procedural gatekeeping issue about timeliness and then move on to the substantive question about the force clause now to begin with i don't think there's any real dispute about the underlying constitutional violation here mr linden received a mandated enhanced sentence fixed by the precise language invalidated in johnson and the government doesn't do seem to dispute that mr london sentence was unconstitutional in light of that decision so the only real dispute in this case is whether mr london should be permitted to proceed with his claim or whether his time barred by twenty to fifty five set to limitations now is our briefs demonstrate government and i disagree about the meaning of assert under f three but setting that issue aside for the moment i think this is an easy case under either of our interpretation seven come the other way i think that's a really good question and with great respect to the circuits it is a complicated statute i think that this is a completely new argument that the government has put forward so this is the first time we're seeing it but i think it really boils down to three separate reasons why they're wrong the first and i can get back to this because i think it's really important is that they all misrepresent the they misinterpret the plain text about three that the meaning of assert they're requiring a m questions so i i think that we the reason we know that is because this is first of all the list supreme court in holland has said this is just a run of the mill straightforward statute of limitations and we know what we know about  is that it seems like no analysis is happening under f three but that's because the supreme court in welsh already answered the question that's usually hard here so morgan says you import teac analysis for the very limited question of whether the limitations period has really begun so you look at the case that the person is invoking that they're asserting and you say did that announce a new rule and up until now the analysis has stopped there because the dictionary version the dictionary ou right i think that the question of whether the limitations period begins is morden that is has that case announced a new rule that's retroactive while to answer that question we know that the clock mash you'd be ok exactly and i think that that's the sort of subtle thing that's happening here is that normally we would just say the statute of limitations has restarted has he asserted his claim has he invoked t right has he just said this case and titles made a relief and then we move on and say ok well does that entitle him to relief this is a weird situation where the government's not saying it doesn't entitle him to relief what they're doing is sort of pushing this heavy merits analysis up into f three where it doesn't belong and i think that the most problem i mention the other circuit cases they were concerned is not what they've done but our decision and united states versus williams the because it seems to me everything you're saying there i mean there we ultimately held in another case the hinged its ruling on the fact that this question was still foreclosed in the circuit so there was direct case law in the circuit saying that johnson doesn't entitle you to relief and williams itself said the motion to even be considered first we have to invalidate the statue davis was invalidated later and i think that that sort of interesting reasoning but regardless under williams own logic i think that the premise that they relied on no longer exists but beyond that i think it's important to remember nine twenty four c is a completely different statue and it's very very different from the mandatory guidelines residual clause and aka it not only has different wording but it has a completely different application so it doesn't look at past i think it's it looks that contemporaneous conduct and that's why this complex circuit split has emerged over johnson's application to one twenty four c so regardless of how i would have come out on williams i think that there's a spectrum where nine twenty four c is clearly further a field from johnson so i definitely don't think that williams binds this court on this question and this court has differentiated between mandatory guidelines claims and nine twenty four c claims obviously williams denied a c away in that case in this case a c was foreclosed and so what they were saying is that we haven't been told that our law is incorrect yet we haven't decided that question and and and williams actually said you know come back the moment that this question is no longer foreclose and of did that so i'm not sure how that panel would come out now i think also to the extent i mean because i don't think it's binding i think the question becomes is it is it the logic persuasive that you want to import it here and i think it's important to remember that that was decided on cia stage so there wasn't full adversarial treatment at that question and i think that there's a good argument that especially considering the circuit split that emerged afterwards over that precise question that assyria probably should have been case that reasonable jurors could decide but i want to get back to the three reasons why i think that that those circuit decisions are incorrect because you trust i think that you sort of hinted at one of them i think that they misinterpret the meaning of assert i think that just means invoke and nothing more i think that they necessarily assume that johnson's rule is limited to aka and there's no there's no support for that idea in new rule jurisprudence but just because one thing that you sort of hinted at when you said the word rely on they're importing standards from other areas of ed and i think that that's the most subtle mistake that they're making but i also think it's the most dangerous to add to step to tourist so the most simple ones that they're doing is for example ra brown are citing tyler became that interprets to the word made for the purpose of in the success of context whether the supreme court has made a right to rakta and this report understandably has that means held we have to hold that it's retroactive that doesn't apply here but they're c citing to cain and saying ok well that means recognized means held and they're also relying on that rely on standard where they're saying that you have to show that your claim at an initial phase that your claim relies on i see that is sort of hemming in this court's analysis of what assert means because it relies on is a higher standard that's only imposed on successive petitioners i think necessarily asserts has to mean something less than relies on regardless of whether this court import some sort of that it has to it can't be frivolous it can't be so obvious that they're