count under minnesota law because it does not wear the position in connection with behavior that creates a risk. justice scalia: but the jury would have found the fact of the risk -- menendez: precisely, your honor. justice scalia: in the in the cases that you are describing? menendez: in my imagined solution, your honor. but frankly it is up to congress. justice kagan: so so what you're saying essentially is that all the statutes in the back of the government would count? menendez: yes, your honor. justice kagan: but nothing else would. in other words you have to have a listen specifically and this conduct created a serious risk of injury. menendez: if congress chose that as a solution, yes your honor. i think this demonstrates why the seats be left to congress. justice breyer: extortion dozens have that. menendez: extortion is an enumerated offense and that would pose the additional solution, your honor justice breyer: is there any crime like that? what is the crime like that? menendez: there's 200 crimes like that. justice breyer: in the first one, use attempted use threatened use of physical force and are simply adding to those three categories, you'd say, or risk or serious risk? menendez: has as an element the of a serious risk or a serious potential risk. justice breyer: of? menendez: of injury to another. it is up to congress how they choose to define it but if they wanted it -- to how closely the register all clause -- if they want to go closely to the status quo, were cars to choose that, than requiring the risks to be a elements the government has collected for us to hundred examples of statutes that have risk is an element they would presumably count. and if there were some left out of the solution the congress wanted to make like for instance if extortion were not one of the enumerated offenses and they wanted to include, all they have to do is listed. it is a perfect congressional function your honor's and they can hear data. justice breyer: i see. menendez: they can assess risk. they can hear testimony. they can decide what should and shouldn't count, but we shouldn't be imagining it every time. justice kagan: are you saying that this is something in response to justice alito's question that this is a way that congress could fix the statute? or are you saying that it's a where we could fix the statute? in other words, that it's an available savings construction that we should feel free to adopt. menendez: your honor, i i don't presume to tell the court what it can and cannot do, but has strived for ames now five times to create an interpretive framework that would solve the problem. i think my suggestion is a good one, but are be it for me to say with congress to do. justice scalia: let me ask you something. can you get can you get to your sedition from the text of the statute? menendez: i do not believe so, your honor. justice scalia: i don't think so either. menendez: if it were in the text, we would probably not be here to begin with, your honor. justice kennedy: it is important to me to evaluate your statement that most of the problems are at the margins, not at the core. it is my assumption that there was the opposite. i thought the margin for a few in the week core covered a vast amount of grammatical duct. where do i look to determine who was right on that? this indebtedness:. your honor i think that we grappled with that especially in our reply brief. you are exactly right. in its additional statute the core is large, the margins are great, and the gray margins should lead to a conclusion of vagueness. it in this case, the facts are that over and over again there is disagreement about things that should seem obvious, that shows is that the core is smaller and smaller, if not extremely small compared to the margins. look at the easy cases that the government pointed at on pages 89 of their brief. on closer examination those give rise to disagreement. there are not uniformly settled in favor of inclusion or exclusion. anything that seems easy at first left really isn't. there are several splits heading right now your honor. and i don't mean to just dismiss them as disagreements about outcome. as agreements on how to apply this quartz test that are going to be answered by this quartz decision in johnson and won't be answered personally by the next case on the road. question of whether consensual sacrifices a stone age to qualify, the question of how offenses with recklessness should be assessed for conspiracy to commit crimes of violence. one of the easy cases of the government highlights is solicitation to commit murder, but it's really not that easy if insperity to commit a crime of violence has two petitions venting before this court right now. so the veneer of seasons the city that the government attempt great in their writing is allied by the reality on the ground. justice kennedy: different question and it's more for the government than for you. as you understand that governments position or is there common ground between the parties because this is a mandatory increase the standard for vagueness is precisely the same as the standard that we applied and determined whether or not a crime, and is definitions the in itself a vague. in other words, is there different vagueness standard for sentencing them for the statement of what a crime is at the outset? miss menendez: i don't think in this case it deserves a lesser screw new because it's a sensing provision precisely because it's both mandatory and onerous in the extreme. justice kennedy: it's as if they're worried a new crime. menendez: in is of -- it is as if it were a new crime. a not talking about other aspects of his courts jurisprudence, but for that question. and i think folks like versus hoffman estates itself suggest that google statue suture greater scrutiny in the the licensing and we are fine statute that gave rise the statement of vague every application, they deserve greater scrutiny and this is certainly one of the most onerous sentencing on chelsea's that we as federal defenders face in our practice justice ginsburg: you say the congressional cure, as i understand your argument, can only be added to the list of crimes, judge larson, extortion, and to have an element of crime is in the serious risk. that is the only things that congress could do. nothing else. menendez: oh no, your honor. i don't mean to suggest that at all. congress can fix this however they see that and that is why is that are congressional function than asking one defense attorney -- >> justice ginsburg: but i asked what were the rest that congress could take. one is to list every crime that they think should get the enhanced penalty. another is to say the statute has to have an element that the conduct creates a serious risk of injury to others. sort of those two. what the congress to? menendez: well your honor, i don't think listing them is that difficult. other congressional enactment list a large number of things that -- justice ginsburg: i'm just saying, is there anything else let's accept listing is ok. he saying the crime has to nelnet of the risk of danger to another. menendez: your honor i am not trying to avoid the question. i think it depends on what they want to accomplish. if they want this to apply very broadly to almost any sort of felony they can say so. if they wanted to apply more narrowly to things that are actually violent, they can say so. the problem is that in say much of anything when they wrote the statute. those of the two ideas i have, but i'm sure there are more. justice alito: i do want to take up your rebuttal time for just as quick question. if congress and signed a committee or a person to go through the criminal code of a versatile jurisdiction and if i those the defenses that did not fall with any other provision of the a cca, but met in the judgment of that individual or those individuals