agrees the maximum statutory penalty is ten years the district court found that mr ted raised a valid johnson claim but not relief citing the concurren concurrent sentence doctrine under that doctrine the burden is on the government to establish that there is no reasonable possibility that the defendant will be prejudiced by the un reviewed illegal  extensive evidence in the record well you know in peach thirteen with the district which is good well the district court in addressing the issue of cause and prejudice found that the three counts of conviction were interrelated they all arose from the same episode a robbery murder with possession of a firearm and the district court found as a fact that there was a fair chance and a reasonable possibility that mr ostland overall sentence would have been lower had he not been sentenced as an armed career criminal that finding in and of itself is sufficient to defeat addressed a different issue the direct appeal raised the booker issue of whether the district court would have imposed a different sentence had it been aware that the guidelines were advisory not mandatory but the court was contemplating a situation where the mandate to the statutory maximum for count three the gun count would still be life under the arm career criminal statute the guidelines would still be life under for that fount but the only difference would be that the guideline was now advisory not mandatory and in that situation the court said relying on some of the comments that judge rosenbaum had made that there would have been no difference and so remained was not required now we have a situation where the maximums statutory penalty is no longer life that's ten years the guideline range is no longer life it's thirty years and the guidelines are advisory now the comments that judge rosen made basically advocating a life sentence were made in the context of a guideline range that was presumptively correct at the time pre booked her that told him that the appropriate sentence for the gun w life what comments would he have made had he been told that the appropriate sentence for the gun was ten years we don't know and so it's our position that the district courts conclude  so judge to hymes finding that because these counts were interrelated the armed career criminal sentence would have affected the sentence on the remaining counts resulting in at least the possibility a reasonable possibility in the judge's words of an overall lower sentence defeats application of the concurrent sentence doctrine now the government has raised an issue as to whether this is actually a johnson claim their position is that because the if the offense in question is a burglary judge rosenbaum could have found t the district court is to look at the background legal environment to make a determination of whether the court relied on the enumerated offense clause or the residual district court back in two thousand and four the issue was never raised however if we now look at what the legal environment was in two thousand and four what we find is that this court repeatedly had held that burglary is a violent felony under the residual clause it had never held that it was a an offense i'm sorry a violent felony as a generic burglary under taylor the court had never made that analysis and it wasn't until the macarthur case in two thousand and fifteen when this court for the first time poster johnson no longer being able to rely on the residual clause made a determination that the minnesota burglary statute was over broad and  was too broad to be generic burglary so if in two thousand and four judge rosen had looked at that legal environment he would have found numerous cases saying that  burglary satisfy the residual clause and basically so basically the question is whether he would have relied on those cases or whether instead he would have decided to ignore that case law make a finding of first impression as to whether burglary satisfies tailored generic burglary he would have been required to look at the statute to determine whether there burglary under the statute meets the generic definition of burglary under taylor he would have determined that the statute was overbroad he would have had to make that determination without any briefing from the parties are you saying that we were environment agree that a remained is required however if the court determines that a remained to resolve this issue is required i think that it would still be necessary for the court offense clause applied and the eighth circuit sat are later decisions under nailer show that that's incorrect and so there was no longer a basis didn't deny the twenty t fifty five and so in this case the court would have to make a determination if the court agrees with my argument that the concurrent sentence dr and did not apply then remain on to the district court for a determination of the fact as judge to confine found as a fact that the arm for a criminal sentence affected the sentences on the other counts that's number one number two the fact that two consecutive life sentences a sloan's conditions of confinement and security designation within the bureau of prisons and about a possibility commutation or that was also something that i've argued in my brief your honor under the obama administration there were over five hundred people serving life sentences who sentences were commuted there's no question that a court looking at mr outlands case for the possibility of honor because under the sentencing package doctrine and the court's finding that the sentences were interrelated it's our position that the appropriate relief would be did novo reset and saying on all three  thank you may please the court counsel there are several points i'd like to make here today and i hope i can get to them but i would like to start with where the district court should have started and that's with determining whether or not the gate requirements of twenty to fifty five eighty two were met this court authorized the defendant to file a successive twenty two fifty five but that determination was only a preliminary finding based on a prime official standard that there was possible merit to the defendant's motion and it specifically held its order authorizing the success of motion that it could not this court could not determine within the strict time constraints imposed by statute two the district court i believe clearly misapprehended the significance of this court's order it stated at page three of its memorandum opinion order that this court held that the defendant motion in fact contained a new rule of constitutional law made retroactively a playable by the supreme court but that's not what this court held this court said there were possible merit it couldn't determine which was the basis and the itself whether twenty two fifty five to a satisfied and unless it satisfied the district court had no jurisdiction to go beyond that political area but that determination that the gatekeeping requirements are met if the gate keeping requirements are met the district court is obligated to dismiss the motion there's no jurisdiction to bypass twenty five age two and that's what the district court did here it assumed based on this court's authorization there was jurisdiction to consider the merits but then opted against considering the merits and applied the concurrent sentence doctrine and walker at the time the parties brief this case both in front of the district court as well as in front of this court there was a split in the circuit as to who bore the burden to prove residual clause error and what that burn looked like after the parties filing this court resolved that issue within a circuit and said that the defendant bears the burden the defendant has to show by a preponderance of the evidence that the reason to challenge burglary as a numerated offense clause when the existence of the residual clause functioning as a catch all provision provided no incentive to challenge it held that that was enough but those are precisely the things the defendant argued here the burden issue was directly presented to the defendant from the government's initial filing in this case and it each step all the defendant did is point to see once on the record point to the fact that why would he challenge p you're relying entirely on walker under walker don't we have