moved to the fifth case this morning united states versus thompson may place the court my name is susan pablo and i represent powell and jimmy thompson the crux of this case is deciding what to do when the legislature fascist passes a statute the judiciary then declares that statute unconstitutional but the executive is still using that statute and enforcement against one of the citizens and allowing that to occur here at the the government and the district court both rely heavily on the lewis case and i'm asking the weapon that was declared unconstitutional it's the only prior conviction that makes mr thompson a felon well in declaring that statute unconstitutional the illinois supreme court declared it void ab initio which given its plain meaning is as if it never existed that's a little bit different than what occurred in lewis in the lewis case the defendant challenge his underlying conviction because he was represented by counsel he wasn't challenging the underlying conduct or the fact that he engaged in criminal conduct and that's a reason to distinguish lewis from the particular facts of this case another area of lewis that the government relies heavily on is the legislative intent and when a when the legislature passes the gun statutes they operate under the idea that certain people who are people rather who engage in certain conduct should not be allowed to possess a gun and in lewis that's quite evident because even though he alleged that his he was on represented at the prior case he still engaged in the conduct that the legislator dean legislature deemed inappropriate for gun possession that's not the case when the statute is declared void ab initio it's as if it never existed but in allowing that conviction in this case to serve as a predicate felony it places an undue burden on citizens particularly mr thompson for a couple reasons one someone like mr thompson would have no idea that the prior conviction was declared void ab initio so he was wasn't given any notice that he could go in essence undo his prior conviction an alternative theory is also that even if he had heard that it was declared void ab initio and you believe those words have it's play meeting as if it never existed he would assume that there was nothing further for him to actually do or pursue in order to vacate the prior conviction or to undo it and it's the plain meaning of the of the term void ab initio that i'm asking the court to take a look at and the doctrine and find that lewis isn't necessarily a  cases like this the guidelines recognize this concept in applying the defendant's prior unconstitutional conviction in calculating a guideline range without question they don't count it and a defendant doesn't have to vacate it doesn't have to expunge and doesn't have to happen before the prior offense the guidelines determine that that is not something that can be views in calculating the range it is inconsistent and i w arrest but before the sentencing or before the trial and this court indicated that he couldn't do that because it wasn't done in prior to the rest but again and leave the entire statute was not declared void app initio it's different he's just saying that the way he obtained that prior conviction was unlawful or shouldn't be counted because he expunged it and you know similar in wescott and westcott the defendant indicated that i should be held to my prior conviction because the order of protection which prohibited him from firearm possession was unlawfully obtained he's not saying the entire idea of orders of protection are somehow unlawful and that's why those cases are distinguish finding something void ab initio is a very rare doctrine that courts use and because of that it's certainly not going to open the floodgates to all sorts of issues or you know post litigation by defendants it's very specific and very rare a put it's also very clear that the void ab initio means as if never existed and it should be treated as such even in this case the government certainly has other avenues if they believe mr thompson violated other types of statutes they are not without recourse they could have indicted him under other firearms laws the statute book it's bigger every year you know for example they could have charged him with possessing the gun without a foid card but they didn't do that here it was a single count of being a felon in possession knowing that prior felony is void at initio i submit it is inherently unfair to charge a citizen what  counsel spends focuses the whole argument on void ab initio first of all all the case law as we cited in our brief is contrary to her position including using expungement and  convicted in two thousand and thirteen held it was unconstitutional and as this court has recognized under illinois law when a statute is held unconstitutional it's held void have been issued from the beginning so you knew knighted states versus mc bad in two thousand and sixteen decision by the illinois supreme court they were presented with this exact scenario a defendant had been convicted under  already held it unconstitutional then the same defendant had been prosecuted under illinois law illinois law for being a felon in possession the exact same case as we have here except it's a federal prosecution instead of a say a prosecution for being a felony possession defendant mcfadden presented the exact same argument that's been presented here says your honour's void have an issue of my conviction is void therefore it can't be a felony because that first felony conviction should have never existed and the supreme court of illinois said no that is not would void out of an issue needs void ab initio means mr mcfadden mr thompson is you can go back to illinois state court and get your original conviction voided no questions asked because that statute was angst is constitutional you can go back and you can have your original conviction expunged what you cannot