fair warning some of us have i pads up here where we can check your records site so please be accurate in your statements about the record and now you will be all right without further ado let's begin with case number seventeen dash five zero four four  the penalty range for that offense is usually zero to ten years in prison and up to three years of supervised release but under the arm career criminal act the penalty runs increases to fifteen years imprisonment the wise and up to five year based on one drug offense and multics burglary convictions the burglary and i ask about the other cases that are pending the stewart and campbell that the government's advised to i just want to be clear in my head the stewart case that was argued yesterday is not a successive case and the government has actually conceded that if harold lives they lose is that a fair summary of that case that's correct although  now also has added burglary and so it does have the same jurisdictional issue that we have yes ok all right with that i think that's the issue in it the jurisdictional issue since in the in the stewart case the government conceded but in this case they're challenging jurisdiction on whether this really is a johnson case yes that's correct and why is that in johnson case it's a johnson case because we claim relies on the because at the time of sentencing there was no legal requirement for the judge to make that finding all that was necessary is that there are sufficient number of convictions that qualified as a serious good offense or in this case a violent felony under any provision for good but there's no circuit that h adopted the don't matta rule the circuits have said either if it was the factor in other words they didn't rely on enumerated but relied on residual or you know kind of more likely than not d but there's nobody that said we don't care as long as you could make a johnson argument however frivolous then johnson controls well that goes to an additional dispute among the circuits and that is whether a district court at this point in time looks to the law as it existed at the time of sentencing and what the basis for enhanced it might have been at that time versus the laws that exist now and even courts that say some of the courts that say a defendant has to show that he was sentenced under the residual clause allow anything to rely on current law which is relevant to this case of the supreme court is that even makes sense i mean the whole concept of success of haiti is is very limited and so johnson is retroactively love but it's limited to johnson the residual clause if we know i mean let's say that the judge happened to announce in two thousand and three just happen to say you know burglary new rotted off so i'm going to sentence you just happen to say that why wouldn't we give credit to that and move on why would we be doing a while but you know somewhere in the back of his head thought about the residual clause and therefore we ought to give it make it a subsequent to the defendant's original sentencing and there are two separate questions involved one is the gatekeeping question of whether the successor defendant can show that his claim relies on the new rule which in this case is johnson but as winston said it's not necessary that the claim rely solely on that new rule as to the question of the current legal landscape that goes to the question of whether there was harm from the error in the sentence and so the question is in light of johnson does wheezes still qualify as an arm career criminal and the answer is no because without the residual clauses burglary offenses categorically are not a c c a violent felonies at the time of the senate thing which does not require contemporaneous intent to commit another entry in other five back then you could narrow you didn't have the the additional layer of complexity that mathis has brought us and so you look to the modified categorical you look to the papers and he clearly was convicted under a one and that's what the corps looked at so why i mean to me the problem is i agree if you get past the johnson hurdle and harold survives you win but those are two the first one being the biggest hurdle i just i'm having trouble with how this is a johnson case i understand how it sort of warranted assia you see a way i mean let's talk about it yes i think that's fair that we should be talking about it but what i just i'm still having trouble with if we go back in time to the time of sentencing which is to me the relevant period for the johnson question we would have been talking about the residual clause in two thousand and three so why should you get to talk about it now when math is not retroactive and harold certainly isn't because it's not even a supreme court case well the exactly why there's a problem with the original sentence because math and did not say it's possible for an office not qualifies to merit burglary but to still potentially be a violent felony under the residual clause so that possibility was out there at the time and of the time we zuma sentence there were decisions from this court involving the materially identical residual clause in eighteen u s c section sixteen b and holding that burglary in a particular texas burglary does qualify under that residual clause so in weasel was sentenced his burglary convictions could have been violent felonies either under  day as the fourth circuit recognized winston and the court then the district court can proceed to address the claim of the merits in then of course there's the separate prejudice harm