that mr bonior was charged under statute that the supreme court held was unconstitutional eight years ago since then the government has accepted that reality and left it to congress to fix in fact at the beginning of the case the government raised the issue that there was no hope statutorily authorized sentence and i asked the court to address it and the district courts asked is that my job or is that congress's job the government replied it will be congress's job to ultimately ultimately determine what the appropriate seem range is your honour's today the government is asking the court to determine what the appropriate senate seen range is for st degree murder now this would not only violate separation of powers and directly interfere with pending bipartisan legislation in congress it would violate a basic covenant between the government and people and the government says we will not take your liberty or your property unless you've been given notice before the sentence of the a senate range clearly and unambiguously in the statute in the indictment the arraignment and pre sentencing under the rules rule eleven expressly says the court must inform the defendant and determine that the defendant understands any mandatory minimum penalty before the nd a plea i cannot describe how impossible it is to meaningfully participate and for a defense attorney to advise a client whether to cooperate in her plea agreement go to trial and cetera when the senate scene range is plainly unauthorized i think the previous counsel put it best it hearing on april rd in two thousand and fifteen and these words bring exactly true for my predicament  now counsel asked the court what is the statutory statutory minimum as a defense of torn attorney it is my obligation to give that to the client and i'm left here having to advise the clients that the law is not the law the court may have some other procedure that i don't know that may apply or not apply whose guideline range may or may not be a political and that affects every decision i think i don't think that issue resolves due process at all i think it's it's even deeper than due process it's such a fundamental deprivation of the process that it's really this is about separation of powers and the ability to initiate the prosecution of an offense where there is no doctrine what is essentially an equitable power of the court that's telling me or you have the power to fix a statutory gap and and that's a real retroactive application this substance of rule and so the whole issue of the process would not apply because miller had not been so now miller has actually it's clarify the meaning of the statute as pertains to juveniles and so i mean i think scalia also addressed this and appropriately that due process could not have been a concern this was it his can currents i think in miller there's there's no way someone would speculate about a future supreme court one hundred years in the future you know ruling on that issue so that's how we  distinguish all of all of those retroactive cases in this case i mean the government is trying to turn the entire process upside down and so i think it's interesting what what the government is doing it's so it's so completely outside of anything that we have encountered is is defense attorneys and th courts have done for hundreds of years said judge smith addressed a very similar type of analysis that this court has done in a bankruptcy case where he said equity of the statute the ability to difference well d i think i think under seal expresses it better than i could so the those cases which were required like to life imprisonment prior to miller because of that procedural difference it means that it does not quote give rise to a due process problem in the instant case because at the time that in this case of mr bonior mero committed his crime and was prosecuted for that actually you know that in those cases the the defendants at the time they committed their crimes and were a not entirely unanimous agreement by the supreme court about how to apply retroactive constitutional rules under t and just as philly was was if this point be government knows what the laws it's very clear it's been clear for a decade now and and until this case the government is has honored that as honor this ruling there is no the government has a wide open highway to you know proceed the district court to allow the government to replete or however the government would like to proceed again there is a valid constitutional pending indictment for st degree murder  texas state court that we don't have any disagreement over the libby of that and it we believe that it is appropriate for the the te court proceedings so what what is it that this plane to the united states can and should do in your view action which it's very inexplicable that it hasn't been done at the previous panel an interlocutor tory peel basically asked many times you know why why don't you proceed with with this lesser included offens of nd degree murder which until this case the government has accepted that's a proper charge for a juvenile or juvenile murder and in federal courts now government you just do over that's what you want that's correct you are with st degree murder oh her and the right i mean i think they're very well versed with the case at this point and replating it would not be a huge burden or they could do nothing and there's this pending indictment and we could go to trial but you know the government can replace it it's really good that the government's decision to make obviously you know no one is is meantime and those options are there all on the table and this rd option that the government is asking the court is to rewrite the law and essentially the constitution to tell district courts they have this power to not only declare laws unconstitutional but to fix and that would that would cause a complete reversal of severability and it is in much more the same sentence no no your honor you know we would have the opportunity to do our job as defense lawyers we could there's the plea bargaining process there's different guidelines i mean it i understand the district judge has has discretion in applying the different guideline for second degree murder which he did not apply so it's not like we have we haven't gone down that route and more fundamentally what is really at issue here is our client was deprived of to a participant in a being informed so even if somehow he ends up with the same sentence which is totally speculative at this  the knowing involuntary nature of his guilty plea so there is no basis for this court to reverse that what we need to happen is this court would need to find that the statute is unconstitutional and there's no other  transnational gang involved using a machete and a baseball bat this is everything that you would need to qualify for st degree and so our office made the decision to go forward on a st recharge because this is a st degree case supreme court president not subject to either the death penalty or the so you think a few things one second degree has a guideline range that's actually less than st degree so there's that issue there again looking at the facts of the case this is a st degree this is a st degree case but also as we're looking at charging in this case i'm going to transfer the defendant we did look at the supreme court and the th circuit case law in terms of severability and we found that there is a there is a fix to this problem a legal valid constitutional fix