may please the court my name is tom livingston and i represent the appellant who pursuant to a motion has been permitted to be referred to as john doe that's on the court by way of rebuttal i'm requesti the crazy part of this appeal is as you know mr doe filed a pro se notice of appeal as you know the court granted a thirty five b motion the ordinary process would be in my office the federal public defender's office in pittsburgh to have an appellate lawyer assigned to the case as a matter of either goodwill or rotten luck i was assigned to the case part of because mr darrow and i have gotten to know each other well and what i was it is a painting before the developments relating to stinson and johnson was that a day may come when mr doe and i would have a conversation about the lack of merit to his potential appeal  issues the one thing we all cringe about is federal public defenders as ever having to write in ender's brief conceding that there's no merit to somebody has appeal things changed as you know the court granted a motion to stay the briefing schedule on the basis of a short sentence in the stinson opinion in stinson this court recognized the need for resolution of an issue that later came the issue was one that was foreshadowed but not resolved by a supreme court case called the gay and so when the government consented to the motion to stay and the court granted that motion we were in a holding pattern it turned out that a case from our office came before this court judge fish writing the opinion called us versus johnson really an opinion thank you could have been johnson and could have raised this but he never did well and only did in connection with a third thirty five b which really isn't the vehicle well we're going to talk about the timing of raising it and i'll talk specifically about that moment from any number of other cases that were on my plate that were approaching sentencing issues involving things that had been regarded as crimes of violence pursuant to either the career offender guideline or things that had been regarded as violent felonies under the similar language in the arm career criminal law were on the plates of defense lawyers not just in this circuit but around the country will first off mr doe is well represented so thank you for coming but i get to pick up on something judge rendell just mentioned i mean your brief is very interesting and well written but do we need this is that the procedural posture here is a rule thirty five b motion a lot of i mean there's a good argue that he made anyway that there's that we don't to this court the argument that you're raising is that a thirty five b motion or a motion under five k one point one which is slightly different in its procedural posture limits the scope of the review to only the nature of the assistance and the factors identified by play one point one right i've cited not just the overriding language of five k one point one which makes that list non exhaustive but  talking to the steam counsel for the other side the crazy thing that cassiano is saying is well you can consider factors other than substantial assistance if they're adverse to the defendant meaning aggravating  which is under eighteen united states code thirty seven forty two there are three things going on here we're reviewing a sentence that if we do the remain and may be proved to be an illegal sentence one that's higher than the guidelines that are contemplated so when i'm writing off my statement of jurisdiction for this brief or appellant and the three things in that is the sentence was imposed in violation of law it's an incorrect application of the guidelines and it's greater than the guideline terms you have a sentence here today of one hundred eighty months a substantial assistance reduction from two sixty to one eighty but ninety to one fifteen if this guy's not a career funder is the sentencing range so you're asking it to be vacated you will nason illegally my remedy here judge as i repeatedly say is a summary remit or full remained for further consideration because we do not want us we would have to vacate the sentence as illegal if we do that's your argument the sentence was illegal and therefore we would vacate it it's not really a thirty five b situation is it well it's i don't know whether the words in the order would vacate the judgment of sentence but one of the middle ground alternatives would be to remain and like i said when i asked for some remained in my formal motion the the argument was we now know something we didn't know if johnson had been decided differently and if johnson simply affirmed again and sorry affirms did dorsey then i'm going to be having my lawyer client call with john doe saying sir i don't have anything to reason and you're twenty two fifty five i was filed and then that was withdrawn and the court proceeding thirty five b in that sentence was actually reduced by eighty eight months or sixty months followed you know a quite a an issue could be raised it has been arranged by the government but it could be raised and we have the obligation always raised as to whether or not this appeal is even properly the relief you're asking before us wasn't sought in the district yet so correct the question is it because judges should garrison randell have question whether or not the relief you're asking for is proper but i guess my question goes to motion was grant grant reducing the sentence and the to the extent that the defendant is aggrieved was by the sentence that's less than the reduction that's less than he wanted he appealed you still agree he is agree but you're not arguing that the substantial assistance was insufficient no no no you are arguing that he should have applied to get a and that was never argued in the easter court not saying that judge there would be no cause for me and this is part of my response to the government's waiver argument no cause for me in the district court as counsel for john doe to be able to predict the specific terms of what this court's opinion in johnson is but the johnson but johnson did he said oh  a says this so i'm raising this and as i said oh i should have been let's go back dorsey said all crime also impulse all to crimes of violence in simplest terms johnson says some are some are not and it depends on a set of documents and things that the supreme court tells us to welcome but the gay says unless you have a violent felony like a burglary and arson and the the litany unless you have that and based on that johnson said johnson who's probably sitting in jail says wait a minute simple assault isn't isn't what the supreme court said is required and i'm saying mr don't know could have made that claim  this our court has not said whether or not be gay and or johnson is retroactive correct correct we've looked hard and found nothing to that effect other opportunity when we've in the future to be able to raise what you're trying to raise when we've talked about the necessity of something like what you were mentioning the two vehicles of seeking appellate review that we've talked about this is not me and john doe but me and attorneys i work with is is the more promising path or the better path to simply wait for the event that this court is now mentioning as a possibility which is not yet actuality meaning will a day come when this court or the supreme court says that big a related analysis extends to cases that predate began so analytically that would be an alternate way for mr doe to proceed we're saying that need not occur and when we talk about comparing the the differences in the the thirty five b process the twenty t fifty five process one of the things that the cassiano opinion from this court and another decision recently announced from the ninth circuit analyzes is that first of all the ordinary substantial assistance factors are among the range of things that the court considers in deciding a to grant a thirty five b motion and b once the court decides