question of whether after johnson and looking at current law he still qualifies as an army career criminal and another point i would make is that although some courts have drawn a distinction between defendants who are in an initial twenty to fifty five poster versus a successor posture in terms of being able to rely on current law there's no obvious reason why that should be the case and there's nothing in the text of twenty to forty four or twenty two fifty five that would support any distinction between initials and successors the only difference is that successors have to show that their claim relies on this new retroactive right i mean i think that that's why stuart didn't have the jurisdictional issue and why the government made the concession it did it if if harold lives to a guy or whatever the concession is because it did to me the jurisdictional issue is the whole case here absent the supreme court doing something different with carroll well there  well i didn't see it breached i mean what i saw was the government said and i didn't study it in the detail but i've studied this case i'm sippin looking glazing at it they kind of waxed eloquent about harold and then said but you know if if harold lives we can see so that was how i saw the word jurisdiction was mentioned only at the very beginning and i searched for it was looking to see what the issue was now as i said you probably study more nave i certainly have not studied it to the depth that i've studied this case but it didn't had a lot of johnson filings within a year a kind of staff would soon as well it came out i mean it was just we were flooded with that there weren't any jurisdictional issue there they were just trying to make sure they met the time the year time the criterion twenty two fifty five which lays out the types of claims that can be brought in a twenty to fifty five motion as pertinent here that the sentence was imposed in violation of the constitution of the united states or that the sentence was in excess of the maximum so then there's a counsel in contrast to the jurisdictional provision that you just read the relevant jurisdictional provision in this case how does it read it requires that the defendant show that his claim relies on a new rule of constitutional law made retroactive to cases on collateral review by the supreme court that was previously on it so whose burden of proof is it to show that reliance it's the defendant's and in terms of what burden that is it's purely a legal question your burden right to what do you have to show you have the burden to him suggest that you have to show something so what would you point to to show that your claim relies on in a materials that burglary convictions categorically are not a c c a violent felonies because it johnson eliminated the residual clause as a basis for that and we know based on harold texas berkeley county stand that by pointing to what you just pointed to does that satisfy your burden of proof to show that the claim relies on the residual clause or is it just you could it be either residual clause or the enumerated clause well it suggests one of the other the claim has to rely on the new and as the fourth circuit recognized and winston it's not necessary that the claim rely exclusively on that new rule it's enough that the new rule is necessary to support the claim in the easiest way to see that is well johnson has a doesn't have a cl that the burglary was was committed that the defendant entered a building with intent to commit a felony most of which were involved in some of our earlier cases as to whether that whether  the burglaries qualifies violent felonies because they are generic burglary and referencing the charging language that was included with most of the earth when you get when you concede that some have enough some of it at least the probation officer was looking at it the probation officer could have bed but it's also the case that given the state of the law at the time burglary also qualified as a residual clause offense and in fact given the fact that some forms of texas burglary are not generic burghley the innumerate of the excuse me the residual clause would have been a more solid basis on which to risk the a c c advancement at that time but again that the record just isn't clear on that point is your doubt to the to the defendant is that is that part of the argument if you're implicitly asking us to prefer that fourth circuit standard right that's where he was winston yes i i think the fourth circuit is most faithful to the text of the statu does it rely on doubt analogy remember that came up in a case somewhere but it was i know that the night circuit's decision specifically the first of the stromberg is at the same standard as the fourth circuit  t i'm trying to get at is is you know we don't just throw the circuits up in the air and say well the fourth looks good you have to have a reason for preferring one over the other right there's evidently a divergence in approach would you agree with that i would say that that's right the p s r makes clear as just in syndicated that these were burglaries under the subsection of the texas burglary statute that was considered an enumerated offense it wasn't until after the sentencing occurred that this court began to distinguish among different subsections of the texas burglary code and when this court did that then there was some disarray about whether a separate subsection of the texas burglary code might qualify as a the residual clause and there's nothing about remaining in and in this case that's right