judge fisher and i are privileged today to have sitting with us for the first time on the court of appeals sitting by this condition judge sanchez and the sanchez as i said to you before we came in i really look forward to sitting with you and hope you come back many many times we will have our first case for today is pollard versus yost number zero eight x forty seven ok let's just hold up for a second that's really less you like the echo is kind of cool sometimes somewhat distracting is whether the so called savings clause of twenty eight u s c section twenty two fifty five a which permits a prisoner resort to the great rip writ of habeas corpus under section twenty two forty one agreement he the career offender status if that applies is what two hundred ninety two months to three hundred thirty some months is that right there was a career range of sentencing your honor and a criminal history category of six that was imposed and what would the range of sentencing had been without career offender status there's a debate in the record mr pollard took the position that it would have been at the level of three the government has said that it would have been at the level of four so whether it be three or four roughly what would the range of sentencing guidelines range of been had we've been under the sense in guy like i believe the government's assertion under category four was between two hundred  lot that's correct you are just so you working backwards isn't that the big problem you have it here is that we don't know if he really he claims that one point i think you're in the briefing that he lost four and a half years we really don't know that do we well we took that statement from the magistrate judges reported recommendation that became the opinion of the lower court that had he not been found liable for a controlled substance offense which served to enhance his conviction that he would in fact been sentenced to a lower sentence and with the government still have done the five k one point one if he wasn't for offenders that is i see no reason why the government would not have done so if they were prepared to enter into an agreement at two thirds of the low end of the a political sentencing guidelines because of his cooperation in a context where it was assumed that he was a career offender why would they not have been willing to give him the same benefit of that doubt in the context where he was in fact not a career offender as demonstrated by what we can and is a subsequent authoritative decision by the united states court of appeals for the six ergot in monson that is that makes it very clear that this prior nineteen eighty three ohio state conviction was not a controlled substance offense it was clearly an offense of possession  it clearly did not require possession and there's no doubt martin as helps you although martin is came out what two three almost four years after he pled yes sure it came out well after he had filed his initial section twenty two fifty five motion and lost in the seventh circuit it did not get a certificate of appeal ability granted by the seven so he did not but that was all without the benefit of a mountain as  with us in that you've done a you've done a fine job for your client and in advancing these arguments both in your brief i'm sure here today but the this record in northern district of illinois why doesn't that are any of the issues that you're trying to raise about twenty to fifty five well we say the question of the if governed by this court's cases  and it's has to be both voluntary and knowing and it must also but if in force not work yes but it isn't there aren't we bond by the decision which was not overturned on appeal in the northern district who in the way that the waiver was in fact the fact of the and isn't that what the district court in this case found the same well i'm not sure that the district court did find that the district they were on there was no jurisdiction the courts i think believe found a lack of jurisdiction because of the inability to demonstrate a perceived inability to demonstrate that the prior section twenty two fifty five motion was inadequate or in affected to test the legality of his pension both the prior determinations with respect to the enforceability of the waiver of collateral review rights and the prior determination about the it's a little bit different and the plane where we have you know that there there is a distinction that's made in the lower court's opinion and in the government's brief between in a sense of the crime and innocence of the sentence and the contention is made that innocence of the crime might support a finding of inadequate and ineffectiveness to allow resort to twenty to forty one whereas sense of the sentence does not we do not if you don't know there's an argument that in a particular case that in effect he's being held responsible for a predi crime that could affect his sentence significantly if you get screw offender status but the thing here is you have to show to go under twenty forty one miscarriage of justice and it seems like that's an awful high hill to climb for this particular case because he was sentenced so significantly under what the guideline range was it's as if he was sentence not in connection with as we see it the in under the sentencing guidelines scheme in order to be a career offender mr pollard had to have been found to have committed two prior controlled substance offenses we now know that one of those prior controlled substance offenses and one nine hundred eighty three conviction was not a controlled substance getting one hundred months below the minimum he otherwise would have qualified for and so he benefited by his plea bargain by his plea agreement how can we say that that's a miscarriage of justice because even under that plea agreement he is being confined for an additional three to four and a half years depending upon where you put his actual criminal history record that's my we don't know that i think we do though that your honor i think we do know that the sentence was enhanced by reason of his career offender status i think we do know that if he were not a career offender the guidelines the a political guidelines would have been while our government says i believe and please don't quote me on the numbers but two hundred thirty five months at the low end we know that the plea agreement would have been a different i see no reason why it should not have been different what interest is there in the government in affording the kinds of two third reduction from the low end of the sentencing guidelines for the cooperation and and the the information that he approached provided if he is a career offender as opposed to if he is not a career offender he he as i said again was this plea agreement was infected with a fundamental misunderstanding of the law ok another quite another problem i have with your argument