criminalizes two substances not on the federal schedules but as multiple federal circuit had held unpublished opinions even before mr boyd was convicted and sentenced but we've never old that in a published writer that's correct and in fact in  unpublished opinions we've gone both ways the smiths decision went the other way but it was after mr boyd was convicted and sentenced i think that's a fair point and i'll ask your friend on the other side about that but smith went the other way how could it be deficient and potentially even prejudicial but how can it be deficient for counsel to raise it because the standard her deficiency is pretty hard and you're talking about judges going the other way on our core yes so at the time mr boyd was convicted and sentenced all of the federal courts who have addressed the question had ruled that the term controlled substance means federally controlled substances only and that result is dictated by all indicators for interpreting the text so it's important to look at the term in context the starting point is the fact that the guidelines expressly directs that they aim to achieve uniformity and federal sentencing the supreme court's categor struggle with right is to say do you understand my my struggle which is you're asking us to call council and potentially subject them to bar sanction for being in a fact when raised in our briefing and so that is one reason to distinguish that case when all of the arguments in favor of our interpretation of the term controlled substance are taking into account it's clear that that term means federally controlled substances only again the purpose  modifies only the term i found it doesn't answer the question what kind of offenses qualify it simply makes clear that both prior federal convictions and prior state convictions can qualify multiple drugs simply shows that that's a sufficient basis for affirming multiple convictions it doesn't answer the question whether it's necessary in the st place for a jury to find a drug type in order to convict on any one count i think at the co enough for the state to prove that a defendant knew he possessed a narcotic drug not that he knew which particular drug he possessed so can i ask you a different question which is it was born so you've got three circuits right pre sentencing am i right about that what if there is only one circuit this council to fish and if they don't make the argument that would certainly be a different case but here you have the three surrogates all reaching the to be effective they don't have to predict changes in the law or predict developments in the law and so what i struggle with is how do we draw that line and obviously there's the flip side of split i think it would depend on the case but that's just not this case why would i just i understand it's not this case you've obviously got a better case than that but i'm trying to figure out where that line is if that makes sense in other words how do we if if we're saying deficiency how do we draw the line curfew cases what if there's just records gone the other way that also would be a different case there are certainly supreme court cases granting relief where there's been a circuit split on an issue like this and they can rule that there is deficient performance just because one or two judges ruled the other way doesn't mean that the arguments aren't strong enough that and again given the clear precedent ruling our way out of circuit and in circuit precedent supporting our approach to be on point to be shows that it was ineffective assistance of counsel counsel here just returned to returning to this court for one point two eight case law for a moment this court has held that that section takes uniform federal definitions in ruling for us in this case and the term controlled substance is the only approach that's consistent with those rulings in cases like cooper and hop skin so for me i'm going to a defines the term crime of violence as an offense under federal or state law that is certainly numerated offenses and notwithstanding the under federal or state along language this court has held that those numerated offenses take generic uniform federal definition directly or are based on ineffective assistance of counsel so the fact that there were several district courts in the nd circuit that one of the other ways in your mind correct given the strong federal circuit court authority and again the clear arguments under supreme court precedent the text the guidelines the jerome presumption which this court had long applied to the guidelines all indicators that this is the correct interpretation of the term controlled substance it was clearly ineffective assistance for counsel to not even to raise the argument for mr boyer i'd note that the plea agreement expressly preserved his right to challenge the career offender designation and yet counsel did not challenge in the p s r did not challenge that sentencing and did not challenge it on appeal and indeed did not raise any challenge to the sentence on appeal so clearly this was not a case of strategy is a case of a failure to make a very obvious legal argument and so the government agrees that under he even mr boies arizona conviction is not a predicate controlled substance offense under forty one dollars b and he applies to this case the teak framework only bars the retroactive application of new procedural rules but there's two reasons that's not a bar here st this is an old rule it was dictated by longstanding supreme court precedent stenson a mr out on the books for decades guidelines claims are actually and that's because importantly they're the defendants advisory guidelines range would not have been different without the doesn't nation here however the range was significantly increased by virtue of the designation and if you look to the supreme court's cases in martino's it's clear that the advisory guidelines range dictates to a very real extent defendant sentences so district courts must consider the advisory guidelines range when sentencing a defendant that's mandated by statute they have no discretion not to do that and the supreme court has recognized time and again that the sentencing range is the loadstone of federal sentencing and so i agree with all th backless doesn't change anything in this regard importantly in section three of the supreme court's opinion and it