morning council good morning may it please the court christian there on behalf of appellant jeffrey donnelly i would like to reserve three minutes for a bottle and i'll watch my time all right i'd like to thank the court for expediting the briefing and hearing that mr donnelly's appeal time is of the essence as he is released from custody in april and he will be at that point begins to search serving his supervised release term so practically speaking what issue for recent thing is the supervised release time which would need to be knocked down from five years to one to three years under the stars try maximum so practically that's that's what we're dealing with here today and i appreciate the court's expedition i'd like to focus on two points today the first point being that the government's briefing conflates a timeliness issue with the merits of a motion to vacate and the second point being that the government has waived any challenge to that time when it's that threshold issue so the first point the government's briefing sort of conflates and combines and mixes together the threshold analysis of whether a defendant has raised whether donnelly specifically raised a johnson claim validly and whether he can can see has proven and met his burden to succeed on the merits and what further complicates the government's position is that the government is asking the court to adopt the second or successive motion to vacate standard when donnelly has raised he filed the first motion so there's a different threshold standard as to how you are for second or successor is completely different it's a much more particular a standard with this reliance on standard that the case fully explored set forth the standards for how a defendant must show reliance either with express statements that the district court relied on the residual clause or whether it's unclear and that's just a totally different scenario and that makes sense because it's much harder to bring a second  so your view just bringing it down to our specific context let's say it was crystal clear at the original sentencing got the district judge replied are you able to hear me yes i hear you  you would say and you know in the sense it happened ten years ago so you would say that if it's a first petition all the person has to do is just assert that hey i'd like to take advantage of this johnson case even though it's obviously not going to be of any help the petition would be timely but then the person would just lose on the merits is that i'm just trying to get a sense from a practical standpoint how you think of that analysis is going to differ in the two contacts first versus excessive yes your honor and i would agree with half of that so i cri that that's how you would timely assert the case the merit section in joseph doesn't address at all what happened at sentencing it just addresses the purely legal analysis of the categorical approach for the forced clause to see if the johnson air you know the residual cause being knocked out of the situation if that actually affords the defendant relief well so you know that's why i guess i'm not sure your position is right because the only reason you're allowed to come in ten years later let's say and even be heard  because johnson came down and all johnson did was knock out the residual clause so it seemed so you're not going to get a fresh forced clause analysis ten years after the fact if it was crystal clear at the original sentencing that the district court relied soley on the force cla right so i'm not i don't think your position can be right i'm i'm guessing that if we really drill down the standard is going to be basically the same you're still going to you as the petitioners council are still going to have to show to some extent that the residual clause at least was possibly the basis for the sentence in order to come in ten years later invoke tronson as a basis for getting into court so if i understand the course position and i understand the practical nature of that reasoning it just it wouldn't make sense to conflate the second or successor petition or motion to vacate standard with the first motion so if you follow that your the roadmap you would just instead of having the first reliance on section he would just have to assert the right and o johnson and then you move on to the merits and the merits just address the forced clause issue n g o s and that's that's what the court decided to do in that case and i would submit that's proper here so we would just first and that the supreme court's only knocked out the residual clause if it came in one of the other clause could still be valid why would we send it back to the district court to make that determination that's what we do in most all other cases care what the eleventh circuit said we have to decide it this way so you say we don't have to send it back at all you know this court would need to send it back for recent unsing but not for the district court because your court already conducted the merits analysis and came out the other way that held that these robberies qualified under the force last why wouldn't we send it back to district court saying now you've got what the supreme court said you got with the ninth circuit you said rese back for the district court to make the determination we vacate and as we ordinarily do but it seems to me your arguing for us to make that decision for the district court and i wanted to know why i understand i understand the court it's a procedural issue i think that the proper procedure because this was an order would be to reverse the order and then through the recent and then the court would be granting the motion to vacate and granting  and then at that point that would vacate the judgment and then he could do it in a recent if we vacate if we've been remanded it is gone and you can make the decision he or she can make a decision where it should be miscommunicate in the geos those cases that our saying has already done all of the merits work for us so there's nothing for the district court to do the sentence that was imposed originally was illegal now under our circuits law so i think what you're saying to judge wallace is simply that the only thing that would happen on remand is that the supervised release term can no longer i mean we should order his immediate release today yes if he's already served beyond the statutory maximum that otherwise applies and the