review the court in pew found that the ex post facto violation in that case one of the fine and sentenced under the version of the sentencing guidelines promulgated after he committed his crimes and the newer guidelines a higher a political sentencing range than the version in place at the time of the offense the violation in pew is exactly the same violation that happened to conrad into resolve this issue  maintain that the court must determine if the error in sentencing kyra under the two thousand and nine guidelines instead of the two thousand and one guidelines was procedural or substantive and in this case we argue that it was the substantive error and should be applied retroactively the decision impute does not speak directly to retroactivity if you suggest that one point that the failure to calculate the correct sentencing guideline range constitutes procedural error however the majority in that case concludes its opinion with the statement that the ex post facto clause forbids the government to enhance the measure of punishment by altering the substance of formula used to calculate the political guideline range the court went on to state that this particular sensing error was precisely what the amended guidelines did in this case doing so it created a significant risk of a higher sense for conrad and offended one of the principal interest of the ex post facto clause that being a fundamental justice in order to decide the right or activity of the ex post facto violation in this case we believe the court needs to reconcile this conflict within pew whether it is a substantive or procedural error and i think that there is evidence in queue to suggest that this is a substantive violation it speaks to the subject of nature of the ex post facto violation when it states that the law need to increase the maximum sentence for which a defendant is eligible in order to violate the ex post facto clause the court also says that the fact that the sentencing authority exercised some measure of discretion will not defeat an ex post facto claim must require the change in the guidelines over the relevant time period for mr conrad what if i understand this correctly involved the the amendments that added higher levels for just phenomenally high numbers of child pornography images correct yes were there any other relevant changes it was a it was also a two point increase in the base offense level so just across just about ok yes so it went from ok but the biggest impact though was this number of images of the five level increase your honor and that was given based on number of images that didn't exist in the two thousand and one guideline yeah the ceiling was lower than ok yes in page nine of your brief you're talking about since how high an increase this would have been over the original earlier guideline range you said had the district court decided to deviate upward of six years from the guideline range of ninety seven two hundred twenty one months it would have had them a distinct and extensive findings to legally support such a variance yes and yes my question is whether it would have been sufficient for the district judge to have said in my view and in the sense in commissions view the older guidelines understated the seriousness of this offense conduct for the same reasons that led the sense in commission to raise the guidelines for these circumstances i think that's a fair argument that it be enough right i think i think that would be enough i think in this particular sense with what your honor just said yet so good so if that's enough why is this anything other than a procedural error because i think it did i think and i thought a lot about this when i was trying to figure out how to say this but b hawkins judge rovner gave it a dissenting opinion and i think she said it i think she said it best at least the best way i can see i can say it any better when she said it seems to me that she was reference to procedural error refers to errors made in the procedure required in post of her sentencing that is the first procedural step and the standings sentencings court must take is to correctly calculate the proper guideline range she further went on to say that this does not mean that the subsequent substantive error which in this case  point is that and this is the hardest i've had a hard time trying to understand procedure with substance but the that the substance is the amount of years that he was facing the procedure is to go in for at the first time you have to set the sensing guideline range in this particular case it's a significant violation it's a constitutional violation an increase and it's substantially in increased the range of penalty i think we talked about procedure this is the process you have to go through but in the end what you used to complete the procedure is yours it's yours of sentence and i think that's the substance that i'm discussing so i think i understand your point but i but it sounds to me like you're saying is the error however it was caught categorized was harmful yes and in that sense it's substantive just because he got the higher sentence under the the later guidelines i'm not sure that really answers the underlying question about how how we approach this and frankly i'm not sure the supreme court is completely answer the question other than to say i mean they they have said the calculation of guidelines as a matter of procedure and i think you're right i would like to say that pew does go on to discuss the significance of the guidelines not that there's some kind of weaker soft outline for sentencing but they actually have real weight they use the word anchor anchors the sense in process