not actually in good faith asserting the right i think relies on him the courts and but laughs and i think that this is probably the worst mistake is that brown greer and greene all cite williams  which is a case interpreting twenty two fifty four standard for state petitioners so congress erected this thick fire wall in between federal petitioners and state petitioners state petitioners are held to a much higher standard and that's not at the initial timeliness phase because they're subject to the same statute of limitations it's at the merits phase they have to show that the right that they're asserting not only has been newly recognized but that it's clearly established and the reason for that is that we don't want to pull the rug out from under state courts who in good faith are making constitutional determinations at the time that they decide the petitioners claim when their conviction becomes final and so and this comes from t and an interest in comedy the mandates of federalism congress very specifically did not apply that standard to federal petitioners and for good reason the finance the finality interests are less and the common interests are nonexistent and so what they did and this started with brown is brown said that you have to show that this right is clearly established and not only do you have to show that at the merits stage which congress expressly did not do but you have to show it at the timeliness stage so they're importing  exceptionally high bar for state petitioners and they're not importing it on to the merits they're importing it into the timeliness face of all of the sudden initial federal petitioners are being subjected to a higher merit standard than they were at the timeliness stage than they would've at the actual merit stage and i think that that threatens the integrity of the statutory scheme it's completely confusing the analysis now i want to get back to the idea of asserting because i just want to make sure we're it's true but at least we haven't held them to a standard for state petitions which other circuits have doing have been doing at least we're not confusing the timeliness of the merits because what the government has basically the government says well i think that i think that it's important to tease out the assumptions that the government right i think that it's important to tease out the assumption that the government's relying on so i think the first is that folks the right time oh yes absolutely if he holding of the supreme court in the case announcing the rule that the person can't assert it and so what they're basically saying is that they if they can identify the possible distinction they don't have to win that on the merits they can just say you're not asserting johnson so they can win a question on the merits that they did at the time when a stage that they wouldn't otherwise win at the merit stage so there might not be an immediate concern but let's assume for argument's sake you win it's timely this guideline  is vague because it's mandatory in your client goes back for reach sentencing how would that reset in seeing work would the district court have to take off this enhanced and then be in a mandatory guideline world or because booker says a mandatory got a machine is unconstitutional or would we just treat it like an advisory range and let the court see if it wants to exercise its disk i think that we would treat it as an advisory range and of course that braises the question will couldn't the court just go to the one challenge in an appropriate application of the guidelines but it is true that going back he probably would be sentenced under the advisory guideline justice of the supreme court has repeatedly said that it is an open question and second that a crime that punishes conduct that will foreseeable result in death or great bodily harm to another person that that crime is a crime of violence and so i want to turn first of the timeliness issue there a couple of points by opposing counsel that i need to respond to first opposing counsel says that we don't dispute the that there was an underlying constitutional violation and i would say that that cia wasn't granted on that issue we haven't disputed it because there wasn't asked that we that to the extent again that this court wants to reach the merits in this case the that there was some constitutional violation there is binding authority that would apply to that there is binding authority from this court saying that the mandatory guidelines were not subject to vague vagueness challenges those cases weren't part of the briefing in this case again because cia wasn't granted on that but those cases are out there at least in other circuits i thought the government had conceded that now a mandatory guideline is unconstitutional if it's the same language as  the the timeline is issue i don't want to just repeat what the other circuitry declared that's correct and shelley and so and i want to turn to the time when this issue i don't want to just repeat what the other circuits have said but i will direct the court's attention to one of the cases that we cited the eight circuits decision in rousseau and so to the extent that opposing counsel's argument is that some of these cases conflate different standards under havey is law russo is a case that is directly on point with this it's a twenty to fifty five at three case the ed circuit said that a petition or in mr london's position would not be able to timely raise a claimant's of that analysis it's just a twenty to fifty five f three case that came to the same conclude i also want to beckles she repeats it again in her dissent and brown that this exact question of whether johnson applies the mandatory guidelines whether this is a right is an open question and so that's significant for two reasons it to keep these petitions from going forward in a way that wasn't consistent with what she meant she certainly could have said that in brown and she could've said that's not what i meant when i said that it was an open question rather than saying that she repeated she said again this is an open question this is something that that the supreme court has not address it's also significant because it was an open question and it was a hotly contested question that bring court five four but they they applied the johnson right into my it to a new  statute and judge that's right and there are a couple of issues with that i don't want to get too deep into the weeds with that but it's significant it's worth noting in this that this is an analyze in the tenth circuit case we cite in the twentieth in the poll in case that demaio johnson those are statutes and these are guidelines and so it's unclear what the supreme court would do when presented with a mandatory