yes thank you your honor this case has always been a complicated case and i worry it's only gotten more so since the parties completed briefing so i'm going to try to do my best to break it down to what i believe are the two most critical questions that are facing this court and the first question goes to timeliness and that's whether johnson created a new right that applies to the mandatory guidelines or whether after backwards johnson's application to mandatory guidelines is an open question let me ask you this council the  similar to the ones that you make if we follow those sisters circuits and their reasoning isn't blackstone section twenty two fifty five motion untimely yes your honor absolutely but we would certainly urge the court not to do so and let me explain why those courts limited johnson to its holding but the language of section twenty two fifty five speaks of rules and of rights and ask the court to define what the rule of johnson is which is certainly broader than its holding and i think even the government would agree with this the rule and johnson as we understand it is a right not to be sentenced under an arbitrary and standardless residual clause imposed under a mandatory sentencing provision and that would be a provision that fixes the defendant's sentence so those courts have said johnson only spoke to the aca that's it's holding and that's where we stop but what the first circuit said and more i think it's particularly compelling inside the congress in section twenty two fifty five using words such as rule and right rather than holding congress presumably use these broader terms we have to recognize it's a cream court drives the lower courts not just with technical holdings but with general rules that are logically inherent in those holdings thereby ensuring less arbitrary and arbitrariness and more consistency in our law and i read that quote in full because i think it encapsulates the important the important concepts it's a textual demand and then it also does serve this fundamental purpose in our justice system of allowing the supreme court to be a court that announces rules of general application not a court of error correction that must announce the limited holding us to each factual scenario so turning back to the rule of johnson the party's dispute here is actually quite narrow there is no dispute that the language at issue in ak and the mandatory guidelines is identical and that it's always been subject to the same constitutionally infirm mode of analysis so the dispute turns on whether the mandatory guidelines is a provision that fixed the defendant's sentance the government has contended that only a statute can fix the defendant's sentence and i submit that there is no support for that in johnson in back holes or anywhere else is there any support for your approach to it yes your honor the support comes quite clearly from the supreme court's decision and booker booker decided for a printed purposes the maximum guideline range was the practical equivalent of the statutory maximum and that is why the guidelines are advisory today and the court in booker actually addressed the exact arguments that the that the government is making to to this court here the court said the availability of departures does not save there's not solve the constitutional issue and neither does it here the government here says it was possible to get a sentence outside the guidelines range there was discretion in the system of mandatory guidelines and therefore they don't really fix the sentence and that is exactly what the government said in booker and exactly what the supreme court said is not the case and that is why the supreme court then excise the statutory provision thirty five fifty three b that made the guidelines mandatory and i am precise statutory provision because the government has support for our conclusion here and that's because backless contrasted the advisory guidelines with the mandatory guidelines by saying of that citing there is very there were due process notice can concerns that inhered in a world of mandatory guidelines and those no longer and here in a world of advisory guidelines advisory guidelines can't be arbitrary because they're not in force at all and that isn't in direct contrast to the world of mandatory guidelines  where the sentence was very much fixed and that makes under buckles that makes the mandatory guidelines a provision that fixes the sentence so i think as the government and i'm sort of governing council speak for herself on this but as the rule in johnson is that the list in the commentary is enough to satisfy for their purposes the question and because they wouldn't have reached more broadly well that argument can still be applied here we still have the commentary we still have  special occasions of crimes there you understand your argument but isn't that something you need to deal with that yes absolutely your honor and i think that's the critical merits question before the court can the commentary somehow cure the residual clause and and save it from fatal vague s so you know the first point i'd like to make here is that the commentary is not a fourth standing stand alone provision of the career offender guideline there are three textural provisions and then the commentary which purported offenses this court has found time and again don't involve an element of force and of course it makes no sense to say that it's interpret in the enumerated offenses so you're left with the residual clause still can it clear a fire the residual clause and i think with all due respect and great admiration for justice ginsburg her analysis started from the wrong body of law she looks to the village versus hoffman estates which is a law about our case about the principles of comedy and federalism when must a federal court defer to a state courts interpretive guidance as to its own regulation but here we are looking at an agency that's what stinson said that the commission is the equivalent of an agency so there are there are two reasons essentially why i think her interpretation is not it's not supportable the first comes from johnson itself and the second stems from longstanding principles of agency law so under those principles of agency of law and i'll call this the kraus and the paralyzed veterans principle i think it's two sides of the same coin cross said when an agency sets forth a criminal penalty it