morning your honour's i'm josh lee from the public defender's office and i represent are all more the parties in this case agree that mr morris section nine hundred and twenty four c conviction which was predicated on the crime of arson is unconstitutional and can't stand the dispute between the parties at this point is what do we do now what's the appropriate remedy for that error mr moore's position is that the court should restore the parties to the status quo ante that we need to redo this case from the beginning as if mr moore had only been charged with arson the government says that a do over isn't needed and that the that the government should and ninety six dollars that statute specifies that the proper remedy in this situation is the one proposed by mr moore restoration of the status quo ante the nd problem with the government's position is that imposing an arson conviction based on mr moore's guilty plea to section nine hundred and twenty four dollars c would fail to remove the taint of the error it would unfairly prejudice mr moore in the sense that it would deprive him of the opportunity what that statute says is when the government and the defendant enter into a plea bargain under which the government agrees to dismiss some charges in exchange for the defendant pleading guilty to one or more charges and then the defendant comes along and vacates moves to vacate the conviction that he pleaded to and that motion to vacate is successful what what the court does is allow the government to reinstate the charges that were dismissed pursuant to the plea agreement and that with the government thing here that isn't what the government's requesting here but that's what the law says that it's entitled to and the reason was because the statute for says when the court is fashioning a remedy it can do whatever is just inappropriate but when congress comes along and says we've thought about this specific problem and here's what you do the specific remedy provided by congress when it's thought about this exact problem supersedes more general remedies so that can and recognizes that when congress says here's the remedy for the situation it carries a negative implication with respect to others and say that it doesn't say that but that is that's how the what if what if he hadn't been charged with the substance of the fence here just the twenty three dollars of you get what would you do the you get the same result either you can read thirty to ninety six to say that the implicit counts come back the implicit lessers come back so i do think that section three thousand two hundred and ninety six addresses this exact situation but even setting that aside even if the thirty to ninety six didn't didn't exist and you can apply this general statute and the court's precedent in smith you still have to restore the status quo ante smith it was a natural trial myth that's right and that's why smith doesn't apply and that's why you apply three thousand two hundred and ninety six rather than smith as smith addresses the totally different situation of the trial how many counts were dismissed in this case in this case just want so he's charged with one arson and one section nine hundred and twenty four dollars c but the reason that even under the more general statute mr moore still has to win is because under that statute it has to be clear that there would be no undue prejudice from imposing a conviction for the lesser included offense and here there's undue prejudice in at least two senses the st is that there is a reasonable possibility that but charge mr moore would have been able to obtain a favorable plea bargain either in terms of charge bargaining down to reduce charge always happens what the law is and you make a plea bargain you can't predict what the  you do that would you say you can you can withdraw your plea then you would have to make a challenge that the plea was not knowing and voluntary and you'd lose wouldn't you i'm not sure you would because if if you're miss it vies of the statutory maximum for an offense if you go to trial and you plead guilty based on based on a mistaken impression of what the risk after trial would be if that's a much later but the thought in general artie's take the risk there the government may may have had a fear maybe the reason they allowed the plea is they had a fear that nine hundred and twenty four dollars c three would be found and because so so what do you do that's the general rule the key point here is that davis is retro e so ninety nine nine percent of changes in the law you assume the risk but a explicitly retroactive change in the law like davis's you run it back  and that you have to assume that that was the loss from the very beginning and if that was the law from the very beginning then mr moore was mistakenly advised about what the mandatory minimum the statutory maximum was and the defendant in your hypothetical would be mistakenly advised about what the mandatory minimum and statutory maximum was in fairness to the government do you think there's any unfairness here if they have agreed to the plea to the arson charge  would be going through this and now they've got to retry an old case so for two reasons i don't think the government is unduly prejudice the st is that mr moore's in the same position both sides can lose evidence after ten years who has the burden under reasonable doubt the government has a burden but this is something that we face all the time all the time in collateral review we have to undergo convictions and the government put in the position of having to try an old case so that doesn't distinguish this case from any other where you have to grant post conviction relief that's why we have all of these hurdles to post conviction relief that mr moore has overcome he needed a retroactive rule  needed to surmount the procedural defenses that the government has now waived he would need to overcome harmless error and once once the defendant has overcome all of those restrictions to post conviction relief then you do have to try case here's the nd reason why i think there's no unfair prejudice of the government and this comes from a th circuit case that the government cited in its brief which is that the government drafted the plea agreement and they can draft for this contingency we have this litigation over crimes of violence all the time and the government can say we're pleading guilty to the one hundred and twenty four dollars see if this turns out not to be a crime of violence you agree to plead guilty to the lesser it didn't do that so the government can protect itself but i just ask about the fairness issue from a slightly different direction under the government's  preferred remedy here if you will there would be a recent incident correct