hartzler federal defenders on behalf of mr pratt i'd like to start with the question of timeliness that the court asked the parties to brief and then i'll move to the merits of the mandatory guidelines claim unless this court would like to go another direction that sounds fine so far great so first of all regarding timeliness as we said in our briefing the government affirmatively waived this issue and i will read the excerpt from the government response below it says the united states agrees that johnson invalidates the residual clause of four b one point two eight two for the same reason it posed a problem under aca that that however is i put it in quotes concession as to a question of a law which we don't so i think you might use your time better to talk about the the merit of sides of an issue issue certainly or so i think you're going to the merits of the issue the reason that we believe that johnson directly applies to four b one point two eight is because both provision share three key factors first of all they have an ordinary case analysis that's applied to a risk based definition under and mandatory sentencing scheme those are the three things that are present both in johnson and here and that's why johnson directly applies so beyond that if it doesn't matter i'm sorry but you know i'm getting this thing i've got my head so that's really the case now i think one of the issues with timeliness and then also the merits is that if you take the government's very very narrow reading of what the supreme court has to decide in order for something to be timely it actually would think there's also two circuits that have said the opposite in fact and the so we have to weigh in on one side or the other that's correct i would point actually to one of the cases that brown case there was a very sharp dissent by judge gregory and then in the case that we recently twenty eight shade more in the first circuit more specifically said that they think that brown and rayburn got it wrong so i think the very least there's a circuit split on this and so i don't think the case law as over well mean as perhaps the government made it out to be so why is your way the better way to read it i'm sorry why is your way the better way to read the law the reason it's the better way is because congress set up the statute and the one year timeliness bar in order to encourage diligent filing basically congress is trying to get people who have any sort of claim that might relate to a supreme court case to file sooner rather than later now what happens is the government's position would encourage the opposite it would essentially say to largely pro se plaintiffs are prosecuted we don't know if you should file now or if you should wait and see whether if you know another decision comes out later and so then you've got it breeds confusion among people who why doesn't it breed just the opposite why doesn't it encourage people to file hurry up and file well i think i think if they hurry up and file for instance in this case if mr pruitt had waited to file then he risked i'm sorry is that what if he had waited to file well i did wait to file so i think the government is saying that he should have waited to file or he needs to wait to file until the supreme court especially rules on the mandatory guidelines issue or he could have filed right away when he did i did challenge almost two decades to to bring this client name that's correct but at that time this this court's case law precluded a challenge let's say can accept that it's it's not uncommon for someone in front of your office frequently says you know this issue has been decided but we're preserving it for supreme court review because we think it's wrong and we're going to try to get served on it so i'm not sure about  right one of those folks that that be a different scituate that person would be dissimilarly situated from for instance if someone who had the same conviction the same time as mr pruitt raised this and they had filed within one year revoke or right correct i mean certainly that would be ideal i think that person would still be in the same situation as mr pruett is and now of having to file again plus they would be in a disadvantageous position because now they would be subject to the more stringent standards of filing a second or success s then they're in the s o s box right sally and i think that that's our sons and also then your position is because of all of the what the supreme court ruled in johnson is sufficiently creating a new right for these folks to proceed exactly and i think you're on  reason that we think that brown and ray vaughn got it wrong is that they were looking at what is the result of johnson rather than what is the holding of johnson the holding of johnson is exactly what i said you have an ordinary case  analysis applied to risk based definition under a mandatory sentencing scheme that is a recipe for vagueness and that's what johnson held and that's what we have here and to say that it has to be the exact same provision with the exact same law i just so narrowly interprets that that it's going to cause a lot of chaos in terms of when things are timely filed and when you wait so that's our reasons the oath legal and practical as to why we think that this is  am just looking at your time what about them do we need to wait what do you think your honor i think if the court agrees with of with us on the mandatory guidelines it can go ahead and just remain and we'll deal with the fallout from to my ass before the district court if the court disagrees with us on the mandatory mean we obviously disagree right right now i'm just trying to track the decision drive if it's timely i guess i didn't ask a very good question i confused things i meant if it's time if you get over that hurdle what about to maya and should we wait sure mr pruitt is being released in january  we would ask that the court move as expeditiously as possible having said that was argued on monday and we understand that you know it may not be the best use of judicial resources for the court to make a decision now so we'll leave that to the court's discretion you johnson recognized has two separate components one is the residual cost of language and we'd agree that the residual clause in language in the mandatory guideline subject here is the same as the language that was examined in johnson but johnson required a second component and they called that the relevant well recognized requirement that statutes that fix penalties that saturates that fix sentences must not be vague that component is missing here just as it was  i don't think we have taken as narrow a view of the right announced in johnson as ms hearts are suggesting we're not suggesting that i'm going to take the hypothetical example that was examined in more that was the first circuit case in the second or successive petition versus united states in one thousand nine hundred one and in that case the supreme court assiduously avoided the question it used to be a canon of constant constitutional mightn't in order to avoid answering the question at all about whether due process rights require notice in the context of sentencing irizarry in two thousand and eight didn't answer the question either and that's why we can have decisions like in ray griffin and ray sapp the decisions from the eleventh circuit that have found that the mandatory guidelines are not subject to johnson attack in the same way had the supreme court answered that question and had a rule that mandatory guidelines are subject to vagueness attacks and we couldn't have the decisions like we did in unconstitutional i will there ever be a defendant who can raise this issue if the supreme court answers the question which justice sotomayor said was left open in back goals which is whether the mandatory guidelines are sufficiently mandatory in order to operate like a statute as opposed to more discretionary like that the dice are guidelines and goals then a petitioner could invoke a new one because that's