panel ordered in that case that because the defendant had already served over the ten year custodial sentence and i understand that that's why i ask how long he was in but it strikes me to be rather interesting to have three appellate court judges decide on on what type of i have that's why i wondered why we would be put in that position we don't just release him if it goes by the district court the release of the release would be under certain conditions  suspect well in this case it would be under his supervisor at least conditions that if this court ordered his immediate release and just was courted then he would immediately start serving supervised release which would be those terms that were imposed at the original why i think this court would be reversing the order denying the motion to vacate and reminding for a recent thing and at the same time ordering his immediate custodial release versus he's not free from all restraint it would just be zero p custody because right now he's still confined to his b o p halfway house and at that point it would be the supervised release room that would begin and then the court could an industry court would then be able to have a recent unsing to adjust  the courts that we see if we reversed the district court's order denying defendants twenty two fifty five motion and remain and with instructions to vacate defendants and we didn't reverse the sentence on page nine o ne yes at the very end where the court reiterated its ruling yes your very last paragraph of the case yes yes and this court could do the similar instructions and also instruct that the court that the defendant be continued on supervised release if the court were concerned about that that the that the defendant began  or you're going to tell us why they didn't make any difference because right now well actually i'm going to say that it doesn't make any difference because the defendant hasn't met his burden here and to go to your question judge part of the point that you were making it's true that the that the criteria for initial twenty to fifty five and second or successive twenty to fifty five's are different and that the burden for second or successive is much higher but in both cases the ok all right so the only way you can prevail on this case is if you persuade us then proceed to leave the defendant did not properly request relief fund johnson yes and what so what this court has said what that what the initial for an initial twenty two fifty five the defendant has to assert a right that was a risk originally initially recognized by the supreme court the right that the court initially recognized in johnson is the right not to be sentenced based on the residual clause of the so if the defendant was sentenced explicitly only on the elements clause of force clause they're not asserting a right originally recognized in johnson you didn't make this an argument before the district court why can't we say that the government has waived this argument well i think that the argument that we did make of course the initial briefing in the district  was before us and what we had was every court that had looked at florida armed robbery had said that it falls under the ok but they argument was still available to be made regardless of the existence o argument that they didn't make the johnson claim that their promotion does not make out a johnson claim is implicit in our response that i mean we didn't explicitly say it's true we didn't explicitly say we went right t merits and we said every court in the country says florida armed robbery is a is a crime of violence based on its elements so we didn't explicitly make that and so i mean yeah in retrospect obviously we should have but but the but  the sort of the not of that response is the defendant is not making it johnson claimed johnson has no effect on this sentence because this qualifies under the force clause now we know that in this circuit that is not the case that happened after the district court had had denied denied the twenty to fifty five so we're still left with what keogh's those did was it carved out an exception and get the defendant has a burden to show that they were sentenced that they that they were sentenced under the residual clause right in which case they would have relief if they weren't if they were sentenced only under the forced clause they wouldn't have relief what he owes us that is where the judge didn't say anything and therefore and therefore it's like a general verdict right where it's like a general verdict we're going to we're going to let the defendant say ok like the general verdict if there were two theories and and and it's not clear which the theory of the judge relied on which in the  and so what is your argument then as to why he has not met that standard here because we don't know it is unclear which of the two clauses that this record originally realised he'd not only hasn't made a showing either that he was sentenced under the residual clause or that the judge didn't say anything at sentence at sentencing so that it falls under that he owes us exception he has i'm alleged no i think the standard is if it's unclear right if it's unclear which of the two clauses form basis for the sentence the defendant gets in the door and it is totally unclear here it's so unclear that you guys can even produce the transcript so we have no we literally have no idea well i think in the in the eurozone as you know in the first two pages of the you i mean this is like taking that could be an affidavit from the defendant that could be an affidavit from defense counsel that could be i mean something this this is i mean i will say that the response in the reply brief as well this was twelve years ago how could anybody remember anything and that might be true but this was a very high profile case this is a twenty four hour arm standoff with swat in henderson nevada that is not something that happens every day it is entirely possible the underlin spectacular but not necessarily the court proceeding perhaps but then right before sentencing the defendant sends a letter to the judge saying my my attorney is trying to hoodwink the end of the sentence and i don't fall under this guideline and then there and then the minutes of the sentencing says there was discussion about that all i'm saying is that the defendant has a burden here and if if it's kind of like just the analogy is to the general