involves a statute which has on the going to a lot of evolution and in the last year and a half that's an understatement unfortunately for my client he was sentenced approximately eight months before this evolution started to take place  anyway what happened is it resulted in a three hundred percent increase in the sentence meaning that the lower end of this range would have been seventy months had a new amendment which was offender i i agree with you that being on the unfortunate side of the line raises all the legal issues that we have here and we have it not just this case but you know from other cases that are coming before the court so it seems to me the question you need to answer and particularly looking at welsh and what the supreme court ruled with respect to what johnson did  hard pressed to completely understand how you can argue that it was a clarifying change not a substantive one when welch said that johnson was a substantive change so perhaps you can tell us where we either have to diverge from the supreme court for some grounded reason or why unfortunately your client just ends up on the wrong side of the line time wise right s back then when they were talking about this amendment which occurred only six submitted to congress six months after johnson was decided johnson prompted this whole process had that decision not come down  we'd be here today but in any event when they were considering whether to make it retroactive johnson was already in effect and had already started being applied to the residual clause in sentencing guidelines it was almost a consensus among the circuits that that should be done it wasn't just the courts that were deciding this it was also the various litigants of course the defense was on the side of yes should be rich different prosecutors are also on that site too which is very unusual for both parties to be saying yes you know but you know i agree we had a number of cases actually which were joint requests for remember the guidelines which of course later changed as a result of welsh i could see that the commission was in a position where they're thinking well should we make it retroactive this need to be retroactive because that's going to involve a lot of analysis on our part to figure out what the impacts going to be and that's going to involve a long term study and i think the more important thing on their mind was this get this thing done first fast and they did get it done fast within six months but at that time as they were considering whether to make a ritual active they knew that johnson had already invalidated he the clause the residual clause in guidelines in accordance with these holdings that were coming out from all the different different circuits i believe it was million the eleventh circuit and the fifth circuit which disagreed and some stickers for neutral but the majority  they said that the striking was a matter of policy and if that's true then that would cut against an argument that it was clarifying as opposed to some substantive change i agree i look at that word and i wonder what do they mean by policy didn't really say but when you think about when i think about the fact that they're talking about what johnson had done johnson had been a fight language which  that language in the residual clause that we're talking about today as being she plus formless a black hole of indeterminable violation of the constitution it was so  that it was a violation that made this particular clause void and you can see that the commission would think well yes it's our policy not to continue on with with provisions in our sensing guidelines which the courts have already held to be unconstitutional it would not make sense for us to keep this provision in there well let's say we call it a wash and number one ok going on the first point as to what you look at under the possible factors let's just say you can't decide you can't figure it out from the way it came about what are your other arguments well they didn't really change the law in my argument  to the sensing provisions so they weren't really changing the law they were just going along with the with what the rulings were you're actually doing something very consistent with what the law with state of law was at that time it wasn't until that everything changed and i think it's pretty clear that that was unexpected everyone expected the opposite result and also as i understand it the guidelines are not not apply to atkins convictions post commission was at least in part to resolve a split in the circuits because he said so they spent the entire two paragraphs on the the reasons for a minute subtitle residual plus those whole two paragraphs are spent talking about comparing the holdings in the eleventh the fifth circuit the holding in the eighth circuit and third six intense work i mean this is a compare this with that that's  litigation that they're talking about trying to levy is this litigation which is producing inconsistent results disparate sense since and and this is is basically unfair to very you're talking about guidelines sentencing commissions oh yeah your comments to me kind of tell us what they're intending to do and in the cases i praed the intent of the commission is important and also the effect the actual effect and so i would say that the residual clause subtitle in the comments by the commission all the talk about is resolving the split between the circuits and in fact that's what it did statute it does not match up with the generic version of false imprisonment because false imprisonment in hawaii can include a lot of things which i think i pointed out in my me good morning your honour's may it please the court chill otaki for the united states i'll address first the matter of retroactivity of amendment seven ninety eight and your honors are correct that welch held that johnson was a substantive change and i think that the case law that exists at this point from the first circuit and the eleventh circuit strongly suggests that that indeed the amendment seven ninety eight was not meant to be retroactive sort of surprising to me the government didn't cite welsh in its brief i apologize for that your honor that that is the major supreme court case directly on point with the same johnson residual clause neither did the other side so you know we're looking at  that plus a couple of other cases that weren't cited at all has the government taken a contrary position and in the other circuits not that i'm aware of your honor we have consulted with other offices within the ninth circuit and i'm and everybody within the ninth circuit who we've confirmed with consulted with has indicated that we retaking this position and you have three questions that the court raised are all obviously answered in the negative because it was undoubtedly a substantive change the removal of the residual clause from the career offender language has had to be a substantive change it can't be as mr sirrah attempts to argue a substance a clarification i understand his point that he's saying well it clarified an issue for litigation but that's not the test the test is whether the amendment is listed in the or in the li retroactive amendments which it is not whether the commission characterized it as a clarification which it did not and whether there amendment resolves the circuit conflict now arguably that does weigh somewhat in mr atkins favor