if you get to it's call it the merits of the argument is that it  a really been a change in the law i mean this no we we decide questions of state law here all the time but we're basically attempting to predict what the supreme court of that particular state usually once  do then our circuit is going to say ohio never changed their interpretation of the statute does the circuit the six circuit change the interpretation of the statute i respectfully don't agree with that assessment of the case i think the question is a federal question the federal question is what constitutes a controlled substance offense and under the gun isn't it under ohio law the question is what what what constitutes a controlled substance offense under ohio law under ohio law there was a statute that said if you possess an elite illegal drug in excess of in bulk cases that judge sanchez referred to relied upon legally i'm in a political labels that the statute about it being a drug trafficker trafficking of offense which the six circuit made clear is not passed for legislative interpretation even under ohio law but the question is whether that statute constitutes a controlled substance offense under federal law and that i don't believe ohio can change that question a federal law that is exclusively a federal law question and i'm saying to this court that we have an authoritative decision by the six circuit that as far as i could tell hasn't been changed or overruled and as far as i can see there's no credible argument that it is not correct even if you're correct on who's to interpret or we're not bound by what the six circuits and you certainly are not bound by the six or could and you certainly could reach a different result but i am saying that that different result is theoretical and not realistic and in a world of justice and where the standard is miscarriage of justice the theoretical and the possibility shouldn't go for governor what is real here is that mr pollard was sentenced for a controlled substance offense that he did not commit emitted admittedly under an agreement but the agreement calculus would have been wholly changed if the mountain as decision had been on the books my governor my problem is that you claim that the first time he became aware that he had that issue was when i think reading the bailey decision and reading some subsequent supreme court authority sub's subsequent the bailee the war was unclear about what the meaning of the word use in that firearm statu was and one case i read i believe was loosely that addresses the ability for collateral relief in light of the bailey decision said that the federal reporters w that firearm statute bailey took it to the supreme court and the supreme court said no it requires active employment not simply mere possession or not simply having the gun in the zone where it might be available in the course transaction we're saying bill didn't do that either so on the question of miscarriage of justice i don't think that you know whether someone could have you're going to get into a very difficult issue of who really could have raised who really should have raised it the point was mr mr pollard said that he was not a career offender the record is completely unclear here as to whether that was based on some understanding about what constitutes a career  past his a controlled substance offense or whether it was for some other reason that he simply disagreed that he was not a career offender but he was not in a position to adequately and reasonably raise the argument in the absence of the successor decision and certainly was not in the same position that he would have been in had the six circuit decision existed and i doubt very much had it existed that the government would plea bargain piven sentencing time to the sentencing judge before whom they stood that he is a cook where six criminal offender because of that enhancement therein lies the miscarriage of justice and we are not asking to stretch the inadequate or in effect of that language inadequate or in effect to test the legality of this detention what's let's assume we did go under twenty two forty one let's assume that we say ok that's a good claim and that this rises to the level of a miscarriage of justice justice even though it applies to a sentencing what's the remedy that you're asking is for a reason a what do you what's the old what's mr pollard ultimately looking for well at this stage your honor there's been at the nile of the right to proceed under twenty two forty one on jurisdiction but let's say let's say you get all that in the end what's he looking for practically this practice plea he's looking for what is the obvious solution here which is to find out what the career with what the guideline would have been your honor in the absence of it but in the end it isn't what you're asking for that to go back for re sentencing before i guess we can send it back to the northern district of illinois but what do we do what remedy if you've got everything your you want in terms of the legal aspects of this practically what happens to mr pollock we cited a case called made back firth for circuit case it's not  assumption that that the defendant had committed a crime of violence was wrong it was subsequently shown to be wrong so twenty to fifty five review lay and it didn't matter that it wasn't in think maybe back in the concluding paragraph addressed that question and recognise there was some ambiguity and in this context that said we're remanding with instructions in the district court in discretion ins can order the government and the defendant to try to enter into a new agreeing agreement and in the absence of a new agreement could allow the government to proceed on an indictment  but the point is in the context of a plea agreement this court's authority recognizes that there is a miscarriage of justice exception if there is a miscarriage of justice the collateral the waiver of collateral review rights is ineffective and some remedy would lie if a serious mistake was made in saying someone committed of an offense that they by subsequent law clearly did not commit and in the end the remedy it may be a remedy that has to be discussed in negotiations and it may be a remedy that cannot be discussed in the go shit but i think that the government would have an interest in not incarcerating somebody on the basis that they committed a prior controlled substance offense and they did not for an extended period of time three years or four and a half years whatever it is and we would cite in our case in our brief a case the says it's not a trifling thing we're talking about fundamental concepts of liberty it would seem to me that the government would have an interest in working this out and twenty two forty one is the only resort that he has at this point in order to try to work that out and get it right that that there's an it's a distinction without a difference