good morning and may please the court my name is christina hellman and i represent the petitioner douglas pitt i plan to reserve about two minutes for rebuttal in september of last year mr pitt began serving the final twenty months of his two hundred five month sentence as it stands under his current judgment those twenty months were possible only because of prior criminal convictions that have since been reversed i thought let me just stop you there i thought i'd heard the argand sentencing says he could steep miscible statutory maximum correct his sentence is not illegal and it's not the length of sentence that we are necessarily challenging in this case is the method by way that by the way that sentence was imposed which is as it currently stand scuse me if you're not challenging the length of what orders for possible relief that you say are recent and sing your honor because and let me back up a little bit as it currently stands his sentence is unconstitutionally too long because the extra twenty months is impossible only because the court was able to place him in a great if you just have two things that seem to be contradictory and i that you may answer to my earlier question you said this is a legally permissible so in terms of its life even under the revised  list of convictions and that it does not exceed the statutory maximum and they are you're saying it's unconstitutionally long what how do those two statements fit together yes  that question out there because there are two different questions the question of whether the sentence could be imposed to the one hundred thirty months could be imposed is a different question than what it by their it would be imposed and the supreme court has had only know then that when the district the trial court declined to we could you re sentence that wasn't because he thought that adrien thirty months were appropriate anyway cause one reason for declines from modify that being that the sentence was within the statutory maximum and he could in fact have been sentenced up to kill or sixteen months as i understand it and why yes and yes and because it's very clear from this that what he wanted to do was basically repeat what had already been done so what supreme court to use court and supreme court precedent so what where do you find that support in towns and tucker your honor as confirmed by the united states supreme court and roberts even if that were true but there are no facts no supreme court case with facts they you're relying on the seems to me are really your stitching together a principle based upon a number of supreme court cases but i think we need to identify a factually similar case and point out that it was clearly established and therefore on reasonable what case is that your honor i disagree with that in a couple  reasons number one i believe that the facts in towns and are similar enough because in towns and the problem was that the defendant was sentenced based on convictions that simply did not exist the judge believe he had been convicted for several crimes that were not true at the time mr pett made the motion to modify that similar mr pitt was now sentenced based on convictions that no longer existed that well that's true but the but the court understood there i mean understand how townson is really that close and then your honor the supreme court also even even under an add case even under the requirement of clearly established law the supreme court has made it clear that you don't have to have factual identity and so it's almost similarity you have to have a principle that has been clearly established that would necessarily apply to it to a different factual matter and so in roberts when the supreme court recognized that towns and tucker stand for the proposition that a person cannot be sentenced under materially untrue facts and then went on to apply that even though they denied that the defendant relieved in a case w different facts in that case the defendant was not cooperating and the judge relied on that to sentence them the supreme court itself recognized the broad application of the principles from townsend and tucker and that under ed is sufficient which case from the supreme court that says this principle but i don't get that and i also believe based on the research that the surprise and it's not just my belief the supreme court believes that this is a clip clearly established law  cannot people how can you how can we then walk down that path if you can point to a case that would be another way of being clearly establish seems to you'll be able to point out to a case  may please the court good morning jonathan schulte on behalf of respondent mark smith this court should affirm because the state trial court's decision in this case was not contrary true to or an unreasonable application of clearly established united states supreme court law but before is would resent in saying under the current criminal history lead to a different difference in sentence and i think that petitioners only argument with respect to that point is what the trial court is doing in two thousand and seven was simply deferring to the two thousand and three sentence that was imposed but that is not what the record reflects instead there was a trial in two thousand and seven there were different convictions that were entered the trial court exercise it sending sentencing discretion and arrived at a different sentence that was imposed in the aggregate and structured those sentences differently in two thousand and seven and i think it is correct that the court looked back to the three two thousand and three sentence in two thousand and seven just to ensure that it wasn't imposing an overall greater sentence in aggregate so would if if this were a situation in which the correct criminal history resulted in a lower maximum sentence such that the sentence was beyond would be permitted i assume the result would be different in that the sentence would be outside what is permissible yes saw i think there is there is an avenue both in the federal system but but specifically under organs post conviction hearing act that if there if there is a sentence that is in excess of otherwise not in accordance with the sentence authorized by law apart from any constitutional inquiry into that when criminal history is or when you take a criminal history into account you act in the sentencing proceeding that if a previous convictions have been entered even in that same perce understand it there were four convictions in this proceeding to dealing with one girl and two dealing with another so at least one of them what has been in the same criminal act essential in criminal of the one cow i don't think that's correct your honor because there's jury findings with regard to those first two counts in lane county that those were in fact separate criminal episodes that i see and that is what they