the residual clause standard, how many do you think they would come up with the? dozens, hundreds, thousands? menendez: again, it depends on whether congress was this to be narrowly applied enhancement to the worst of the worst or a broadly applied three strikes rule. and i think if they give the commission that can instructed by this court's previous cases that show the hard areas of questions, the commission could decide. i do not think that is necessary to look at every states code. if they justice fund definitions like they did for burglary and robbery in the original 1984 enactment, that with a and enormous amount of western and it would preclude them from having to look at each states code. and with the court's permission, i'll say my last moments. thank you. justice roberts, thank you counsel. >> mr. chief justice, and may please the court. the armed career will ask state as the score noted in sykes, a normative rentable that can be applied to very is crimes of the methodology that does not produce unconstitutional vagueness. justice roberts: well we do and say anything like that. >> i think the courts did volunteer opinion about the vagueness of the statute. it did comment on that in james and it had that it was not across to snow. sykes can later after and the court continued to hear to the idea that the statute can be applied it has been apply for ties for the court and in numerous as to buy lower courts without substantial difficulty. justice roberts: i did me to suggest that we specifically addressed vagueness, but my point was that it provides a particular trust, but as your friend has pointed out, it seems to me point in a differently -- entirely different direction. >> what he did was conclude that the celebratory of the -- similarity of the offense than the residual clause to the numerator defenses had to be more than just similarity of risk, and also had to have a certain similarity in kind. the court noted that the phrase of the court developed purposeful, violent and aggressive wasn't precisely linked to the text of the statute and it's made it clear that for fences with a means of knowingly or intentionally risk levels ordinarily provide manageable text that courts can apply. justice breyer: this true, but you see it sort of points to the problem in my mind. there is no doubt that from driving this car the risk of physical injury. but could it be the congress really wanted to impose a 15 year mandatory minimum penalties were person who has two drunk driving offenses prior get coated with seems outside the ballpark of what they're actually interested in, and nuts why i had a session by hard time. i think without such a hard time with this part because of sentence you know. a 15 year mandatory minimum. in part because the advance of the in mind, but it is very hard to figure out. >> i think that in the event a little too ambitious for the court to try to develop a similarity in kind test. >> yes. >> is the courts did. that was the position of the government, for justices agreed with that, five do not. we not asking the court to revisit that day. but once the court did develop it then it considered in sykes whether it provided a unit or reversibly applicable text. justice breyer: and dozens. >> and it concluded that it was better to restricted to crimes that involve negligence, strict liability, recklessness, potentially was not to allow to basically a sub soon what's in the statute rid of the cummington that the court having given guns to the lower court there has been some confusion in the court in its opinion in this case that we could clear about the relationship between bank a and the red -- risk task. justice scalia: is that all it takes? i've enjoyed just touch the statute in ways that have nothing to do with this tasks -- text? i thought we do not have any common-law power to create crimes. in it that the case it seems to me has to be congress that does that. and if congress hasn't done it and it seems to me our job is over. >> i agree with you, justice scalia, that the court's length the part of great common-law crimes, and i don't think that it has done that. it has engaged in statutory construction about which members of court may disagree. but if the court believes that is similar in kind mutation is appropriate for a textual vehicle for getting there. is the same vehicle that your honor used in the other johnson case, the one about whether batteries in both strong or star simply offensive touching, and your honor looked -- at violent felony, the word being defined, include looted the word violent and that if it nation informed woodcut of force would count. and i think that is the essential impulse of the court in the case to distinguish between injuries that are caused by regulatory break violations late pollution and injuries that are caused in a way that the statute specifies. justice roberts: but that break amazing to me, just as clearly be viewed as any confusion. the various hundreds whatever statutes you cite, i don't think it's certainly not many of them i'm not sure any of them involve that aspect of it. in other words it is not just a question of whether it is serious potential risk, but otherwise, what is this relationship to the unit where he did offense. >> i do think that is not such a big problem of the court applies the way that they did it in sykes, the way before courts predominantly do. it is not a precise tactical empirical analysis. the congress could not have envisioned this court in the court would have available to them statistics that for the more crimes do not exist in order to gauge risk levels instead a judgment exercise based on it. my just like the court did in sykes. i was reminded court that a members of the court agreed sykes that flight in a vehicle from the police officer in its ordinary case was sufficiently risky to trigger the residual clause there was disagreement because of the particular structure of the indiana statute which had an enhanced the fat -- offense that involves the killer flights that posed a risk of something. justice scalia: i don't know what you mean by judgment exercise based on experience. what experienced i have regarding these innumerable state crimes echo i'm not heard any case involving any of the state crimes. what experience are you asking me to apply? ? >> on think the same kind of logical judgment that the lower courts have used. justice scalia: well let's not experience. i'm logic is not an experience. you are asked kingly to apply logic or experience. which aged -- is it? >> both. justice scalia: what's the experience part? >> it may be a little easier if i start with the logic point commanded from some good to the experience point. the object -- logic pointed. if the elements of the offensive asking what does the conduct in this offense consists of? managing an example which my friend on the outside has not challenged with solicitation of a child under the age of 14 to engage and saturday. now a court can look at the conduct and say what requires an adult attempted as a child to private place to engage in a sex act. is that a kind of act that is likely as a master of logic and ordinary human experience, adult americans and children, sodomy requires physical contact, isn't likely to produce a serious potential risk of physical injury to another? courts do not have much difficulty entering the question. similarly in cases of kidnapping u.s. what does that mean? justice scalia: i suggest they have no difficulty visits horrific crime, not because they have any basis for saying that the degree of risk of serious potential risk of injury is. >> i do not think that they have two same precision with the degree of risk is. congress gave for example crimes to try to illustrate what it had in mind. two of them, burglary and extortion involved conduct district against a property or potential