made clear that advisory guidelines the advisory guidelines are not immune from constitutional scrutiny and in doing so would have pointed to a very important precedent pew which held that retrospective application of advisory guidelines range to a defendant can give rise to an ex post facto challenge and that's because there's a significant risk that the defendant will be subjected to a higher punishment and that's the very same reason that substantive rules apply retroactively under t and the same reason that this court should find it's a miscarriage of justice for a defendant to be subjected to offender designation and a higher advisory guideline sentence based on an incorrect unlawful and unconstitutional application of the  let's go on behalf of the united states your honour's i believe you keyed in a very key the primary key thing that you need to consider in a par is deciding this case which is that the defendant's primary claim both below and that they presented here is not properly before this court the claims are not cognize of all that it's because they are sentencing guideline claims his court held in the snyder case and held previously  grant injuns even though those for procedural default cases they nonetheless provided use the same standard the fundamental miscarriage of justice that and then everything else has to meet that same fundamental defect that results in a miscarriage of justice and that is what grant held that the guidelines you know guidelines claims are misapplication a guideline claim simply do not go  d it does it actually resolves both correct your honor and so it applies not only to the original claim here which the government did point out in its initial brief and it pointed out also to  versus wainwright so when you get to the question of substance the guidelines are advisory and the guidelines do not set while the guidelines set parameters for the district court to look at all timidly they are just advice and they do under the th amendment to a death penalty that's the type that that's the class we're talking about here here we're talking about an app you know an application an interpolation of the guidelines and in the gibbs case which was s defend it and so that they do not raise they do not raise the argument that the defendant is in eligible for the sentence so this court has already recognized exactly that and i think that's confirmed  their best argument which is this mismatch and the fact that three circuits had indicated this and yet this was never raised in any form is unfair and arguably prejudicial when everyone's going the same way i would say no your honor for a number of reasons st of all the three circuits that goma's alvarez in particular was referring to two l one point two or one dollar in the guidelines which relates to unlawful entry and therefore when you look at what that statute but you know there are that would relate to the i and a and the irony in particular relates has a definition of a controlled substance that ties it to the federal controlled substance so it makes more sense in that gomez alvarez contacts and then the two l contacts to be looking at what federal the federal controlled substance statute is but here there is no controlled substance definition and i think the plain language of that tax although there are you know other cases towns and wasn't decided at that time and the other cases were interpreting it believe it was the under two k but i concede certainly that they rely on the for be con for be definition but nonetheless when you look at that plain language of the statute i believe it's very clear we're talking about a state offense in what is a state offense a state offense criminalizes the various controlled substances that that they've determined to be controlled and illegal to transfer and possess and i would note that it's different when you're talking about th what we're trying to punish the think of the crime of violence contest where we struggle every day with violence and there are certain crimes in supreme court through the categorical approach and otherwise there's a form does don't fit that category so they don't qualify the argument is this doesn't fit so it doesn't qualify and it's obvious because other circuits are talking about it whether in be i in a context or the criminal context they're talking about it and we even the supreme court kind of has monkeyed would be i am the same way they monkeyed with the criminal guidelines in the a c c a they've all kind of come together in this analysis and they're saying look all we're saying is all his attorney should arrested because this had died this had severe consequences for and i think the answer to that is to follow number one the attorney if the attorney the attorney made a strategic decision in this case to focus on the defendant's background and his dysfunctional family on you know his part to that nd part to that answer is that given the plain text and given that the text refers to the state offense federal fences or state defenses for a controlled substance violations that that attorney was reasonable and certainly did not fall did love the deficient prefer the real point would have been every circuit but ours went the other way are they but where's the line i think that's a very difficult answer a question to answer you know where's the line certainly if it's a question you know if it's not the answer within our circuit then what we've got to give defense attorneys notice where's the online i mean is it is it five circuits is it savin is it three is that one what is the line where it becomes deficient not to raise an argument that is being raised everywhere well i were example no your honor that in all three of those cases none of them did refer specifically or did  negotiation process there's a give and take and also that information is not complete at the time that negotiation is being hatched and therefore i don't know how many of the can how many he had numerous convictions as you can see from the p s r and so i don't know whether counsel was fully apprised of every single conviction to include an out of state conviction and the parameters of that at that point if you're not isn't much to ask that counsel because you're with the convictions and the law underlying the convictions existing and developing a law so that they especially in the current manner