must do so in the language of the law not an interpretive guidance and that's because the ordinary citizen cannot be expected to go all the way through the rule books of interpretive guidance in order to determine what the law means they're allowed to look at the law itself let me i will actually i would love to veterans but it can't promulgated regulation that's essentially standardless and purport to define it only in commentary and that's because it creates a critical separation of powers problem congress passes on the language of the of the guideline  not upon the commentary so it expands the power of the commission beyond constitutional bounds to put commentary on on par with text and that is essentially the second half of that principle and i'll reserve my time thank you thank you the court actually all for the united states a series of gates most of them imposed by stand between defendant and twenty to fifty five relief in this case and defense counsel and i think agree on which the first three gates are the first is timeliness the second is retroactivity and the third is the as applied vagueness issue and i'll go in order first untimely miss as judge smith identified the fourth sixth and tenth circuits have all adopted the government's argument on the merits i would add two more circuits to that list the eighth and donal and the fifth in our nick reach the same conclusion but in the context of denying a c e o a i would urge the court to adopt the same reasoning the only contrary cases on which defendant relies are cases in which circuits have granted a c e o way and of course the standard for granting a c e o a is much lower under twenty to fifty five h a c e o i was course granted in this case and those decisions have no more persuasive authority than the fact that the cia was granted here on the merits every circuit to address the issue has concluded that a petition raising these issues is not timely and defendants expansive definition of right under twenty two fifty five f is inconsistent with the supreme court's narrow literal readings of if the court can look at southwell the parks for instance there the supreme court defined the right recognized in two prior cases with reference to the precise holdings of those cases and as the tenth circuit recognized in greer and judge kozinski recognized in the district court case co i that simply isn't an appropriate definition under at going to the second issue retroactivity griffin in the eleventh circuit i submit got this exactly right in mistretta the supreme court described the pre book or guidelines i think accurately as federal the discretion of sentencing judges to impose sentences with in the broader limits set by congress that articulation is interesting because if the court lines that up to various statements by the supreme court distinguishing substantive from procedural rights the court will see that that the mandatory guidelines rule defendant has proposed would fail every single one of the tests so for instance ensure oh the supreme court emphasized that a substantive rule as one that would result in punishment that the law cannot impose that's not true here remedy would be potential imposition of exactly the same sentence well i'm troubled by brokerage self though because the whole point of the remedy in booker was to solve the problem posed by the fact that the guidelines were mandatory if you act like the guidelines before book were guys then there's no reason for a broker in the first place the distinction to draw was by saying the remedy to our problem is the post or world where the guidelines become advisory and suggest the pre book or the guidelines were something more than just advisory the simplest answer to your honor's question is cruise this defendant has no good answer to cruise this court has already term in the book or itself was procedural rather than substantive and as a result the remedy adopted in booker is not applied retroactively on collateral review that's the holding of cruz and i would submit to the court that the part is of course contained in the whole if none part me if it eliminating all mandatory guidelines isn't substantive then of course eliminating just one mandatory guideline also isn't substantive there's no way to square defend its reasoning with cruz and i would add this court has also found that a lane and a pretty are procedural and also don't apply retroactively in collateral review all those holdings are of a part i would submit and if and when you got well which is the rule of johnson is retroactive and the difference there your honor is that the mandatory guidelines constrained district courts discretion within broader limits set by congress and so as i was saying there's no way that a sentence imposed under the mandatory guidelines after the elimination of the mandatory guidelines would result in an illegal sentence but then it would still be legal and i would submit to the court that it actually involves very similar to and booker an allocation of decision making authority in booker the allocation decision making authority was between the the congress and and the guidelines here it's between an individual judge and the sentencing commission when you eliminate the mandatory guidelines more discretion is put onto the sentencing judge to choose a sentence within the bounds set by congress but it does not have the automatic consequence of invalidating a sentence that was imposed under the mandatory guidelines to the contrary it's perfectly possible that a defendant would receive the same sentence and under montgomery that is the test similarly under welch the court identified there that even the most impeccable fact finding procedure could not legitimate a sentence because there of course you would end up with a sentence above the stat max if aca didn't apply here if the mandatory guidelines don't apply you can't end up with a sentence above the stat max you always end up with a sentence that's within congressional bounds and so it's exactly the opposite as in welsh impeccable fact finding could make the sentence in fact that finding easily can legitimate the same sentence and all of those articulations of the test as i'm sure zero as in montgomery as in welsh all lead i submit to the same conclusion which is that the rule defendant is articulating would not reply a pile retroactively on collateral review and i would also defendant has articulated