finally breaking the weather cycle curfew days thank goodness we will appreciate it if you follow our traffic lights as someone the yellow light comes on you have two more men a time when the red light you concluding your argument unless you're answering a question from the bench we also appreciate record citations when you can make them because we may not have read the probably have not read the entire record before we come to oral argument but we are familiar with the briefs and record excerpt first case in the morning it's numbered sixteen one one two nine two united states versus pren was not a thirty seven forty two reversal the court rather was utilizing its authority under other provisions twenty eight u s c twenty one of six and twelve nineteen with the government recognized as much below when it took the position that the twenty sixteen guidelines should apply and asked the district court to apply them second in the alternative the court if the court did reverse under section thirty seven forty two one then that was a mandate and the district court was required to follow them and it but this court need not go down the rabbit hole the government invites because it did not exercise its authority under thirty seven forty two but rather under the other provisions so the default rule under  thirty five fifty three eighty four eighty two is to use the guidelines in effect at re sentencing and the district court apply this rule the courts remain and order in this case came by way and the government invited this court to remain and if it wanted to resolve the johnson issue at that point in time it actually said if this court wants to hold or find that johnson applies to the apply the guidelines and effect at that date on the date of or sentencing the government the government recognized this blue when it took the position that the twenty sixteen guidelines should apply and i want to do that the idea now th the government's argument now that everything is remained pursuant to thirty seven forty two f one is simply inaccurate if that were the case why would thirty seven forty two g s state that a district court  instance to ask a district court for more information about its holdings or about its sentence or in light of plus possible clarifying amendments which was the case here so what would it have been here i don't think there was any remand for further partial enough to and in this case there clearly wasn't a finding of error so it had to be another animal and if you look at what was there it was either twenty one of six or twelve ninety one or both of them it doesn't really matter the court had the power to do it and when the court tells a district court to recent a case the district court uses the guidelines in effect on re sentencing under thirty five fifty three  martinez versus united states with we cited in our twenty eight j materials the supreme court said courts have for example developed mechanisms short of a full remained to determine whether a district court in fact w so we believe that the district court should have applied those guidelines and obviously the guidelines in effect on the date of recent saying had done away with the career offender provision and the if the effect would have been to lower mr gonzales as guideline one of our points on the air was that the district court in the first instance failed to consider the clarifying amendment amendment seven ninety eight which did away with the career offender provision in four b one point two the commission's own words indicate that it's clarifying it did away with the with that provision because of confusion among the district courts in how to apply it and so in this case if you were to remain at it again i think it would be the other way the point here is this is to put mr gonzalez back in the place where he was after the first three mand i don't well that's the assumption every time you get recent and you  get the benefit of whatever guidelines changes have occurred in the interim and i'm really not sure that's the case well i mean if that's it i don't think i see it the same way your honor well i know well the way we see quote see it doesn't matter it's the law that's what i said i'm not sure so what is the law every time you every time you get remanded for resentencing does the court have to look at up to you to guidelines well thirty five fifty three is pretty clear on that point that if read and this court and appellants motion was you need to re sentence in light of johnson right right at the at that point in time so how can we construe the mandate is as covering anything except  the question whether the johnson vagueness rationale applied to the career criminal guideline well that's what we're arguing your honor we don't think that there was a mandate in the first instance but if the court believes there was a mandate what you're essentially telling the district court to do is because this court considered the johnson arguments on the motion for remained and the government said if you want to find that johnson applies to the guidelines remained to the district court and this court did so if there was a mandate that was the mandate exist it wasn't in or plan to stand there very well but all i'm saying is i mean you're right you're making two separate arguments right one of them is on remand the court had to use in the the updated the two thousand  whatever the new newer version of the guidelines was and also that the court was bound to find the what is now contrary to law that the guidelines  court was subsequently proven wrong but at that point in time you were telling the district court apply johnson to the guidelines and if this board wants to johnson should apply to the guidelines we've never held that right which is why we did all we couldn't it was no holding that however we could have been saying reconsider you know look at johnson we're not this panel doesn't want to decide it we're kicking it back to the district court well in that circumstance the it is not unusual after the supreme court issues meaningful decision that we will issue a raft of remains to the district court to consider something we did that in the death penalty area when trevino versus taylor came out we would send cases just send