the pretty i what there's a statute me usually that gives you a direction in this case about remembering the district court's opinion correctly which the noise happened i thought the court primarily based its decision on due process grounds so in this case if we look at it using the legal fictions that were required to do at the time of the commission of the crime and the individual looking at the statute to be charged under the rico order provision would have seen a statute to basically said for murder or a fire under this title because under miller versus alabama looking for is a case where there is a severability argument may based on a change in the statute before of the act of commission of the crime  see this a lot when there is retroactivity the provided for and at the time a crime was committed in the time of the sentencing there was a valid statute and the courts adjudicated the case based on the statute at that time but not i case the issue can provide us with one but not a case where the statutes been excised before the crime was committed can you give us a case where  that the great legal minds that exist here quite agree on exactly what well what the district court couldn't couldn't agree on or was was having difficulty or putting is whether he had the ability to give this defendant if you found it senate to amend this particular statute which in the intervening years they have have not done but i think it's a concern we all share your obviously is a very serious crime and certainly the congress is going to want to have some provision for it but when we're conducting a severability analysis which i understand is where you want us to go rio bowker the threshold of that is to determine what was the congressional that doesn't have a mandatory life sentence there is no other federal statute that fits the actual crime there's the other violent crimes native act hearing none of them include murder and this was actually a brutal premeditated murder there's of course the federal  was it was to help all the infiltration of organized crime in the american economy and those thirteen is a clear example of that of what congress was trying to reach a mess thirteen is a rapidly expanding violent international that has significant presence here in northern virginia and they are known to use juveniles to recruit teenagers recruit young teens in high schools who can i say i feel like i totally understand what i take to be your point which is we have a sense that congress generally wanted us a few juveniles like this prosecuted for very serious crimes under federal law i totally understand that but i'm still with the district court judge who goes through a trial of a defendant like this decides that they are not eligible for life imprisonment under miller what do we know about how congress wouldn't want to that person sentence that's the kind of rational intent on looking for well and i look at the statute and all i can figure out is well they clearly wanted that person to get more than you would get for kidnapping and they wanted there to be some kind of a mandatory minimum but how do we know what congress intended in terms of the sentence the that vote your honor i think the best of the court can do is if the alternative to factor reading the statute is the government that would be to read it to acquire some other seconds or to view what the district for it and what the an urgency which is to read it to prohibit prosecution in the core of the government's argument is that there's just simply no question that given the choice harris mentioned the kidnapping fortunately and i think your argument the briefs was that well as such errors indicated congress clearly wanted something worse a higher sentence than kidnapping can that go up the line there's some logic to the that that would give you an understanding of what it least for murder without a mentor a minimum sentence could be but is there any examples you can point to in cases or otherwise worth one has gone through those types of hoops to look at one portion of the offense in the sense for one crime and then determine that based on that the more serious crime must have merited a higher s case because the statute as to the sentence for the crime with the exception of his actions were a completely different setting and this is you know if we had if the supreme court said or on point for that consideration but this is a very different circumstance that we have here and that's why and again to be fair those are cases where the different different procedural history and so it's true that these were cases that occurred before miller so the crime the conviction and the original seconds are all female or over but to address judge harris's concern about how the but others have actually imposed a variety of terms of your sentences or that so they're federal district courts and said under miller you cannot get a life sentence i will sentence you under this mandatory minimum and that is that is the the clear implication of the way that might raise the question of whether the or had actually authorized that were not given that the the court looked at it a different acts with respect to art and actors i'm not sure that i've ever seen and i don't think there's any court case that addresses that i have seen it it looks as though if the government sought to attempt to transfer him under that under those sections and also to prosecute him under those sections that there would not be a bar at least with respect the notice  following the supreme court's decision in miller the prosecutors did not just go back to the state courts and attempt to prosecute all of the juveniles under the exact same struct sentencing structure sentencing schemes that were ruled unconstitutional with in the hope that the government could prevail on an argument because the