grounds versus united states supreme court decision so he has to come here to get the authorization to even file and district court and he has to show that it's a new rule which i think is undisputed that that rule was not previously available they guess undisputed and the one that is the bigger question is whether it is a rule that had been made retroactive and clairol attack by the supreme court that's the third one i want to tell the court i think that this a case of first impression there are there are a number of circuits that have found that it was not made retroactive on by the supreme court but none of them have considered the argument that we're making here merely the question then was it drug quantity that would affect the sentence well it was totally a sentencing matter and so they said primly is the sentencing rule and so therefore we're not going to back to two senses or not is what the course says there was it's merely a sentencing factor and there's no question about the fact that he has proved beyond a reasonable doubt the of the offense now that analysis no trips after aleem illini says that the nature of the weapon for this this particular conflict is an element of the offense and so there is a question that has not been proved that question of sentencing question anymore these are separate of french's and he has been he's been found guilty guilty counsel is the reason it matters that there that this isn't as you said an distributing the substance and extra the extra fact considered at sentencing was how was the quantity of the substances right ok so now you know elaine what we're talking about it i think the other element that you're talking about is  additional element it seems to me what we're talking about with the separate offense that may be a distinguishing factor here is that if if this additional fact is found it's not considered it sentencing as a jury as a as a sort of sliding scale it's an all or nothing right if there's other fact is found there must be another five years imposed or there must be another three years and post it doesn't seem to me there would be court about the rich red chili of of presently the supreme court is not held the beyond a reasonable doubt part of that the one we're talking about not to be retroactive they did hold in question if you if you have convictions based on preponderance instead of by proof beyond a reasonable doubt that causing the deaths of that's a huge difference and we're really worried about accuracy and that is the reason that we're making it completely fact question and they've explained why that was true and it's only consistent with with i've been the and these and winship in those cases which puts this premium on the proof beyond reasonable doubt terms of accuracy ways one is they can take it chase they can make a new rule then take another case and decide rhetoric to everything that's not what we have here they seldom do then they can also do it by multiple holdings if the holdings in those cases that are completely retroactive and then they later decided a case that fell within that category they said well that would mean that this rule in this case should be completely retroactive and  point is that that's exactly what we have here and i have been in the court established a category of cases cases where previously the question of guilt was found by preponderance of the evidence said now they said that is that imposition of the proof beyond a reasonable doubt standard fits into the definition that you have and therefore must be completely retroactive and i will say that  taken and certainly so the statement was made there complete retroactivity in a direct review case but mlanie vs wilbur was a collateral attack case that was a case where the state court ruled it was went over to federal court after he's been convicted beyond a reasonable doubt or brand the shooting with firearms during a crime of violence so if that is it then the increased sentence that he got was not affected at all by the accuracy of his underlying conviction as you entered is that i mean to me i mean it seems to me that you're making the same arguments that people made in i regarding ivan be the hankers when we were trying to decide what to do with the printer the same arguments i don't see any difference well i am a and frankly i guess i want you to tell me why it is different well i call it all we're all comers but let me tell you what i think is right first of all the guy i have never seen anywhere where this argument that i'm for talking about here was ever dealt with by a circuit court on the apprentice and certainly hasn't been on a lean the other thing is the big thing that changed well it is true i guess the bottom line is it seems to me that the application of believe me here only affects the enhancement of your client's  after being convicted beyond a reasonable doubt of the brandishing the viro well you have the only thing that affects the are you are you thing that is true it effects going to fix what  he's convicted of and which of which you're talking about and which which which is which the senses serve us as says was what was true in harris terrorist was the case and said these are sentencing enhancements they don't have to be proved beyond a reasonable doubt a lean over ruled harris and said no no these are elements of an offense and there's two different offenses one is the offense of brandishing a firearm and that has its certain banned for a minimum and the second offense a a salt weapon which is only found by a preponderance of the evidence harris harris supported what the court did previously and a pretty but harris has been overruled and they've been very clear in that case they said no this is this is this you're all the way back to the question i asked a few minutes ago and i really would appreciate it if you'd answer it what about the fact that it's not really just the same i mean what he's arguing is if you find this back it's not just a question of raising the ceiling where a defendant may or may not get more jail time if this fact is found that the that the gun that was brand is was an assault weapon then this individual must receive additional time doesn't that make his argument easier in a practical sense because then are nine twenty four see counts where you got use for carrier brandishing or just charging for the type of the firearm most courts district courts sentence at the mandatory them so i would say that's i think it's pretty dang important that i say that because i took your arguments really and gave them to counsel because that is but it's a very tough situation here is this something more than just he's already convicted of the crime i'm trying to he's already convicted of a crime brandishing a far higher no question but what he's saying is what he's now been sentenced for is not that crime it's a bigger crime therefore on which the legislature conditions an increase in the maximum punishment the supreme court then consider whether the ring was applicable to cases on collateral review and concluded that it was not the supreme court's yeah you know i think that you know judges and prosecutors we need clear rules when the rules keep changing you know it creates problems the court the supreme court has there is a long list of cases dealing with w you agree there really is a new rule i agree it's a new rule it's a new rule the problem is it's not a watershed rule of criminal procedure and i think that that's  what it comes down to it would have to be something that's so different and it's not so different from a print and i think that's what your honor was pointing out how could this be retroactive  fit under retroactivity that he would like to be and i wanted you to respond to that because it seems that it is that different crime there are different i think it's actually as came up now with the way the supreme court has been ruling on retroactivity the result might very well be different now let me go to  reading that to me but what is the language of t and this is kind of back to where christian was some time ago but what is the language of t that you think is so overwhelming here  sentencing change the second one is this your rights keep saying that this is cases that were side of a supreme court kind of out of touch you're not going anywhere because you've been overtaken by t v well first of all the screen course never said that and in fact they fit into one of the exceptions in t v which is for watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceedings and i couldn't hear what what the supreme court said about the reasonable