whether the miscarriage of justice relates to the elements of the crime of conviction or the elements of the offense they serve to enhance the sentencing makes no difference the underlying interest to be protected is the interest in not unlawfully reach straining liberty when i subsequent decision an authoritative decision says that liberty is being unlawfully restrained and we do make an analogous argument in our brief to the context of when is a procedural default excused and we do reference that in the capital sentencing context the supreme court has said that a miscarriage of justice in terms of whether a sentencing factor would serve two to enhance a sentence from life is actually maybe a good corroboree case but isn't this case arguably not procedural but it's actually substantive that you if career offender status is not a there's a very significant difference in terms of the sentencing range under this these facts that's correct but there's that there are several points to be made with regard to that i mean i'll start with innocence of sentence versus and instance of your crime of conviction but keep in mind that we still have out there the nature of the plea agreement in this case it's the government's position and i'll drop back for one second to say that this is how we would distinguish sun bear and gilbert both of which have been vacated and are going to be heard on bond at the government's request there is a fundamental difference between innocence of sentence and it isn't of the connection a conviction is found when the government proves beyond a reasonable doubt to a that every element of the offense has been met sentencing is different it's different in that it's by the preponderance of the evidence there's no jury the standard is lower and there is a myriad things that it just are judge considers when sensing somebody that are not found beyond beyond reasonable doubt that but the response of that could be that look a consequence of committing a crime is a loss of freedom and less of a sentence is much greater for a pre mel no longer is considered to be a predicate offense you've lost the possibility of getting back a significant chunk of the freedom that you gave up had you had the world been different when at least the have more than is been up perhaps but when the time of sentencing occurred in this case in zero two or three let me start with the beginning of your statement which is that there is some sort of grave injustice that might occur because the sentences are guidance i just said t a consequence of committing a crime is that you can lose your freedom right in the clearly there is a loss of freedom but then that's what happens whether it's a crime or a sentence that's true but under the sentencing provisions if it's within the statutory maximum and under book or the set sentencing judge could have sentenced anywhere so long within that range than that you know mandatory minimum of the maximum so long as it's reasonable which is a very broad abuse of discretion review under g when you have that standard that overlays it that are you the last of editions amount of time of freedom is not significant enough to give rise to manifest injustice to allow jurisdiction to twenty to forty one if they're not and please understand that there are circumstances in which the government believes that there could be such an injustice for example under the our career criminal act because that changes the mandatory minimums a chit it bumps up your man your minimum it bumps up your maximum but if the sentence is still within the statutory maximum as is the case here it can't give rise to just the air is not brave enough to give rise to jurisdiction or twenty to forty one if there was not career offender here status the government still would have one c it was binding on the parties and it was binding on the district court once it it accepted and that agreement was a negotiated agreement between the parties there was given take the government and the the defendant agreed of what his sentence would be and agreed about how to come about that it is true that the government agreed to it to their agreed action from the top of the range but if the government was going to get the sense that it agreed to or that it wanted that two thirds would have been different and that longer matter and in this case i think that's obviously true because the amount of reduction that was granted under as a result of the five k a secondary point is to think about what the remedy would be for mr pollard under this circumstance if the court w set aside his plea agreement which the district court tentatively accepted ordered p s r and that accepted at the at the sentencing and so it was thoroughly understood and contemplated by the district court it wasn't as if it just automatically accepted what the government and the defendant came forward with but by the very terms of this plea agreement mr the government has the option of voiding the plea agreement which would mean that he could lose the five k he could lose the stipulated amount of thirty kilograms of p c p he loses three points for acceptance of responsibility in so he's looking at a completely different lay of the land if he goes back to that and again the the guidelines are advisory under booker he faces a minimum of ten years in a maximum of life and he could be reset and theoretically to a much much higher sentence that would qualify as reasonable under god all so i think that when you look at the get complete picture of the plea agreement what it provides it's nature that it's binding under sanchez and under it's bernard i don't have a citation but i can get it for the court if you like it's a two thousand and four case this is the dispositive issue in this case whether or not that agreement is going to be adhered to but his argument specialist you're three it would have been what two ten two something to be perfectly honest i don't know that i'm familiar with a level three argument in this case i appreciate that it may be out there i just don't recall it it would obviously be somewhat lower so in effect what the argument is ok if you start with a low end of two thirty five and do a five k one point one i have a good chance of getting below one hundred ninety four months response of that is i don't know that for sure well in the hades context i think the supreme court has directed us and i think it may be the whip case and i could be wrong i can submit a twenty eight day but the important thing to think about any behavior is context is not some subjective error what could have happened is there an objective there that's the test we have to look at because of the limited nature of haziest review so what the judge might have done i think is not the primary issue we need to look at as a practical matter under this plea agreement the way it was negotiated by both parties and accepted by the judge it was two