thank you and may it please the court mr mohsen title to re sentencing in this case because he meets the four prongs this court's wheeler tests the government already concedes the first and third prox let me hoss foreclose any claim of the time of his sentencing and that mr moss cannot rely on a case that held an adjudication withheld conviction under the federal felony possession statute has effectively overruled the rationale upholding the us me hasse's the case of the eleventh circuit that held an adjudication withheld qualifies as a conviction under the eight forty one and fifty one enhanced ments that are stemming mr moss hear me hoss effectively is bad law which is can you let me just stop you there because what does that mean that it's effectively bad law the eleventh circuit has over it right correct or on or has not however it is bad law because the entire rationale the entire holding of me has been effectively overruled by the eleventh circuit decision and part of me bracket that for a minute but even assuming that's correct and this is going to sound so semantic i guess but i feel like our savings is like that i mean is it is it your position that it's enough that the eleventh circuit might want to go back and reconsider  a in light of clark or or is it your position that it already has done that you know what i'm saying like i could see an argument certainly that to synthesise it's law the eleventh circuit might want to take another look at how all of this stuff lines up but is that sufficient for you to prevail your honor under this court's wheeler test under step two it is enough to prove that there has been a change in suppes of law to the extent the eleventh circuit can be the only circuit which definitively rules it is law that is true but the principles here under step two wheeler what procedural buku would we do that your honor there have been b s at its core is an equity in their past examples we pointed to in our brief of cases where other federal courts have ordered a transfer your honor i believe your friend to clark two which came out on the same day as clark the issue with clarke two is to your first point it is unpublished and as such it has no precedence or value in the circuit or any circuit but second clarke who came out on the same day as clark so in that case defend it clark raised an eye in a based argument that he had not raised previously at trial so he had waive that argument trial thus the court in clark two was looking at a playing error which is different and more difficult standard to meet he also did not mean what you're suggesting is because some earlier opinions relied on a different opinion and a different case that that by itself just collapses the whole house of cards but ultimately aren't we talking about two separate statutory definitions of what to look for in terms of what makes out of conviction one arising under federal law one arising under state law and why can't those two coexist under the circuit's precedents your honor mr moss has never car no no me has actually distinguishes the two because it notes that there are these district court holdings that say that this kind of florida plea is not a conviction for the felon in possession statute and then it says that we can distinguish those because that's a matter of kind of mixed up that's a matter of state law right whereas this question in front of us is a matter of federal law so it actually does divide the world in it if i mean the distinguish nine twenty two as a separate context and that's were so that's why i'm having trouble with this argument that that the entire edifice of the case law here has disappeared because already in the house it was making this distinction federal we now know that's wrong but it doesn't change the first half of it that you look to federal law hasn't changed it hasn't your honor however the federal law only looks to eddie jones relying on this fel in possession statutes journals was almost frankly an afterthought i mean that just trotted that out as an example of yet another example as to why he is was correct but i don't think it relied solely on that is that what you're change that that is that is not at issue here today only eleventh circuit could could change that determination and he asked in fact puts all rational on eddie jones which relied exclusively on film possession statutes the supreme court case i mean that by itself seems to stand alone as a rationale for why that your case is different than jones was sort of discussed as an example which is the chief judge says back then was consistent with what he is but now the florida supreme court has told us otherwise but i don't see how those are at all inconsistent your honor i come back to him and he asks the court in the eleventh circuit still put it so it's so holding at least upon eddie jones it may have mentioned other other attributes of the policy considerations but it's holding and so holding was on the rationale of analog justifications potentially the eleventh circuit could do or could have helped if frankly just didn't for its holding and set a minimum that is enough in addition with equitably principles under hay vs enough at a minimum where this court may have some doubt to send it back to the sentencing court and on appeal to the eleventh circuit additionally under prong four it is clear that mr masa suffered a fundamental defect a harm as a result of his double mandatory minimums similar to the instance that mr wheeler suffered in this case just last year and so as a result of that his sentence went from ten years to twenty years it literally doubled the amount of time that mr moss is serving as a result of the mandatory minimum as a result of the education withheld in two thousand and four there's also right a concurrent twenty year sentence for the firearm charges is that right there is your honor however the sense in court never gave an independent rationale as to why it gave two hundred forty months for count two for the gun charges and that to count two for the