them back to the district court and say you take the first look at this that is true your honor but so you're criticizing this court for trying to go through channels by rema his record is in court i'm merely saying that for as a first instance we don't believe that it was remanded for error and so the twenty sixteen guideline should have applied and and if not there's there's another argument that we've made which is the district court failed to consider the clarifying amendments on re sentencing which can be applied retroactively when they are clarifying and seven ninety eight is clearly clarifying the sentencing commission said it was changed because of the confusion among the district courts in this court is aware of the  litigation caused by johnson that was presented to the district court we asked the district court to consider the amendments as clarifying and it did not there's a basic conflict in the district court's findings on remand on the one hand finding that there was no mandate from the court but at the other time saying that it was bound by precedent and you're right your honor that this time at that point in time this court had merely said that the issue was mean that you would be inviting district courts to substitute their judgment for your own use in the case back or for reconsideration and in your telling the district court to do something and it decides no i'm going to review on the merits i the district court will rereview on the merits and hope that i'll be right some day that's the effect that it would have it would allow the district court to take over this court's rol well i think you know just i think i think it's my own interpretation of what happened here was that after johnson various cases were kicked back to that issue of court the district court in this case would have been perfectly correct to say there is no governing precedent in the fifth circuit that says the guidelines are fake and i'm not going to apply johnson to this decision i morning may please the court brian mccain on behalf of the united states the supreme court's decision in battles gives us absolute certainty in knowing that the district court properly calculated the guidelines range within which it since mr g es the first time in twenty fourteen and likewise we know because of beccles that the district court committed no guideline or the second time in a recent incident two years later in this certainty that beck was provides it illustrates that mr gonzales is appealed now is simply an attempt to force the district court into a lower guideline range without ever sowing error in the first instance his primary argument that he should have been sentenced under an updated guidelines range at re sentencing is premised on a fundamental misunderstanding of what twenty eight u s c twenty one of six does i would note that  i think now he's relying also on section twelve ninety one i'm sorry i'm not prepared to speak to that it was first raised in a twenty eight j file this past sunday i was out sick most of monday and all of tuesday but if six is a it's a broad grant of authority to fashion certain remedies but it doesn't displace procedural rules through which the appellate courts put into effect these remedies for party that is an appellate court can't disregard the cross appeal rule and then say twenty one of six authorized to do so in the same way a court couldn't disregard the requirements for plain error in just a twenty twenty one of six allows it to do that or the certificate of appeal ability requirements of twenty eight u s c twenty two fifty five eight and point two twenty one of six as authority in the same way section thirty seven fifty four provides three things that are supreme and i'm sorry that impel a court can do when reviewing a sentence it can find that there was that the sentence was unlawful or are based on an incorrect guideline range and remain for recent in seeing it can find that it involved in an erroneous god one departure and remain for recent in sync and subsection f three provides that if it's neither of these two then it shall affirm the sentence  to be sentenced under the updated guidelines and i think it is judge jones had pointed out that to violate any mandate if the court's mandate was simply to reconsider  the issue its reconsider the prior sentence in light of johnson that this court's mandate would have been undermined in this particular the narrow mandate rule that this court adheres to such as in matthews would be undermined if then contrary to just considering that one issue the the district court then has to go back in recalculate the guidelines afresh under a new court's decision was correct and again in retrospect with beccles we can look back and see that there was no error committed in the calculation of the guidelines and  your honor just prado point out what next having had no error there is no reason to send it back for the district court to do it again when there was no guideline error in the first place gonzales also asked this court to reverse because in his view he does not believe that the district court considered the guideline amendments that it had been put in place since the original syncing to the contrary the record indicates that the judge did in fact he pointed out that there had been a two level decrease in the drug quantities table and i wanted to ensure that mr gonzales once the appeals are final mr gonzales has the ability to apply for adjustment of a sentence presumably under thirty five eighty to see that he can still do that right yes yes that was the position taken by both of the parties before the district court and i believe that's correct that he can he can do that once the appeals are fin l contrary to mr gonzales argument amendment seven ninety eight is not clearly clarifying and this is this issue is submitted i believe on plane air review this is not a clarifying amendment this was a substantive your brief doesn't even refer to that right right right because what my brief refers to is because this is plain error one you can't show that the that the court didn't consider the amendments in fact he had knowledge as they were discussed at great length that recency to it's not clear that that was clarifying and so this points