in front of a person. and the danger that can arise as a confrontation, if the burglary counter somebody at the home. the extortion or attempts to realize that threat. justice breyer: all right, i see that. because i'm getting back to the experience. the thing that six in my mind was the indiana case. you're the one i'm talking about? in fact, we look at the words you see their nested in another set of crimes. >> yes. justice breyer: and really to know it empirical fact, how is this with every larger nest actually used in indiana? it might be that it's a really used against people who are involved in violent kind of situation over might not be, because there are a whole lot of other ones around. and i experience and say, use experience. i've no idea whatsoever. and i think after that up go do some empirical research, why does in the government doing? the sentencing commission has tried to do it. it can't start. it is a know where to begin there are 70 statutes. >> so i think justice breyer, the very difficulty and unimaginable g of the price just that is, congress had in mind. justice breyer: all right. >> what congress had a mind was a divine classes and offenses that judges are confident involve serious potential risk of physical injury to another, possibly the similarity in kind mary when the men's rea is unsatisfied. and what congress expected course was analyzed with the conduct is that is involved in it, compared to the limited offenses and see if the rest are similar. >> does the department of justice do any of that? i mean, and a cca sentence, as i understand it is one that the prosecutor asks for. and is 30 guidance coming from the department of justice, that is to the u.s. attorneys were going to be asking for the senses, that they showed and when they should not? likes yes at the guidance keys office courts decisions. we use primarily an analysis that focuses on looking on the context of the elements of the crimes of race and logically analyzing what does it entail a risk of confrontation? justice ginsburg: is the written guidance? >> yes. yes there is in the form of guns members that we regard as a work product, but they involve an little efforts to separate different offenses into different categories based on conduct. and to the extent the statistics come into play, your opinions have cited statistics, any type of the needs for to statistics. first with the court talks and sex bubble what happens with someone please from the police officer. justice breyer: but what about extortion. i mean the other thread can see, burglary, arson, explosives sure. but what about extortion, it's like the hobbs act and i would amazed if any of these involve violence. justice scalia: violence by extorting. justice breyer: he's of the other did boast of communication or something. i mean they say, if you don't give me some money i will reveal such and such. what are the effects on that? >> i think what congress had in mind was the kind of extortion were somebody in france to inflict injury on a person property in order to achieve a demand. and congress was concerned that the person to make that threat was as a risk of carrying it out, which raise a degree of danger. justice scalia is that the justice department's position, that other extortion is not covered by the provision? it was just blackmail you threaten something to reveal about the person's life -- >> we would argue that the generic definition of extortion is seeking to get some property from a person with his consent by the use of threats, force or fear. justice scalia: threats or fourth >> yes. justice scalia. while i mean, fear includes being afraid of some events of your prior life will be like my cats right. justice scalia: you don't assert the extortion means only the extortion of the mafia you know might, pay up or going to hurt you. >> i think a normal method of statutory construction that is an quite get you to the narrow group of extortion that you expressed in james, i believe that is a legal western. the government might make that argument in this court might conclude that under the principle that similar boards would be constrained -- extortion you expressed in your separate opinion in james, i believe, but that is a legal question. the government makes that argument in this court might think lewd under the principle that some of the words must reconstruct similarly and extortion has an error meaning -- a more narrow meaning. >> the problem is what the prosecutor threatens when he has entered the plea bargain negotiations. this is the point that justice ginsburg touchdown. they have to interpret and make a decision on where they want to plead the five years or risk the mandatory minimum of 15. your guidelines say a lot, but i got one of the insecure guidelines say is that you should prosecute the maximum extent that you can, right? you should charge the maximum if you charge and the prosecutors go in and say, look, i could charge you this much or i could add discharge to what i got and you face 15 years and the defense comes and says, all right, let me see if we are guilty of that. he will read that and have no idea if they are covered by it or not. that is exaggerating. >> it is an exaggeration. >> not enough of an idea to risk an extra 10 years for their clients. >> they are not charges in the same way that the criminal charge brought an indictment. typically, criminal history is not assembled until after the defendant has picked guilty and report is being prepared. at that point, the parties are more aware of what the defendant might be exposed to the criminal act or not. sometimes the analysis is done and can be done fairly reliably. again, this court sees cases that really pose hard questions. that generate circuit splits that result in legal questions that have divided the lower courts. there is a wealth of activity below the surface that that does not get to this court in which there is not nearly as much difficulty in figuring it out. on page eight and nine of our brief, which my friend refer to several times, we cited 17 times of what we thought were easy cases. in fact, the petitioner came back and said three are not easy because they are circuit splits. in two of them, the splits are really because the definition of the offenses and elements of the offense is what i different. child abuse meant something very different in one jurisdiction from another. >> you take the position, so long as there are so many cases, the statute cannot be faked. >> i don't think the court has to do merely that park, because in this case -- >> you don't take that position? >> this court's decisions do suggest that. i don't think the court has to go all the way to that position in order to conclude -- >> what is the standard? and this goes back to a justice scalia was saying before. there are rates that everybody agrees forge -- that are unjust and reasonable, so how much do we have to say that the corps has shrunk and the margins have taken over before we are willing to do this? >> i think the starting point justice kagan, it -- i think the starting point, justice kagan, is in the distance of unreasonable rates, that is a standard that an administrative agency could flesh that out before a court to do it would really it just involve -- -- could flesh that out before a court to do it >>. identify crimes -- dangers crimes that pose the risk of danger. how much danger? well, as much as these four enumerated offenses. how many risk to these posts? no one is really sure. one seems to oppose the lot a few select cases, so it just seems, even as you describe it as the kind of thing that congress ought to be doing. >> let me add one thing, justice kagan, to your description of what to do when they apply this analysis. there will look to see if they can identify the ordinary case and then it will determine whether the whisk -- whether