wrongly deemed him an armed career criminal he's serving a fifteen year sentence which is five years about the maximum that congress authorized the only dispute in this case is whether kevin mccormick can raise that claim and have a court correct that masters has been met st he's relying on mathis which is a case is touched her interpretation nd that case applies retroactively and could not have been raised in his initial twenty to fifty five motion and rd a sentence that the maximum authorized by statute is a fundamental defect that can be raised in federal habeas the government's only response to this is twofold they raise three arguments but two overlap the government  says that this court's decision in hell vs masseur is just doesn't cover this case and to hold that you would have to simply ignore what hill itself said and hill says page five hundred and ninety five dollars that the test that applies to claims involving a sentencing error is the three part test that i just mentioned you have to be relying on a case of statutory interpretation and that case has to apply retroactively and you could not have been able to raise that in your initial motion and rd you have to be raising a fundamental defect hell goes on to say that a sentence above the statutory maximum is a fundamental defect because it is outside the range that congress authorized that's one of the most critical error that you can have so the the government's claim that hill somehow just did not address this question is simply incorrect the government's other two arguments are that the nd part of hill's test hasn't been met so the government says well m motion and the district court rules on it you can't there's no appeal as of right in the district court had not ruled on here at the time and this was decided correct the district court had with him being if you or i take the government's argument they don't the government has not been specific about what it thinks he should have done it up point but i nine take the government's argument to be something like he could have sent a letter telling the court that matches had been decided and the reason we don't think that that means that he had a reasonable opportunity or a meaningful opportunity to raise this claim in his initial two thousand two hundred and fifty five motion is because at that point the court you know any action the court took in light of mathis would have simply been a matter of judicial grace because he did not raise this issue in his application for a c e o way because of course it was foreclosed by circuit precedent until math as was decided so they would have called wife or i'm sorry wouldn't the governor wouldn't the government's sort of barred from raising an argument in light of not this so you know we're willing to say it maybe there is some theoretical possibility that the court might have been generous and done something but the court has clear precedent saying new arguments are not allowed in my application for way and arguments that are not raised in the application itself what you do when there is a change in the law you can't raise the argument that's right because the way that you deal with new of new cases or new legal arguments that you can make is either theoretical possibility that he could have race in the application for the cia and as we explained in our brief and just in the discussion we've been having that does not amount to a reasonable opportunity and there's a reason why this court's cases and hill in particular discuss the initial twenty to fifty five motion because that's when you have an opportunity as operate to raise the argument the government also says in its brief response or brief that this amounts to is somehow an abuse of the right and that's wrong for a couple of reasons the st is that that one sentence of the government's rape is not enough for it to raise that argument because the government always has the burden to demonstrate an abuse of the writ and that argument that month sentence is not a fully developed argument but the nd reason is that abuse of the writ requires an intentional relinquish a right so you have to add no you have the right and have chosen to give it up you're sort of holding back your claim because you think you'll have a better shot later on and there's no evidence of that in this case for the reasons that we've just been discussing which is that you know the earl possible time he could have raised mathis was in this application for his the way and any bit of research into the case law would have told him that he was not allowed to raise new questions and in the posture so the government also raises a related argument they're raising it for the st time that he could have raised this argument earlier because there was no binding circuit court precedent that declared kentucky rd degree burglary to be a crime of violence but a felony under the our career criminal act and i think that's both wrong and i think perhaps an extension of rights so the st reason it's wrong is because in the united states versus prater and that's at seven  and one decided by this court in two thousand and fourteen that's a published incision that interprets in new york's rd degree burglary statute which is functionally identical to kentucky's rd degree burglary statute and that decision is quite broad in its language it discusses that sort of test for when a statute is divisible and not and it says the offense is not rendered an indivisible statute one not containing alternative of elements simply because the prohibitory pr have a statute like the yorks like kentucky's that has a definition of the burglary events and then defines the word building in a separate provision to include things that are much broader than generic burglary that's fine that's a divisible statute and you can go ahead and use the modified categorical approach and it might count as a violent felony matha says that's wrong that you can't do it but a statute structured way is indivisible and can never serve as a backup predicate and that's so you have on books published precedent saying this is how you interpret this kind of statute and then immediately following that you have two decisions from this court both cited in our brief united states versus walker and united states versus brumback which both say kentucky's rd degree burglary indivisible so it's not clear to me from the government's twenty eight dollars a lot are whether their argument goes beyond that but to the extent that they're arguing that he also has to prove that he could not have raised this argument in his appeal because it was for close by binding circuit precedent i both think that's wrong as all discussed in nd and i also just i'm not sure that right actually says that or could have said that given what hill said so the reason i think that argument is wrong carolina's burglary statute so before the supreme court's decision in this court didn't really use the words divisible and individual because the supreme court had really introduced them but  but what that decision does is it interprets a very similarly functionally identical burglary site shoot and it says this is the kind of touch it we can use the modified categorical approach so even though it doesn't use the words divisible or indivisible