not what judgement is asking she's asking who would ever be able to raise that case there could be other circumstances where the court would deny relief and the mandatory guidelines contexts where it could go up to the supreme court where they went with that circumstance to be counted within to be timely how's it going how is that ever going to get aired that oh sentenced close to one the men dettori nature of the guard lines changed just these folks from their window is closing rapidly and i'm just trying to figure out how do they ever get relief if not now right box that's opposing counsel's response so what is your response to that well as we've seen in this context if if a petitioner can raise a right that relies on a new rule that was stablished by the supreme court  doesn't apply right so under twenty to fifty five there are instances in which individuals can invoke newly record so it's like what i think where if i understand your argument correctly you're saying that the the problem is the same for the petitioner who right used to last is for the petitioner who never raised it because for both of them i have to be able to point to a new rule of constitutional law established by the supreme court and so if they do that their petition is heard if they don't it's not in both situation that's correct your honor in both instances they have to be able to point to the supreme court's creation of a new right and in this instance the supreme court has not created that new right because when we know that from just the sort of miers concurrence that expressly indicated that the question was left open and we also know it from this court's jurisprudence and other circuits  prudence that question whether mandatory guidelines were subject to vegas concerns that all i point this court to its decision in one thousand nine hundred seven in lyndon johnson which acknowledged the unconstitutional vagueness challenges have been questioned rejected big missed challenges to the mandatory guidelines that's why mr pua can't invoke the first feature of johnson which is that there must be a statute that fixes the sentence the mandatory guidelines  circumstance didn't operate in that way and i just posit one sort of hypothetical that shows why and in one thousand nine hundred ninety six if someone was truly found to be a career offender because of a vague  application of the residual clause to a crime that didn't fit within the heartland of career offender offenses then the court could have departed this court in the ninth circuit provided for proportionality departures when there were guidelines increase in many instances including in the career guideline or career finders he's made contacts and so surely it's in those non heartland cases where the discretion would have been greatest for those koon discretion for district courts to depart even under what's called the mandatory guideline scheme and this car on the united states versus sanchez rodriguez in one thousand nine hundred eighty eight expressly recognize that there could be proportionality departures so that if someone's underlying criminal offense didn't match with the heartland of offenses should have been but the court could have departed downward in precisely that circumstance so if a person was a career offender for example because they had  convictions for participating in the protests or a riot i'm just making up this as an example but the district court decided you know those are technically crimes of violence but those are not the heartland of cases that we've seen the career  context that district court would have been within its discretion to depart downward sentence outside of what was otherwise the mandatory guidelines range and that's what we saw in united states versus sanchez rodriguez that's what this court did booker in the united states versus ray where there was a departure for a career offender whose two prior convictions were seen as minor so really in the context of the career offender guideline the individuals who could potentially claim vagueness were precisely the individuals who could have sought departures meaning that the guidelines weren't fixing the sentence in the way that johnson demands for it to be the right asserted here for those reasons we would agree that mr pruitt has not  timely filed his petition in this case if the court would like i can turn for a moment to the commentary and whether the commentary provides a sufficient hook for mr pruitt's robbery conviction to be a crime of violence as well but if the court has no other questions at this point the united states would submit well under my on the nine twenty four c do we wait this the court has deferred submission in at least four cases that predate this one so big a it's the one that comes to mind most time is another one where and there are a few other cases that recently they have deferred submission on in order to wait i think in this case notwithstanding mr pruitt's him and then release in january think that that probably answers the question so the three quick points that i'd like to get you first of all the one that that ms hong ended with on in terms of departures the government made this exact argument and booker and booker said no that's not good enough especially what book specifically said is departures are not available and had every case and in fact are unavailable in most and because of this the availability of a departure in specified circumstances does not relate to the constitutional issue so there's nothing specifically different here than in booker and as the government's own statistics show the departures were not available in the majority of cases when mr perot was being sentenced so the same argument that failed in booker also fails here in terms of departures my second point is about the issue that counsel raised about the whole idea that the supreme court has never found the guidelines to be void for vagueness that is true but beccles did everything but if you look at beccles they used the advisory discretionary discretion over forty times they went out of their way to specifically not only carve out the advisory guidelines but also to lump the mandatory guidelines in with statues and that's why we believe that johnson directly controls here because it's not about whether it's a statute or a guideline it's about whether it's mandatory or discretionary and the language in booker and i'm sorry in be says that very plainly and i think the supreme court wisely said this is not a mandatory guidelines case we don't want to decide an issue that is not before us and that's why they didn't go the step further and say the manager guidelines are also voi thought point is i think that judgment his concern is exactly on point if we take this narrow reading of time line as who is going to be able to actually get to the supreme court i think that's a huge problem because obviously anybody who can point to controlling supreme court case i mean i think that's the issue isn't really if but the way the system is set up if there's not a new rule of constitutional law that's applicable them nobody can challenge it but that's that's the sort of substantive policy choice that's made by congress in this area so regardless of whether the person raised the issue or didn't the pivotal question seems to me to be the same which is did the supreme court decide the constitutional issue or not and it seems that rides on that and your point is how are they going to get it square exactly exactly because and that's the rub right exactly and i'm not sure what the answer is but it seems to be that's the problem i absolutely agree hence your attempt to extrapolate if i can use that word from johnson exactly and so i think when the court is confronted with a situation is a circuit split on this issue the court should err in favor of considering this a little more broadly to say we want to at least give people a shot to get to the supreme court so that's pretty quick can weigh in on this and that i'll leave it at that thank you