but what's clear based on both the language of the amendment itself and the policy statements made it's clear that what was intended was that this is going to be a policy change not a not a clarification  why did the commission in its new definition of forcible sex offense why should it be retroactive didn't the commission state that it wanted to quote make clear the definition of sexual  minor under four b one point one the only reason why the change to forcible sex offense is not a clarification but is in fact a substantive changes because it actually does substantively change the definition previously hundred ninth circuit case law there it was clear that the definition included acts such as one that mr adkins committed basically a sexual contact of a child without the use of force under the age of fourteen ultimately your honor the change in the definition of the crime cannot be a clarification the why would they use the word make clear i agree with your honor that that suggests that the commission viewed it as a clarification in some way however the amendment again is not listed in the list of retroactive amendment and if you look at the language of the commission itself that i submitted in my brief the some the commission suggested it was a substantive change characterizing it in context as a new  definition because it's a new definition that has to be a different definition a therefore a substantive and not a clarification if we were to disagree with you and hold that this has retroactive application what would be the effect of that would that mean that cases like this defendants that were that are on direct appeal would get the benefit of that change would it would it mean that there could be collateral attacks on on sentences as well what's the government's position i believe that's true your honor and in fact i think that's part of why the commission in the policy statement talked about how how it would be it would basically he didn't say this explicitly but it would create open another pandora's box if it were to be if these changes were to be retroactive the commission statement regarding this was that that the retroactivity freshman was basically too murky to address and the reality is it's going to it is undoubtedly going to open up a whole new field of litigation regarding this very question which is exactly what the amendment was meant to prevent was meant to alleviate was litigation well it's an odd thing because the sentencing commission was making this policy change in advance of knowing how things were going to sort out so apropos of your colleagues argument in effect they were trying to get out ahead and just resolve the circuit split weren't they it's just they may have that result in the wrong circuit split so that would counsel under these three criteria to to tip toward retroactivity so i guess in a more precise point my question to you is can they be making a policy change at the same time they're trying to wrestle with a circuit split on the application of the residual clubs and i think that i think the answer to that is yes but in this case what's very clear is that it's rooted in any policy change more than anything else if you look at the language of the commission it repeatedly talks about how the fact that they took in public comment how they had all these all this research done on the various recidivism rates on the likelihood that violence is used in particular offenses such as burglary you know and the reality is that while yes a policy change can resolve a circuit conflict undoubtedly here the policy change is the primary force behind this amendment and the fact that they're referring to johnson on the policy issues raised in johnson strongly supports that that that point this is a call a little strange th could i take it they could have said they could have made this retroactive expressly even if it's a policy change and they've decided that they're going to shift gears but they could say but we're going to make it retroactive anyway and that i take it in your brief you talk about judge seris who's the chair was the chairman of the sentencing commission talked about said that we did consider that right and so  you would say that they considered making it retroactive but didn't so it remained a substantive change that's not retroactive but that's where we are right that that's that's the government's position your honor is that that to me the most important factor here is the fact that the we know that the sun sets and commission considered it they've told us that and they opted not to make it retroactive it's not included in the list of retroactive amendments and i think there was a policy reason behind that itself i mean that's what is said in the public statement is that we considered it although these words were used it would open a pandora's box and create another morass of litigation which is exactly what we're trying to avoid as the sentencing commission and i think for that reason the conclusion has to be that these amendments were not intended to be retroactive you know of any situation where the sentencing commission faced with this problem that these these studies that they undertake are long term and take a long time or they've provisionally given retroactive effect to one of their amendments and then later revoked that you know a situation like that i'm not familiar with a situation like that your honor but i honestly have not looked to see if that they've done that so it's possible but i'm not aware of any but you said earlier that you've spoken to other u s attorneys in the circuit have you spoken to washington about this yes your honor well i should clarify i have not personally spoken with the western district of washington no no i don't mean what western district thing this bothering me it seems to me paradoxical t c t test to determine whether a guideline of men creates a new substitute constitutional role when the court in their calls stated the guidelines are not amenable to constitutional challenge because they are merely advisory what is your response to that i think that's a good point your honor and i  that that's the state of the law now in terms of application of t v i don't think that changes anything with regard to the status of how we evaluate these questions thank you but my we could use the t test even if it's not a constitutional question that i mean it's a factor test correct that's true thank you thank you don you've used up all your time but she's had a number of points made so i'd like to give you a minute for a bottle if you'd like all involve situations where the first two factors but didn't in the commission did not indicate that that was retroactive or that that's what they wanted to do but putting it on the list yet the courts in those cases still went forward and said let's the third factor which is most prominent and that is whether or not it has resolved the circuit split and that whether the commission decides that they want to say it's you know clarifying or retroactive does not control what we decide we are the ones that decide that issue and and they ignored the fact that the commission didn't sanders and those are the main cases which talk about the three point test thank you i think both counsel for your argument this morning it's very interesting and novel question certainly in this circuit and i appreciate the briefing and argument united states