courts would then is there anything in miller that helps to do that i was struck by the language in miller discretionary sensing in adult court would provide different options a judge or jury choose rather than life role one time prison term with the possibility of parole is easier imagine a judge decided that a minor deserves a much harsher sentence than one would receive injured no court while still not taking life without parole or it doesn't that indicate legislatures and then coming to the conclusion as to what would happen as a result of the legislature's change in the statutes miller did not and the justices and miller did not step in and say therefore alabama your penalt be that in state explicitly but in terms of the understanding of the legal community out there as to what the next best thing so to speak was and it seems to been borne out by how the cases have been annulled in mitigation presented on behalf of the defendant so i think that that is what miller actually does it just outlines what's constitutional and what's unconstitutional and does not say therefore this shall be the penalty of the state it doesn't put and  i well i wanted to step back and say following miller at the time prior to miller there were twenty six states that had mandatory life without parole statutes in place statutory schemes i would say in place for juveniles after miller and i believe at least sixteen as of march two thousand and fifteen sixteen of those states had amended their statutes to comply with six of those actually five of those states had completely banned life without parole or juvenile it's and i think that that is very important because the government wants you to presume and predict what congress will do here is very possible that congress could completely change the statute a like these five states did it and ban life without parole for juveniles altogether but isn't that not exactly the right analysis because booker told us we look until that happens and see what congress intent would have been in light of this decision yet and we know what they originally thought sent should be which was a mandatory life  independent statutory schemes of work here you can it's impossible to determine what the legislative intent is with respect to juveniles when it comes to penalizing them for adult crimes it was originally stated i believe in roper and then they went back in miller and said that you can't even infer a legislative intent or determine it based on the operation of two independent statutes because the the legislature never actually said well with respect rico murder juvenile shall receive it it's only through the operation of these two independent statutes that you're even able to arrive at that at that you know and miller does say the minstrel state courts need to go back and address these statues with respect to even as maybe even carve out  a separate independent statute with respect to and murder in their in their states or in the legislature law yet so i think that that was a fundamental problem with the government's argument as far as legislative inten and what's your thirty for which i think it's actually under both analysis miller actually when they look at it they look at clearly prior to the decision and and they and they look at what were what the state legislatures would have intended and they say well there are all of these a crimes that apply to adult defendants and then when you try to include juveniles basically all you do is do the transfer statute you look at the transfer factors that you actually don't look at what they that the legislature never actually looks at what they intended for the individual the penalties for each individual statute as they apply to juvenile so they're only knew what they were doing when it knew all these statutes are out there little bit unclear but as of the time of the original statute if they knew full well the juveniles were going to be in the situation and yet they said mandatory life well i think you can you argue for any other intent other than discretionary life or whatever the next best and the next highest things constitute i think what miller was saying there is that you you can never that you can't assume that that they actually sat down and the language was careful the liberal consideration apparently was appropriate for juveniles if you want to follow the analysis that you just raised then went back and banned it altogether ali if that wasn't their original intent or if if mandatory life or life imprisonment was there originally then why did they go back following miller and then change it's like the iss though they they carefully considered it following miller as opposed to what they did cream but given our notice issues we don't we need to look at what the statute would have looked like a time that was and it was mean booker's and that what they did they went back and look at what he's on the books yeah are they then look to see well what congress do now that we spoke if they have another crack at it now ye but i think booker again is it an entirely different analysis it's not the operation of two and statutes and then even then i mean if you're following the government's exigent argument they're there they're still wanting the cut there they're wanting the courts to and under that subsection he is charged with murder and the penalty for more murder is listed as death or life imprisonment or a fine or both and then the way the language is separated  think with the same hole in that when they say to excise it it would be jest exercising that ownership and for that subsection one i don't think that you can read it for the entire way so i disagree with how they read stuff but also be right entirely i'm sorry another point that i wanted to raise is with respect to notice the government i believe has a problem with respect