that is the four level increase two is offense level that resulted from this court's changed interpretation of force clause in united states versus for we which was decided after he committed his offense had language various position however that the changed interpretation of force clause in for we be violated the ex post facto principles that are embodied in the due process clause because for we be not boise but for we increase the measure of punishment that he could have anticipated under the binding precedent at the time he committed his offense i'd like to focus in what is this decision rogers for says tennessee two thousand and one u s supreme court say about i expose facto claims related to sentencing decisions in the guidelines which is rogers vs tennessee say about guideline but i thought it defeated this argument i was asking in a gentle way you want of more aggressive way i would say it goes nowhere give me your choice obviously it is  foothold in the state of tennessee that had actually otherwise become what has known as an outdated relic all other jurisdictions had a ball if such a rule and in broad brush tennessee with the tennessee supreme court did was it abolished that rule and in that case the supreme court said that there was not a due process violation because it was not unexpected and indefensible for the tennessee supreme court to have come to that conclusion and also it was about in that case the evolution of the common law in this case we have a situation which is much more like marks which is also an application of and it marks the six circumstances almost identical to the circumstances here  h it was one scene had held that the terms used in the th clause of the guidelines or the farm for a criminal act apply to reckless conduct it would be a slightly different harder slightly harder argument to make i was actually the hypothetical i thought a due process violation of mean what goes up can go down and you know at the time of sentencing you they do the best they can so it sounds to me like your question is is if if if for we be were mandated or required by just a fair interpretation of it well that's exactly right let's say it's a fair interpretation of was seen and in fact for mr osprey's perspective for the due process argument your decision could have been entirely correct that doesn't mean that it wasn't unforeseeable with respect or indeed in reference to the binding precedent that existed at that time given the courts of appeals are divided fifty three on this exact issue at the time that decided was that a reckless offense especially one that encompasses reckless driving did not qualify under the th clause the fact that a couple of circuits before he committed his offense had decided in fact in both cases they had not specifically considered the statute issue in that case the fact that two circuits had started to move toward the direction of whole deciding that in light of they would change their precedent doesn't law that's his expectation and will say you're right he could not a for suing for scene either for we or the us supreme court decision down the road what happens is it's still who cares at the time of sentencing the rug was pulled out from under him in terms of reasonable expectations so he has to be sentenced under the falls is that your position my position is if the chain of the law later is clarified i'll even call it dramatically clarified to suggest it was in the forseeable you would still say there was an expectations problem and you look at this snapshot at the time he was sentenced as opposed to paying attention to the way the world unfolded well i would look at the snapshot at the time  committed the offense and that saying well that's exactly the task of the due process task that got that got applied in in marks and i would like to talk to about that for just a moment because in mark's the circumstances were these in one thousand nine hundred and sixty six the supreme court narrowly construed a term that could have many different interpretations but it narrowly construed that term and then it was the law of the land but it was also uncertain there was all kinds of litigation case were coming up to the supreme court the term and it was in that up setting of the established narrowing construction there the court said and obviously the supreme court thought it was right when it expanded the interpretation so it was correct when it did that it said that that correcting and expanding interpretation could not be applied retroactively to people who committed their friends before it happened that's that to me is the most relevant decision of the supreme court that applies in this case because it's about narrowed construct construction room i mean he pled guilty and in my remembering that correct mr prosecutor yes he pled guilty but is that is that baked into the argument here that at the time of plea he had an expectation about though i would say that it actually is really measured at the time of the offense it was actually made worse by the fact that when he pled the we had not been decided but you were nervous when i asked if you weren't sure which way i was going with this but we have this case called bradley which i also wrote which says at the time of the plea that's what you're giving up you're giving up all kinds of things you don't know what the jury's going to do or not do and you don't know how the law will evolve and bradley says that's kind of a tough  situation everybody's giving up things the government's giving up the law could evolve in ways that help them my answer to that would be that that particular inquiry has not been the way that the courts of analyze these due process questions in the context of the ex post facto principles embodied in due process so when we're talking about whether our change in the law and in particular when a narrow explicitly narrowed construction of a term by the way that the supreme court itself is called elastic so it could go out it could come in and that when when when the same court changes the law of the land then the question becomes what was foreseeable in reference to the binding before that affects the due process equation well beccles was talking about a different due process in korea and in fact at the very end of the opinion the court was out of its way to say that the inquiry invectives is entirely different from the inquiry when you're talking about ex post facto and piu is really the situation