the risk is confrontation or the arson or explosive risk of unleashing a destructive force. finally, there may be cases where the gay analysis applies. this is a really important point and i want you to think about -- where the analysis applies. this is a really important point and i want you to think about. the government loses but not because it is they but because if the court is not confident and a normative criteria that they have established -- >> there is no such thing as a fake statute? every statute is vague. therefore, there is no such thing as a vague statute. >> i think as reflected in this court's opinions is where there is a tinge of first amendment or other protected activity. or cases like the standard is unreasonable rates and sure, everybody would agree that some rates aren't reasonable but it is a subjective -- >> the hardest part of this test is determining what is the typical case of this particular violation. what is the typical case of extortion? to take one of the four enumerated, what is the typical case of extortion? you seem to think a typical case is, i will break your leg unless you pay up. i would have thought the typical case is, i will disclose something about your life unless you pay up. >> i think if the court is faced with that conundrum, it looks to reported decisions of convicted cases as the court indicated in james and it attempts to stamp -- to determine whether it can identify the ordinary convicted case. if it cannot conclude the ordinary case involves the greater degree of violence, then it will conclude that the government has not -- >> blood about one you think is easy, kidnapping? what if the statistics show in 40% of the cases, they are talking about the parent that does not have custodial rights taking the child from school and not returning him or her run ever? that is not pose a serious risk of potential violence. the parent will not harm the child and yet, you say that is an easy case. it's easy if it does at the margin, if 1% of the cases are. i don't know if kidnapping is prosecuted more often in the case like that or other more violent case where it is extortion for money as opposed to just wanting the custody of the child. >> we would have to undertake the effort to try and persuade the court but we don't ordinary case was to. if we failed, if we did not muster whatever the court thought it needed to understand -- >> how do you do that? to look at every charged case of kidnapping in the state of arkansas if it involves a lot from arkansas? >> we would look at reported cases in arkansas -- >> i want to just get the justice kagan's earlier question. for the reasons that you have heard, i would just like you to spend one hour sometime before you sit down, on the suggestion of limiting it through the use of your appendix which he described a minute ago. looking at the language, i think it is possible within the language to go about interpretation. >> i don't really think that interpretation is correct because if you look at -- >> i don't know what you are talking about. read the words that you look at the four examples, you say in each of the four examples, there was a jury determination that it fell within one of the four and we should read those words, too, as requiring the jury to make a determination that there is a serious potential risk, and the way you do that is that you insist an element of the crime has the words or the equivalent of serious potential risk. that is roughly what the suggestion was on the other side. i just did not want you to sit down. at any point you would like without addressing that possibility. >> i can address it quickly because i don't think it is construction of the statute that really works. the exemplar crimes -- >> excuse me, she did not propose it as a construction of the statute. she said very clearly the court cannot adopt that but that congress could. she asked how congress could fix this. that was her proposal on how congress could fix it. >> i just one in -- we agree with the petitioner on this one. exemplar crimes, burglary, extortion, arsenic, do not involve an element care stays -- characteristically of serious injury to another. it allows because of elements of the crime and the residuals which were originally a freestanding closet and exemplars were added back in before it was passed -- >> let's go back to justice kagan. >> i do think the bible solution in this area is for that many crimes, they do not pose the empirical conundrums that can be hypothesized. when they do and the government is not able to satisfy the court or the court is not the -- not able to become satisfy, it is a fix on the ordinary case and they can say with some degree of confidence that the risk is complement -- is comparable. you have many crimes that no one can ever contest are covered. mail fraud, scandals, and then you have kinds that we have listed that are not seriously contested. we listed 17 and they contested three. i think two of the contest really have to be set aside. >> i think even in the ones that you think are easy, they are only easy in the abstract. the vehicular flight one was a good example in the abstract. everybody just had a sense it is really dangerous if people flee from a police officer in a car but it turns out there are all kinds of the grease and we have zero idea what the charge is. -- kinds of degrees and we have zero idea what the charges. we don't have a sense of how they connect to each other and what statutes are used for the dangerous ones and what statutes are used for more minor areas of the same offenses. that is kind of an endemic problem in this. is that not right? >> justice kagan, i think with the court is asking is up when it attempts to apply off got is not -- to apply aca, is not -- congress understood that in most burglaries, probably no one used hurt. in extortion, nobody realizes that it regarded the kind of person who was willing to undertake a crime that could lead to that kind of confrontation as properly subject it to an enhanced sentence when they have not just one but two other convictions and they go out and use a gun. >> you are talking about very did. -- you are talking about something different. is this the kind of conduct that a bad person engages in? >> no, i don't think it is that amorphous. there is a much more specific inquiry into the risk and the way that courts are conducted that i think -- this court's decision in sykes was the exemplar but there are many cases where the lower courts look at the conduct, they examined the conduct, does this involve a minor and adult, what is likely to ensue? i think it is kind of critical to keep the perspective here that the idea of substantial risk is shot through criminal law. >> this brings me to the statutes in your appendix. it does seem to me that those statutes do require a case-by-case determination by the finder in fact that there was a danger in the particular case. and so that is different from a categorical approach. >> yes -- >> and most of those statutes would survive if this court ruled against you here. >> it depends on the rationale. if the rationale were the conflict of substantial risk is to amorphous to be grasped at all or applied in any kind of consistent manner, i think that would raise -- >> we would never say that. >> i think as a logical matter that is essentially what petitioner is saying. that it is not possible to really get a fix on what those words -- >> she is saying that you can't tell what the typical crime is. when you cannot tell with the typical crime is, you cannot tell what the risk is. you can't do it for extortion. >> if you cannot tell with the typical crime is, the government loses. >> that's not an answer -- that answer sounds wonderful but government rose because of the role that ties those to the defendant. that sounds wonderful but the fact is, one court will