before you get started i want to tell both sides it seems like there's two different cases here there's the case that was litigated in the district court in which a c e o it was granted and now there's an attempt to try to make this a different  different argument and not a constitutional argument and therefore not one which is c e o way it was granted so it seems to me like if we really are just going to decide the case on which the motion  filed and the cia was granted we just need to wait for the supreme court to decide davis one way or another that's going to decide this case now you can start well your honor i would say that that was my first argument in my supplemental brief to the court and the reason why in my simple mental briefing i went forward on the conduct based approach was that i thought that that was the question that the court had asked in its supplemental but no no i mean we so we just need to decide don't we just need to wait for the proceeded on the conduct of based approach in that case of all this was a twenty to fifty five case and so even though the court's briefing order said it was up to appeal but overall it was a twenty to fifty five and the court went forward and applied the conduct based approach in  yes your honor so we just need to wait for davis yes your honor we wouldn't with the court like me to to proceed to rewrite any of the issues in the briefing let me ask you this so are you saying in response to judge prior that if davis comes back against you let's say and nine twenty four c three b survives are you saying at that point that the c e o a none the less brings with it the sort of the application sort of the statutory application of the conduct based approach well your honor at that that's what the court didn't and so i can only speak to that i mean i have honestly haven't reviewed the cia and but i presume that the conduct based approach was not raised in that case because the court created the content based approach in that case and so my understanding from a valises the court applied the conduct by based approach in that i thought what the court did was it said look this can be read a couple of different ways and and one of which would allow for a conduct based approach the residual cause of non twenty four c would be constitutional and show you how it works with less it's clear from this record that the conduct would satisfy that approach yes your honor and then of alice last i mean the court applied it on remand as well and and  denied her motion under the conduct based approach and so i would argue that that sets president here that says this is the c e o way in that situation was broad enough for the court to consider the issue that was prevented by a policy i mean i think in mr anton's case as well the court would have to consider the constitutional issue and and find based on that constitutional issue we're going to read nine twenty four c in this way and that brings with it is sufficiently constitutional question for this that issue to be within the scope of the  a i mean the court in of allas could well have said we find that nine twenty four c into this reading is not void for vagueness and then denied relief on that ground because it was a statutory issue when the court didn't do that the court applied the conduct based approach in that case but i agree that davis resolves a number of issues in this case it will were all resolved the statute of limitations issue that that the government has raised it will resolve the procedural default issue that the government has raised in and i think one of the best ye t the it is best for this court to wait for davis but i disagree regarding the implications of the davis case on whether or not the conduct based approach should be considered in this case and if the court would like me to i would go for it and you're discussing the whole argument about that though is because the vala scored address the conduct based approach but then the based on the record of that case that we would they are that that somehow obliges us to do it here well i thought your honor i thought that's what precedent was all about i mean the court under took that action as i said that's what i want said look let's show you how it works you know it was it was a constitutional avoidance case right how's the proper way to it what's the proper way to interpret the statute as it's clear here had it been and tempered that way and the based on a condo based approach the defendant could have been convicted that doesn't necessarily mean that every time you just present the straight up constitutional issue you're obliged to do that  well your honor i guess i would disagree i mean the court that analysis was ness it's necessary to the result in a vase i mean the court's consideration of her conduct based approach claimed was necessary to its resolution of her of her case and the court applied it other courts have applied it i mean this court has applied it there after their twenties it really is an example of how this works we're going to you know if it when you're making the constitutional avoidance argument you have to show there's more than one plausible way of reading this statute and see here's how it works but here are the comics rhesus pro choice self is also based on the sixth amendment i mean there is a constitutional there are constitution issues and you know it's a due process issue and but again it i mean all of this is very speculative because we don't know what the supreme court will say in davis even if it adopts a content based approach we don't know necessarily what it will say regarding that content based approach whether it will adopt the same type of approach that of alice has taken or some other method of analyzing whether what we really need to do is wait for the court to decide davis and asked for supplemental briefing after yes you honor if that's what the court desires certainly i mean i want to know don't you think that's the prudent thing for us to do it's about to be argued it obese decided within the next couple of months should we wait for that yes your honor if the court if the court would  would indeed allow a supplemental briefing i think that's the exact right result in this case the court has no further questions ok thank you thank you please the court counsel if she's so nervous for united states your honors you are correct that if davis does fall where vi is the case did fall that the c e o in this case would become defective at that point the c e o is limited to a constitutional claim per twenty two fifty three c two and is this court hold in spencer we need to adhere to those gate keeping required i mean that then we need to do you agree is is wait