firearms so you're saying it may be that the firearm sentence is not truly independent of the issue rather than because you know you skipped to four and i understand that you think the government has waived the retroactivity question because clarke is more broadly overruled me hoss and as a result it would change his qualification under that eight forty one b one handsome and so it narrows the range of the punishment he would otherwise face so you're saying that any change in the law that affects qualify simply because it alters that range of conduct that is that is punishable so it qualifies under the exception for new substantive rules and your honor further to that point about the gun charge i mean the evidence in the record is tenuous at best as to whether mr moss actually used any firearms that connection so the sentencing judge is failure there to provide end up in a rational is is deeply concerning because that whole can be reviewed it should ultimately be remanded to the district court with instructions to transfer to the sentencing court the middle district of florida and finally equitable principles in this case compel hay vs relief to the extent this court may be concerned or unsure or unwilling to try to parse together what is admitted lee the difficult subs of law the eleventh circuit the act will principles the broad powers that federal courts have should compel hey vs relief in this case the harm is suffered by mr moss as he continues to suffer what is potential in erroneous lean hansen's that is double his mandatory minimums and because of that any certainty or ambiguity should be cast in favor of them specially under this court's w clark represents a change in the sub's of law mr moss is otherwise unable to seek relief for successive twenty two fifty five petition because it's a statutory change and isn't hansen's under prong four represents an error that is the fun of a fundamental please the court case for the united states the issue at hand here i believe your honour's is settled the eleventh circuit has settled this matter the circuit has settled this matter and clark has changed nothing the eleventh circuit has said you look to federal law when determining what a conviction is under a federal statute specifically the federal enhancement statute eight fifty one and eight forty one this court has said you look to clark one that petitioner hangs its had on is specific to the felon in possession statute which is different because it looks to state law and i believe what is significant in this case as this court alluded looted to on the very same day that the eleventh circuit issued clarke line it issued clarke to and yes clarke to is an unpublished decision but that does not render it unimportant for purposes of what we're looking at here today and i'd like to note two key points of what the clarke to court stated and first i'd like to just highlight that clarke to again was issued on the same day in the same case relating to the same defendants and by the same panel and in clark two specifically when assessing whether or not it was plane air to hold that enhancement could be held under age fifty one and eight forty one the court reaffirmed its precedent in the us stating that we clearly do not have anything any precedent of this court because pacifically clark two case deals are dealt with a suspended sentence whereas me he s dealt with a withheld contendere with adjudication withheld in florida state court is a conviction that supports an enhanced sentence under section eight forty one b and if it was not an ambiguous what the eleventh circuit intended it went even further and i direct the court to footnote eight of clark two in footnote eight the court further reaffirms that the questions addressed in clark one were different than clarke to by stating that the question referring to the eight fifty one unhandsome and that we are dealing with in this case is different from the one that this defendant raised regarding his section ninety nine twenty two g gun charge and that's clark one the court further went on to say for nine twenty two g we look to whether florida state law treats a prior arrest as a conviction here and referring to the eight forty one fifty one unhandsome and the court then states again citing to we look to federal law and therein is the crux of this matter clark one dealt specifically with the narrow issue it was a certified question to the florida state supreme court on the issue of whether a conviction or withheld adjudication could be considered a conviction for purposes of the federal felon in possession statute is a separate issue and again the he s look to federal law as opposed to state law so dismisses again the eleventh circuit is clear statements by stating that clarke to is is unpublished but what i'd like to highlight for the court is that courts act in ways that matter and courts act in ways that make sense and for the eleventh circuit notwithstanding in an unpublished decision in the one breath to hold that this is good law or i should say specifically to rely on the he s in finding that no plane error occurred by the district court and then in another breath on the same day to hold for clark that nine twenty two g somehow overruled his holding would not make sense and furthermore would be inequitable to the defendants in in both clark one and clark two as i highlighted there are the same defendants so confronted with these two decisions the petitioner instead has tried to come up with other arguments distinguishing why clark one perhaps may have changed the landscape of eleventh circuit law and why he has overruled but if eddie jones which this court mentioned eddie jones perhaps with an afterthought in the he s decision eddie jones is the sole basis upon which petitioner can rely on that he s is no longer a good law the petitioner truly has quite a battle to make that argument as this court recognized separately as this court noted distinguished the federal firearms statute and nine twenty two g when stating that those