thirds because the government and the defendant appreciate that his sentence would be one hundred ninety four months i submit to you that if this were to go back or if there had been a question about his career founder status which by the way he did not contest at sentencing he did not file a direct appeal the government would have to do a complete do over right and i guess that takes you to you know if you want to go beyond sanchez and bernard and look at the waiver clearly this is been decided by the his sense in court twice he put it before his sense in court it's been to the seventh circuit the own and in fact he doesn't even argue in his brief that if given the opportunity he could show that it was involuntary or knowingly made he seems to concede that that he has to move right to miscarriage of justice and our position is that he can't show miscarriage of justice there is no error in this case going back to judge sanchez's point there was plenty of opportunities for him to bring this montage is not controlling on the seventh circuit it's not even it's judge fisher pointed out it's not even controlling on the issue of what ohio law means the grief agreed but again that's only persuasive the authority for the seventh circuit and mr pollard did bring the montanas issue to his sentencing court after it was issued and his sentencing court rejected his claim so it is it has seen that claim so it's not as if know that had sent the authority over him has has viewed this claim that that's a detail in our brief that he did put this before them so our position would be that you can't get to a miscarriage of justice there's no air is that one of the considerations is clarity  believe that it's not been uniformly decided a six there could opinion on this issue well it certainly is controlling within the six circuit and it is a question of federal law in terms of what qualifies it is not a supreme court decision that tells everyone  classify that ohio offense the next characteristics are the qualities you look for under the miscarriage of justice exception is the gravity of the air and the character of the air and this really comes down to where we started which was what is innocence of the sentence what is innocence of a conviction and our point would be again contrary to gilbert and son bear that they are fundamentally different and because of that as long as your senses within the statutory maximum and as long as you could get the same sentence henri man which he could given that the guidelines are now advisory he can't show a miscarriage of justice and i think i mentioned earlier the government certainly would not take that position if it was aren't clear offender in a that changes the game entirely but it's our position that they are fundamentally different and in fact there's an n p o from judge hardiman the county decision which came out in august i think and i realize that m p s are and are not tara but he points out that gilbert is wrongly decided because you know innocence of a sentence has only been decided by the supreme court in the death penalty context and that's because those elements for the death penalty need to be fined found by a jury beyond a reasonable doubt there is no offense sentence he is not innocent of any sentencing offense in the supreme court has even said these two offenders are out on the you have in the sense in context are not additional punishment for the that predicate it is an second argument i guess was that there was a waiver but that's correct although that's a little bit tougher because you didn't really bring that up well it was you don't bring it up then they didn't bring it up so you waive the waiver they waive the waiver the waiver agreed to at least address the court and say that we realize we made a mistake it was not our attempt or our desire to confuse this case any more than was already confused it's not our finest hour we have taken steps to try to avoid this type of problem in the future the same goes for our twenty a j ladder on the transfer that was in violation of frappe twenty three a we have taken steps to so that that will not happen again to the best of our ability and so i apologize for that we take full responsibility and it is true that we did not ways the waiver before the district court again to go you know goes to jurisdiction so it's proper for the district court to bring it up in that regard because in twenty to forty one i mean that that's the issue one additional point that i'd like to make with regard to the fact that we are he twenty two forty one setting is that the district court never really decided because it didn't have jurisdiction whether or not mr pollard was entitled to relief under montana as so that's not a question before this court the question before this court is did the district if this court decides that the district court was wrong it goes back for determination of whether or not there is an error to be found under montana has and then we run into the whole issue of what is the proper remedy given the nature of his plea agreement could you start off with the point about what i was asking you about the remedy and mr once said you know if you go back the remedy will be vacating the plea agreement and that may not be good in the end for but isn't that what you end up really asking for is a vacating of the plea agreement if you get your way under twenty if you're eligible under twenty to forty one and if you all timidly went on the merits with respect to twenty to forty one isn't that what you get and isn't that sort of like your pick on ice you don't know what's going to stop i met with my client on several occasions and without revealing any attorney client privilege communication my client has served now i believe eight eight and a half years of the sentence my client this is the it is not of record in this case that my client made the controlled substance of fence argument he contested his career offender status and he contended in his initial twenty to fifty five application that he should have been set sentenced as a category three and i have the guideline ranges now if if they're relevant i think we've hit the minimum correctly he's prepared for that risk the risk your honor is that the government is somehow going to say we should retry a case that is now eight years old because in fact we were incorrect when we characterized you as a career offender over your objection and the reasonable result is a reduction of his sentence based on the two thirds of the lower limit of the guideline range that would have applied had we been under the correct assumption of what the law was at the time therein lies the miscarriage of justice and i say again i for one see very little distinction between innocence of the crime of conviction and in the sense of a controlled substance offense that serves to enhance the sentence and deprive liberty for it dition all three to four