because the there are far more than the three burglaries that we need here that would have qualified under any one they were all burglaries where the intent was formed at the time of entry according to both the p s r and then if you look at what are called the shepherd talk about that so back to the matter at hand in these other two cases i have went over them with your own and we have and campbell is it possible that cases i have enough with my own cases but let's say the p s r made some reference to remaining in in campbell which topic that equally it said that that case could then possibly come out differently in this case i believe it would depend on potentially exactly when mr campbell was sentenced because all of the circuits except potentially the fourth on the fourth circuit's decision is sort of somewhat murky look to the legal background of the time of the sentencing even the constantin the government hadn't even argued in that case that the residual clause might apply in that debate about whether the residual clause might apply to a different provision the the remaining in provision of the texas burglary statute didn't take place to later and then it was it was the product it was the subject of competing conflicting decisions and publish decisions by this court so even that subsection of a texas burglary code it was not clear whether that would fit into that residual clause and in this case because we had burglaries that were clearly under a one of the texas statute there would be no beason for the district court for anyone to look beyond you hop in this that's right it would been very unusual for the district court to even thought about the residual clause because that even under a may have taking winston and if we were to adopt winston or assume argue window winston you would still win because your argument is there's really no basis to conclude the residual clause played a that counsel opposite read actually kind of left out or any other reason to collaterally attack so on an initial hey vs you have a much broader ability to attack a prior judgment than you do on a success it is not a fair statement that's ri residual clause we have to stop at that point it's like they have no jurisdiction anymore and we just have to say because it is a little bit of a weird situation because if you peek in the last chapter of the book you know that if we did here old here if we just threw out all the other you know brambles and got right to the heart of it that he wins and he's out of prison today we're close to it and that's about right that's right  few that's kind of a tough one to i mean apply the laws it's given to me and i'm fine with that but you know that you can see how that's a little bit disturbing to your opposing counsel and and mr wiesel that's simply a feature your honor the limits that congress set in at four successive petitions congress for the balance between the interest that the system has in finality that defendants text structure and purpose that a we talked a little bit about the relies on language which according to every dictionary means depends on and so the claim actually has to depend on the new rule of constitutional law not just  identifying what constitutional law and if you look into the structure of the provisions we're talking about as you recall that this court looks prima fashion whether there's some fighting issue this court doesn't look as closely as it as the district court is expected to later if looking if it relies on just that you had to identify some new rule of constitutional law in the district courts inquiry which is a separate inquiry under the statute would be virtually the same as this court's initial inquiry and then if you look at the purpose of that we touched on earlier the purpose of a was to provoke promote finality and to create an intentionally high power for second or success petitions so for all those reasons we believe the majorities approach requires a defendant to show that a sentence actually hinged on the residual clause as opposed to the numerator defenses c the superior approach here it's a let's talk a little bit about you also argue that if we somehow get past all of this stuff and say it does rely on it or whatever and we get to the merits we've got harold and obviously under harold you lose vehicle issue which the court didn't decide leasing on bank majority didn't decide so your argument is that even if we get there we should stay it pending harold but the thing is then we've got a person who's sitting in prison who maybe shouldn't be there if we get if we ply herald today should be there so how can you really argue for a stay in that situation the purpose of us first is to make crystal clear decision here although it's complicated is the jurisdictional argument that would resolve the case immediately without having to get tied up as you mention but in terms of the stay the department's position has been that we should ask for stays in each of these another two years let's say that we got passage or sexual issue in his favor and we applied harold and said you know you're out essentially and he got out and then the supreme court takes heroin reverses it will say all of that and that's a lot of if if if if but if all of that happened can he be put back in for the remaining two years or is there some thing that would prevent that assuming you kept this case alive by you know petitioning for syria or whatever you need to government has the government doesn't have to exercise that option but it would be an option and in terms of the just the facts