it makes it clear that this court's approach was to treat those kinds of statutes divisible and to potentially allow them to be used as an actor predicate and then you have the this court's unpublished which cited in our brief which is directly on point on the statute so i do think it was for close at the time of his appeal but i also just don't think that that's what wright says because the test that hell laid out which is as i discussed at the very beginning of page five hundred and five dollars of its opinion specifically refers to an argument being says designed to protect is a reasonable opportunity to argue collaterally that your sentence is outside the bounds a nd so i think right itself is sort of inconsistent about how it frames its tests and to the extent that you think there is language in right that says prisoner has to both demonstrate on availability and availability of the appeals stage on the tw but i also just think that's inconsistent with hill and so it pryor and time case hell should control right and with that to the rest for any further questions preview on or when we speak specifically to the right scenarios what right responding clearly says is that in order to file a two thousand two hundred and forty one petition under the savings clause attacking your sentence or frankly any two thousand two hundred and forty one petition you have to identify that there was binding precedent at the time of your sentence or later that meant you had no reasonable opportunity to make that argument and that could come up in various scenarios but there's one discuss specifically in right that applies to mr mccormick and that's what we raise in our twenty a j letter in the right case the court said that mr mr right when he was senate's there was no binding case that held that his predicate convictions qualified to enhance his sentence and if you look at mr mccormick's case he was sentenced in two thousand and twelve there was no binding authority that would have ballot district court to find that his predicate convictions his and it's one of the c c a that means he could have raised an argument he would not have been foreclosed by banning precedent from making that argument to the district court and could have succeeded because so and i apologi government's position that under existing precedent now and of the supreme court case he's serving in a legal sentence i would have to parse a very careful jaros reduce and oppression the the question we do not take the position in this case that mr mccormick's predicate convictions qualified to enhance his sentence but if they don't qualify to enhance the sentence and the cap is ten years and he's been sentenced to fifteen what does that say well it says a few things your honor we certainly understand the that there is an attempt to get every cent is correct or prosecutors try to do that are just records try to do that this court tries to do that on appeals but on your honor there's also a virtue in a finality of the senate's and the supreme court has said that many times and that finality in the number of times that i prisoner gets to challenge their sentence is left up to congress and congress because we can't well let spirit carefully don't you think that when we're talking about era when we're talking about potential injustice that we have to be careful about prioritizing by maladie over getting it right in doing justice that's a policy statement but that is a policy question honor and with respect to the court that policy needs to be decided by congress and  congress of the supreme court though have has it's given us some guidance here with this with this case and the fading flaws that that's in the status of congress that have at least stepped into that area and provided that you say looking at the right case and the the claim in right was that the argument was not used before the district court and that's not true in this case is it that is correct your honor but that actually goes to support a finding that mr maccormack can no longer file a twenty dollars to forty one dollars petition because he did raise an overall argument against his predicates he also was able to side to cubes which is very similar to ride in though he did not do what the what right did he did not fail to raise the concept but he did but he did not have math at that time  it seems to me that right is a distinct case because the argument in right was that you didn't raise any argument and you had an opportunity and you should of and so what we've got is decided right now that's correct and so the st opportunity he had he doesn't fit right he didn't fail to say i've got a categorical approach issue and now he comes and there is new supreme court clear authority and he raises it why doesn't that threat exactly through the misapplied sentence which is an error sufficiently grave to be deemed a miscarriage of justice or a fundamental defect but well a few things your honor st we have to understand that neither right nor hill are a true waiver arguments you know that was mentioned earlier on you are correct yes you are correct i said that incorrectly it's not a waiver argument it's a question of whether you meet statutory requirements kuranda stand that in under both heel and right they both look at the aspect of whether one could have read that argument and that is consistent with this course long standing case law forty one is satisfied here whether there is a retroactive case of statutory interpretation i think there's no disagreement that matheson has whether it could not have been invoked in the initial tw five was motion was filed and mathis came out that same day that that prisoner should have amended their motion to include mathis and they did not and well there's no possibility of amendment here because the idea that you can invoke at any time during that process during that proceeding and if you did not put it into the petition what happens is when you try to raise the new argument the government's response is you did not raise that in the and michelle petition it is a new argument that you cannot might now you know i couldn't speculate on what their remit would have been at that time since my well you can but you know you've you've got to con usually works it works in a way that if you place an argument in the initial twenty to fifty five motion then it is preserved and you can argue anything about it if you fail to raise it then the response is we do not except as a court new arguments they have to have been raised in the twenty to fifty five motion that that may have happened to  exactly and the question is here what is that additional problem and it isn't a legal premise upon which hill was based it's a separation of powers issue congress ha said t n yours is the maximum you can receive and the senate's mr mccormick is receiving fifteen years and it is that distinction that makes all the difference it's the mandatory nature of the sentence as a fifteen year mandatory minimum that does not apply that is correct your honor and that is a separation of powers issue but there is a separate separation of powers issue in the savings clauses self congress has been very clear we are not a direct appeal stage so the rules permits maccormack are different and congress has been