that it is reasonably likely that when johnson be united states supreme court established a new rule of constitutional law made retroactive by the supreme court to collateral review that was not previously available to  prohibits increasing the defendant's sentence for the prior conviction where the court is asked to apply this as a standard looking at and ordinary case example of that offense and then deciding for that ordinary case whether it involves an imprecise but qualifying degree of risk that's the is not available not previously available to mr public and really the only question that's been presented as art by the government is whether johnson is retroactive johnson is retroactive because it is a substantive rule just on monday in montgomery v was the end of the supreme court set the constitution mandates that substitute rules must be retroactive because johnson is a substitute for it is retroactive because it prohibits a category of punishment for a class of defendants based on their offense or status that's one of the test that the supreme court has set out for when is defendants based on their status for offense their offense their offense being only one that qualifies as a crime of violence under the residual clause by meeting this standard for an ordinary imprecise risk involved that it that has a serious potential risk of physical injury that's why johnson is a substitute to you have to show that it is a new rule of constitutional law it's been made retroactive by the supreme court declared working and not previously available to mr but doesn't have to have and our contention is the rule of johnson which is that the due process clause prohibits increasing a punishment based on a prior conviction where the standard the court is asked to apply but you know it's sad that it's just the opposite it's write it but it set residual this residual clause has two fundamental problems it uses the ordinary case approach so we don't in the nine twenty four c residual clause which first of all uses the ordinary case approach so as as screen court said in johnson that this is a big problem in estimating risk how much how much risk is that just as indeterminate is substantial risk that physical injury to person or property may be using community offense you're not saying that you have to resort to this talk about use not just possess and using it in the iraq it does but again if the court has said it is it is sufficient to prove the offense if the defendant intimidates it even by you know that that's sufficient to establish the bank robbery be intimidation element and it may be this court for a full vetting of the legal and the other issues and it is the case normally your honor that even when there is a legal question this court is not the first sign it will in most case talked about the problems the court had in applying and interpret the residual clause in aca and it did not call into question any other residual clause through the course of that decision that matters because the defendant's claim is a challenge to a different statute nine twenty four c b three and sixteen b it's part of his guidelines challenge and then apply the standard directly even after getting a briefing on the fact of johnson so that if there's another difference there third difference is in the fact that the act a clause that required a court to look at problems and yes the thing i'm having trouble with this sort of this line between considering the merits because we're not supposed to consider we were supposed to make sure i guess that the petitioner in front of us would actually there is a relationship to this between the argument and this particular partition and that's about as far as one go and it certainly seems like there's a relationship here between the claim you know between johnson and the clintons making i respectfully are we just see jo an actor focused and particularly the language of the case and so if the question is you know can i kind of connect out my residual clause to the apple residual clause act and yet it just it seems like you would open the doors first anyone who's had any kind of problem with a residual clause to step forward and say johnson's my case i should get a chance to go to court that would severely undermined the gatekeeping provisions twenty forty four and applies in ninety four season constitutional right we can't we look at it as long as we're tipping our hands to look at the merits can't we look at things like that i think the posture in those two cases matters those are essentially direct review  on here in johnson what i know there's going to be a way to kind of parse this line and so you're not saying for us to say the give way has been met and the motion should be granted he can file we have to conclude and when he finds he will ring right because and i'm a man prepared to offer a perfect standard on that but there have to be some sort of of relationship there and we don't think there is a relationship we don't we think that there are two separate lines here a the shares are never going to be a car for horses be taking out work because the way this is designed the way the statutes assigned weights that i found in the cases i've looked up usually have a supreme court decision and usually have a we don't agree with the circuits in terms of the applicability but the we have a decision like tyler from the supreme court indicating that multiple cision of the supreme court can be retroactive i'm not saying it's the same certainly not somewhere in between it's obviously between me and let me clarify and i don't mean to suggest that the we don't acknowledge that arguments can be made arguments mean name juvenile life without the court it is not the case that the rule of johnson has no limits says as the government's argued it is that it is the case that johnson says when you've got an ordinary case kind statute which we have here twenty four seat for circuit says you apply the or in your case that creates a problem in estimating the risk and if you then have a standard that the court is asked to apply to that ordinary say substantial risk that physical force will be used in the commission of events where those two things are present the statute is where the rule is void for vagueness that's that's what john issue the residual clause did incorporate section six teens language for what's a crime of violence and that's the same language as the nine twenty four c so it is all the same for mr hubbard to be challenging as he fail your honors a substantive rule prevents the government from posting a sense that it has no power to johnson is a substitute for harper is serving a sentence of three hundred twenty seven months for armed bank robbery that's in excess of the statutory max and on top of that plus sixteen months for using and hearing a firearm in connection with