this principle that retroactivity is a is a categorical matter as a r al to this point and that's true so far as it goes but i submit that it doesn't mean what defendant says it means the supreme court said that in rejecting the linkletter standard which was the priest rewrote standard for determining retroactivity there was completely free wheeling and factual on a case by case basis and of course that's not what we're advocating here but it certainly isn't the case that whenever the supreme court says this phrase is unconstitutional that that rule no matter where it's applied would be substantive rather than rhetoric part of substantive rather than procedural hypothetical i think makes this clear it's rule six zero nine for instance of the federals of evidence demonstrates when a defendant prior conviction can be admitted in court and it  has conditions for when that prior conviction can be admitted and doesn't have a residual clause but if it did if it said that one of the conditions under which a prior conviction could be admitted were that it satisfies the residual clause of the and then the to strike that of course that would be procedural it would just change in evidentiary rule the happenstance that the same language is used isn't determinative of that case and finally on the as applied challenge even assuming that vagueness principles applied to the guidelines the easiest retort to defend its position here is in fact the very pre book are cases on which defendant relies in gallagher and in johnson and in rewritten this court entertain vagueness challenges to the free  lymes and in every single case didn't as applied analysis and concluded that the defendant could not or could not prevail the excisemen article arguments that defendant allies on are just as the concurrence are questionable on that ground alone but they also involved a direct appeal where there was no vagueness issue there on direct appeal you just had to strike the language because it was at that point presumptively invalid but when we're talking women when w which he concluded that of course the commentary limits the scope of behavior and makes it clear in that context the defendant's prior conviction would be covered it's also consistent for instance with this court's decision in harris harris is  a in a different context of course but the kinds of things that the court can look to to narrow a statute that is allegedly vague as applied are not limited to anything statutory or congressional at all in harris a defendant chal a statute that made it illegal to bring a dangerous weapon on a plane and he had some small knife and said that it was unconstitutionally vague he didn't know whether or not that small knife was covered and what the court looked to there were among other things what the t s a told him at the airport and signs that were posted around the airport and if things a particular t s a officer says to you and signs that happen to be up at an airport are sufficient to defeat an as applied vagueness challenge certainly written commentary is as well let me just ask you  bigness but in the guideline provision which is also in the sentencing context is not what would you say so first i would say that the court has to analyze it as an a applied basis first that's different in and of itself in johnson the court was simply doing a facial analysis of the statute there weren't any as applied arguments there and so in this context because there are no first amendment considerations the court first has to analyze the statute on and apply it looking at the specific crimes is that what you're looking at the defendant specific prior and in this case it's easy because both of the defendants specific priors are listed in the commentary both robbery and manslaughter are listed in the commentary and so as a result you don't get to the facial analysis that johnson undertook we've put the harder question is of course what would happen under such official analysis but i submit that the court has no you're not asking us to even reach that i don't think the court can reach it to be honest i think in this case the timeliness is the first bar and though that a court i believe still has the discretion to reach the merits than the second bar would be retroactivity and or the as applied issue and so that's why i w i will try to do the most with it johnson itself said it was rejecting the line of authority that explained and as applied challenge was correct in this context if you look to justice alito dissent he said that the court is finding the residual clause to be vague even when its application is clear so even in that context the justices were acknowledging that there was core conduct that fell within the residual clauses grass and the majority said even though some language in our cases have suggested that a applied challenges all that's available here that our holdings have suggested the opposite and here we hold the residual clause bagan all of its applications we do you agree that the supreme court case law in this is difficult to read sometimes in the sense of understanding exactly what they mean that may be true your honor but i think since the question before this court is whether the rule in johnson applies to an identical provision that fixed the sentence johnson would be the case to guide the court and johnson said the residual clause creates so much arbitrariness it is so standardless that it cannot be understood and it must be struck because of the due process question it presents and no list of offenses which may be core con which may be core conduct can stave that it can't cure that arbitrariness that the court identified well i that commentary let's assume that commentary is core residual clause conduct even the existence of core residual clause of conduct under the aca the court considered that and said we have tried to keep defining and keep defining well but core problem with the residual closet standardness it's arbitrariness can't be saved by this limited list of crimes and to the extent your honor does not find that compelling we still have the concomitant agency arguments on the same point of the question my colleague we know you your time is up so we thank you very much for your argument rebuttal thanks to both counsel for your very learned arguments and we compliment you on how well you know these cases thank you your honor the case just argued is submitted