our next case for this morning is dotson against united states mr good states versus d t v indiana attempted robbery is not a violent felony under the arm career criminal or aca nd without the indiana to robbery conviction only to relied upon acrobatic gets from a and the government cannot substitute predicates on collateral review to make up the gap so why is there a difference when you say new i can think of three different meanings of the word eleven meaning of new may be that no one ever mentioned it anywhere but that's not the case here another meaning of the new may be that it was mentioned in one part of the p s r but it wasn't actually designated as an act of pr and the rd means of the word new is no one's even you know maybe it's in a different part of the p s r but it's new unless you actually argued about it before but it seems to me this  arguing about this this rd predicate that's in there in a different part of the p s r we're not dealing with the st meaning of the conviction the government's not relying on and under the th circuit's reasoning which is directly pluggable here the facts are almost identical the government cannot identify on that predicate which it had not identified prior to send it seem to support the conviction on collateral review so that's meaning number two but that actually don't we have here a situation where mr dotson has been arguing about the indiana burglary conviction for quite a while we don't i believe you're referring to the government's point that mr dotson eroni asli sided decamp versus united states when he initially filed his pro se two thousand two hundred and fifty five motion in which he appears to plainly misunderstood the record in believing that he had been sentenced based on the burglar conviction and believe the de camp versus united states affected that conviction no force as we noted in our reply brief the burglar conviction did not support the enhancement ban and so it cannot support the enhanced that now have course he misunderstood the record but that misunderstanding of the record does not cure or address the government's failures at actually identical to the two other ones that had been previously identified it was possession with intent to distribute a drug substance but i'm thinking about prejudice in a way because whether it arose from mistake or otherwise the indiana burglary conviction has been focused on by both sides in this case the government and mr dotson and i can imagine a situation where there is some lengthy list of old convictions in a p s r and nobody's really focused on it and i have some sympathy for the idea that would be very inefficient for everyone in the government and defendants to have to fully brief every conviction that shows up there because you know the government's relying on three or four number there's some reliance interest in saying well that's what i'm defending myself against but i wonder if this is that case if in fact there isn't the kind of surprise and inefficiency and all the rest of it we want to avoid well you know i believe your point actually perhaps raises maybe two or three points that are sort of embedded in there the st and these are issues that the th circuit addressed in hodge in which it noted for example that at sentencing the government bears the burden of proof the requirement to provide notice of the supporting convictions and at that time the defendant has the right to counsel and can marshal back to counsel to rebut whatever convictions the government might identify on collateral review the defendant does not have that right to counsel and based on those facts it is actually more efficient for the government to identify these are the four hundred and fifty six how many ever convictions it believe it's not limited to three of course the government could say the following five things support aca corrector i don't actually think it's rather telling that the fact pattern we have here is surprisingly rare and i think if you look at the case that we found relatively few cases involving this fact that i think is partly because the government is already identifying four or more active predicates as the th circuit noted in its footnote addressing this point and hardly all that at sentencing though would not be the lightest of endeavour's i mean the this aca laws as complicated as honor that's also why the defendant needs the benefit of counsel to help him marshal whatever argument i might have against him now i will note into your honor's point about the burden that in my place the probation office already goes through and prepares the list of the defense criminal history conviction the government is then obliged to identify which ones you believe will support the enhancement let's say the government identifies four hundred and fifty six how many other additional one the just report need only resolve questions if they're actually controverted under federal rules of promote procedure thirty two subset by the this report can exercise its discretion and rule only on those that would ultimately affect the sentence but if the end of the day it would mean that the government had satisfied  requirement timely objected and it would mean that the defendant would be able to ask his counsel to help him factually rebut the convictions or legally rebut them and it would also mean that it would all be done at the initial sentencing rather than years later on collateral review he prejudiced by doing it years later and collateral review if it turned out there was something wrong with the conviction or if it turned out it didn't satisfy the academic definition why is it prejudicial to do it later rather than at the initial sent because your honor for example records may be lost as we noted he was pro se here and was basically having to craft his own legal arguments as judge scott or just know that his records weren't last friday i mean so that's that this case that's not this case although i will just note in my own personal experience when i st got this case the person i did