but one six one two nine three elaine brown vs the united states no there's no way the put it in this case is clearly not a crime of violence i don't know what the predicate was in the case you just heard but in this case she's charged with conspiracy to interfere with federal agents under course it's did not join the other four on the other issues he clearly said the problem with the second was the lack of fair notice and that's a fifth amendment issue that doesn't go away and if you adopt the government's position how are you going to instruct the jury what what misconduct and those cases all read this with a categorical approach the government is asking you to make a radical change dictate where to go from a mayor a principle of statutory interpretation and application  statue has to plausible interpretations i submit to you that what barrett did was a stretch and i think that just the sort of taking got it right in terms of how you interpret the language her interpretation is consistent with what the court said unanimously back in two thousand  than september of last year was because if there is a claim which has been acknowledged right which had been acknowledged by the supreme court subsequent to the original  certainly urge you not to go that way i don't think the law or the law supports it and i don't think that this is this case should be the vehicle to pursue that it is clear that ultimately this issue is going to be resolved by the supreme court i can imagine is already a that has been asserted in the pending successive petition would have been necessarily rejected and there would be no new no new rule constitutional law that would then be appropriate to assert in the district court so i think it would terminate second a success and i think that's a more difficult topic that i'd spend a minute talking about but if we have to consider what is the point of the second or successive procedure and i was in my view of that of the government's view is that it is supposed to be a relatively mechanical matter that is the law the new rule of constitutional law should be generated through direct appeals or first twenty to fifty five's in the supreme court such that to get authorization it has to be proven that at least arguably all the links in the chain necessary to make the argument exist from supreme court authority and that's why i think that's what i want to talk about more because why i think more was important to my argument is what the court held there was yes said to be a crime if they should case and there was language that that doesn't require absolute certitude but what was discussed in war was also keen court authority question and said that it does pick sentences we don't have to say we're one hundred percent sure we have to say we're pretty sure that's enough to send it back to the district court but what's important about that is not the pretty sure part of that what's important about as bad as they correct and let me just say that it first questions terrible missed by i was never going to get her day in court but that's not right because eventually that issue as much showing just said i agree with will be resolved by the supreme court and that will be the moment assuming  favor for the second or successive petition because now we're not asking courts of appeals in addition of course to decide what we heard in the first half hour here is a really difficult question and that's really not appropriate on a second or success petition that's the whole point of ed let's deal with these things through direct appeals first twenty to fifty five's then if there is a sea change in the law by the supreme court we can fix those old cases but we don't use those old cases to break is that upside when you have a a statute that uses a residual cause and in a real time context as opposed to a retrospective context like in the act like in sixteen b and you don't think  its booker that they're talking about they are not saying there's this hodgepodge of circuit authority out there about this they're saying we do think broker enters it we don't have to say we're sure the government studied some kind argument about departures and maybe there's something to that we don't really think so but we'll let the district judge handle that in the first instance but the core of what's being discussed is this is what we the panel think booker means now at the eleventh circuit said about it not what even we said about it it's what did booker say about it and what's going to be missing here no matter what you decide in douglas given the way that to my it came down with journalists just discourses saying i'm waiting for the case we're not going to know what they think about this problem because it has it happened yet and that's that's not to say that miss brown is not going to get her day it's just not yet and that's important to remember that's what the whole second or successive concept i think was designed to achieve again which is not to  these issues is what's going to happen if you sent it but to soon you didn't have douglas and you said well it's a tough call we don't know let's send it down to the district judge now a district judge in this posture is going to be making that decision that's not really what we year time it is she got three hundred sixty months on a ship more than twenty months total three hundred sixty months of it was on a nine twenty four see what would happen every sentencing in this case it's hard to know if assume that let's assume talk about today because you've discussed them are ready but my focus today really is on as you deal with this case consider what's required under the second or successive standard my point is more i think more is be a story it looks to the supreme court they had supreme court authority to look to to get the question mostly answered that they needed to answer you don't have that you don't have that luxury here you have a very challenging question and that's all i need to prove today in this posture