that deals with a change and the question whether the measure of punishment has been increased in a way that was unanticipated and even though mr osborne's argument is that borden did not complete the analysis wharton didn't suggest that there was no such thing as a due process problem in the advisory guideline context and also no other cases so i would say that  is the most analogous ex post facto case from which we can say that that is not the answer to the beccles does not tell us that there is no such thing in fact it says the opposite because it says that inquiries are different made there that there was a due process violation there and i would just like to say and i didn't get a chance to respond in writing but burris should be unpersuasive here and the reason is for one of the reasons that mr osprey puts in his brief  takes the reasons why this supreme court decision of south carolina was an it was unexpected indefensible takes those reasons and come flavors them into the actual test and marks being an application of buoy tells us that all five of those things do not have to be present in order for a new interpretation to be an forseeable this is especially true we're talking about an expansion of a previously narrow construction that upsets the settled law that had been in place at the conviction for reckless aggravated assault qualifies as a crime of violence under the guise of contrary to oscar's contention neither the ex post facto clause nor the due process clause provide him a basis on which he can challenge the application of are we scope of advisory guidelines now i knowledge that there's been a lot of discussion about putin pew was a case that involved the guidelines it involved ex post facto and i think there's a sort of natural reaction to say well pew says ex post facto applies to the guidelines but then we also have and we have to read those two decisions together in the supreme court actually tells us how you harmonize them it says you have to look at the actual constitutional inquiry involved the guidelines implicate some constitutional concerns but they don't implicate every constitutional concern just to be focused on what is the actual constitutional concern raised by the particular challenge in pew under the ex post facto because the inquiry that had the court the court had  supreme court could not have been more explicit that the guidelines do not implicate that concern of fair warning and nodes in the reason for that is because in an environment system no depending o the government has an expectation that if in is going to receive a sentence within the advisory guidelines range but you remind me i don't remember the facts of pew what was the setting in what pew involve the situation where the commission itself had amended the guidelines and so the the newer guideline was a fraud guideline clearly provided a higher offense level for the very same conduct there was a later version of the guidelines that amendment could apply in the issue was for because normally when a person the sentence you applied version guidelines in effect on the date of sentencing and the problem was their version of the collins in effect on the date of mr pugh's conduct heavy drastically lower base offense level just dictated by the guidelines because the guidelines have been amended but i mean that was also an and court decisions and the questions whether that's change or on and on about what that means is that the difference in the two settings not the doctrine the settings i think it is part of the it is the difference because of the doctrine and what i mean by that is legislators the commission they have the authority to amend laws change guidelines the court does not i see so when guidelines a law even if it's not mandatory well it's like a law it's similar to a law it's a thing that this court even if this court doesn't like a guideline doesn't have power to change the godly this court is simply interpreted guidelines so when this court interpreted the plain language of the word use of force in four we won one when it was engaging its analysis and where we it was not changing because it was saying what that guy mind had always meant that's the theory of session for interpretation that the supreme court says we must use if you look at it  take it it is a metric in other words you have interpretations that like absolutely i quote retroactively as well as interpretations that archon yes and that's what i mean i think it's helpful if you look at what the supreme court has said about this kind of issue  be difficult to predict the precise application of a general rule until it has been distilled in the crucible of litigation and those are the the reasons why courts are hesitate to say what that's rivers of the roadway incorporated said i our brief and that's the reason michael that's also not a criminal case is not a criminal or a civil case it's not a criminal case but the quote there was talking about what is going on in statutory interpretation and what is going on is courts are saying what the statute has always meant they're not changing the statute they don't have authority to do that and that's why the the concerns about in the ex post facto concerns that apply under the ex post facto cos the legislatures are not incorporated just for jot into the due process clause i think you did at this earlier writers be tennessee judge saying that's expressly with the supreme court said is look this due process concern we have about retroactive application as usual citizens it is not the exact same how whether you know it was in applies to other contacts there may be fifty three split about that but there's a ninety unanimous view among all the circuits that was seen raises serious questions about whether prior precedent saying that recklessness doesn't count should be overturned you know every circuit even the three circuits that have refused to to do with the six circuit is diet have all recognized look buzzin raises very serious questions to look at the most recent decision the th circuit's decision aside they said look we was in barry seems to just we should overrule our precedent but we're not going to have a case that talks about this type of setting where this kind of thing was forecast so it's a criminal setting and the point was forecast i don't care whether change the guidelines or interpretations of guidelines or for that matter the protections of criminal statutes you have a case