say, yes, the government loses. another court, given the vagueness, will say the government wins. we will have to read every one of these until the law is clear? >> no, i think the court does with it typically does which is reviewed cases, established principles, and harmonize their rulings in light of them. it is not unique that this statute has generated a lot of litigation. section 924 see, for example three different cases interpreting the meaning of the word use and one interpreting the word carry. that is a higher ratio of cases the words. but i think what it says -- [laughter] when there is a lot at stake when many years of prison time are at stake, people litigate hard. >> is the test the same here for vagueness as an we determine the validity of the statute that classifies as a crime? >> i don't think that is so clear. there is a lesser degree of clarity required for vagueness in the sentencing context. >> when i said it is mandatory this is mandatory, five years, and a possibility. this case is a good illustration because the judge says, if it were up to me, this person should get half or what did he say? two thirds. i am locked into this by, who wants to have that kind of enhancement and with a clear statement? >> this statute will -- involves recidivism. there were never questions the petitioner should what condit was prohibited. he should have known he should not possess a gun. the second thing is because this statute as applied by a matter of law with a review, it achieves a degree of clarity through the litigation process that i think is going to be sufficient to whatever height and standard the court might oppose on it. -- impose on it. >> i disagree with the statement you made. because there is so many years and fall, people litigate hard. i think because there are so many years involved, people will not litigate at all. if they go to trial, such a large enhancement, i think they will be compelled -- it gives so much more power to the prosecutor in the pre-negotiations which is where all the cases -- >> that's a mature for two reasons, mr. chief justice. one is section 922 g prohibits possession of a weapon by a firearm. i'm not going to say that there are no contested cases, but it is not the hardest crime to prove or if you are found in the car with the gun and suppression motion fails, trial would not get you a lot. second thing is, it is not totally up to the prosecutor. the presentence report will indicate criminal history and the judge will have to apply whether or not the government asked for it to be applied if in fact it is legally applicable. i don't think this context has quite the pre-bargaining pressure. >> how would they know about the prior crimes -- how is the judge supposed to know unless the prosecutor tells the court? >> may i answer? >> of course. >> the presentence report is required to be prepared by the probation officer does the criminal history check. gathers that information synthesizes it, make second nations to the sentencing court. >> thank you, counsel. ms. menendez, you had three minutes remaining. >> thank you. usually, first, i think it is illusory solution in this case. after they suggested lenity as the answer, we look to every opinion we could find on the courts of appeals and the district court and we did not find a single case nationwide where court has applied lenity to say it should not count under the residual class. this lenity will post a solution that the government suggests any substantial invigoration by this court to be the answer in the great areas. the second thought is, this suggestion that the court can decide what the ordinary cases from reported decisions is actually skewed in favor of the government. consider a standard offense where somebody commits a much less a egregious case. resisting arrest where all they do is refuse to be handcuffed versus resisting arrest where they kick and punch and fight officer. this case is likely to get a higher sentence and more likely to lead to appeals and challenges and reported decision. this case is perhaps more likely to be resolved with a suspended sentence and never to appear in the reported case at all. it is -- we are returning to the case to try and determine what the ordinary cases. that will give an artificially skewed sense of aggressive nature of those cases. finally, you're on the, it is -- while it is to this court has grappled with things like 924 c repeatedly, 924 c provides an example of what is supposed to happen which is when this court points out a flaw in the statute, which your honors have now done for different times congress answered. change 924 c to try and address the court's decision and address the concerns of bailing, and that answer has led to additional questions. that gave and take, that this course is missing in this case where it is being cleared for a long time that this statute needs help and there has been in action on the part of congress. your honors, i think that the idea that the tie should go to the defendant is important but it is just not happening because of this objective that check your honor has mentioned. judges substitute a feeling, sexual offense involving a minor sounds bad and it sounds finally, so therefore, it must out. but i would invite your honors to look at the footnote in our brief where we highlight that there are several cases that find where the offense is unlawful because of the age of the victim, it does not count as a violent offense. so that debt check has to mean -- has to be more quantified has to have specific guidance. the last point i would like to me is that whether this court decides in favor or not of mr. johnson or an application of the role of lenity i'm a whether this court decides whether this statute is unconstitutionally vague as applied to possessory offensive or apply to mayor possession of the short barreled shotgun or whether this court takes a step i think it is time for and declares this clause unconstitutionally vague in every instance, i think the appropriate result is for mr. johnson to win and be resentenced. thank you. >> thank you. the case is submitted. >> you're are just a few of our programs on the three day weekend. interview with new york times chairman and publisher. the future of the times. sunday night at 9:30 p.m. eastern, members of the church committee. the groundbreaking efforts to inform the intelligence community. sunday, life at in in-depth, join our three-hour conversation on government accountability is to president peter a. on american history tv on c-span3, tonight here in brooklyn college cost sure on revolutionary war and how different personalities often influenced the outcomes of major battles. and on reel america, a look back on in 1960 film about a nationwide search or old circus wagons and the museum efforts to restore them in time for a july parade in walking. -- milwaukee. >> like many of us, first families take vacation time or in like presidents and first ladies committee good read can be the perfect companion for your summer journey. what better book than one that peers inside the personal life of every first lady in american history? first ladies presidential historians of the lives of 45 american women. inspiring stories of fascinating woman who survived the scrutiny of the white house made a great summertime ratead. >> the world health organization ruled on cuba. the overall success of the health care system and what normalization of relations between the u.s. and cuba will do to further improve health care. this is one hour. >> ladies and gentlemen, welcome to the national press club on this very historic day. this is a milestone. the national press club we know is the world's leading professional organization for journalists. today, we host the first minister of the cuban government since 1959. it's probably been closer to 70 years if we include the