oh yea or yea or nay all persons having any manner or form of business before the honorable united states court of appeals for the th circuit armand's to give their attention for the court is now sitting god save the united states and this honorable court johnson in our view in you right or rule announced in johnson is not limited to only the actors residual claude's rather as later cases make clear the right applies to other residual down into the pending three to four questions i'm using a four question analysis though there is overlap st what is the right being asserted nd when what is the rights being asserted put another way what is the scope of their rights once that question is answered the answer should the remaining questions fall into place in our view the scope of the right or the mandatory receipt of this penalty then it is unconstitutionally to a basically a residual clause that is within the scope of johnson has three requirements the clause must require application of the categor approach to a traditionally determined ordinary case the clause must rip require application of an ill defined threshold of risk to that ordinary case and  application of that clause must fix a mandatory recidivist penalty we know that the mandatory career offender residual clause at issue in this case meets all three of those requirements for two reasons st courts including this court have recognized the nearly identical language of the two provisions and have interpreted them interchangeably including applying the same categor so unsure because the clear offender residual clause requires both an ordinary case analysis and an ill defined risk threshold and it resulted in a mandatory recidivist sentencing range and has understand your question i see two parts to it let me take the nd part st which is the supreme court's denial to share aren't but that is of no use will significance the supreme court has made clear time and time so you can you can continue well with regard to that point your honor i would point to the example of terrorists versus united states and then after so let me turn to the st part of your concern which is the status of brown in our view brown is not binding on this court and that the government agree with you the brown has been eroded by these later supreme court cases what do we do about the nd tolling judge mots this court has said what we have here with respect to the brown panel's analytical frame or for deciding the question of whether johnson applies to the mandatory guidelines the parties never brief that issue it simply was never challenge to and then for all they really are scuse me that's quite right they didn't brief that it's there in the opinion and it looks for all the world like if you look at the st couple of lines of the opinion that it so i'm not sure that solves your problem but the nd holding well as we've all used in a reply brief and particular the analytical frame or that the court and floyd in brown conflicts with supreme court analysis and that might be right too but that that certainly is something if it is a hoping that with this court this panel could not conclude right i with respect to that part of the holding because it's not what the supreme court says is the correct analysis you know maybe you can spin that out pretty show me the parallel with the drawing for the other  mean the assumption that that is a new right it's recognized only when the supreme court specifically is your reliance on another one of our cases to say that we can assume that this is not a whole understand why you think that nd holding is wrong what i don't understand is how you what your argument is that we can ignore it or reverse it so if you could spin that out for me a little bit well is it because it was unchallenged and on test it is why i do what i please do you rely on for th norman or the portion of this norman case pad to do if i'm recalling correctly with whether conspiracy to distribute drugs qualifies clear criminal acts residual clause and that is i think that's for the pain like incorrect because here we have exactly the same language interpreted in exactly the same way in a set of guidelines that at the time of mr sentencing were very much mandatory in just the same way that the statutes are mandatory and the supreme court has recognized again and again that the mandatory guidelines were binding and then this court has also collected not quite recently that the mandatory guidelines essentially have the effect of law and that's in council can i ask you one other question what happens to the other individual sentenced under the pre book or guidelines who haven't yet filed two thousand two hundred and fifty five petitions if you if you prevail here they're out of luck because they did not file within one year of johnson now as a practical matter i think that anybody who was forty cases out of the western district of north carolina for this case and then the district of maryland has at least twenty five cases still being held before that court for the resolution of this case and that's exactly why it's important to this court to go ahead and i don't understand where that goes exactly because you are those people are going to be times when you're saying i would look just understand what your what you said to me me there are a lot of cases that have those of us as that fair enough i i can i think i'm not the best i can answer is that and that my office is experience and that of the offices in the other districts within the circuit to our knowledge every every person every defendant who is still incarcerated at the time that johnson came imitation when congress enacted it was to encourage diligence and that's it's what congress is choice to draft the statute of limitations in s three the way that it did and if the result of that is that it means that the defendants need to file perhaps sentences could end up having expired so you know this maybe in the end this is a problem that congress needs to address but i think the courts have to accept that choice of congress and understand the court's concern i mean for example if a defendant tried to raise the johnson claim in say a th amendment case that is so clearly beyond outside the statute of limitations has nothing to do with the subject matter of johnson that that's a very easy case to dispose of but this i mean this tension limitations is a  which by the way is an affirmative defense that the government can raise its eve has made that claim and very squarely within  realm of i think what the statue of limitations envisions and there is clearly in the realm of jonson itself i think it's i submission in this case is grounds to holdings were collected two thousand and seven and their corrupt today from was collected in holdings of the supreme court has not newly recognized or right and if the underlying question remains open and it was in theory say that somalia and davis have called into question brown stream of johnson and because we think everything apart to a brown about what the word recognize means remains binding we would still prevail  and what if we think that the rationale into a is incorrect then i think if the court genuinely thinks that it is writing about a blank slate and that's not what i asked you i asked you if we think that the rationale i would put you on a boat at the