and it's the loadstone and i think and  and everything that goes from that is anchored in that initial number that's took that reference to beat of a occurring to the psychological literature about decision making and to go shooting and so on but but in this kind of a situation  they are advisory the judges intitled to take advice from old guidelines obsolete guidelines new guidelines draft guidelines critiques of the guidelines right yes so and i know that because they are advisory i know that i can't stand up here and say ninety nine one hundred percent that the court could have gone over the hundred fifty one months but i'm saying in this case how this guideline range was determined in its case was a constitutional violation to an extreme level that he was actually prejudiced by and it did cause it because a much higher sentence that he possibly would've been facing but i can't exclude in the basic fence level from twenty one to twenty nine and a five level increase in the number of images so it's a ten level increase rather than a seven level increase its to make sure the records clear if if congress raised the statutory maximum sentence for some crime would that be considered a procedural change or a substantive change i'm not sure i understand your question your honor you're asking if congress  she's that change leaving out any application is a procedural i think i would argue it's procedural ok that strikes me as very odd well that's like saying well if you create a new crime well it's procedure no not necessarily wrong or if congress raises the statutory marks from a crime after the defendant has been charged with that crime which is what i'm trying to get up and my question t possibility of a higher sentence because the judge may look at the new guidelines say is a higher guideline why isn't it the same as with raising the statutory match because it doesn't require the judge to to do why is that a difference why does that bear on procedure versus substance whether it's discretionary and not the judge you know going to say that every discretionary decision the judge makes is procedural no i'm not saying that you are but your honour's put seems to be placing more weight on the guidelines raising the guidelines ceiling is procedural doesn't sound like a difference between procedure and substance procedure might be how many how many people do you need to maximum is that a step change in the statutory maximum doesn't require the judge to impose a heavier sentence it's optional with him why is that any different from more strictly i think i fall back on my point which i think george hamilton was bringing out in his questioning of the pilot which is that there are a lot of things that are charged to consider the fact into passing sentence the fact that the guidelines  is that different in some fundamental sense from an increase in the guidelines for your honor it it goes to the nature of the role of the guidelines and the role of the grant of discretion if you raise a statutory maximum you increase the sentencing discretion of the judge why is that different why is that somehow you call substance you call doing the same thing with the guidelines procedure because changing the guidelines doesn't affect the discretion of the judge the judge can say your sentence anywhere within that statute or maximum that still sounds like you're arguing with  which frankly i have some sympathy for but they made their decision let me try to get at this from a slightly different angle was to get or suppose at the time the crime is committed the statutory maximum is ten years  later raised to twenty years before the defendant is sentenced and the judge imposes a sentence of five years is there any ex post facto violation i think the answer is yes you're on there would be there is know any if if the sentence is way below both maximums i guess it depends if you and frankly your honor i haven't parse this out if it depends on if you're looking at it from the perspective of whether the defendant whether the definition of a substantive change is such that it means that the defendant simply faced the potential of a higher sentence or sentence that couldn't otherwise it no i guess you're right you're on to the answer is no it couldn't because he is sentenced that was imposed was not one that couldn't have been imposed before so the answer is no it would not be a substitute change or apologize and think about that a little more so ok you're on the there for the question you just said there's no difference between raising the statutory maximum and altering the guidelines in either case the judge is left with discretion i don't think it is your honor i don't think that judge's discretion has been changed by virtue of the guidelines range grosset is because a judge has to explain why he is or is not applying a particular guard line the judge can presume the guidelines reasonable when he passes or she passes a sentence and he can't presume that a statutory maximum is the sentence he has to give he has to have a reason for his  either but there's a statutory maximum where there is a guideline ceiling he has to explain his case i don't see how explain his sentence i don't see how one of them is procedural and the other is substantive it it i can't explain your honor other than to go back to the point that it doesn't mean that the defendant when you don't understand what chris seizure is just think of what procedural error on your honor it still has to be a watershed one and this wasn't that's a separate question that's the question whether these you know watershed or it's silly term is limited to you know substantive changes next case for argument is