clear that it wants to limit sufficiently grave to be damed a miscarriage of justice or a fundamental defect you can you can say that this is a miscarriage of justice that he's serving fifteen years in the max is only ten i think would have to c three part has and we did argue in our briefs that that includes being sin is pre book or which of course mr maccormack was not but of course the distinction they are is that the premise that is before this court was the initiating legal print as in hill hill was looking at a situation in which there was not a sentence beyond a statutory maximum and so it analogized to that it said when you are in pre book or you are in a mandatory timeframes just lie a mandatory sentence the maximum sentence we don't have to move into hill's analogy we have to look at hill's premise and the premise was that a sentence in excess of a statutory maximum is  fundamentally unfair and a violation of the separation of powers so while i'm a little lost at an argument that would take the very premise upon which hill has bet east and say says here is the premise the legal premise upon which we are creating an analogy in this case and now we have the case that is in fact the premise upon which hill was based so the issue is is that a legal premise that an appropriate basis it was for hill and now it governs this case i don't understand how issue here because the statutory maximum is it issue here it's the two it's the two distinct sides of the parallel that be counting hill's holding there is a premise that says you cannot you cannot give someone a sentence it's beyond a statutory maximum and then he'll say is and because of the way at you cannot do it in the mandatory context of the guidelines we're back it recognize that that was part of this court's prior precedent even before him and so we have the camp cited here so that's not that's distinct from right some  twenty to fifty five was completely resolved and then math us with yes your honor but the right but the right standard is different than hill in this it's it's not focused on a case is focused on an argument and the right core specifically said that hill they're not invent the categorical prose in fact of the not even break new ground and it talks about and pointed to the language in the math is case that said that it was dictated by the president of the camps earlier supreme court precedent ok so where on the sign pi john understand how we're walking by each other because right that was denied mathis kind man out which in without question is a retroactive clear statement that this is that this is an improper sente the petition cannot be filed unless there was no earlier opportunity to bring the argument in so in this case just says in right and right for example the court said that the pisser there had the opportunity as senate seeing to bring the categorical arguments that he was making which were based on long standing supreme court case law that mathis supplemented and helped clarify but was still dictated by those preceden because he had that opportunity and also because he had no binding circuit precedent against him when you have your opposing counsel suggest that the responding circuit press and yes your honor and that we  we're maybe we need to conclude this but i'm not understanding i'm not understanding your argument based on right well let me be clear you are that right is a is a differently worded standard and while it kept the hill requirements it is an additional requirement as we understand it in looking at the case so so it is outside of the context of the hillary masters could not have invoked a supreme court case is a different standard altogether that the court discovered from looking at prior precedent and in that case it's not about the supreme court case it's about the arguments and whether the argument could have been made earlier and whether at what stage at any stage well as it is twenty five because there was no brother you take the position that if you raise did it is twenty to fifty five and he didn't parrot the same argument at senate saying and he can never rice it again  no your honor what i was suggesting is that right applies to all of the earlier stages in the case and so if the argument was available not at sentencing but then became available at twenty to fifty five right would expect  if there are no further questions we would ask that the does that this court affirm the discourse decision based on the briefs that we have found that only a j letter including the specifically the right opinion that came out most recently rather  because there was no binding precedent about this specific statute either when he was sentenced and appealed or in his initial two thousand two hundred and fifty five but what i didn't hear from the government was a response to why a right requires finding on point on this statute pressing which i don't think it does both because it doesn't say that and because in right itself the position had no precedent the precedent of the circuit at issue and rape was in the petitioners it was correct there was no not this issue and i case of the court had no reason to go farther and make this find great distinction between and on point precedent and by precedent but what i also didn't hear from the government is a reason why the cases that i mentioned were  and in fairness that might be because this is happening after the th day and they didn't have a chance but the government hasn't said we disagree that if falls and because need combined resolve this issue at the time of his appeal sentencing i take that to basically be a concession that at the time that even underwrites test he has met rights because both sets of precedents for close his arguments at both stages but i don't think that that is a proper interpretation of right or even if that's what right says i don't think it could have said that given what this court said and hill which is a specific reference to the initial two thousand five hundred and fifty five dollars motion which is a holding because the court said this is the test that applies in this context and which is the only test that's consistent with how he works which is there's a procedural requirement which is what requires you to raise something in your sentencing in your appeal and then once you're in the twenty to forty one stage the question is could you have raised it in your initial twenty to fifty five motion are not in the question is not could you have raised it at sentencing exactly and in this case obviously we think it's true that he could not have but that's just not a you know it's not the right test to apply so th still in prison it's been three years since the top of his guidelines range would have expired in two more years that'll be the top of his ten year sentence i don't think it's a matter of the justice i think it's a matter of the text of the savings which is designed to preserve about collateral attack it's all about scenario exception to fidelity when there is a fundamental defect in your conviction or sentence and that's all we're asking this court to affirm and just if i could just one more thing which is that we would actually ask in light of the government's concession about the merits of his claim we would ask for a reversal