previous government. our speaker today is the distinguished health minister, dr. roberto morales who arrives now who will speak on the cuban progress and their contribution to the progress on aids and other sexually transmitted diseases. dr. morales, roberto morlaes is the health minister. he was born in cuba and holds two medical degrees and previously served as the vice minister of health and he has been a member of the national assembly of cuba of popular power since 2008. we will also have a powerpoint presentation. and the presentation is in spanish but we will be translating. if you have any questions, please fill out the cards. pass them here and the chairman of the newsmakers committee, herb perone will present the questions. we are following the same format we used at lunch, not the regular format we use with newsmakers. i have spoken too long and with that, we turn the program to dr. morales. [applause] >> thank you very much. buenos dias. translator: good morning, ladies and gentlemen. i wish to thank you for the opportunity to outline the work of cuba and the elimination of transmission of hiv and co-genital syphilis. [speaking spanish] >> the triumph of the cuban revolution, the care of sexually transmitted infections was conducted primarily by dermatologists in dispensaries for the treatment of an arial diseases and leprosy. congenital syphilis was a major health problem than and each year, large number of cases were reported. [speaking spanish] >> in 1962 free care was established at all hospitals and case support improved but health coverage was insufficient. [speaking spanish] >> in 1972, the program was brought under review and updated. a different approach was taken. higher priority to the finding of cases and research and etymological analysis, all of which was performed at community clinics under the view they had to be integrated into the community health care model. [speaking spanish] translator: it is then that the mother and care program was established. it's a program that has been subjected to continued improvement and constitutes the platform for the prevention of maternal and congenital syphilis. care at prenatal, delivery, and postpartum levels is conducted by health personnel and 99.9% of births take place in health institutions. [speaking spanish] translator: every pregnant woman receives a minimum of 10 prenatal visits by the family doctor and attends consultations with specialists in gynecology and obstetrics. care extends to monitoring the health of the mother including conducting tests for syphilis and hiv which comprise the sexual partners. [speaking spanish] translator: annually, about 1.5 million tests for syphilis are performed of which over 300,000 are done to pregnant women surpassing the 95% coverage. this is since 1980, the annual rate of congenital syphilis has remained below the elimination criteria set forth by the original strategy in 2010. in the past four years, the rate has been between zero and 0.04 percent for births. [speaking spanish] translator: since the beginning of the 1980's by decision of the government, the operational group was established which designs, develops, and implements policies based on response to the hiv epidemic. this task force comprises social sectors emma organizations and institutions of civil society, ensuring an inter-sector approach to the response. it works at national provincial, and community levels and is advised by the technical committee on hiv aids. [speaking spanish] >> the program was based on known public health programs that have been previously applied in the country for the prevention and control of other diseases. in particular, existing experiences in the control of sexually transmitted diseases were unit at denver used and it was aimed at the early detection of cases. the etymological research, notification got educating the population and making available prevention, care, and treatment services to those affected. [speaking spanish] translator: this gives us accessibility and guarantee research and the training of human resources and the introduction of technology which have ensured access by the population to prevention diagnosis, care, and treatment. [speaking spanish] translator: the educational component has featured among its strategies information dissemination, raising awareness, communication counseling, the selling of condoms, and inter-sector and community approach. the actions implemented in growing participation by the population, people with hiv and other key groups have had a positive impact on indicators of behavioral change within the cuban population. [speaking spanish] translator: until december 2014, there were 21,922 people diagnosed with hiv. 3652 have died and 18,270 were living with hiv. prevalence in the population 15-45 years of age is 0.25% [speaking spanish] translator: males are the most affected, representing 3/4 of those with the disease and men who have sex with other men make 72% of all cases and 89% of diagnosed males. [speaking spanish] translator: for the prevention of mother to child transmission of hiv, the program applied and adapted to each given moment and in line with the national scientific recommended action. hiv testing at the first prenatal visit to cesarean delivery in the suspension of breast-feeding were the only preventive measures being applied up to the late 1980's. the transmission rate than exceeded the 40%. [speaking spanish] translator: performing quarterly hiv serology through pregnancy screening of sectoral parsers -- partners, retroviral therapy and load measurement to monitor its effectiveness, cesarean delivery, preventive treatment of the newborn and their clinical and laboratory follow-up make up the preventive strategy we apply. the rate of mother to child transmission of hiv has been at or below 2% during the last three years. [speaking spanish] translator: the care and treatment of people living with hiv is integrated into the network of health care services. it is provided by the family doctor and nurse offices and also involves medical specialist from the local clinic who have been trained in hiv-aids. with participation by the existing specialized services when individual needs arise including referral to secondary and tertiary care institutions if necessary. [speaking spanish] translator: in cooperation with the global fight to fight aids and malaria, it has been created to ensure access to special monitoring studies and today we have nine laboratories and five viral laboratories. [speaking spanish] translator: cuba is made great efforts to ensure access to free retroviral treatment to those requiring it. research, development and local production of drugs, access to care provided by the national health system and technical cooperation received have made such results possible. today, 13,075 cubans receive treatment. [speaking spanish] translator: in response to the commitment made at the 50th directing council of the pan-american health council in 2010, cuba began its validation process for the elimination of mother to child transmission of hiv and congenital syphilis in november, 2013 conveying it in a formal request through the pan-american health organization. >> [speaking cuban] [speaking spanish] translator: once the country report was submitted, a process of exchange began between the national team and the original advisory validation committee. a validation visit was organized for the fourth and fifth of december, 2014. during this visit, regional experts assessed the reliability of the report, dated, and views and exchanged these with a local team in the validation visit validate this. [speaking spanish] translator: the original validation committee was made up of experts in different areas and observers belonging to the world health organization and the pan-american health organization, unh, unicef, the