verdict right that's the that's the analogy that the court  to relief without even having to allege that the jury did return and general verdict that's what i'm puzzled about what happened in terms of recording these proceedings because i know there are people who are employed full time to do nothing but there it is true and so i'm really curious about how this came to be i don't know i know that i mean the sentencing hearing was five years ago when the order but those are supposed to be kept yet and that's another thing that the parted with the burden might want to explore i mean you know the court ordered the government to go in there in the briefing on the certificate of appeal ability t that and it's out of the united states attorney's offices control as well i mean that as all we know is that the clerk's office says the recording is not available but that doesn't i mean i think that that makes it unclear again right if the recording isn't available who bears the brunt of that doesn't that make it unclear and therefore in your to the benefit of the defendant i would say that the party that bears the burden of making at least a threshold showing i mean for all we know and i'm not i'm absolutely hypothetically right for all we know if they if the defendant who bears the burden got in touch with this trial counsel who's still a as far as i know an f p p in another district and said do you remember this do you remember what the judge said about this he said oh yeah he told the defendant that robberies a crime of violence because it has an element the use of force against a person of another i mean for all we know because as far as we know they haven't even attempted to demonstrate that they've met their burden at all i mean and in fact if you look through their briefing they do not even allege that the judge was silent at sentencing or that he was sentenced under the rich central clause they just say we use the word johnson and therefore we get relief without having to make it without having to meet any burden at all or make any showing at all and i think that that i mean if that's the case then what does it mean to say that a twenty to fifty five defendant has a burden well this is a very unusual case in that the proceedings were not preserved yes so this will not occur hopefully with any frequency you know and i was thinking about that this might actually be a twentieth century problem that we never have to deal with again but then you know but then we have the hurricane and houston and i mean it could it could conceivably be that there could be cases in the future where records are lost or destroyed or damaged and if a defendant simply doesn't have any burden at all to show that to show that they fall within whatever the rule is you know then that that just really goes against what we've always said about twenty to fifty five really was anxious to hear your argument today because i frankly puzzled as to why you this was and we have i mean obviously our office has conceded a number of these you know in particular some initial cases we haven't had that many in the district of nevada but you know but this case this defendant has spent other than when he's been incarcerated he has spent his adult life terrorizing people with guns and now he's just about to get out and he's going to start a term of supervised release which the reason when he's a c c a it's a five year term of supervised release if he's not a c c a the maximum is a three year term or a surprise release so that would that would be knocked down right the way the bureau of prisons manages this is if it's determined that he wasn't a c c a and therefore he's only got a ten year max he has over served three years of time and what they do is he'll have three years of supervised release if you violates his term of supervised release and is sent and is revoked and sent back to get some credit for that time so he'll immediately be wire ok that's what i thought but there's no general legal principle that is beyond the particular facts of now i can't i think this is this is a really odd case and i don't see it happening a lot but but i do think that we are in this i mean they as they pointed out and  mean the legal question that the district court had is whether this defendant is an armed criminal and now thirteen years later we are in a world where the fact that he has spent his adult life terrorizing with people people with guns is irrelevant to th i mean it's many judges have noticed this you know some mean defendants are arguing that murder is not a crime of armed robbery is criminal not a crime of violence and i don't know that the court really understands what they have wrought with these decisions i mean the supreme court the supreme court yes absolutely know many judges on this court and many judges are in district courts and court of appeals around the country of express just absolute exasperated with where we are problem is we're bound by it yeah that's the problem that's so until the pendulum give you two minutes for a bott matter mostly just one quick point on the bottle this case is unique not only because there is no transcript the reporter's notes are courting with loss apparently but because it's also unique because the government didn't raise this issue below so donnelly cannot now be faulted on appeal for not exploring this issue when the government never put it into controversy but opposing counsel makes two points one is that the argument was implicit in the expletive argument that it made and to donnelly has the burden of proof and should not just be allowed to rely on the fact that the government didn't explicitly make the argument but your response so to the first point my response would be that i don't read the response that way the government entered engaged on the merits it said no there's no entitle me to relief here because he still qualifies on it fo scott the prior still qualified the fourth class and that's the merits analysis as was entertained n g o s and this court came out the other way so that's what the court that's what the government was addressing me and i think the response was very clear that that's all the and he explained also why he won under the merit so he met both challenges if the government had a challenge or didn't agree with the interpretation of the statute and thought that more should have been shown it was the government's duty in its response to