right and your client did stipulate to the elements of the isn't that correct right so taking those two together could you put your fairness argument in that context so that the fairness argument one of the fairness arguments is that the government induced those admissions to arson only by promising that he wouldn't sustain a conviction for the underlying offense and that he would get a five year discount to the mandatory so he was facing a mandatory minimum of thirty five years the government said we'll give you five years off of that a mandatory minimum of thirty if you admit this but under the government's remedy he gets nothing in exchange saying it was an involuntary i think it is an involuntary plea yes i think it's because he misunderstood the law yes because he was informed about the law that was fictive at the time but now it's not knowledgeable because of the later record because it's retroactive so if you take the rule as retroactive and it's not knowing involuntary for three reasons the government told him if he did this he wouldn't get an arson conviction now they want to give him an arson conviction  the government told him if you plead to this we're giving you a sentencing concession a five year discount under the government's remedy he gets no sentencing concession and finally he believed that if he went to trial he was facing a mandatory minimum of thirty five years when in fact he should have understood that he was facing a mandatory minimum of five years and that is not a knowing involuntary pleading where you misunderstand a lot to that extent  another reason that this would be unfairly prejudicial which is sort of related to some that i've talked about is that the government under the government's rim of the it gets all of the benefits but none of the burdens of the agreement that we entered into previously so it does not have to give mr moore any concessions at all but it holds mr moore to his plea to ours to discuss that with the government lawyers that i can say that the parties have discussed a resolution of this case along the lines of what happened in lawless and there's not any resolution that the parties can come to a final thing that i want to say is the government's position to all this it kind of bounces off what you said earlier judge matheson is that he pleaded to it you can't put that back into the bottle is what they say in their brief but that proves way too much because we put please back into the bottle all the the defendant pleads guilty if the defendant's position on the suppression motion is vindicated on appeal you go back and undo the plea and it's the same thing with any other air you have to ask whether undoing the plea is necessary to adequately redress the  and that's what's necessary to adequately redress the air here and if there are no questions i reserve the remainder good morning and may please the court i'm carl soccer present in the united states the supreme court and the th circuit have long approved of the remedy that the government seeks here which is substituting judgment for a lesser included offense for which guilt has been conclusively established when a conviction for the greater offense is set aside i'd like to start although so the only question here is is that remy available when the conviction arises from a guilty plea rather than from trial if you  a supreme court circuit precedent isn't the remedy you seek here in the context you just described unprecedented in the case law and you mean with respect to a guilty plea yes ok so  and fifty three now i'll say that this issue was not deeply analyzed in that case but in that case the defendant had pleaded guilty to felony mail theft and the supreme court found that the facts didn't support that crime because there was a a minimum value that had to be met that facts that not support rather than vacating the conviction the court simply ordered re sentencing on the misdemeanor version of the effects in rutledge the supreme court cited that case  c circuit case that relied on that case as early examples of this remedy but the other point that i want to make here is that even if there weren't a case because i acknowledge you will look at that tender case it doesn't analyze that issue it simply determination regardless of the word and the induced might have been involved in a guilty plea correct and in a guilty plea you have the rather than evidence you have stipulations by the defendant rather than a finding by a jury of guilt you have a finding of a factual basis by district court but in either of them once you have the conviction there is a conviction on that offense and that conviction is is a binding determination of guilt as to the elements of that offense and here where all of the elements or or where that conviction necessarily includes all of the elements of the lesser included this court should be permitted to simply enter a conviction on that lesser included offense i'd like to address both of the and six provide a different remedy and the government here is not seeking to reinstate the dismiss charges what the government is asking to do is instead to direct entry of judgment on the count or on the offense that subsumed by the conviction that it already ha could i just may offer understand your position is that are you saying the smith and section twenty one dollars of six permits this court to impose the remedy that are proposing it doesn't require this court to do it without any correct i think that's crap so we have even if we agree with your argument we have some discretion on what to do i think that is correct and why should we exercise their discretion in that way because it's the best way to give effect to what the parties agreed to in the plea agreement which is the parties agreed to this conviction this can to defend agreed to all of the elements of the arson offense the district court found the factual basis for that offense and we have a conviction this is an eight year old case there's no reason to start the parties back at that point when there is a valid basis for that conviction with what has already happened i'd like should address the under prejudiced elements because i think if if we look at the smith test the st three elements of that test are beyond dispute so the only  to say that that i think there is an argument over that element correct there's certainly an argument as to whether the remedy applies at all following a guilty plea right yes correct  assuming that it does apply to a guilty plea those st three elements are satisfied here which is that the evidence can't support the nine hundred and twenty four c conviction it can support the arson conviction  so i guess i missed i understand your feeling so let's let's move to the unfair prejudice point this court