international community of women living with hiv, sensors for the control of the united states and others amid visited different provinces. family nurse officers and hospitals in maternity homes and information processing units laboratories, and they interviewed program managers and beneficiaries of this -- of these services. [speaking spanish] translator: the original advisory committee concluded its visit and expressed its assessment and announced the following steps, a process that concluded yesterday, june 30 with the recognition of cuba having attained the validation regarding the elimination of these diseases. [speaking spanish] translator: thank you very much. [applause] >> you stand up here, sir. thank you very much, minister. we forgot to point out that this occasion is historic because -- because it is today that we open the embassy in cuba and here. we are especially honored that you decided to speak today. mr. minister. herb perrone will field your questions and ask the questions. i think he can be heard without the microphone. >> let me stand back here so everybody gets the sound. our first question is from our former president. how will the restoration of u.s.-cuba relations lead to cooperation between the u.s. and cuba to advance public health? [speaking spanish] translator: we believe that reestablishment of relations with the united states like we do it many other countries with which we have relations in the fields of science and medical science. [speaking spanish] translator: will allow us to exchange experiences and knowledge among us all construct projects that give response to problems involving the population on both sides of the world. >> do you have an opinion about obama care or the affordable care act? [speaking spanish] translator: we don't have full information that would allow us to provide a view. [speaking spanish] translator: what i can say is for the last few months and years we have been receiving visits by the cdc who have accompanied us on scientific events. [speaking spanish] translator: and other personalities from the field of health care and science in general. [speaking spanish] translator: it will show a high level of commit toward the solution of the problems of the populations. >> how will the reestablishment of diplomatic relations and recognition, mutual recognition, advance the dissemination of cuban knowledge and science here and throughout the world? [speaking spanish] translator: we believe it will allow for the reality behind the cuban health care system to be better known. [speaking spanish] translator: because many times, the interpretation shows lack of knowledge on this system. [speaking spanish] translator: cuba extends cooperation to more than 80 countries. we today have -- [speaking spanish] translator: we have more than 50,000 health cooperation workers working abroad. [speaking spanish] translator: and more than 25,000 of them are doctors. [speaking spanish] we believe cuban health care is free for access to everyone regardless of the color of their skin and no discrimination is made as to their political beliefs. [speaking spanish] translator: it is based on a principle which is internationalism. [speaking spanish] translator: that is why we based it on sharing that which we have. [speaking spanish] translator: indeed, the main resource available for the cuban revolution and medical services are human resources. [speaking spanish] translator: this allows us to say today we have 7.7 doctors per every 1000 inhabitants. [speaking spanish] translator: which is the same as one doctor every 130 people. [speaking spanish] translator: with them having the highest value in our society and a high scientific level in these doctors. [speaking spanish] translator: which is why we believe exchanging experiences and cooperating is the right path as shown by how we work towards the ebola epidemic in africa in which cuba was participating and so was the united states and it was working. [speaking spanish] translator: i believe that is a road we can travel. >> will normalization of relations lead to public/private partnerships? partnerships with u.s. companies to advance health initiatives in cuba and the united states? [speaking spanish] translator: public health in cuba is free, regionalized, and will be continuing to be free and regionalized and accessible. [speaking spanish] translator: there is a foreign investment i ever national assembly in 2014. [speaking spanish] translator: which provides opportunities for entities to participate in cuba and we believe with the reestablishment of relations, the u.s. will take advantage of such possibilities as of course we would help when the u.s. blockade of cuba is eliminated. >> with the reduction in infection and mortality rates from hiv, what is being done in cuba to maintain a high level of public awareness of the risks of risky sexual behavior? [speaking spanish] translator: the cuban health care has its main strength and primary care. [speaking spanish] translator: with in it, the program of the family doctor and family nurse. [speaking spanish] translator: which allows us to have an office for a family doctor and family nurse every 1095 inhabitants. [speaking spanish] translator: we insist that the main contribution can be made by educating the population via mass media. [speaking spanish] translator: so that our population can be aware of the risks. [speaking spanish] translator: this has allowed us to have an impact on health indicators. >> [speaking spanish] translator: which, as we know, in a 50% level by the living style of the person. [speaking spanish] translator: in raising awareness about health care, we are also promoting self-care of the individual. [speaking spanish] translator: not only when it comes to hiv -- sexually-transmitted diseases and hiv, passive hiv. [speaking spanish] translator: but over and above in the risk factors that lead to the main causes of death for cubans. [speaking spanish] translator: today we have a life expectancy of's 78.5 years. >> [speaking spanish] translator: we expect to reach 80 years of life expectancy with the expectation of people being able to live their lives normally inserted into society. [speaking spanish] translator: the main causes of death among cubans today is cancer, heart disease is, and vascular diseases. translator: that is why we are working on risk habits like smoking, exercises, a healthy diet, a reduction in the consumption of alcohol. this will allow us to have a greater impact in the health of cubans. [speaking spanish] translator: in connection with hiv and syphilis -- [speaking spanish] translator: with these steps, of the validation which has certified that we have eliminated the transmission of mother to child in these diseases. [speaking spanish] translator: which should position us to continue working so syphilis and hiv cease being a health risk for the cuban population. >> do you have any special programs or special outreach tailored specifically to gay men? [speaking spanish] translator: we have a sex education program going on in cuba. [speaking spanish] translator: which is coordinated by the national health education center which is under our ministry. [speaking spanish] translator: so that it allows for the cuban population to have an ever greater respect for sexual preferences of people. [speaking spanish] translator: we have a whole program devoted to these ends. [speaking spanish] translator: where our core of actions are implemented especially around weeks that we have in may devoted to these issues. [speaking spanish] translator: when we have a special day devoted to the fight against homophobia. [speaking spanish] translator: i believe in that respect we have taken important steps. >> how do you explain the fact that in spite of sanctions against cuba, cuba has developed one of the best health care