this is a case that is but this aspect of this case is that once both are unique and sort of fundamental it's unique because the facts that we have here are probably unprecedented and i don't mean the entire course of this case should your honor judge perry talking about how the work of this court is so relentless and i think some of the great deal that work has been the relentlessness of this very matter but it is nice to see you again on this billow thank you saying i feel the same way but i'm not sure that that's result but you know this there we were unable to find in the government was unable to find any other reversal of the new trial booker comes down and so the question is what happens that is unique and what is the seminal date or are there is a filing of the new trial motion before a third was  d in january two thousand to get their way is the grant of a new trial in may two thousand and two or was the filing of the new trial motions that purposes of two thousand that's the case because the result of that was that mr pollute low was before the court with no sentence in place and what judge debra voice had the choice of doing at that point was to simply reimposed the sentence that he had previously imposed or do a book or analysis now to answer your other question that goes to the two are related but unnecessary of resolution question which is was the rule thirty three a lateral and hears i don't think it was either way but let me explain the women if if judge ever voice had not granted a new trial do you believe you would have a basis for seeking relief under book absolutely not simply because of the file absolutely not  this is honestly i really believe this is not important and respectfully but i'll answer your question anyway because i'm a good guy the the in in in november in november of  hundred prior to the supreme court's that means that the new trial motion was pending and the and his conviction did not become final in in january of two thousand however i don't think it matters and here's why i don't think it matters it doesn't matter because either  matter of course it matters in some big sense but it doesn't matter to this court's analysis today and that's because when mr pollute located before the court for a re sentencing in may of two thousand  court judge debra voice had a choice that choice was to act as if what he should do is the mere ministerial act of reimposed reinstituting a preexisting sentence or whether he should do a book or and then goes on to say we expressed no opinion as to the applicability or retroactivity of booker ok with my so respectfully i don't think that the court with no briefing in front of it was deciding whether this case at that time was on collateral review i in deciding whether something is on direct review on lateral view is a balance between finality on the one hand fairness on the other that's what the supreme court does whenever it decides whether something be the issue of whether  everybody knows and nobody contests that the sentence that had been imposed that the court that the judge that boies determined to reimpose was unconstitutional in the sense that that the guidelines are now apply and even if i should this case is a does apply b because this case is not on collateral review and even if the the and the guidelines are advisory not mandatory i would impose the same sentence that i reinstate today would you have any argument to make i think we would be having an interesting discussion about whether the failure to form the book or analysis this court has described could ever be harmless that's the discussion we would be having we don't have we're not having that discussion because we really don't know what judge have a voice would have done and frankly i'm optimistic that he would given the way sentences of evolved in the federal system since that time were people who have stolen billions of dollars as opposed to the couple million a legal step that you don't want to go into the fact of this case but he judged to have a what was really offended about the rape of the pension fund and the people who want the law say that the little there absolutely garden variety broadened it no question and i think that there would be an interesting discussion and appropriate discussion just discussion of constitutional discussion in which we would balance the nature and circumstances the offense and history and characteristics of fended and perform that thirty five fifty three a six analysis to look at other cases and have a sentence that unmistakably comported with the constitution that's all we've ever wanted and here's why i think this case is in some ways so fun because at the end of the day regardless of whether you find that rule thirty three is more like a lateral review more like direct review and whether it matters that the motion was filed prior the rule thirty three motion was are legitimately in front of them not someone raising a new collateral not someone bringing a new case but people who are legitimately in front of them pursue it when ongoing matter to apply the law as it is written at that time and when judge he was not bringing a new collateral attack i mean he was there was there was a separate matter but he was not there at that time on a new collateral matter he was there on an ongoing matter that had been delayed many years i mean no fault of his because you know a district judge had granted a new trial it taken a while to get it through the court of you know all those things but he was there and he had the right like anybody else being sentenced in may of two thousand and five to have the law apply as  case which we cited in our papers it does cast the judicial system in somewhat of a negative light to draw distinctions between people who are before the court because the next person who comes into judge the boy says courtroom may two thousand  motion november they thought it was until march and we made a mistake because we originally said that in two thousand and one when the when the twenty to fifty five as originally filed that they had not raised the fact that mr poole had already litigated the forfeiture issue under direct appeal where it would have come up you can have it you know but respectfully there was just enough paper already the with ok so that case stands for the proposition and it relies on a case called koenigsberg which both stand for the proposition that district courts have it back to judge deborah voigt that if we did not accept your argument on the first point we would say that brennan was decided five weeks before you ruled but you didn't figure it in your given if the court were to do that it would be an interesting situation because in order to do that the court would be then be vacating this sentence and i would be arguing to judge that voice that mr poole was back there for recent and saying exactly as he was in two thousand and five and that should impose a just sentence in accordance with the law today which of course would be booker by the way along those lines could also impose now forfeit your right and he could if you get a reset and think he can give you the whole three million more and i suspect that he would  