explained in smith that a conviction on a proven lesser included offense is not a new prejudice and in that case there was a jury verdict but the independent group should you're guilty of each of these elements and then you have a sense in the hands correct then in that case he was arguing that perhaps his defense would have been different if he had not been facing what was it an improper sense  enhanced or an improper or extra offense and what this court said is where you have the conviction and that conviction necessarily subsumes a proven lesser included offense than there is not under prejudice and that's what we have here included i would direct the court to united states versus pal which is cited in the supplemental brief that is not in this context but it it was it was addressing a claim of actual innocence but in that case  i think another point here is that the arson offense was clearly identified in the plea agreement and the fact that he was pleading guilty and admitting to a nother federal offense was front and center in this playground so it wasn't a situation court judge he told the disappointed judge that he admitted that he committed the crime of federal arson so there was no surprise that he was in fact admitting this this other effects i also just want to address as a factual matter whether whether these circumstances support his suggestion that in fact he might have gone to trial if not for that one hundred and twenty four dollars c count account which he pleaded guilty carried a thirty year mandatory minimum and the defendant was sixty four at the time and so it was in effect as the district court said at the sentencing hearing he was in effect pleading guilty to a life sentence now he did  a life sentence the other benefit that he did get was a three offense level reduction for acceptance of responsibility of the government if this goes back to reset and saying the government stands by that would allow him that three level three offense level reduction for acceptance of responsibility and in fact that three level of the three level reduction provides him greater benefit if the conviction is to arson because he actually didn't get any benefit from that under the nine  yes what was the question what were his sentence be five years it would be a mandatory minimum of five years statutory maximum of twenty years and his guideline range i tried to tried to look but i  think it would either be one hundred and fifty two thousand one hundred and eighty months or if arson is not a crime of violence that actually would be it's not right right and i haven't yet he's got increase because he was a career offender i think he would no longer be a career offender and no actually be less than that but i don't know what it would be off the top sure of what eight years show for i believe he's served around eight years so he would probably get out it was not the involuntary plea that would change the calculation would correct it correct and i and i don't think they argued that it was i don't think the defendant argued it was not knowing involuntary and i think the point that you raised that they put in the context of it being unfair correct i go yeah i think that the point that you raised during the defendant's argument which is that argument would invalidate a plea to arson as well and i'm not aware in other words if if everything that happened exactly as it did except instead the original plea had been the arson this argument would invalidate that plea as well and i'm not aware of any case law that would support doing that do you know of any where talked about the definition of use under nine hundred and twenty four c back in the ninety's i think in that case i'm not sure how this all fits into the argument but i know that in that case there was a suggestion that that change in the law made his  plea involuntary because he hadn't been properly advised of the elements of the crime i think that's different here because there's no suggestion that he wasn't properly advised of the elements of the crime especially the elements of the arson offense that we're now trying to seek a conviction for think i think another distinction here is that this isn't a case where the supreme court had never spoken and now speaks and we assume kind of that's how the law has always been the supreme court at that time had actually all of the case law had actually supported the assumption that arson was a crime of violence that the residual clause was valid and so the law the law changed so and so i guess that's where i would draw distinction from the case that i was just mentioning loosely which i was trying to respond to your question but i think that it's it's different because here the supreme court actually had spoken on the issue and it held the residual clause was valid at least with respect to aca and so she was properly advised on the law at the time i'm not aware of any  retroactively said even though it was properly advise under the law at the time it was not knowing and voluntary and i would point out that that regardless he was properly advised as to the arson elements or we can assume he was properly advised as the arson elements for which the government is now seeking a conviction at and so the government asked that the court enter an order similar to the order that the court issued in the lawless case remained in this case with instructions to vacate the conviction and to a conviction for arson and re sentence mr moore on that conviction a couple of things your honor st i want to address the government's mis reading of the smith case smith lays out these four prongs the last one is there's no unfair prejudice but what the government says is if  the st three prongs are satisfied if the evidence supports the lesser then the th is automatically satisfied that that can't be right that the government is reading the th prong out of the th prong out of the case altogether by saying if the rd prong to satisfy the  shows that it was unfair well so smith that's what they were saying well what they're what that what the government said if my understanding is that smith said well my offense might have been different in this court said you can't say that that's not what happened in smith if you go back and read it he offense my defense might have been different without this invalid charge and the court said we've reviewed the record and the facts and on the facts we don't think your defense would have been different which is very different  so what this court needs to do is play this case back from the beginning as if there had been no nine hundred and twenty four dollars c charge and ask whether there's a reasonable possibility that it could have turned out differently than what the government wants which is just an