heir so i'm going to focus on the guidelines issue but before i get there it is important to note that the b o p website currently sets mr goodlooking terrorists release date as the end of may next year first and second appeals in this case this court's precedent changed and it changed in its favor the court's intervening decision and harold vindicated mr ingelow can carol's original argument that it's texas burglary conviction qualified for a lower range under the two thousand and fifteen guidelines that means that anchoring his sentence to the higher range produced by the twenty six thousand guidelines violated the ex post facto laws now the government has employed kind of a kitchen sink approach in this case and i'm happy and capable to respond to any of the bearing positions that they have case but first i would like to respond to the invited error argument because i think that's the quickest to dispose of  we have recognized from the beginning in this case that the necessary we failed to preserve it but that is a forfeiture it is not an invitation to air on this court recently recognizing united states versus that in order for counsel statements to qualify as inviting air they have to events and intent to convince the district court to do something it wouldn't have otherwise done but if you look to counsel statements in this case they do not fit that description in this case first of all at the time there was no error to invite your rebate squarely foreclosed any issue as to your application of the twenty fifteen guidelines and so it isn't natural to say that because since the district court was legally bound to apply the twenty six thousand guidelines that anything that council said could have induced the court to do something it wasn't otherwise already going to do and in any event if you look at counsel statements here a response yes your honor to the question are we applying the two thousand and sixteen guidelines here simply cannot be read to be an invitation to air and to ask the court to do something it wasn't already disposed to doing or to really to ask the court to apply one set of guidelines over the other and that's that's the difference here so we have as we should be on plain air reviewing this case and that takes us to an issue that the government doesn't dispute and that's whether or not we have the right so the threshold issue to even bring these claims we think there's good reason that the government doesn't dispute that law the case dr and the mandate rule and waiver don't apply here  intervening change in the law harold overcomes all of those procedural obstacles so well recognized exception to the scope of the mandate as well recognize exception to log why would the law the case apply anyway i don't think it would your honour's but i so i'm not exactly sure if the government's going to claim that any there's any counter that they only factors in this case but we don't think that there are if you look to the way the court described countervailing factors they did they talked about those as the kind of things that would harmful effects that concern the high court first of all this isn't just a guidelines here this is a constitutional air your honors our constitutional or excuse me our constitution says that fundamental fairness requires a because the error here mr anglican carol was punished according to law that did not exist when he reentered the united states and that obviously affects the fundamental fairness of the proceedings and that's something that our founders recognized and the application of that from statutory law to the guidelines is clear after a few like also if the supreme court grants have they will they have not ruled on carol no judge king the supreme court has not ruled that governments are petition is pending right now will likely be considered at the long conference here at the end of september the government has explicitly or the solicitor general i should say has explicitly indicated to the supreme court that they would be happy for the court to hold harold in the companion case quarrels that raises the same issue for the other burglary case that is going to be decided this term so it it's potential there's it's likely that there won't be a decision on that for well up to a year could be two years and that doesn't help your client if you would have be out today if this is not one where we can say well he's not going to be out for twenty years and so we  you apply your current precedent unless and until it's changed not unless and until there's a chance that it might change and not even after search is granted the government certainly benefited from that rule repeatedly last  prong well the reality is that it's not a matter of equalizing other cases and who benefited in other cases the reality is if harold's wrong it heralds right mr quinn tear it can tear ok never get back those that he shouldn't have spent in prison whereas if it's wrong he can sense yet again if the government keeps this case alive by way of petition for a hearing in certain so on right that's true but i would taro's interests are a little bit weightier than the government's and freedom and that's what did not just say that he can't get those months back absolutely where is he can be put back in prison if he should have served an extra ten months if he did if you were to lose on this argument in total today i mean argue and so when told to reformation yes that would be the second issue after to my it's very clear that the burglary conviction successful and i'm not foreshadowing right that's exactly what we've asked or and the government has actually said that it agrees that that's the appropriate remedy in this case i don't understand it to be suggesting otherwise that we should correct the judgment may it please the court remain us on behalf of the united states this is my first time appearing before the court your honors there are two bases on which this court can affirm the sentence below first to the extent there was any  not met his showing under those times is there much left of three in a sentencing guideline error case i think there is your honor in this way and tell me here specifically sure in this unusual situation where we've been through not one but two sentencing hearings the first in which the guidelines range was correctly calculated at fifty seven to seventy one months mr king care about forty six months of a term of forty six months imprison goes up on appeal it comes back there's a second sentence in hearing this time the calculation is thirty seven to forty six months the defendant asked for a downward variance a court said no it believed that