because that's what the jury found and that's a reasonable point that the forfeiture issue of course does not have to be reached in any regard if the court finds that there needs to be an appropriate recent and saying we suspect in both sides concede i think we can see that in a footnote both trial it sent it back to judge that the voice to reinstate the sentence which had never been illegal a few weeks later the circuit issued a one paragraph order asking judge in the first instance to consider whether booker and judge debra voice did that one may consider the re and the mandate to reinstate the judgment and that one paragraph order somehow in conflict with one another but they're actually not and judge boyce considered both when he decided on made well two thousand and five he stated clulow is subject to an existing sentence which i do not believe booker prevents reinstating he did consider whether final and that the rules thirty three motion which can be referred to as that delayed rule thirty three motion because it was based on newly discovered evidence and filed within three years of the judgment under the rule it is not part of the direct appeal are standing here arguing something very similar to what i'm arguing now i would have a comment here on or the dance card case is similar in this court found that a rule thirty three motion was more akin to a rule twenty to fifty five basically a collateral matter and then it was the direct appeal and if you look at the timing of when a rule thirty three motion of this sort is is filed it's filed typically after the direct review process or during the direct review process but it's not the initial appeal and that's why when mr les briggs i did the kitchen case for example out of the seventh circuit i believe it's out of the seventh circuit that case is distinguish because the filed his motion for a new trial after his direct appeal was affirmed by this court and in kitchen the rule thirty three motion was filed during the pendency of the direct appeal in fact right after for that matter kitchen is distinguishable and i would also like to comment about the butler case which was cited by mr les byrne the butler case is out of the fourth circuit is different from this case there the defendant did benefit from a was absolutely permitted to consider the controlling legal authority had changed dramatically after the mandated issue and that's why it gave the defendant a book or  clearly heard the jury rendered spurning he clearly heard judge debra voice say that judgment will be entered in accordance with the verdict and there's the rider to the judge that's correct at the oral sentencing and also in the written rider wouldn't give you enough without th amended under rule thirty six but if you didn't have a jury verdict you'd have rider ages saying the defendant is subject to work with you or you wouldn't have an amount you wouldn't have any i think i think your honor is correct at this time because there was no  substantive in nature when he signed the judgment sentencing a recent saying the institution of the sentence whatever the court wants to call it in may two thousand the way i think about a collateral attack versus a direct appeal is part of it and i think it's the way this court and by the way the direct case which we've been talking about a lot in the context of the forfeitures worth taking a look at for this purpose as well because it has something to say about the distinction and we cited in terms of the distinction between collateral review on the one hand and direct review of the other direct review was all part of the same matter we have that here of course this was all under the same docket number as the original trial and that's how the new trial motions are and in this case where that argument though dance the all these cases the i believe in dancer that in that the new trial motion was filed after was filed after after those direct appeals were concluded that's an important and my answer is that is an important date if the key question if that's going to determine whether this is on a lateral review or but i think it's important to think more fundamentally about what that term collateral means it means a separate matter it means reopening a case in some sense this when this case came back before judge deborah voice in in two thousand and five there were there were no issues of finality he had to do something that day and what he had to do that day instead of taking the amount of time that it took for him to actually consider all the booker arguments would have been exactly the same as if we had just made the book of arguments and had them rule on them i think almost what you're saying is the case wasn't final because the boys made a mistake was not collateral review because mr poole was standing before a united states district court with no sentence then in place because judge deborah voigt made a mistake and that happens that's just like attack on his sentence saying his sentence of one hundred twenty months was unconstitutional the district judge denies it it goes into the court of appeals the fourth circuit hardly a bastion of defendants rights and the fourth circuit reverses and sends it back then the government appeals it goes back up to the fourth circuit the fourth circuit now remanded with specific instructions to impose a twenty year sentence instead the district judge does a that now we're on many times removed collateral review the district judge at that point has the defendant in front of him and says you know i'm going to do a book or analysis and sentences him to fourteen years instead of twenty years in the fourth circuit terms that and it says apropos of just very of your question that you know it sometimes happens that because of how long things take and because of errors that judges make that somebody is in a different position and they otherwise would have been there's a certain arbitrariness to the fact that somebody is before a legitimately before them that's different respectfully than a collateral attack where you come to court you say i want the book applied to me retroactively that's not what mr pulo did what mr he was there he was there without a sense in place and whether that was because of judge debra voices error because there'd been some other air he was there without a sentence and under those circumstances it's just wrong and it's wrong even for mr pollute to impose different law than the law that's applied to everyone i look for other cases on this and i actually did find a couple and i can do a twenty eight j letter if the court pleases but i'll give them to you and i and i  so that so that so that a new judgment can be in effect so that the time to appeal can begin to run again and so in each of those cases the defend it was back before the judge on a collateral attack and the court imposed in the court in fact performs a book debra voice erroneous they granted him in a new trial would put him in a position far better than any other defendant who was sentenced in one thousand nine hundred seventy never had the benefit never filed in a row in his new trial motion and that's that is the government's position here as well a