if i could i would like to reserve three minutes for an exception to the johnson supreme court battles noted that the due process concerns that existed in the age of the mandatory guidelines no longer did as a result of booker that mandatory guidelines are subject to the same constitutional scrutiny as congressional statutes you know the last two cases have had a lot of back and forth on the issue of whether johnson applies to that essentially when the government doesn't raise it one could argue that if the defendant is sort of walled into thinking that they're not enforcing it perhaps because they believe that the carve out s of simply applying the terms in the will for itself which the court is is certainly capable of doing without reason for me either side because it as it turns out there will be for carve out relates directly to the merits offenses probably would have qualified under both so i don't the courts would need to make that analysis in fact my memory of the producers report is that the sentencing hearing is if you know this is simply wasn't done and it was understood by both parties that the law at the time in this case a situation where the judge went above the mandatory minimum even if you feel you need to try to find says fixing the minimum because the judge specifically remarked that he felt himsel judge grills to deport upwards from mr historied maximum opposed by congress and just like under the mandatory guidelines or sheen in some small set of circumstances perhaps five percent cases i don't have the exact statistics i'm sure the court has access court mark levin on behalf of the united states in our view defendants twenty two fifty five motion is barred by the waiver of collateral rights and let me walk through the steps about why  twenty four c claim pursuant to the me agreement superseding information was filed and he was charged in count one with bank robbery which has a twenty year statutory maximum and a nine twenty  c charge that had a significant effect because in the me agreement the parties agreed that the defendant was a career bender and under section four b one point one  fence level for a career of fender is tied to the statutory max so for a statutory maximum twenty which we had in this case the offense level was that thirty two had it b for bank robbery the statutory maximum or the offense level would have been thirty four so we had a difference in a guideline range in this case two hundred ten two to sixty two months return for the concessions that the government had me the defendant agreed to waive any challenge to his guilty plea or any aspect of his conviction you know our view the plain language bars horities in paragraph three of the agreement paragraph three in turn provided that the parties agreed that the defendant was a career bender  mirrors some of the arguments in the first two cases there is an additional step this court would take and i pointed to two languages johnson self and to language and battles to support that in johnson itself the supreme court i think we have a provision like this i think the understanding is you know is that it would be a rule of law that would allow that that not only has been has been deemed in the defendant's favor  but you know by me being incorrect record by the supreme court or the first circuit allows him to raise it on collateral view it's not a provision that allows what the defendant is essentially doing here which is to appeal and to bring collateral challenges shall not apply to appeals or challenges based on principle in first circular supreme court cases decided after the date of disagreement with her held by the first circuit supreme court to have retroactive depending on the level of generality that a defendant could identify the legal principle fact of the render people weavers and collateral way first of this nature of this nature is to a lot of work and an argument involuntary you've got you've got to meet that issue head on in the opening briefs and otherwise that argument's weight in this case we actually have that that particular butterworth on the seventh circuit as a consequence he doesn't have to be made retroactive by the supreme court if that's right then the whole thing just hinges on whether the johnson to rule about vagueness would apply to the mandatory that was not true under the advisory guidelines and it's also true that under the aca and any other mandatory minimum sentence there was some discretion to go below so why does the existence will not apply the rule or the rules are held to be retroactive by the supreme court or the first circuit you know has already been held retroactive and so in fact this court way now briefly on the issue of nine twenty four c and whether the guilty plea foreclosed any and all challenges to the propriety of that particular charge the statute itself would not have the power to bring the defendant into court were in fact stores that are unconstitutional break the statute itself under the circumstances would be