to those there it's clear that the courts have held the supreme court held and cheeks before circuit held that the defendant is presumed to know the law at the time of the offense the law both mandatory life in prison and the death penalty were  unconstitutional soluto fiction last little while your honor it is it is it is the law that is presume to know the law and so he then therefore is not on notice of anything another issue and again if it is excise prior to the crime being committed and there is no no penalty of incarceration i think it then turns to evans where and that's in that case there was a statute written and there was no penalty actually given by congress and that courts in that or i mean in that case the court said that the judiciary's role is outside the bounds of the the ditch it's outside the bounds of the judiciary to legislate to create a penalty where there is none and i think that that is exactly what the government is asking the court to do the option as congress its case and the absence of congress congressional action and finally we do raise an ex post facto argument i think that's an important here if there was no penalty in place at the time of the haven't a fairly i can find any case law so i could not find any cases in which the courts did create a law that i think if they do create law that increases the penalty under p bursts united states then it would be an ability and fair warning and i guess it comes down to the question of whether we are balance of focus on again the arguable legal fiction that the defendants looked at this  would have a press format if anyone had looked at the time without anything else well i can get a maximum of life or maybe in the mandatory life so that would be something that they could expect i guess the question is after miller would someone discretionary if what the government asking for the ability to charge a crime that would lead to a sense is up to life then if there was some notice at the time of this crime that life was a possibility under whatever scenario that would that would be sufficient to address over such a while at the time of the offense life was not a possibility only on because the statute read was mandatory life or death and both of those were unconstitutional pursuant to miller and therefore the only thing that was left was a fine so up to life was not included in anything that congress eroded at the time and i wanted to also touch on that this doesn't prohibit prosecution there are other options available to the government the court is raise some but also there's that the possibility of state and so the government does have other options available to them i believe your honor then we are are just simply asking for this court to i don't see how they really have any bearing here that the issues are totally different and also you have to think that these defendants would not have raised this issue at all because it is soon as they had the opportunity to come from under a mandatory life sentence they would have taken and run anything less then and this issue would not have been nice and that's in that situation thank you  dealing with this issue the question is what what what congress has been and what happened and at the time of asking the statue and congress have known of this constitutional problem which was later decided by the court look at right because this is i'm so confused by this point the booker severability case and i don't understand what severability gets you here makes a big thanks to severability right you could have charged and say section imagine a two is still perfectly fine and probably just the kidnapping thing is exactly the argument the government's advancing with the government that your brief said that we should take out all the words so that it's as for murder by imprisonment for any term of years or for life what the government argued is that the court should read the statute in the most  other violent crimes native i think should be under and i think that the ninety one so that's consistent with actual intent at that the government wouldn't disagree if the seat sees it appropriate to read and some other stuff but the government's argument is that this is the separation of powers probably that we could just go back there and figure out within twenty five years that's right well that's one of reasons that the booker versus evans question that and has raised this case is like booker it is not like the issue in evans was interpret ing a statute within it whether that requires striking the entire statutory scheme or simply reading the statute different sprinklers closely that's what we must do it right and i also know it but that just means again i mean this is just that just means that good news  if they did so but i disagree that they have to because what this court needs to do what the supreme court has told the score it must do is look at what congress would have preferred what congress prefer at juvenile defendants may not be prosecuted as adults for murder in a to frack a caring the language between murder and kidnapping so that we're not creating the sentence we're just picking up the sentence that's already in there that's booker severability if that works of that's possible then i agree it's not a separation of powers problem but i'm concerned that that doesn't really  kidnapping but again i cite the court the language invoker which is that the court can infer that the missing question in the book or it's the standards of review here it's the sentence from related statutory language the structure of the statu and the sound administration of justice all of those point to allowing the courts to continue to sentence life if if if they wish if they but if they find that it isn't in the sound of ministration of justice but also to look at the mitigating factors of use as a