to grant a thirty five b motion a larger range of factors including aggravating factors against the defendant meaning how bad is his criminal record john doe having a bad criminal record negative factors to the government but mitigating positive factors for frank christian include subsequent changes that all the sudden say the law in america says that this poor guy who got two hundred sixty two months because they thought he was a career offender is no longer a career offender or was never a career offender and we just got it wrong because nobody for saul with the game was going to teach so we're talking equitable remedies here and splitting hairs about the fine points between thirty five b process and twenty two fifty five process i'm talking about a guy who deserves to be in jail ninety to two hundred fifteen months would be a nor guideline range judge one thing i want to put on the record that's not so clear from the transcript of the hearing when i stood up in court and made my little song and dance about this guy not getting effective assistance of counsel from his prior lawyer because he could raise the motion for a one point three and shoot that was something that was discussed in chambers with the judge it was only driven by the need to give this guy record to take back to his b o p s the touche and if you would get a reduction so the court knew the government knew i was not trying to get that remedy under that basis that was only for give this guy some papers that he could safely go back and explain what knock on wood we were hoping for which is the reduction that he got  you would need to obtain of certificate of appeal ability none of that was done both thirty five b is a very limited it's not only sensing it's a very limited circumstance when there's a modification to account for substantial assistance it's not delhi and analogize to thirty five be noting that they were both just modifications of sentencing and not completely sentencing and devon the supreme court actually rejected an attempt to go back and reopen the guidelines calculation which is exactly what mr dale was attempting to do here he's attempting to reopen the original guidelines calculation and there simply is simply no basis to do that and again the gay existed a year and a day the issue was being argued by defendants the game is what is the constitutional the principle set forth in the gate where the principles that mr de was relying upon in this case at johnson is just an interpretation of this report's decision state you could also address that by way of jurisdiction there's no jurisdiction here because it's an attempt to deal with the hey b s when there was really there was no cia granted for haiti yes are you satisfied that we have jurisdiction to hear the appeal to the extent that it's been presented here today it wasn't clear it satisfied that the defendant had a right to appeal the decision of the district court on this which granted it which in effect granted the thirty five  b hearing proceed ahead there but there was actually a pending point two fifty five at the date of the hearing but mr doe decided to withdraw that and so we're left with the procedural posture of the judge actually granting a six and a half year for adoption  a discretionary the amount of it is just fresh air and your night but to the extent the court considered something illegal and you know his race or something improper that would make that would have made that they had thirty five preet proceeding illegal then there would be there there would be consider that and also note that you know thirty five p and the jurisdictional statement thirty seven forty two has to be read in connection with thirty five eighty two also thirty five eighty two the statutory text there makes very clear that that that in the interest of finality of sentences there can there are only very limited circumstances which a sentence may be reopened i'm a thirty five b as well but you know again this is attempt to collaterally attack his sentence through whole forty five thirty five b proceeding there any question for the questions what about i do have a question we haven't ruled on our court has not ruled on big a's retroactivity application of the guidelines do not rise to a constitutional claim or complete miscarriage of justice but if it had been a c c a claim with that actually raise the minimum the government's position is those claims potentially depending on adopting the position of the government you also have you know that some there was as well as gilbert from the eleventh circuit on bog adopting the government's position there was a recent decision i think it's just number six from the seventh circuit that actually took held contrary i also know that you have supreme court decision insights which actually has clarified began to some extent you know sykes is a is a case where it dealt with playing alluding statute i believe in indiana and talked about the gaze purposeful analysis indicating that that might not be the case so the government's going to have to evaluate sites in light as well as the gay and you know make their arguments accordingly but again it's our position in this case that procedurally mr dale is not this is not the appropriate forum for him to be making these claims and one of the thing i'd like to add there too isn't johnson i think it including the government sometimes everyone talks about johnson in the government's concession this court and johnson base its decision based on the government's con concession and footnote thirteen this court noted that it wasn't actually finding that simple assault wasn't a crime of violence it was making that finding based on the government's concession and in light of sites you know the government may change its position on that in the future it hasn't yet thank you your sort of four points in rebuttal the first the determination of whether a simple assault is a crime of violence is a function of reviewing certain relevant state court documents those documents if they don't do not rule out a potential state of mind the state of mind of recklessness then the potential state of mind of recklessness is the legal cause under principles flowing from the game about why a particular simple assault may not be a crime of violence that's why we're asking for remain and we don't have those documents in the appellate record second the seventh circuit case that the government cites as the one that does anticipate that or does rule that subsequent that big a decision applying the gate principles to a state offense extends retroactively not just through armed career criminal definition of violent felony but career offend on that one when i mentioned before that another circuit has also joined the third circuit in kos ya know that circuit is the ninth i'll provide you with that site in twenty eight j letter also finally the one thing that stands as the sort of unifying theme to mr doe's position is thirty seven forty two which says that if the sentence is based on what we don't right now have a simple assault or two one or both of which is not a crime of violence then it's an illegal sentence and an incorrect application of the guidelines and the contingencies about whether mr dough can proceed by twenty to fifty five one of those alternative things is he would proceed maybe by second petition but the withdrawal if you know from that record there was a little moment when we went off the record mr doe and i before he formally withdrew his twenty two fifty five that benefit of withdrawing it was in case of some contingency that i couldn't foresee the one contingency that is sort of debatable as something possible is whether either the supreme court would rule the gay principles or retroactive or this court would rule that principles are retroactive so we're saying this is the time it's available now it's lawfully permissible now do the right thing now rather than if you and waiting and seeing later thank