that deals with this kind of situation we have am aware of on the other way there's also new cases out there that i'm aware of there ever say a judicial interpretation of an advisory guideline is subject to a due process challenge it would be hard to reach that conclusion to look at the underlying constitutional inquiry and vehicle so that when your constitutional inquiry is about whether something provides notice the guidelines simply do not implicate that constitutional inquiry they do implicate a constitutional  that is focused on whether there is an increased risk of punishment which is why the ex post facto clause applies to the commission changes to the guidelines but here we're dealing with that due process notice concern so our  position just to clarify is that the oil argument here about you know applying for we of violence due process that has no basis in the due process to concern that enemy the due process cause are not implicated by judicial decisions interpret ing advisory guidelines even if they were however we think applying for we've in this case is completely consistent with you process for all the reasons the th circuit recently said and for we've been talking about earlier with this whole notion of force the ability i mean at the time that mr i was very committed his offense was even with the law and what was seen was interpreted was the very plain language of the guy who weaves change of the circuits precedent was based on the plain language of the statute it wasn't some sort of unforeseeable or completely unreasonable decision it was it i understand that the sense of are we would have liked this court not to reach that conclusion but it certainly was a foreseeable conclusion it wasn't unexpected it was an indefensible with regard to law that existed before unless any of the questions about this issue on certainly happy to address the other issue the defendant has raised we think is adequately addressed in our brief i would point out the issue is can only possibly be true to plain error about  tennessee reckless aggravated assault possibly not counting as a violent crime of violence simply because the deadly weapon used can be a motor vehicle but we think this court's case law squarely precludes that there are numerous decisions from this  t that has had that reckless aggravated assault an intentional result involving a deadly weapon counts has in home and the use of force the only basis they have for their argument is this line of eight circuit decisions that are based on one decision that was based on the game and it used to get a residual clause supreme court case that has now been abrogated to interpret the use of force clause in the guidelines and the underpinnings of that case and drawing a distinction in pulling out making a section between reckless offenses that can be committed by driving vs other reckless offenses makes no sense in light of subsequent developments in the law so we would ask this court not to adopt the strange  and less certainly other questions we asked the court to affirm mr i was very sentence in this case room thank you i just want to make a couple points the st is that retroactivity is a distinct question from interpretation it may well be that interpretation is correct and the only interpretation and it tells us what the law always was the barriers to apply to redress ability is a different question from whether the interpretation was wrong or right so when it disadvantages this new interpretation correct or incorrect reason why it can't be applied retroactive is because of the ex post facto principle involved in the due process clause it is not true that the ex post facto principle because it's embodied in the due process clause doesn't have the same concern as the ex post facto clause itself it may have some different applications depending on the law or the rule or the interpretation in question i would say whether it's common law or a statutory construction that's been narrowed in the next banded so maybe it applies differently in different circumstances of what  think of his distinction between pew and back goals that you know it may not be perfect it may be a gossiper thing but basically pew looks like they're treating a change to the guidelines by the commission is like an agency rule that affects criminal cases or for that matter a statutory man and that's one basket even though the pew basket is pretty close to interpret guidelines on the other basket is the interpretive game and that's that's different and that's just a different line of cases i just my answer to that would still be to go to that part in battles when the court explicitly says that the inquiries are different they're both about fair warning but the inquiries are different because when you're talking about  change the guideline whether it's done by the commission or done by the court or by congress who has also changed guidelines it's still making a change and it's a change in fact was there was no change the question was whether these does this this phrase which is so broad which could have been compassed all kinds of things was unconstitutionally vague here we have a change in that that of course the residual cause very easily could have the exact same change dynamic is this case that is very easy to posit i'm very confident i could find a it yeah well actually there's an interesting passage in billy that talks about the difference between due process problem with a vague law and the process of the problem with applying a changed interpretation and in buoy it actually says that when you have a vague law someone actually could be as a factual matter more on notice that it encompasses their conduct because it could be anything whereas when you're talking about a change law that has been previously narrowly construed and then later expanded you're in a different world and so i would say that that's how the inquiries are different that when you're talking about a change a particular change where there has been a narrowing construction  you are looking at something a lot more like the ex post facto evaluation in p two it's a very hard thing for mr austrian to get his mind around the idea that an ex post facto analysis with respect to the advisory guidelines is not is somehow is completely different from the due process analysis when we're talking about the ex post facto principle embodied in the due process analysis when both of which are about fair warning so his position