provisions relate to state law and separately what we are deciding here is a matter of first impression which deals with whether or not we should consider state or federal law in determining what a conviction is for purposes of the withheld or seasons for purposes of eight forty one and eight fifty one so clearly in the he s the court makes a distinction between whether to use federal and state law and that truly was the sole basis or the fundamental basis of what he has stood for and it relied on any jones as just another example of where the court had found a withheld adjudication to be considered a this enhanced mitt and the purposes for using a conviction arguably are different and with one twenty two and that's something that the florida supreme court highlighted in its certified question when answering the  eleventh circuit's question the florida supreme court specifically stated that while we find here as to the federal felon in possession statute that with a withheld adjudication is not considered a conviction there are other circumstances were based on  rationale and reasoning of those statutes that are withheld adjudication should be considered a conviction and the policy reasons behind a forty one in fifty one or just those so we have a situation here where adjudication was withheld on petitioners prior felony drug florida state conviction however petitioner did engage further in criminal acts and that's part of what the enhancements address that where an individual breaks the law the deferred sentence may be imposed and again for this reason that's why these types of sentences do not exonerated defendant for purposes of criminal history points counsel can i ask you a question about retroactivity yeah i understand  that i mean you think that that's not raised in this case because there was no change in the law but just sort of hypothetically i'm trying to get my hands around whether this is a substantive or procedural rule for t v purposes and your colleague is arguing it's a substantive rule felon in possession statute that is a substantive rule because if you're not a felon you didn't do anything wrong or respectfully your honor as the court as has alluded to the government did not address this point because it's we believe totally political to this setting but i do concede that if faced with a situation where it was the felon in possession statute specifically and as well faced with the specific conviction withheld under florida state law we may be dealing with a different scenario and retroactivity retroactivity may apply with the substance of of that decision however we are not faced with that issue in this case which again is why the government he would draw as a stink and say that it might be might be substantive as applied to nine to the felon in possession statute but would you say it's not substantive if it applied to just a sentencing enhancement that's correct ok i just want to get the government's position on this yes your honor and as the court alluded to i are me let me jump to my other argument with regard to the gun charge that was issued which as the government has submitted  independent justification for why the petitioner sentence stands the petitioner was sentenced in addition to his drug charges to two hundred forty months for a gun charge and i call it a gun charge but it's a charge that involved well over seven different guns these were glocks pistols revolvers and the petitioner states that the sentencing court gave no independent rationale for anything related to the gun charge but that's not correct during sentencing the district court judge placed a heavy emphasis on the effect of guns in the drug distribution network that the petitioner was involved in as well as the fact that one of the guns that was involved in this conspiracy potentially could have led to the death of a police lieutenant and specifically i direct the court's attention to the joint appendix at page one o one i'm sorry that's at page seventy nine scuse me now the court talking to the petitioners family states i'm sorry you were not here for this three week trial because it may have opened up your eyes to the distribution in which he was involved actively the conspiracy with other people the kidnapping that was incurring the use of firearms including the use of a firearm that could have easily killed a law enforcement officer by one of the co defendants so this was not a court that was silent as to why she was issuing a sentence at the maximum for the gun charge this is a court that very clearly gave her reasons and the court furthermore highlighted the defendant's involvement in the criminal drug conspiracy that was convicted of the court went further and stated i'm now it joined appendix one hundred two one zero one two one zero two the court stated you have to realize that these are serious matters she is not facing this time in jail because of min he's facing them because he is indeed a danger in the community along with all of the other people involved in this she went again even further the court during the sentencing chastised not only the defendant but she went further to chastise his family to say you could have stopped this where were you when all of this happened and your family member she continues i'm now at page one hundred two of the joint appendix the court states there's no reason for you being  except willfulness you willfully got together with the wrong crowd of people and you know it and you willfully wanted to participate in this so these statements by the court can highlight the court's rationale for issuing the two hundred forty month sentence on the gun charge and this is i say this in contrast to the situation that we had in wheeler in wheeler when the court addressed this particular prong of whether or not a grave injustice or error occurred in the sentence or due to any alleged error the court highlighted the words of the sentencing course in that matter and specifically in wheeler the court stated that it was reluctant the court stated that