was contact the marion county superior court and asked for all the records in these four convictions they knew told me they could not find the records for his attempted robbery conviction and that about a month or two later i called them again and pressed them to please go look again they were able to find the the documents of the government cited in that supplemental appendix and which showed that he did actually have an attempted robbery conviction rather than a robbery because if you know the p s r is somewhat ambiguous on this point that's where there was an attempt or a robbery and this was just one example of how potentially lost records down the road could affect but why couldn't that then be the government's problem right at a twenty dollars to fifty five dollars later on if the government if the petitioner challenges and says listen there's no record of an indiana burglary conviction the government can't produce that evidence if the challenge is what was in the p c p s r and chance at the time and maybe at that point it can no longer serve as a predicate but in a situation where there is no dispute that the conviction existed or that it qualifies as an act of pr harm no foul it would effectively mean there's no real notice requirement on the part of the government it would also mean that the objection requirement that is imposed against defendants applies one way only against offended so for example in reality versus united states the defendant brought a collateral challenge after johnson knocked out one of his four active predicates and there the court said sure that knocked out four but you had these remaining three and he said well no two of them should never have been relied upon in the st place because i had had civil rights restored on them in the court said fair point but you should have brought that argument the time of sentencing the same reasoning should apply to the government's failures to identify and marshal the arguments that would support the convictions at the time of sentencing were garlits of whether years later it might say well for again no harm no foul because we can all  government and at the end of the day the piercer all swear elsewhere listed a conviction very similar to the situation here that qualified at the time as an act of predicate and on those facts the th circuit held that the government could not substitute the new act applied to get on collateral review for the reasons i just noted notice and timely objection and yours i see that my time is wrapping up so i'd like to you all right reserve the rest of the time for rebuttal thank you it's fine thank you mr kirkland may please the court tailor perfectly and u s attorney's office for the united states in this case st of all your honor i just want to go through two points that my posting counsel didn't address that is that the armed robbery conviction and the cocaine conviction now  unchallenged in this case that was provided to aca predicates the williams case of this court is held conclusively shows that the cocaine conviction is an act of predicate so all really talking about here is burglary and attempted robbery all except it is a lot of months if it is a vacuum mr got in the burglary condition is an act of predicates a parian foster conclusively say that's the case but can i can i just say i have some sympathy for the idea of having i bet you probably do too in your heart of hearts that it has been an extraordinarily complicated exercise for everyone involved for judges for prosecutors for defense counsel to wade through every state statute that was ever passed just figure out which ones are proper acca predicates or for that matter usable for the career offender provisions of the guidelines and which are not and there's also a great preference for having this sort of issue resolved at the sentencing hearing not letting it drag on such x years later when maybe the supreme court unexpectedly issues an opinion such as johnson or de camp or whatever the opinion so i don't see what's wrong with  the th circuit's approach to say government put your cards on the table at the sentencing hearing you've got the list of prior offenses i think the probation office does a great job you know assembling them tell us what you want and as mr good some points out the defended then has the benefit of counsel who may know how to weave through you know what's really a crime of violence and what isn't and what's an attempt to fence all those questions of district court sentencing in the original conviction mr dawson was represented by counsel and he did his counsel told the court that he was incapable of being sentenced to an amount below fifteen years because fifteen years is the aca minimum but that's because counsel was looking at these at the three aca predicates that the government had designated as we now know in hindsight a problem because one of them wasn't so councils relying on existing law if the government had designated for including the indiana burglary conviction we wouldn't even be here i mean you'd not want out no problem three left there we are understood your honor but i would respectfully point the court to the eleven circuits recent decision tribe you which we submitted a summit with or the letter on in that case to the same facts happened in this case there was no dispute that at sentencing the defendant was an academic mentor and on those facts the th circuit its eggs in the three predicate basket but then if the supreme court changes the law you're making a further point which is that that freezes it in time forever and i would say you rely on only three at your peril i would disagree with that your honor i think that mr dotson through counsel agreed to the fact that he was an akc enhanced offender in reliance on that the government need not put forth anything else there are important reliance interest and efficiency concerns to having the government be able to put trust in stipulated facts were agreed upon facts that's why courts across the country including the southern