sometimes our correct circuit staff tries to that's cases based on their similarity and this seems to be a case where they got it right so that's right your honor that's our assumption at least government filed a letter last week about so particular issues that i'd like to correct the first is that the government asserted that my client did not raise the actual innocence escape hatch and in fact if you look at twenty innocence the school that i think you're talking about yes i don't think i actually quoted the case so wonderful name but whatever the we did in fact say that so this is something that should be before the court at this point and the other point is that while the government cited tomorrow as authority for why this is a sentencing issue and dean should not be applying retroactively moreira was actually a career offender case which deals with sentencing enhancements advisory sentencing not the statutory interpretation that is binding and that the court's allowed to look at because it's a criminal conviction not just sentencing factors and then missing to go and the government seems to argue that we actually have to prove actual innocence with regard to the predicate offense of armed bank robbery it's our position that is not correct if where there are two ways of actual innocence the one meaning actual innocence of the offense the offense here would be current come in june sometime but they just argued it but with respect to the the dean matter though that has nothing to do with the davis case right that's right you agree that you've got really two different problems you got to deal with here and you also have to quote win on the dean retroactivity argument in order make it time we argue you agree with that that's correct ok i don't want to burden you on this to i assume you were listening to what we talked about in the other case is there anything that you heard from the defendant perspective there that you think was not adequately argued that you could add to this debate as my colleague going to give them a batch of these cases so we can benefit from the argument in both cases so why is why is dean substantive and retroactive from your perspective necessary and that has to apply to the aggregate sentence not just the predicate before dean essentially overruled ninth circuit precedent on this issue a sentence of one day for a predicate offense like our bank robbery in this case would have been deemed insufficient unlawful but after dean a sentence of one day would be lawful and as the supreme court has hinted at through the years the record in our case it does not appear that the judge considered any of this in fact i when i was looking through it last night the judge didn't actually make any statements clearly about what factors the judge considered but talked about an adequate sentence didn't use language from three fifty five three a but if the supreme court is said to interpret statutes and it did interpret statutes and this is a new interpretation then that's what the interpretation has always or should have client's case i'm jumping around a little bit because it's complicated because my client was given permission by this court to file a successive petition which required her to prove a constitutional right which was the johnson issue but once she was given permission there's nothing that precludes her under the she was to twenty to fifty five each to prevention doesn't apply anymore once she's already had permission to file a petition that's the key word here once the petitions been filed then she was allowed to file something about the right and that's where our case is a little different than the prior one she she was but isn't there a time in this issue none the less if you can't get around the retroactivity issue correct i just want to make sure that part was also clear how my case is a little bit different so it really it's all about being changing the substance of the law not percy chair usually when we're talking about procedural changes we're talking about like your you pointed out you know that in booker but booker was about who gets to make the decision is it the jury or is it the were procedural seems to be in the eye of the beholder because certainly at the time worker was handed down the understanding had been that this is really serious substantive sixth amendment stuff and you've got to do it this way or you've got a big problem and they said warm difficult for me but this is a tough one because the song is a hard reviewed it's not absolutely clear what this is do you agree with that i do agree it's confusing and traditionally when we look at some of the cases  both sides of brief to this and i'm including the prior case as well there hasn't been a situation like this where the supreme court interpret a statute that deals with sentencing and it's a substantive statute and it is a criminal offense and how the statutes that are required to be as determined by the court play into a sentence which is really different than what we've had before where we've had sentencing factor where the court should consider advisory like the guidelines or whatnot and so what ends up happening is that we have to look at did the client end up with a harsher sentence than she would have otherwise and did up with as a result of in this construction of what the statute required and i would submit for my client who's a first time offender who'd never been in trouble in her entire life before that certainly the case the court could up and should have looked pat that issue of what is a reasonable and necessary sentence sufficient but not greater than necessary and that didn't happen you want a statement of your time yes thank  good morning dave please the court suzanne miles from the united states i think i'll jump right into the retroactivity issue if that's ok with so i'd like to clarify a few things so first of all retroactivity is an issue both at the gate keeping phase of twenty to fifty five h two for second and successive petitions it's also a function of f three which your honor has referred to which is the timeliness of all he of us concessions so we have to first get through the age to requirements for what types of claims can be raised in a second or successive petition and that's a tighter door than the f three allocation that deals with time limitations so let's start first with age two because while we're past the application stage here this is still a second hey vs motion by the defendant and so in order i'm sorry i wanted to do ok so in order to bring the dean claim and let's start with the dean claim if we may in order to bring that under age to it has to be a new rule of constitutional law declared by the supreme court we obviously have some conflict over the question of whether it's statutory or constitutional but i'll leave that aside for now we also for h two n h two alone there is the requirement that the supreme court make the retroactivity decision and that's in the text of a chip it says that we were asked excuse