point about whether to maya and davis it called into question brown's interpretation of the johnsons right i could be helpful to talk about that for a few moments we don't think either opinion does i think the th circuit and the th circuit are very helpful on this you know brown we think correctly incorporated chart as into its analysis so a light is only new if it hasn't been dictated by prior supreme court precedent and it's not so dictat not all reasonable jurist would agree that it's the th circuit held in blackstone after tomorrow every time one of these residual clauses of eyes is a new context there are in fact reasonable judges who disagreed including at the supreme court and poll in the th circuit case decided after divina that six up made what i thought was a very insightful point which is you know so far the supreme court has been addressing these was a two a clause on direct appeal and of course brown itself recognizes left with the exact same doctrine the landscape of this court confronted in blount which is we have three statutes where taking one of the time in each context areola the supreme court has helped individually that those w want then and now i'm talking about a dem i assumed david all of those cases and when we did was say we didn't wait for the supreme court to make a resolution of the particular statute that was in front of us the un thank court we relied on supreme court precedent dealing with other similar statutes and of course you're on it but brown recognized that was totally permissible the inferential license phrase is a quote from brown so the government's view of the doctrine is that for all cases on direct appeal post sevens the residual cause was void for vagueness and non twenty four c three d but since did not reopen the twenty to fifty five at three gateway davis was necessary for that and so if you were petitioner on collateral review seeking to make a claim that non twenty four dollars c three d was board for vagueness that it was closed until davis was decided irrespective of sense and six circuits the other side of course the government agrees that  nation of the holding of johnson and yet the supreme court has not acted and we think that's because justice ginsburg and so tomorrow are absolutely correct when they say the question is open and if the question  example the nd circuit in the recent new year's case you know if this recall were to do that then the twenty dollars to fifty five dollars that three day would be open for a year and the consequence of adopting my friend's rule is that it is slam shut forever even if the supreme court  petitions i do want to address how my friend on the other side opened her argument which is by saying that the key question in this case is the scope of the right being asserted up that's a fundamental difference between the government and the defendant here and respectfully i think that's the same mistake of textual interpretation that the th circuit made it across and it has been rejected by seven other circuits under the text of twenty to thirty five to three the one year deadline runs from the date on which the right asserted was initially recognized the recognition of the values as kind of a condition precedent and i think what my friend is doing and what cross is doing is interpreted got text as though it said that the one year period  from the date on which the defendant asserts that iraq has been recognized and that's simply not what it says we think the rd circuit got this exactly right including that class is twenty dollars to fifty five dollars that's three into a pleading rule devoid of any substantive connection to gateway is open for the aca it is open for sixteen b and it is open for non twenty four dollars say because each of those cases one of the time grappled with this issue directly it is not the case that johnson opened the gate for always it will cause invalid but for the advisory guidelines they're not what are the mandatory guidelines more like the advisory guidelines or more like statutes and neither tomato or davis did anything to move the needle on that open question and we think brown got that exact line so we just thank the supreme court has chosen to do this one of the time and of course the questions continue to advise we started our grief the nd circuit's opinion and walk ins where it addressed one of these clauses working in the bells reform act and concluded that the rules is right has to be recognized and it has to be retroactive and i think it is very helpful to wind up welsh which is the supreme court's johnson's retroactivity decision up with booker and morris morse's this court's decision saying that book was not about to active and the reason for that is that of course welch is main doc final hook for saying that the johnson right was retroactive is that a statutory mandatory sentence under the aca alter content published in our submission is that one cause of one's online does not either there are also been questions about whether the reasoning the fact is really supports the defendant's position here supports the government we think it supports the government justice thomas writing for which calculation and this court said no because under the mandatory guidelines the maximum sentence will never succeed the maximum provided by statute that's at nine hundred and forty nine s nd page one mon you just absolutely do not your honor the reason that i was discussing welton but that was not to go to the merits but to go to whether or not there's an open question there's some harmonic resonance between those two queries i grant you but they're different and my point is simply one winds up the various lines of precedents that bear on this question reasonable jurist absolutely can disagree and under part two i have brown that means the supreme court does not make it nice to live should i say i take the point about conflating quick st as to what the government has said about too high a level of generality in this case that is not an issue all the courts have recognized that the arms the  the mandatory guidelines residual clause and the act of residual clause use exactly the same language and exactly the same analysis secondly as to what the government has said in terms of the retroactivity there is a big distinction between welsh and booker booker or as the government said we're talking about the guidelines generally but the reason that booker was not retroactive offender guidelines very clearly set a defines a class of persons just like the act a residual clause and welch's said that the accuracy to applause is retroactive because it's substantive and that's exactly the same thing here as you just saw us go as mr young was very kind enough to let me know that he would be raising it and the issue about i defendant was required to be advised about the guideline range even if it wasn't specifically determined so i think with those points i will district court thank you council we very much appreciate your arguments you really boosted up really an excellent job and i wrote fine briefs and i'm sorry we don't have the opportunity convention of your hands but i think this one about as well as it could go all things considered thank you very much so i guess our clerk will now adjourn a court is that right i'll be together take a brief break before we start to