the mandatory minimum was harsh but its hands were tied because it was confined by the mandatory minimum we don't have any of those here so again i draw a stark contrast between a situation where perhaps there  some evidence in the record where the court was influenced or considered the alleged or proport of error in that case a mandatory minimum as well as this case to the situation we have here where it's clear that the court was unrestrained by any mandatory minimum and the court gave very clear reasons for her rationale and finally i'd like to note petitioner's this so called equitable arguments and a belie petitioner explain the equitable arguments to be that notwithstanding wheeler or this court savings clause test that this court independently as an act of equity should send this matter to the district court the middle district of florida and thereafter have the eleventh circuit court of appeals hear this matter if there's any issue well as this court is aware the savings clause test is a threshold inquiry of jurisdiction before even the petitioner can get to any relief and before a court can consider this and the district court in this matter judge ever found that the petitioner had not met this inquiry and therefore dismissed the case there is no mechanism for this court to jump through that threshold inquiry which is the savings clause test to remand this matter to another court so the argument is certainly not waived because the argument of sending it to the district court that's what the savings clause test is and that's what the entire argument that we've been discussing is and what i'd also like to note about petitioner suggestion that if this court somehow felt uncomfortable deciding this issue that means of going through the middle district of florida and somehow to the eleventh circuit is an option even that option would not make any sense in this context as the government laid out in its brief the genesis of the savings clause as well as noting the differences in how the circuits have held the savings clause and what type of relief can be allowed under the savings clause and the court may be familiar with macarthur envy goodwill industries suncoast and in that matter the eleventh circuit has categorically held that a statutory claim like the one we're dealing with here cannot be heard through savings clause relief unlike what this court held in we'll so therefore any type of remedy that petitioner urges that would include this matter being remanded to the middle district and somehow it would make its way to the eleventh circuit is not possible under current precedent of the eleventh circuit so again in addition to the equitable argument this court having no mechanism to make its way there it is well would not even be a viable option as the petitioner proposes and with that if the court has no questions the government just seeks that this court to reaffirm the decision of the district court in dismissing the petition for a lack of jurisdiction thank you if you you have some time reserved specifically to the felon in possession statutes which are in fact state law second the government made a point about clarke to arguing that our only point on that was that his unpublished verse is unpublished as such has no precedential value but secondly seemed in just in reading the opinion and i agree with you it's unpublished but in trying to make sense of what the court was doing in reading the opinion it seemed like they it the plain error thing had to do with the argument that in that case there had been a suspended sentence rather than adjudication withheld and so that was the defendant's argument you can distinguish he s based on that ground and they said well not under plain or you can't like me might take another look at that if it came up directly and maybe we could distinguish he s on that ground but i don't see anything in there suggesting that they weren't just applying the he s as good law and the question was this factual nuance that's where the plain error came in your honor to your point of that the court in court to upholding me on those grounds are the court had the benefit of because it's the same panel it is your honor but in that case that not like they didn't know about clark one right correct your honor but but again that plane error discussion is just a different standard harder standard than the standard are applying here additionally to the to the point the government made on retroactivity into your point judge harris questioning that when the government conceded that it would be a substantive role for the fel third point the government makes many arguments on the gun charges you heard them point to the joint appendix discussion the sentencing judge had about the family and other testimony in the record also arguing seven gun the number of guns under the count two indictment that applied to all of the defendants not just mr moss there's scant testimony in the record mr moss ever possessed may have temporarily possessed up to two guns not the seven guns the government claims all the defendants may have had at some point time during the entire drug conspiracy thus the arguments and the arguments about family discussion and other points in the record are not an independent basis or rationale sentencing judge would have had to put forward for those two hundred forty months and to the final point the government argues that there's no i'm not sure your honor however it certainly this court could construe it in an extraordinary case as we have here i'm a can certainly find that they also ask you a question about this acquittal argument that your colleague mentioned that in essence she suggested be careful what you ask for because if we were to send this case back to the eleventh circuit of the district court in florida there are savings clause dearest prudence is different in the sense that you don't even get out of the box with respect to a claim like this in the eleventh circuit what's your response to that we are going to come down to greet counsel