case for oral argument this morning will be united states against carson and we'll hear first from mr cronin thank you judge who may please the court my name is dan cronin and i represented the appellant wyler's carson below and here today masking him for his pleas conviction and sentence to be vacated on the basis that his sentence under the arm clear criminal act to being a felon in possession of a firearm was illegal the reason for that claim is that the predicate offenses of armed robbery under illinois law two prior convictions for simple robbery under illinois law and a missouri conviction for robbery in the second degree did not meet the violent force requirement set  by the supreme court in u s versus kurdish johnson yeah right course you know if you there are two things i would like you to address as you're discussing this one of them is the fact that the curtis johnson case was already long since on the books by the time mr carson pleaded guilty to the charges and entered into his plea agreement and secondly of course is the fact that the plea agreement includes an appeal waiver yes judge would and as the court's aware i actually have the unpleasant admission of having it taken inconsistent positions on the appeal waiver in fact as late as the government's filing before this court of a appeal here today since that time i've come to believe that the sentient was an illegal sentence of the armed group criminal act was improperly applied to it's a question of judgment one has to construe statutes to i see which particular predicate offenses do or do not qualify under the arm to create criminal acts so it strikes me as it's simply of legal argument that he voluntarily chose to give up when he signed the agreement in your honor shirton lee and at the time that he entered into the plea agreement this is a going back to your question from a moment ago as well the curtis johnson case had been decided years before and as counsel for the government has pointed out in the government's briefing there are several opinions from this court regarding the illinois robbery i believe that what happened here your honor was a a forfeiture rather than a waiver i don't believe that mr carson or i knowingly relinquish a right i think frankly my inconsistent position on the appeal waiver as well as the underlying merits shows that there was no intentional relinquish meant frankly i believe that my error was while i was cognizant of this court's precedents which obviously controls so what do you do with the observation and united states against worthen that makes the pointed you know if you actually have to go all the way and decide the merits of the issue in this instance whether these are qualifying prior convictions what's the point of appeal waivers i believe there are two reasons judge would why the present case is less like the worth of decision and more like the gi decision from some years earlier first as in the gibson case we're not asking this court to invalidate a federal conviction we're asking the court to decide what we believe is a purely legal argument which was the stance in gibson secondly i'm very cognizant of the warnings and worth than that giving the appellant what he or she is asking for may open a pandora's box  but here to believe the present case is distinguishable for two reasons in the world and decision this court emphasized how the government in that case had dropped some charges that did not happen here the words empanel noted that in that case the government also as part of the bar agreed not to seek the death penalty there was no such bargain here and in fact our your honor my name is jim kushner i'm here on behalf of the government the government obviously agrees with the with the with what the court has said regarding the waiver in this case i don't think that there's any meaningful distinction between what occurred in this case or the underlying situation in this case and what was in worth and versus united states versus the sentence would have been considerably lower the whole baseline would have been lower had this not been under the arm  criminal act it would have been somewhat lower i don't know that had been considerably lower i guess that's a matter of how you would consider how you would interpret that i think if i recall correctly undercount want he would have had an offense level twenty  four but that the court certainly could have fashioned a sentence to achieve the sentence that it did in this case but it would not be grouping rules and all these other things because you've argued that the concurrent sentence doctrine applies but i just don't see that the fact that the guidelines range would have been different we know from cases like pew that that's a critical anchor point i do your honor and obviously the concurrent sense doctrine is discretionary what makes this little bit different is  that again the defendant is not contesting his conviction on count three is convict he contesting only the sentence and he made no argument regarding the sentence that was imposed in count one in his opening brief i think he's waived any argument that that he would be entitled or the court should consider what the effect on the sense in count one but again the government recognizes the current sense doctrine is that is a discretionary matter for the court but there are so many hurdles that that carson has to get over before the court could ever reach action and therefore the fifty year sentence that was imposed on that count that's the same type of argument there were that we're facing here as the court noted the the rule that carson wants the court to adopt here is that you have to decide the merits of the case before you ever  emphasizes now though very much that had what he regards as the error obviously we know no one has decided that yet that but if we assume it is in error would cause the sentence five to go above the statutory maximum so we're not just talking about points on the on a guideline scale we're talking about statutory limits well that's true your honor but defendants knowingly intentionally waive all arguments that they might otherwise present i don't think that that that's the term and in this case especially as as the court pointed out earlier that this is not a this is not something that can be clearly determine statutory range as well as the guidelines that and they knowingly enter into an agreement that reflected that and again the defendant received valuable consideration for that it's clear when you read through the plea agreement that the that is the finish decision to plead guilty and waive his right was tied to the government's flow and recommendation when you when you look at the defendant's record that was a bad thing to him in this case one of one of the two been the only count in the case and the defendant had you know stipulated that these were predi offenses but under johnson under the curtis johnson case but i sometimes think of his johnson twenty ten they say i mean it's somebody who poked you or said are some offensive touching that doesn't meet the curves johnson's standards it's the only count in this sentence winds up being above the set at the statutory maximum don't we have a problem with the legality of the sentence beyond agreements you're if you're referring back to the appeal waiver that's still a situation where the court would have to determine the leap the legality of the merits of the of the argument that the defendant's presented rather than as the case and gibson just simply looking at the case that it sends was imposed what the statute under any construction could have ever he could have ever been sense to here there's a legal argument about whether robbery is a crime of violence or not the defendant chose not to make and he received bible consideration for not making that argument again the operation of the guidelines of applying the armed career criminal act to count one as well as count three resulted in a total offense level ten levels higher and a criminal history category true categor higher than he otherwise would have had counsel for the government is correct in referring to a french level twenty four from the precise investigation report it's clear that would have been the total offense level on both count one and count three prior to any reduction for acceptance of responsibility if you receive the same three levels for acceptance of responsibility appellant carstens recommended range would have been fifty seven to seventy one