he was then sentenced by judge stearns according to what at that time was a criminal history category four and a basis since level twenty  four at sentencing there was quite a bit of contest over what the base offense level should be but there was no contest over what that criminal history category was so at that time the criminal history category included two state court convictions for heroin related offenses one from two thousand and six and one from two thousand and seven the th and the supreme judicial court in massachusetts as well as all of the trial courts began to grapple with the difficulties that were raised by mr duke and antics if at the la convictions had been vacated that custis and johnson was the starting point for the remedial treatment having those convictions having been set aside that the time that filing of this twenty two fifty five was timely in the district court that mr quite fast was diligent in pursuing those remedies and that there is no procedural to follow involved in this case when he has twenty to fifty five was the nod and the effect of the twenty to fifty five would have been to reduce his criminal history category from a category four to a category three and so those two enhancing convictions now having been set aside his resulting guy flying this advisory sentencing guidelines would be sixty three seventy eight months where his original sentencing guidelines have been seventy seven to ninety six months he had received a sense of eighty four months pretty much in the middle of the sentencing guidelines so under johnson it's fairly clear that he's entitled to come into court and sikri sentencing once those two  acquitted the federal courts no i have no court has ever said you're not entitled to relief once you have your conviction set aside when the specifically because they want to affect the federal something determination i think that merits i think you meant that the government makes once the twenty to fifty five has jurisdiction has been established under twenty says this is different because there was in that case the conviction was partially vacated so that it reduced it from assault and battery on a police officer to assault and battery there by wearing the effect of that sentence on that criminal history them under certain situations most of the cases they rely on are not quite like this so if you're structuring this system what are the limitations on the rules that you think makes sense here are a viable i know i'm asking you to go well beyond your why and so case your experience would be helpful thank you basis they they were based on any duke and certificate and it has been my experience that the it's difficult to get a new trial in the state court but as i read the johnson case what i saw was what johnson understood was that when the federal court ups to rely on state corrections that also out to rely is exactly the way coach sailor proceeded and the low pass case that is when the convictions have been set aside and judge said also did this and that ad this guy on no case in two thousand and thirteen she said you can bring your twenty to fifty five when your conviction is they kate but if it turns out when i look at it as a district court judge that it it's not it did not affect your sentence it did not enhanced your sense you're not going to get relief right you will not get re guess what i'm asking is is it practicable to make a distinction between the basis for the for the state court's decision to vacate the conviction how how everything is it from the face of things what the reason w missoni these courts has been applying this without any difficulty whatsoever it hasn't opened the floodgates has in fact because these are particular to a defendant rather than to a class of cases it's only affects the significance of the potential significance of the conviction let me pursue this that are there we know very well that the many st have because they don't why the federal sentencing guidelines have vacated prior convictions the da's agreed to the vacating that they don't have any stand in the game based on a fact then you can go forward exact mistake as you can because the other suggestion is now you cut it off earlier all where the alleged error presents a fundamental defect which inherently results in a complete miscarriage of justice when omission inconsistent with the rudiment three demands of fair procedure so i guess the question is given that standard i could see  if that's what came to the court that as there was absolutely no reason given for vacating the conviction and it was years later that you might take that into consideration could and i said to consideration nice ability but the fundamental defect language and i'm now turning to the spencer case which was perhaps your attention after these priests were filed and spencer the court said that i presume a challenge to sentencing error as a fundamental the effect on collateral review when he can prove either that he is actually innocent of the crime or that the conviction used to enhance the sentence has been vacated so that would conviction has been good morning to your honor's and may please the court michael rucker from the department of justice on behalf of the united states let me address some of the let me start by addressing some of the questions of the court was posing in our view the universe of claims that are cognizable is set forth in section supreme court has held them in cases like justice and daniels when you're dealing with the misapplication of the arm career criminal act the claim is automatically a cognizable claim for collateral relief because the sentence in the words of twenty to fifty five is in excess of the have does provide support for that the problem with materials application here is that material was expressly contingent upon the fact that the prior conviction was vacated for constitutional error it was that it was the matter but rather that matter what because i'm not why would e it's a first wrong case correct ok so it's not because the sentence is unconstitutional so run quite plausible reading was there was such a fundamental defect in the law and conviction if that's true then i would think a fundamental defect which is the result of reason it would be a miscarriage of justice with a motel well i don't know what the reason it was a detail i'll be completely candid it's not clear i think we agree that it's at least ambiguous in our view though the court didn't consider the arguments about what a fundamental miscarriage of justice means way that i can make understand the material rule all position in this case though is th the arguments that have been adopted first of all it was mandatory guidelines not advisory which are at issue here and second of all it didn't consider the position that we have a spouse in our preferred in other circuits about what this fundamental miscarriage of justice mean in the context of the guidelines are and what the courts have generally adopted is that you're just challenging the tale which i totally understand you know you do i'm trying to distinguish right but i'm i'm asking for a distinction we're bound by the tail right and i could be applying