district of indiana requires parties prior to trial to stipulate to as many fa possible that you're asking for a one way street you want him to be bound to his legally mistaken agreement that those three convictions served as aca predicates and you want dispensation for yourself to reach into the p s r and pull out another prior offense you wouldn't let him do that i would actually disagree with that your honor and i think that what he's doing is not the way that your honor described the conduct what mr dotson is trying to do because that's the heart of what is twenty dollars to fifty five dollars petition was all about that's the one way ratchet this court recognized and light which is caraway it's a pretty shot at getting every sentence and that all that further distinguishes this case from what was going on in hostage so you're making a futility argument that if we send it back for a recess and saying the government would just turn around and point to the burglary conviction as one of three and wind up having him and i'm career criminal all over it well i do think it's futile your honor because there is no dispute that he actually has the support or conviction i think it's also a way for argument and it may be an unusual waiver situation because here the appellant is making the exact opposite of the one hundred and eighty our argument from what he made below so i do think there's a person can you comment on that i have a little trouble with that i'm a little uneasy with that i i mean he's pro se i mean you can go up and down go up and down the pews here up and down the elevator and try to find somebody to make sense of this acar case law and if you're not it's going to take you a while all right and i don't know the fact that the that mr dotson is running around talking about this or that connection i mean i we're going to we're going to hold him to that so your honor i think try to keep i mean come on i'm sorry two points of response so that you are st of all in one of the briefings that you submitted in the twenty to fifty five percent he was represented by counsel he was represented by the federal defenders so i think that automatically should take him out of the right you make some points in your in your read brief you know that he's been running around in his pro se paper saying well i'm a career offender because i have this indiana burglary and my my point is like i should we kind of a touch of slack known right that's the classic definition of waiver i mean i know the government loves arguing waiver and forfeiture and so we're sort of steeled at that but it's intentional relinquishment of a known right when it's be entitled to this kind of leading see and here he is not constructing the the basic argument he's actually making the inverse of the argument these we can hear counsel year end up hanging your hat on this waiver argument you're really kind of saying  case we shouldn't permit we should permit the government to rely on this other conviction you're not making a broader argument that the it's always fair game if a conviction is later out because of an actor mistake that the government can pull something  or am i wrong no that's correct your honor and thank you for clarifying that for me that's true that this case is somewhat anomalous but also i my usage anomalous if you know suppose somebody has three significant controlled substance convictions on his record it's another wave qualifying for acar you know a good defense lawyer might stipulate that there are three prior convictions what's the point of contesting it but if that if one of those convictions happened to be you know for a drug amount and that's been changed it's not maybe it's not even a felony anymore his marijuana or it's something  things could change and you're really going to hold the lawyer to that the defendant or that you are i think that's an important point it is also the driving force behind the force behind the th circuit's decision that hodge in that case which is about notice to the defendant and remember in that case there were two cocaine convictions and then a rd reckless endangerment conviction and the court in looking at that and looking at the substitute predicate which was yet another cocaine conviction said this seems like an intentional omission he can't rely on what the government says it's going to use as ak of predicates is a different question so the government says relying on these three that actually you've got your hand behind your back your fingers crossed and said act on lest we decide to do something else  throughout the district court proceedings in the original conviction mr dotson knew this was going on the spur were going to was out there his counsel told the court he couldn't be sentenced anything below the aca enhanced sentence and so we think that he had noticed there so we don't have a quarter for thank you thank you mr goodson you can certainly have a full minute is limited to the air identified by this court on appeal and as the court noted in that opinion a remain and should not the accident of a rematch not allow you to raise arguments that you could have raised at an earlier juncture so yes we would say that the government would be closed if i may just raised three quick points in rebuttal st as to the indiana dealing in cocaine conviction i recognize that this court since filing my opening brief has issued three decisions two of them presidential for closing that argument and that binds this court but i do not raised the substitution argument in a supplemental filing where he noted again the government cannot rely upon predicates it did not rely upon at sentencing and i will just note that the argument was sufficiently clear to have alerted me to it i was alerted to this argument based on leanings and didn't just come up with this argument on my own finally just as with respect to the one way ratchet point that the government pointed out in its brief and up here on in argument the one way ratchet issue in light was about changes in the law and