systems in the region? [speaking spanish] translator: cuba has its platform or health care system -- established from the very moment of the victory of the cuban revolution in 1959. [speaking spanish] translator: when we only had 6000 doctors. stationed mostly in the big cities -- of which nearly 50% of these doctors migrated mostly to the united states. [speaking spanish] translator: we had just one medical faculty the at the university of havana. [speaking spanish] translator: our priority for our government since 1959 has been the health of the cuban population. [speaking spanish] translator: which has allowed us to develop our human capital. [speaking spanish] translator: today, we have, for instance, 13 medical science universities. [speaking spanish] translator: two independent medical faculties and the latin american medical school. [speaking spanish] translator: which has allowed us to train the amount of professionals i mentioned. [speaking spanish] translator: which in the case of doctors, are 82,000. [speaking spanish] translator: and which has allowed us to train human resources not only with a view to our own country but to other countries in excess of 82. [speaking spanish] translator: especially allowing or medical development and research to spearhead health development. [speaking spanish] translator: we should also point out that we have been able to reap the results that have been due to the development of the pharmaceutical and biotech hologic industry in cuba -- biotechnological industry in cuba. [speaking spanish] translator: for instance, the vaccination program of 13 vaccines against aids -- against aids vaccines -- these are nationally produced. [speaking spanish] translator: we can say that out of a basic amount of medications -- made up of 857 medications, 68% of those medications are nationally produced among which we can mention the retroviral which allows us to provide treatment for all those patients who need the treatment and to have them free of charge. [speaking spanish] translator: development of human capital. the strengthening of primary care, medical care, via the family doctor and family nurse and the development of cuba biological/pharmaceutical industries. [speaking spanish] translator: with a strong component of inter-sector participation and community participation. [speaking spanish] translator: based on expressed political will on health care which has become a result of the cuban revolution. >> is the normalization of relations going to help you to advance public health with maybe needed medical supplies are easier access to medications? [speaking spanish] translator: we believe, yes. [speaking spanish] translator: the effects of the economic, commercial, and financial blockade to cuba has been higher than $60 billion. regrettably, how it has hurt health care and how much suffering it has caused cannot be calculated. we therefore believe the reestablishment of diplomatic relations and the lifting of the blockade should allow us to buy technology and products that today cannot reach her country and will be to the benefit of the population in cuba. >> how will the normalization of relations lead to greater scientific corporation between the u.s. and cuba? [speaking spanish] translator: scientific integration, i believe it will allow us to build proposals as generally happens with peers in the given fields of science. so that we believe it will have an impact on our on problem solving concerning our own population and in the cooperation we extend to other people and other nations in the world. >> what would you say is the most important benefit to the cuban people of normalization of relations? [speaking spanish] translator: in general, the issues along we could work we have to wait to build the expected steps that will be taken. and then we will see, based on this concrete actions, once implemented, we can do that which is possible. >> what is your agenda here in washington for this visit? will you meet with congress or other u.s. officials? [speaking spanish] translator: indeed, our visit has been due to an invitation we have received from the director of the pan-american health organization. with the aim of granting cuba the certification and validation of having eliminated mother to child hiv and syphilis. [speaking spanish] translator: and we, of course, were happy to accept this invitation to speak with you but over the next few hours, we will go back home. >> do you believe your accomplishments in the area of reducing std infections will lead to an increase in medical tourism to cuba? [speaking spanish] translator: indeed, the year 2014 as has been publicly announced saw growth in tourism and during the first half of this year, it has continued to grow. so there is no doubt that going to a country where there is the level of safety that is there, that is available in our country and all that allows for a public health system like ours favors the strategy involving health tourism. >> this would be our final question -- what lessons can cuba teach the u.s. and other nations about advancing public health? [speaking spanish] translator: the first ring that needs to exist is the willingness to push for the health of the population in the different places. [speaking spanish] translator: cuban devotes 28% of its budget to health care and welfare and 9.7% of its gross domestic product. [speaking spanish] translator: that shows the will that has existed and the determination to guarantee the health care of our population. [speaking spanish] translator: along those lines, it's responsible to promote health care systems that are universal -- that have a universal provision of care. [speaking spanish] translator: we could say that should include seeing health care from the point of view of the ministries of public health but health care has to be seen from the point of view of life. in that respect, and inter-sector approach and an involvement of the community becomes indispensable. [speaking spanish] translator: i believe we have our own model for health care and every country observing their own characteristics should have its own proposal. [speaking spanish] translator: i believe this is also a formula for the building of a better world to which we have all been called for. [speaking spanish] translator: also, there is a need to preserve the human species. thank you very much. [applause] >> we at the press club are very grateful for this superb presentation and this very historic presentation. thank you very much. >> thank you. >> we also have a wonderful audience. [applause] >> thank you all very much. thank you. [captions copyright national cable satellite corp. 2015] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> here on c-span, washington journal is next with your calls in the morning's headlines. the national constitution center holds a discussion on the bill of rights and how it applies to today's debate over freedom of speech and the right to privacy. later, a look at the challenges facing undocumented college students. coming up on washington journal terry jeffrey of creators syndicate, and eleanor clift of the daily beast discuss the current state of the american dream to racial issues, social and economic trends, and america's role in the world. thomas hurley looks at this year's big supreme court decisions and what to expect from the court and that in the next term. ♪ host: good morning. from capitol hill, this independence day morning, with where the american fla is flying. later today, a fireworks display will take place on the national mall. we will begin this july 4 on "washington journal" talking about the idea of the american dream as the 2016 campaign cycle gets underway, it hopefuls are incorporating that term. this morning, we want to hear how you define the

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