do is just say unilaterally and automatically i can now go possess a gun i am no longer a felon because you remain a felon until  court of law to clear you not a felon and therefore if you go and you possess a gun you are still a felon in possession and that's exactly what they did in mcphatter so reliance on a state court essentially a and relied on here is a state court doctrine the illinois supreme court says no and it's also consistent in many ways completely with louis because in the united states versus lewis the supreme court made a prophylactic and to not allow felons to possess firearms and the supreme court in specific lee said we did that congress was looking at the category of being  felony wasn't looking at conduct meaning lewis we don't know if he committed this crime or not and was represented by a lawyer so you know arguably he might have been innocent had he had a lawyer i don't know if he committed the crime or not he you know was found guilty but without legal counsel but the point wasn't to look at the conduct or the behavior the con to the risk was seen as being a felon that felons maybe associate with other phones for whatever reason congress determined that was the risky that was the risk that category and the supreme court expressly said it was congressional intent that before you possess a and you get rid of that category that you're in of being a felon that if a felon wants to possess a gun that felon needs to clear himself from being a felon first and whatever i'm not familiar with the state court procedures but as a practical matter it shouldn't have taken a lot of effort because he would have had to go into the court and show aguilar and i believe actually that since but more recently is in the process of to get the state fascist take care roads and that's exactly and it's also consistent the whole idea of the whole fact that this is really a question of congressional intent a legislative intent explains why you can be convicted of a fellow as being a felon in possession and still not have that prior felony conviction used in aggravation of your criminal history category because in the context of the sentencing guidelines the intent was that it not in the  it not be used against you in the context of the statute congress came to a different conclusion so really the argument here as the supreme court of illinois said is not with her and can the plain language of the conviction here in the context for example they said you know there were other provisions where if it was held unconstitutional and the standard conviction wouldn't count in other provisions  not not in the text of this particular provision so they say we know congress knows how to get rid of this and they looked at the other provisions and they said reading this on the plain language of the whole provision the pla language says conviction includes even one leader invalidated or prior it validated and however it also looked at the legislative intent as well and your honor every case every case including lead by this court and numerous others out of other circuits have interpreted lewis there are cases where someone was mistakenly convicted as a as an adult when they were in fact a juvenile or you wouldn't it's still sustained by any true i'm sure you were pretty attempt to and take you know from my perspective i didn't know the answer when i took this case not to be perfectly honest researched it it's it's a close question i don't think that the that the court has i mean i think it's it's been decided unless you're going to go get your own president respectfully you don't have to go against your own president in order to find for if palin in this case what i'm asking the court to do is to take a closer look at lewis and the fact that it is distinguishable by the fact that the underlying predicate felony was not declared initio and that is not a state court doctrine it's a legal doctrine i cite cases in my brief including us pointing curtsey and united states v johnson which are united states supreme court cases that certainly recognize that as counsel mentioned in lewis one of the issues was that there was no modifier before the term conviction so if they said if congress wanted to they wouldn't have included collateral tax or unconstitutional convictions but if we're taking  that tack and we should really look at the plain language we should also look at the plain language of void ab initio it's the government wants to read and avoid at initio this notion that it's void but not until you actually vacate your conviction those contradicting principles should certainly not be upheld and even in the mcfadden which was the illinois supreme court case there was a dissent in that case and the dissenting judge talked about the doctrine and the fact that if we are going to give credence to its plain language that's how it should be interpreted means as if it never existed counsel also talked about the fact that mr thompson could have gone back to court and fake it it is prior conviction the case law indicates thus far anyway that that should be done prior to his arrest in this case maybe he would have done that if he had received any type of notice again it's a rare situation that an entire statute is declared void and in those cases the judiciary in essence fixes the problem of legislative statu but if there's no notice to the citizen i don't know how he would know that he should go and vacate this prior given all these factors and given what we would submit is just an inherent unfairness against citizens who are being punished by statutes that were held not to be criminal based on conduct that was ultimately found not to be criminal and the fact that the government certainly has other options and other statutes with which to prosecute them we're asking you to reconsider lewis trying to distinguish will based on the point at an issue of doctrine and vacate the conviction sentence