forty six months was the appropriate sentence for this defendant it fully complied with the thirty five fifty three a factors and considered the criminal history and characteristics of the defendants and said again forty six months so both times here under two very different guideline ranges the district court said this defendant the appropriate sentence for this defendant given these circumstances is forty six months he didn't have to a prickly varied to do it the duty he did not it was at the top of the he would have to upwardly very the third back and he and he didn't give any of that magic language that sometimes they would have given the sentence in any event it's true your honor he did not give the magic language though there is some question about how whether or should be magic or not i mean questions a little bit flippant in that we call it magic language he doesn't give any indication that he's going to get forty six months no matter what the guidelines say but he also doesn't give any indication that he would give any difference and the guidelines range were lower but that's not the test for pronk three it's on the government to show that the that the that he the argument not an affirmative point i understand your honor but i think here that there is enough on the record on both records to show the judge judge hitler very much believed here the appropriate sentence was forty six and he believed even when the defendant requested a downward variance a second sentencing hearing variance would have put the defendant in what defense counsel says is now the correct range  incorrect range in most cases will suffice to show an effect on the defendant's rights in most cases and you and i would say this is not in most cases again because we have two sentences here that we're looking at two sentences that were exactly the same do you have case that this would require sending the case back to the district court however again this is not the ordinary case we've been through two sentences below both of which resulted in the same sentence we have a defendant here who during the first sentencing hearing elected to use the twenty six thousand guidelines and again in the second sentencing hearing elected to use the twenty sixteen guidelines so i'm guessing wouldn't make the same election on the third since i think you're right yes however there's been an affirmative action on the on the part of the defendant which this court has held in the past constitutes invited err i think that's a factor that if you're unwilling to go so far as to find invited error you can factor that into the fourth prong that would be a countervailing consideration to sentencing hearing a defendant who has pursued the two thousand and sixteen guidelines in both hearings and in the first here when judge hitler made the calculations his calculations were correct as now has been confirmed by the sentencing commission's most recent set of amendments i think that's a factor to consider as well as that judge hitler got it right the first time despite the first peel so with with the the two sentences the same sentence and the fact that we believe the defendant invited the error here those are all considerations that can be taken to account under the fourth pronk and that's enough to show that this really doesn't need to be sent back for a third resentencing and your honors i don't know if you're at the  if whatever you decide on the first argument under the current state of the law the judgment will need to be reformed from a b two to be one anything further i think we have your argument to change you stole my thunder on the third prong i was going to read the exact quote but i think that that does dispose of the third prong argument the record here is so i mean but what about the fact that you know we don't usually have the judge happen to chances with and that is his right as long as you know he's pursuing non frivolous issues and this case is and i don't think it's a fair characterization to say this judge intended to impose forty six from the get go and that's going to always be the senses judge raad indicated he would have to impose a substantial upward variance if we went back it's another time and let's remember we raised the very issue that we're talking about right now in our pleadings the day after mathis was filed at the original sentencing hearing the very argument that prevailed in harold and i i know your honor was in writing the common line here all right and so on this is not a case where there's any windfall to the defendant if anything the defendant was deprived of the correct view of the law at the original sentence in hearing the district if rebate had been decided correctly he would have been at that twenty four to thirty month range and the district court could have had the chance to vary upward then it gave no indication at the original sentencing that his criminal history i mean it talked about as per my history but this is a judge that is not shy about going above the guidelines range if the criminal history bothers him and he didn't do it here in fact he departed significantly and i encouraged the court to read mr anglican taro's allocution at the first sentencing hearing it matter he talked very radically about how hard his life was in columbia growing up and that moved this district judge so that matters and that folds into the overall point that i wanted to assess here in the government's fourth prong argument and that there's countervailing factors here it overlooks  significant fact that in roselle is more or less the supreme court was clear to say that when we've got a defendant who's likely serving extra time than is required under an error that's made a plain error that we have to remember that we're talking about people here the forty six months the thirty months the fifty seven to seventy month range that apply the original sin and those numbers mean far less to the lawyers in this room and the court than it does to mr  think the most important thing here is that given the sixteen month disparity it is reasonably likely that mr ingelow can terro has already served well beyond the sentence that he would have received for this error so we are not concerned here only with a risk that mr anglo can tear a would linger longer in prison than the law requires he already has and that is why this is not a case that involves the type of countervailing factors that would cause that should cause this court to deny discretionary review and so it's for these reasons that this court should reverse the judgment of the court of appeals and if there are no further questions i'll submit the case thank you