out worry supports  the second prong of plain error it's not clear that amendment seven ninety eight is clarifying and third of course had the court explicitly considered that the amendments and i believe that all the amendments were argued to the court absolutely it consider them but even if the court didn't explicitly discuss how it considered and there's no indication that it would have arrived at a different sentence had it explicitly discussed how it considered those amendments on the the last issue that he raised about the person in saying rehabilitation i want to point to record page two twenty seven where at the recent in sing  following took place we would ask the court to consider the post offense rehabilitation under thirty five fifty three factors ok do you have anything else you wish to say no so the record shows that the court actually did consider and is a point out i contained in the p s sorry and i'm all of this was presented to the court the court explained it recent in saying that it had contemplated the sentence in the initial at the initial sentencing determine the two hundred thirty five months was the appropriate sentence under the under the guidelines and thirty five fifty three a factors it reconsidered that recent in saying having considered the johnson and concluding that it did not change the guidelines reminded the government according to your brief the government was sort of arguably agreeing that johnson had implications for four b one point t yes your honor after johnson was decided the department took the decision made the decision nationwide took the position that johnson applied to the same language contained in four b one point i didn't need i didn't member that  confronting those statements of that position from the government yes or yes your honor the government took that position the department took that position nationwide and in particular and in this circuit and also i believe in i believe is the eleventh circuit and one other circuit there there was there were decisions that suggested such as pearson suggesting that johnson wouldn't apply to the guidelines so we were in a position in at least two circuits where we had here to the department's position that this law that johnson applied to the identical language in the guideline but we also to feel or duty of candor to the court did not want to mislead the court in one of the court to be aware of its prior authority of pearson and more recently than wilson an unpublished decision to to alert the court to that so then it would have been clear i suppose if this court had just said instead of demanding just sit here then existing precedent right that would have certainly made it clear below but having not done that in this instance i don't think changes that  the district court reached that correct conclusion considered itself bound by pearson and that if there was any implicit mandate in the in the remainder order that implicit mandate conclusion that johnson couldn't apply it to the guidelines and let's not forget that this court affirmed the sentence in the first instance then our own in the courtroom and it under some other provision of its powers and i'm sorry that the government is not prepared but we did raise section twelve ninety one in our group reply brief it  i don't know what now tell me again the top ninety one makes any difference here is just the court's statutory authority to review all the final orders and there's case law that says sentences are final orders as to the government's green  martin's the government invited first invited this court supreme and if johnson applied in the court did so if the government thought that that shouldn't should not be  the district court did not find a mandate i think the district court's presumptive issue below it was pretty clear that it did not consider itself to be under a mandate let me ask you did you have you analyze this through to consider whether even if we ordered room a and for recent can sing with beccles being the law and this alleged clarifying amendment perhaps applicable would your client necessarily were the case we know some judges depart from the guidelines and you know we always been told that many judges on remand are just going to send somebody you man would be eligible for the same sentence would you not well the district court could have departed in the first instance because i think the statutory count was dry but if we were to remain and i don't see anything that would limit that possibility remand normally when we are manned it because of a focused error in the court can only correct that error and then resign and through then that scope but well i think if the court were to instruct the district court to apply the twenty sixteen guidelines are the guidelines a clickable and remain and then it then the district court would have to point to something that it did not point to in the first two instances to depart upward so i don't i don't know why that would be  as to the clarifying nature of amendment seven ninety eight here the sentencing commission commission made it very clear that that it was changing the amendment because of confusion by the district courts and how to apply it what would be the first time that a clarifying amendment was confusing i agree with you your honor with regard to whether the district court considered amendment seven ninety  eight the government says that it was the district court considered the changes in the drug quantity calculations that's a different guideline that was guidelines seventy six i believe it did not give any indication that it considered seven ninety eight to that we raised several times below the issue of using the two thousand and sixteen guidelines so it was preserved i can point you to record cites twenty two twenty one to two twenty three at  sentencing three thirteen the government's request and its objections to the third of dent into the p s r three twenty six and in the sealed sentencing memorandum that was submitted to the  defendant who has shown that the district court mistakenly deemed the pickable an incorrect hire guidelines range has demonstrated a reasonable probability of a different outcome in which case has shown that the earth fixes substantial right