that we can move forward and moving through to before i go back to severability to the defendant's claims of due process the united states and the district court has been very clear with the defendant as to the principles of severability that we would apply and that would be going forward and what the penalty range would be going forward with this indictment since two thousand and fifteen since  moved to transfer the defendant to adult status the defendant has known what the penalty would be and in fact he has pled guilty twice and said he understood the penalty range to it is well he may not have agreed to that but he did say that he understood it and that they would challenge the legality if you will at a later date so there's something about his plea that is knowing or involuntary regarding the penalty everything complies with eleven in terms of stating the maximums and just as for example if we had moved forward with nd degree and the penalty was any chunk of years up to and including life and defense counsel would have the same a test and the issue was can the offending portions be severed and they set forward three parts they needed to look at you were supposed to retain the portions that were constitutionally valid capable of functioning independently inconsistent with congress basic objectives  acting the statute and based by severing out the mandatory minimum penalty here for st degree murder the severability analysis needs all three of those requirements here isn't an issue for the federal system can he get content credit that would possibly lessen it parole is only an issue in the state system so he has his sentence of four hundred and sixty months and he might get credit for going time behavior but his in this st degree murder statute exactly but i think that's why i said right now i understand that i guess i'm just looking at this with you without realizing one to be clear on that you're saying i mean because i want to understand no be careful you might get what you ask for kind of thing because here you could end up in prison for a lot where is now under the current sense you will get out i mean i'm saying if you die young but in normal  you would get at yes right now his sentence is four hundred and sixty months if this case were to be reversed and he proceeded on st degree the option would be sent would be any sort of years up to and including life and so he could get a higher sentence depending on how it plays out the trial and various other things ye punishment range would be the same here but i think it's important to note that what we're asking the court to do is or what the district court did do is not just substitute wholesale the punishment for nd degree here i understand that  them here we're in the same statute and so we're trying to look at congressional intent and we're trying to just cut something and so who are like you do when you say accordance with supreme court whatever that because they're all in the same step you make sense so i think it is one way to do it and i think it can make sense but i think it is there is less of a green if you well with this statute if you look at imprisonment for life and you stay within the st degree murder section so it says whoever is guilty of murder in the st degree study shall be punished by death or by imprisonment for life so imprisonment for life is actually the floor in the ceiling right so it's the maximum and the minimum if you stay within source degree and simply excise out the minimum you stay within that statue you exit you excise the minimum necessary to make the statu not correct and i think that that is a when you look at booker booker clearly says you excise the minimum amount necessary to make the statute constitutional and conceptually it is the difference seeing here what we are asking is and what the district court did is simply exercise the mandatory minimum there and when you do that it is in line with miller it allows the district court discretion it still keeps  n play the maximum sentence possible that congress intended for st degree murder and yes there is a little bit of what congress intended to do here in light of miller but that's exactly what  that the supreme court said you can't just substitute in a punishment for one where there wasn't a punishment listed and i think here that this is something completely different because we do have particularly a punishment from congress and we're seeing within those we're not guessing at what they would like it to be agree with the government severability analysis and in determining what the sentence will be the court should be ok if it if it doesn't and it if the court  perms the or agrees with the government's analysis and saying that that's a valid type of interpretation or amendment of the statute the court should also  whatever you say about life when you're likely years old when you get sentence ordered sixty months is far less than live using an ordinary life inspect and see understanding people who die young and they live very long i would just say that we told him that we don't know and we still don't know what the statutory minimum is and whether it possibly turns out that it one extreme end of this it's incredible huge difference and  statutory ranges between st and nd degree murder which has been as you know just determined by congress for two hundred years that there is being altered bit he did not know and we did not know and even if it comes out in the end possibly in some speculative way that that sentence in south with the same he has been deprived of a valuable civil right and that is just how you dress up or i think under seal address that without a penalty is is i think a well established that the statute and the offense are inextricably intertwined you can't separate them one without the other it makes no sense well your honor i would say that his farm was that he was facing what we showed him on the statute was a minimum of life and then we showed him another judge's opinion and we told him we don't know and so he was facing a decision under in a situation where he did not have was not able to make an informed plea and so that it was like a situation of  irects we basically said we don't know what the law is and there's a plea and you know you can take it or not and so he was he was actually realistically afraid and especially because the judge misstated miller it at the hearing by saying that it would be unconstitutional for the judge to sever the juvenile statue i mean it was very confusing and so he realistically believed well that would be a minimum according to the statute like everybody like the houston police the walker county police from the very beginning they all look at the statute and we trust that and we could not make sense of the judge's redlined version and so it appeared to be it appeared to be a mandatory minimum or nots we just couldn't he did not have any opportunity to make an informed plea and to participate in any way meaning in the process and so that's all we're asking is that he he given that that most basic due process civil right to make an informed plea or you know too and basically that that's it your honor it might not sound like it's important at the end of the day if there is some possibility he gets the same sentence or less sentence a lesser sentence or more but i don't i don't think that's that the key issue that you know the th in the th amendment address it's the right in this country to be informed before the government takes your