guidelines case it's just they're different things and so it makes more sense that the johnson analysis would apply to sixteen b to another statute to demand and as i said this is all analyzed in a way that's more eloquent than i can say in the poll in case the tenth circuit case that we cite in the twentieth the defendant argues that its position would actually promote more timely assertion of claims which is the goal of these statutes to not let these things linger on because within a year of johnson if you added to my claim believe better assert that if you had a claim under the guidelines boy you better assert that words now you can sort of linger and wait for these things to be applied in different manners and then still raise it what's your response to that and that may be a policy benefit to opposing councils argument but just that my response to that would be the plain language of twenty to fifty five to three says that there has to be something to base this claim on you can't just assert something and then kind of try to tether it to something that the supreme court has said in another context and a statute context where this is a guideline or something like that and the court said have followed the cross case the seven circuit cases said those have criticised the cross case for reading the recognized by the supreme court language out of twenty two fifty five three so to the extent that that policy argument that that you're paid to judge caso that that is focusing on the a certain language and it reads they recognized by the supreme court language out of this and all the other circuits other than the seventh circuit and the first circuit in the case it's not directly on point but the seventh circuit in the first circuit have agreed with the government's position that it reads the a certain language t even if this court went through the teeth analysis why it doesn't create this new rule we cited some we argued this in our brief as well and it's worth noting that opposing counsel here by relying on that even elsa's is starting on step five and the government's position is we can't even gets past up one that there's not this rule that's been announced and thus if there's no rule how could there be a neutral and for that reason the t v analysis shouldn't apply this court shouldn't become the first court in the country to go issue here controls because c o a was was granted broadly i'd like to respond talk about the crime of violence issue very briefly the crime an issue in this case is louisiana illegal use of a weapon that crime punishes the use of a weapon that will forseeable of the volitional use the use of a weapon that will forseeable a result and death or great bodily harm to another person not just some harm not just damage to property but specifically in an embed you asli in the statute comply with the requirements and that the issues be delineated specifically but that's not jurisdictional and i think we should presume that the motion was granted it was going to fall and i next want to note that the government is saying that we should be engaging in ti else but the government's argument is that this does not fall within the scope of johnson's rule and we need a new rule that is teague analysis that government can't just assert that this is not within the scope of the rule and the refuse to examine the case law which determines the scope of rules when something isn't isn't a new rule and so the q so what we know especially from stringer is that you can't just say that this was a different statute and that's not the role that's a different role stringer expressly said that's incorrect sugar said we don't need a new rule if the statutes are the same and so what we know from all of the steve case law is that the question is not the holding it's the principles compelling the hol and that's what morgan says while we're looking at the pencils so if there's a factual distinction of some kind if there's some kind of distinction that's not fatal the question is whether it's meaningful and justice o'connor said the same right the question is whether the identified distinction is meaningful to application of the role and stringer illustrates this mississippi's death penalty statute was structurally different from georgia and oklahoma which had already been struck down that had the same capital sentencing aggravating factor but it was a w statute it wasn't the sort of one off single aggravating factor system and kind of like here mississippi said we can't possibly know whether godfrey which invalidated georgia statute applies equally to mississippi situation because it's different those are different things just speech did he assert johnson and then does johnson entitle him to really but having said that i think that that stringer shows us that line they say look at what we've said in past cases about weighing statutes about sentencing broadly and and based on that do those principles tell us if there's anything and giving application of the rule we announced in godfrey and if i'm reading the government's brief correctly and i think that this is what mr mclaren just said he's just resting on the idea that aco that johnson only involved off but that's not enough you have to you have to look at whether that distinction is meaningful and we know from existing case law that in from johnson itself that it's not well that i'm the only using justice o'connor's  so i think the way you apply that is to look for her son of course and i think that this i think his analysis is hard which i also think should be a signal we shouldn't be doing this at the f three stage that there no reason to be doing the sort of complex confusing analysis in what is supposed to be a straightforward run of the mill statute of limitations but if for no other straightforward doesn't mean that it's just a little bit different than the other holding we definitely know that so what we have to do is look at case law that existed prior to johnson and i think even beccles coming out after johnson helps it gives context and helps us understand the principles in johnson do they apply equally to the mandatory guidelines is there anything actually inhibiting application and we know for sure that that's that there's not anything inhibiting that the mandatory guidelines residual cause suffered from the same exact laws and that they function in the same exact way in fact booker when so far as to say i'm just the mechanism that there is no constitutional distinction between mandatory guidelines  and i think that that ends the end for someone today fell to twenty two point five raising the same issue as your client you would say that's out of time because john's all these years of house now since johnson yes i think johnson is the new rule i think that