the tail and distinguish it and there was no guilty plea and the records of the state court proceedings here do not establish that there was any finding or error much less a finding of constitutional error ok it was an interest of justice ruling by the state trial court there was no finding of error and none  required under rule thirty you can make interest of justice new trial order without finding error and that i think distinguishes material from the facts of this case just you tell me if this logically makes sense so if there is a six a moment violation and  apologized this and he never should have been convicted was completely innocent and the state court says it's so obvious that's true i grant your motion i think a conviction but there's no finding of constitutional error that's not the guy's in the government's view it's not the court hasn't decided that question certainly the court would be free to extend the tail rule what we're saying is i understand that the court is fully bound we have a challenge to tail nor could the court deviate from what we're saying is that if you read the tale within the four corners of the opinion there are at least two bases to distinguish number one it's fundamental defect now the seventh circuit has taken the view that a mandatory guidelines there is coming isel but they've been limited that holding and said no and my eyes are guidelines present a different calculus on what's a miscarriage of justice because the guidelines are just one piece of advice and effectively want to guidelines error has taken place under the advisory guidelines ever really saying is and you can say that about this case the census procedurally unreasonable well that's the standard you apply and director view but on a collateral attack you have to show more than just procedur then you could argue we don't agree with this but you could argue that mandatory guidelines were more akin to a statute or more they had what greater force in effect of law now they're just advice they've been to moated if you will and so there's a starting point that's right vacated at that point the sense would be procedurally unreasonable but it would add an easy oh the supreme court said look something that justifies relief on direct review doesn't necessarily give rise to a connives will claim on collateral attack this is not like a second form of direct appeal least for purposes of this case based on the fact that it was a mandatory guidelines there and because there's been no showing whatsoever in the record and i'm asking you to look forward yes not to help distinguish understand your honor one of the high but that one of the scenarios that was posed was do we look at the motivation why the conviction was set aside we don't accept that we don't think that that's a proper basis to sort of get behind well i think just to try to cut the federal sentence or are they doing it because they have some i don't think that's a workable principle why that would be helpful why is that on workable well because i think i mean one of the questions that chief judge lynch posed was it has to be the sole purpose and you start getting into what what was the motivation at least in part or how much of it was motivated i just in practice that's very subjective and inside a well i think it's the petitioners burden first of all i think that he has to come forward and demonstrate that his claim was set aside on a basis that again i don't want to keep coming back to the table but if you're going to try to fit within the tayo he has the burden to prove that it's a constitutional error not his brief vacate it in order to effect a federal sense is that evident from the face of what the state court did i don't recall my head i was focused on the material for purposes of this argument i could certainly go back and check out to be happy to submit something but i don't recall the top of my head but i do know in the tayo the court emphasized that there was a court has never found one what the court is suggested is that there may be violations of rules of criminal procedure that may be so sufficiently fundamental that it would qualify as a miscarriage and that's what hill involves and the subsequent case in timber act which was ruhleben it was rule thirty two allocution the court has never found one but they also been very clear to reserve that question because the possibility may arise in the future but ultimate sentence is within the limits set by statute for the crime and it just the way the seven eleven circuits of analyze it the way we think it should be analyzed is that fundamental mr justice should be tethered to whether the sentence is illegal or ultra virus and whatever one can say about a guideline sentence it's within the limits set by congress that's the way out of museo the supreme court's decision at an easier tended to objective factors they looked at the statutory maximum for the crime and they said yeah you got a longer sentence that was a parole guidelines case you got a longer sentence perhaps because of a misunderstanding for the concerns that were addressed earlier about you know your honor correctly predicted i would use the word floodgates but the concern about docket management in the the sense of that will frankly be created to have defendants go back i mean as the court well knows and here ye that you can challenge a one letter criminal history score increase under advisory guidelines is going to precipitate a large wave of litigation and i would just emphasize to if i may i realize my time is over just two very brief points number one in theme and this court suggested that the magnitude of the guidelines error might be something to take into account ok in this case with no disrespect to mr quaid this the error in this case was relatively minor as compared to other guidelines provisions that have far greater impact look at two a one point a sixteen level increase or career offender much greater magnitude if the court says that a one level criminal history increases enough the magnitude is off the table because that line's errors that are based on prior convictions and the second point which is truly a bigger concern i think a mandatory holding doesn't really apply revised three but if you say advisories enough you've death by definition you've reached back to mandatory now it's been ten years since booker so many defendants it may be too late for them to try but rest assured they're going to try and the burdens that are going to be imposed by less than of what's today wednesday by monday of next week we denied a bail motion here there is some interest in moving this  the debate is properly framed those cases cited by the government now are in apison and they are an episode for this reason this is not a guideline say or this there was no ever and in the guidelines in the sense it was expunged conviction and that no six convictions that have been vacated or set aside for errors of law or constitutional grounds cannot be counted that's what makes the recent thing necessary is the offense shouldn't be counted but the fact of the matter is your conviction has not been and so you are not in court you vacate that conviction come back thank you