were talking a badge and the hearing but i could understand what that was about yes and so i think you could get to attend a just by restructuring so that argument was made for the state court judge have the state's response there we don't have the state's was a response the first time that was the response the first time and i think we do have an indication from the trial court which was the same trial court involved in the two thousand and three sensing that essentially now would you comment on the citation which was provided by the petitioner in the last couple of days on the johnson case which seems to indicate that if this were twenty two fifty five maybe it would have had a different result what you think you know that well i think that goes back well first of all twenty to fifty five allows for various ways that you can get federal habeas relief for a federal census one of those is that the sentence was in excess of the maximum authorized and i don't know what the particular grounds were in johnson first versus united states that the federal habeas relief would be appropriate i would say that the court only you know had that person i believe w custody there that the if the state convictions had been vacated the the maximum sense available was ten years but with the state convictions of those fifteen to life and johnson also involved i think another  no lawyer problem right i think johnson involved claims that the underlying convictions were or unconstitutional and i think that's another distinction here if you take united states versus tucker and apply that decision i think it is only a violent can a get in in the underlying convictions that gives rise to a recent a recent thing but if you expand that and say any constitutional violation in the underlying sense it gives underline convictions give rise to re sentencing the reason for that possibly is that the allowing the sentence to stand  constitutional violations in the other underlying convictions so that's certainly a way to this thing to distinguish tucker i think there's multiple ways to distinguish tucker and i and i think we've already covered in this as it's covered in the brief i think the fundamental distinction with townsend is that the problem in towns and was with the sentencing proceeding itself that the sentencing proceeding itself violated due process hard to understand why that would make a difference i mean if  if the fact that this was that at the time but it's now material it's kind of like a brady problem sort of i mean something shows up when she demonstrates that this was seem to suggest that we still would not do anything about it i think that's correct not under townsend or at least townsend doesn't clearly establish a principle that would compel the court here to conduct a recent thing because in the two thousand and seven sentencing proceedings you don't have the trial court relying on information that you have a sentence that is based on a materially erroneous that which is another way to return well i don't think i don't think you can expect i think i would be an extension and you can retaliate in that way but that would be an extension of the whole it's on the l a extension if it's an impermissible reading it's a question of whether you think it sounds it was about the fact that this happened at a particular proceeding or whether you think counsel is the fact about the fact that you should be having sentences based on privily wrong facts and i think if you look back at the at what the court said in towns and it was that it was the trial court in that case relying on information that was materially false at the time that that the court up if that the trial court was basing a sentence for example on a completely and everything he was told but it turns out that something that he was told a fact  here was false at the time i think it was accurate at the time and it is accurate now it's just that you think about that or you can think about the fact that the earlier that the sentence in class of counting was not what it was represented to be because it was an  illegal so it wasn't actually a legal sense i think at the end of the day started on i what conviction there are going later determined to be invalid i think at the end of the day what position needs is a case holding that when a sentence is based on information that's correct at the time but that information changes some time later were guard listed when that is that always requires re sentencing and townsend doesn't hold that and i don't think just recited any clearly established supreme i needed a case that bad that sad even if full sentence was right at the time if it later becomes untrue then it must be a respondent's does a matter of law and a matter what i don't need that i need clearly established law that can be a holding or principle from the supreme court which is what it needs to be that directly applies to a case and that is what townsend and tucker give mr pitt in this case my second point is that when you read the sentencing transcript from the recent and saying that is at issue it is clear that the judge is not conducting an independent and  determination to come up with one hundred thirty months the concern at sentencing is that mr pitt does not get longer time and thereby therefore have a challenge on appeal to a as a vindictive sentence they want to bring impose the same amount of time that the previous judge gave and they are trying to figure out how to do that but he also said no matter what happens to a class of campaign i mean they recognize that the class of county convictions were perhaps  there was just a question about the fact that the class of county conviction could might well be overturned yes your honor but it was my reading of the record that it was the prosecutor who was saying i don't know i don't want to care about what of county i want him to have the most time possible and the court kept asking him the question the most time possible i want to hundred thirty much that's what he said he didn't say the most impossible it is the prosecutor was saying the most tribe possibl it what i want is a hundred thirty months whatever happens to a class of county your honor it's in a way what the judge says repeatedly has asked him back to the prosecutor well judge foote the previous judge he stacked one third hundred thirty months on top of cops of county and then the judge says ok then that's what i'm going to do and so his concern if you can was that he didn't want to extend the sentence because oregon laws at the time was so strict on lengthy sentences potentially being vindictive and providing an appellate challenge thank you counsel thank you very much on the case just argued is submitted and once again we're appreciative of helpful arguments from both of you our next story you can use after which we will take a little break is united states