to have findings of fact by the district court isn't that the real point of walker the point of walker is that that is when there is nothing else in the record to support which way what the court relied on that it is an historical fact that should be decided in the first sense of by the district court and certainly this court could reverse in remand with direction to to make factual findings on that point but every couple points seven circuit did this in the whole case which is cited in our case that the defendant there attempted to do what the defendant here is attempting to do look at burglary in the whole case it was illinois burglary let's look at burglary from the current standpoint from the current standpoint we know it doesn't satisfy mathis therefore it has to be kicked into the residual clause bucket hole said no that's not what we do burglary is listed burglary residual clause offense and there really is no question if you look at this court case law especially the macarthur decisions macarthur wanted macarthur to there's no question that the parties treated burglary as a n it just simply hadn't been in dispute and i didn't cite a case in the brief but in preparation for oral argument i do have a case that illustrates that and that's one of the derisive cases which is that two twenty three f third nine teen that's a two thousand case and it does exactly what the parties used to do back when a burglar used to be burglary t of the analysis in two thousand and four before the camps before johnson before mathis and we know that burglary no longer under minnesota law is no longer and because burglary is listed because the macarthur dip opinion already shows that that it was treated as generic burglary throughout the court's precedent throughout the parties practice there is no reason to he does say it's obvious to me either way but he but the problem with his position is that walker explicitly says if it's just as likely as not that the residual clause led to the enhancemen or another provision that the defendant has not met his burden and at best that's what the defendant can show here at best he can show that maybe the residual clause was used and that's not what the burnous he has to show that the residual clause led to his current criminal and or walker and he can't do that or burglary is a numerated and he can't do that where burglary has been repeatedly held or treated as generic burglary under minnesota law if there are no for the question of the twenty fifty five h two issue i would like to turn briefly to the concurrent sentence rule are no collateral consequences that would flow from application of the concurrent sentence rule there is no case in the circuit that places that burden on the government in the context of collateral review  bears the burden of proving harmless error but in the context of platter all review the defendant bears the burden and under twenty two fifty five eight he bears the burden of proving he's entitled to be released he cannot show he's entitled to be released when he serving unchallenged lawful concurrent sentences and for all the reasons the court has now you know isn't the only thing that's really always bothered me about this case is problem it's a pragmatic approach there because a person only does have one life so whether or not you're serving one or one hundred those life sentences but nature of let me be kind to her on life's terms is right that if there is such thing so absolutely not life just life the defendant claims first of all it is his burden the only thing he mentioned in the district court was the sentencing package rule and on that point your honors the concurren convictions for shooting an armored car guard in the head at point blank range in the back you know i there is no realistic probability about as bad as i got it from a compact maybe he had other redeeming turney to ask about that and she indicated to me that the defendant isn't correct there is a statute that a policy that assigns a five hundred forty month equivalent term to a life sentence but that statute is the general provision which is trumped by a separate provision that automatically assigns people with life sentences to high security classification the life sentence assigned some high and one final note note i'd like to make quickly as i don't i would like to make it clear the court our position that the sentencing package doctrine in this case is really not even in play the concurrent sentences doctrine is a doctrine that allows the court discretion whether or not to address a defendant's claim when he would realize no benefit it's only after the district court has decided to grant some sort of relief that the sentencing package will comes into play after the district court has decided i'm going to address the merits at that point the district court can say what should i do should i respond and just on the legal sentence and leave the other sentences intact and that's what what this court approved of and right or should i should i vacate all the sentences into a more fulsome it's fulsome comprehensive sentencing hearing it's not until after relief is granted that the sentencing package cases come into play prior to that when the district court is determining should i even get to the merits that's when the concurrent sentence doctrine comes into play that is forward looking and not backward looking we're excuse me and made a determination that there was a fair chance and a reasonable possibility that if he had not been sentenced as an armed career criminal he would have received a lower sentence that is not  y backward looking it is forward looking because it is also looking at what would happen if this court vacated the sentence as to the illegal sentence on the arm career criminal statute the ninety that was part of the legal environment in two thousand and four the government's argument burglary was burglary well burglary was never a burglary once taylor was decided tailor made clear that burglary is only generic burglary illegally entering a building with the intent to commit a crime what about the drew case i'm not familiar with that case your honor i welcome to twenty jury that too but what i can and what i can say is that in mcarthur the government argued the eighth circuit has already decided that burglary is in the numerated offense and this court said no we haven't and they distinguish constantine because it was decided under an earlier version of the burglary statute and which was really relying on residual clause cases macarthur was a panel decision if in fact decided that burglary was burglary than macarthur would have been bound by so this idea that the government keeps flouting that oh everyone always knew that burglary was in the numerated offense was completely rejected by the court in macarthur which said we have never decided this issue and in fact burglary is not burglary minnesota burglary is too broad for the generic offense  ostland was charged with entering a building and committing a crime there in it was not a generic burglary he was never charged with an intent to commit a crime at the time he entered he did not plead guilty to that this is not a math this issue math this is irrelevant to this case and had the district court in two thousand and four done the taylor analysis it could not have determined that the union rated offense clause applies and this court should not simply at the government's invitation simply presume that chief judge rosen bom ignored taylor that is insulting to him and is not an appropriate suggestion the law at the time was clear that burglary was a residual offense clause not an enumerated offense clause and on that basis we asked the court to reverse we asked this court to reverse the decision of the district court and either remain and with instructions to do the analysis under walker or to resign and so on all three justice alito among others express their deep not sure graham but they're concerned about what they what they've done what they have wrought well as and as defense counsel trying to explain that you are either looking at fifteen years to life or you're looking at zero to ten and no one can really say for sure is not a comfortable position to be and we can appreciate the other side of this could all of these cases thank you your honor thank you for that completes the argument