on the ground yes the police state currently is just a little bit less than two years out so that in a sense who has talked a little bit about burden of proof earlier the majority view of this the burden of proof is more likely than not and would therefore circuit approach the sort of probable cause or what i'm trying to put in my head like how much because i mean i just think being able to say when johnson has sort of is in the same logbook with this case is not even going to satisfy the four circuit so i'm just trying to in my head conceptualize what how does mr ways to have to jump over if we take the lowest hump what is that light and how do we how do we characterize that you know the danger standard question i think expanded on that the may have to test whether that's the book we would agree that it has to be something somewhat more than some hypothetical remote possibility there has to be a realistic probability that the  easy decision for the district court to naked in this case but we don't know exactly what the fourth in that circuit mean because they haven't expanded and those are our to be fair the the two earliest cases in this line of circuit cases they were the first two circuits to kind of address this and subsequent circuits have expanded on that that's right and identified some some potential flaws in the fourth circuit some nights work is tough and that the fourth circuit doesn't actually rely on the stronger principle but what the fourth circuit was concerned about was that different defendants would be treated differently depending on what the district court had said but as it as it turns out that's not a real concern because it is an inmate can always look to the legal background of the time as as this inmate could and point to that the prevailing precedent at the  time that doesn't help this inmate in this case but it means that you inmates would with similar convictions would result would have similar results because no matter what the district court said because they could look to the legal background so if we had a bunch of conflicting let's say unpublished circuit and you had all this conflict unprecedented in unpublished decisions then you might get over the may have hope but that's not the situation we have here we didn't have any of that conflicting precedent at the time this and it was and it's in the conflict the president was under a different provision of the texas burglary stuff so you don't have that problem i think we've already addressed some of the problems with the ninth circuit's test looking to jury verdicts you know it so he made an argument about math this really just being kind of what the law was was and i guess we can debate that the supreme court articulated such a concept i'm not sure the circuit courts had seen it quite that way but the law that the on dog majority relied on in ha i haven't gone back i just thought of that question so i haven't gone back to look and that may be an unfair question to you i don't i just don't remember that you know that the cases that were dirty relied on from texas do you remember when those were  the supreme court if i understand your question the supreme court in in math us into camp said that it was only applying principles that had it applied before and that's why we say that this can't possibly that  i guess he's arguing we got the divisibility analysis wrong in two thousand and three and if we'd gotten it right we would have been where he is today on that i believe that the argument have to be that this court got the divisibility analysis willing in two choices only makes sense of the purpose of the a t p is to punish success or simply by virtue of the fact that there is successor cost or that's not the purpose of the a d p the purpose was to prevent abuse of the process and to prevent defendants filing serial frivolous twenty to fifty five's and that's why there are all these additional hoops that successors have to jump through but that doesn't mean that just because somebody that they had to be serial frivolous i think that is said to be serial well either way the purpose was to you would need as high as hot as they got if you just were worried about frivolous well it is either way the purpose was to cut down on litigation the main thing you're relying on is not a supreme court decision which is harold with out here all night if we were still under your rebbe you wouldn't be standing here but that's the same case for stewart and that's why the suppose a distinction between initials and succession given the government's position stewart one thing you can attack you can also attack excessiveness of the sentence and it's excessive now under harold there's nothing here about as determined by the supreme court or any like that nothing about where the supreme court is the decider of what excessive so if let's say there was a we we get these in restitution cases where they say you prescribe more than the required restitution that's in excess of the maximum and that's the argument made and we apply circuit case law on that nobody suggests otherwise and that would be appropriate on haiti as it says that the court was without jurisdiction or that the sentence was in excess of the maximum authorized by law and that's the argument he's making he doesn't have to jump  has already addressed the finale concerns in this context by making the ruling johnson retroactive and i guess just one final point before time runs out judge haynes to your question as to what the majority of harold relied on sort of the landscape of texas law and when