because as you and i both know it takes ordinary guidelines and the multiplier effect is great and i get your point about background  we both know it absolutely is your honor and it's absolutely a requirement to calculate those guidelines correctly and i would not dispute that in any way but i do believe that given the plain text as three judges on this very circuit reviewed in smith and looked at in smith and they said this one's easy right in smith the government did argue that it be a noise statute was divisible by drop the government spent a lot of time in their brain making that very argument and the panel said we don't need to decide that they didn't decide that because they looked at the plain language and viewed it as quote as the state offense in the state controlled substance offenses i'm sorry the state controlled s substance schedule as being part of that offense and therefore they decided the question you know without giving the divisibility argument any certainly any in the in the opinion now i do certainly recognize that in the pediment case this court did go to the divisibility issue and then looked at whether those whether drugs were divisible or the schedules divisible by drugs or that the crimes are divisible by drugs and found that in the case of michigan i believe based on case law and treatment similar to how arizona treated their the treats the different drugs that it was divisible and in pittman they don't mention smith you know so we've got two ships i think that have you know sailed past one another on that but nonetheless when you get back to the question of deficient performance when you have three judges on this circuit who don't believe that this is even merits ink in their brief i don't think you can say that counsel was deficient for not raising it and instead choosing to focus quite effectively on background we looked at that  that but what i'm saying is that you've got three jurists on this circuit who are looking at the same exactly exactly that's what you would say they fail strickland exactly i don't know if you want to tell judge givens th by not recognizing or not forwarding an argument that this court itself at least part of this court has rejected and i don't think you can draw that line i also would note that as your and i believe pointed out in the snyder corners case makes clear that you look at you know what is going on at the time as opposed to in hindsight or in retrospect so again you have a better time three judges have ruled that way and every circuit judge to rule right there was in the in those other three cases or it's not even that this is there i would have to check ok let's just say almost every theory every had ruled that the mismatch theory was a good work well one in the context of yeah two out and in that when they went to divisibility and here you've got arizona treating in one case three different drugs in one pill bottle as three separate crimes and so i think that informs again you know we would that is our secondary argument we believe that the text would plainly indicate that the state controlled substance schedule is what governs but the secondary argument would be that arizona in fact treats them as divisible and that you would have to and that would be sufficient under pitman to again find that counsel performed effectively or certainly had no wasn't deficient in not raising the to the different state scope so that was you know it was another part of their analysis but the direct answer your question is not one hundred percent i don't think they  would just like to make two quick points the st is on the question whether he was is a substantive ruling that applies retroactively my colleague on the other side referenced the montgomery ruling which held the supreme court's miller rule retroactive miller had of it preempted mandatory life without imprisonment for juvenile homicide offenders and in that case the state argued that miller could not be substantive because it didn't mean that juvenile offenders could never be subjected to mandatory life without parole and the supreme court explained that that argument confused a procedural requirement meant to implement a substantive ruling with a procedure rule that actually regulates the manner of determining a punishment or sentence so that argument that case clearly demonstrates that here where there's a significant risk of a higher punishment based on unlawful interpretation of the guidelines it's a substantive rule if it's a new rule at all second i'd just like to turn back to the ineffective assistance of coun claim based on the drug type mismatch the government previously acknowledged that to a one point two is materially indistinguishable from for b one dollar so the case and multiple federal courts have recognized that and published opinions so clearly those prior precedents were relevant to this question of the judges on the smith panel were not strickland ineffective assistance standard they didn't you know fail in that regard again the opinion did not address the that the term controlled substance means federally controlled even but even if we i'm sorry to interrupt you good even if we agree with you on that you understand what i'm saying how can we say it but say i did know both matter would agree with you brief which council should have raised at mr boyd sentencing and on appeal convince three other federal courts of appeals of the time and now the nd circuit in two additional opinions that it was the correct ruling so there is clear prejudice it's clearly correct that the term controlled substance means federally controlled substance only and again it resulted in a higher guideline range for mr bullard and the court made clear that when she sent mr bill into one hundred and forty months in prison that was still an extremely long sentence and her sentence was clearly anchored in the guidelines so there's every raced some of the early rounds of the very least perhaps there was some strategy in that case i don't know but clearly in this case the failure to raise those obvious arguments was not only deficient but prejudicial performance from  i especially want to thank you i know you all took this on and be happy park circuit we greatly appreciate it especially especially all the briefing in the extra briefing we asked for it was all excellent and you should be proud of the work you did and