me  for so age two claims that the claim or the rule must be made retroactive by the supreme court and the supreme court looked at that very clearly that was the question in tyler versus cain that was the question that the court looked at in tyler and what the court held in tyler is that that statute means what it says that the supreme court and only the supreme court can make a right or activity decision can do the  for a second or successive claim well that's what your predecessor was talking about exactly that she didn't talk about it in terms of two she just was talking about the generals and sort of different sections that were confused but you're saying under age two the statute says it's the supreme court that has to make that trip that's exactly right you're saying that's what fits here that our court can't make that you know those supreme court has to decide whether  now under age or under f three so the general timeliness provision this court can make the retroactivity decision that's open and available to this court on after three so if what we were dealing with was a late filed first petition then a circuit court is authorized by twenty to fifty five to look at retroactivity to look at t and your honors this court has a number of those motions in the pipeline so actually miss supreme court ever get there for dean it would be through a late filed first so it would be through one of mr gallant's co defendants cases or someone similarly situated where a circuit court actually can look at the retroactivity decision assess for itself and then that decision can be appealed up to the supreme court and the supreme court would then have an opportunity to look at whether dean is back pressure or active then we would have the rule that we needed with regard to dean and second or success petitions may be available at that point they're not available now and that your honor says what your sister circuits have done and so the third the list of circuits that we have the fifth the sixth the eleventh circuit who has passed on this ashton in the context of second and successive petitions have actually all done so at the application stage they've all done so in unpublished opinions with the exception of the fifth circuit which published a memorandum opinion that about a paragraph long that all summarily said we can't listen to this right now because this is not a rule of constitutional law made retroactive by the supreme court in a very summary way and they did exactly what they can and should do at all exactly no i don't dispute that tyler versus mccain does open a little bit of a window and it says that you don't have to have one specific supreme court case that rules on retroactivity in the first instance certainly we didn't have that with johnson we needed welch in order to make johnson retroactive so you can cobble together multiple supreme court cases in order to get a clear retroactivity determination but those web supreme court cases the appeal because other supreme court cases and that's also a pretty strictly limited rule because what the supreme court says is if you are going to couple together multiple opinions those holdings not picked up but holdings must necessarily dictate the retroactivity it is not enough to say that because you might divine that this is a substantive rule therefore you can put together with general definitions of substantive rules to get there you would still have to do what you and cookouts only opposing counsel have admitted is a very difficult analysis of determining whether dean is in fact a substantive or a procedural rule that holding does not nest sarah we dictate and we can see that by the fact that these after three cases have all held that it's procedural and not substantive so it clearly is not a necessary conclusion based on get to the timeliness requirements about three as opposed to the other kids were look at the petition had been filed yet so they do have an f three situation they do have an f three situation that's right that's right here we just don't have the type of claim that can come through the door and so it just needs that the district court's decision needs to be summarily affirmed does the government agree that it would be prudent for us on the second aspect of this case to wait until the united states versus davis has decided so i i think the court can wait but ultimately the decision isn't going to affect the merits it's going to affect the timeliness potentially but it's not going to affect the merits because of watson so what we have a mad situation is court had to declare apply johnson and declare a separate rule in my first sixteen day beat it had to take johnson and look independently at the advisory guidelines under back goals and create a new rule there and it's taken up davis so davis indicates to us that the supreme court doesn't doesn't believe that johnson extends to all similarly worded residual causes it's looking at each one of them in turn so under that age two analysis  defendants johnson claim fails on a different problem she simply doesn't rely on any new rule yet decided by the supreme court so until davis is decided and if to say that davis has decided in her favor she doesn't have a new rule to rely on now even if davis is decided in her favor that would get us through the twenty to fifty five age to her it all right so we would have a new rule of constitutional law that's presumably retroactive blackstone because it's still not a johnson claim it would just restart a new dean class of cases and why we should why would she lose on the merits at that point because this court has held that bank robbery is a forced clause violent crime and so the residual cla you two very good lawyers and you heard what your colleague said about that age two versus the f three analysis what about that you disagree i disagree as i pointed out earlier age therefore there's nothing that prohibited her statutorily or an age to from filing an additional claim and that claim would be governed by f three or as we've also argued the escape hatch where we're arguing that miss mcgowan was sentenced to a greater prison term than she otherwise would have been authorized by law as a result of the dean decision the other point when we were discussing the substantive i knew i had forgotten one thing and that was about the manner of culpability most of the procedural case it the case that to see deemed procedural have been about the culpability the guilt phase and that is not what this is about this is about the sentencing phase and the substance of what the statutes mean together particularly three fifty five three as an independent overarching sentencing instruction and the factors that apply and i'm of time it looks like other questions thank you thank you both counsel we appreciate the actual and so your arguments thank you ok now we're not going to submit that last case we're going to talk about whether we hold off on davis but we heard you and we will take that in consideration thank you very much