your honour's may please the court i'm robert meyers and i represent upon bryant park and everyone in this case agrees that mr barton was sentenced under iranian skyline range that was too high guideline range he was sentenced under was one hundred fifty one to one hundred eighty eight months and he cracked a guideline range is one hundred thirty five to one hundred sixty eight months because of that we're asking this court to vacate the sentence in remand so that mr barton has the chance in our view the likelihood given the state of the record in the law that he receive a lower cruel sexual conduct provisions that issue with the definition of forcible sex offense that it's obvious that the state statutes are oh i know that's why i'm asking if so obvious it just seems like we're going through a lot of energy here right it could have been avoided but yeah i mean it word would have been better had it been avoided i you know it's difficult to speculate on the state statutes were not introduced into the record it does not appear that the district court examined the statutes on despite objections from defense counsel i mean counsel didn't a period of then if i had the issue because the objection didn't point to this problem right the objection came out of from a different way right so i got it why not just say what you're saying here and then the dad could have said ok i'm right now you're saying well we preserved it but it you know the judge wasn't alerted to this issue very well even if we didn't preserve it our position is that we satisfy the plain error tossed i understand and if there are questions on the forfeiture argument i'll certainly take those but otherwise i'd like to rest in my brief on those arguments and proceed directly to plane air so the government only contest two prongs of the plane or test that the air was plain and that the air seriously statute strictly i think they have some sort of limitation about you know strictly construed it's a plain error and we know under henderson that you have value eight the time you know you evaluate the law the state of the appeal at the time of the appeal and we have the benefit of both statutes we can do the comparison and it's obvious that the minnesota state statute reaches victims under thirteen and it's also obvious that the federal forcible sex offense reaches victims who are under twelve and therefore it's also obvious that the state statute is broader than the federal statute so i think it's difficult to conceive of how this error is not plain sometimes in these categorical approach and also as you have a state statute that you know uses language that doesn't exactly track the relevant federal definition and then you have some difficult parsing problems about how you sort of integrate that state statutes language against the federal test so for example minnesota salt talks about attempt to inflect or inflict great bodily harm right and you have to measure that up against the first cause which doesn't use you know great bodily harm or words like that but instead speaks about the use attempted use or threatened use of violent force so that can get a bit tricky but here the measuring stick is the scene in both instances both of them talked about the age of the victim so you don't have any complicated interpretation problem it's just a straight simple venn diagram the state statute is under thirteen federal public defender had represented mr barth minute sentencing but i gather it was not the public it was not our office it was someone appointed under the criminal justice act so you had this public go ahead and say what you on about the other  they're not saying it's ironclad but it's reasonable to infer that the district court would have sentenced lower under a new range that is the thrust of the reason that wright said it more strongly it first right well that may actually be a direct quote but i don't have the case up here with me so i don't to but here we have more evidence your honour's because here chief judge tonight i believe it either page three one thirty two or thirty three of the sentencing transcript sad i think there's some overstating of the criminal history category here but then he said you know but technically you've got these three extra points from the two thousand and seventeen criminal sexual conduct convictions so you know this is your range so not only do we have a sentence at the bottom of the guideline range we have a statement by the district court judge saying yeah you know i think there's some overstating of the criminal history category in this case in the case the supreme court seemed to leave open the possibility that in the extraordinary case you used the word ordinary but an extraordinary case that the fourth requirement from the plane or standard might not be satisfied in a circumstance like that what do you think the supreme court was talking about there what would be sort of the not an ordinary situation they didn't specify they said countervailing factors may you know undermine applying the fourth front here and they really didn't get into it so i don't know what i can say is they said that where the other three prongs are mat you should correct the error and it's not just that the other three prongs are not here it's that the district judge sad there is some overstating i think there's very good reason to suspect that he would receive a lower sentence the district court rejected a higher sentence pushed by the government you have the corruption of the sentencing commission data you have the undermining of the public confidence in the judicial proceedings i guess with my question i'm just trying to figure out if there's anything strange about this case that could put it in the sort of the extraordinary category that would take it out so the leak you know that leaves open the possibility that the fourth requirement might not be met despite was alice moore alice well our position is that it is not an extraordinary case and i'm not going to argue against myself here a government did not  well they didn't have the benefit i think rosellas we realize was perhaps decided after their response brief i'm not i'm not sure it was somewhere in there but our position is for all those reasons this is a clear case where you should do it  i don't think the error was forfeited i'd like to reserve my remaining few seconds for a bottle if i may must there are other questions you may reserve your remaining few seconds for of and we'll hear from but i'd like to start with what judge stross asked at the end which is resolved because that case did come out after a briefing schedule and the government's position is that this is not the usual case and this is not the usual case because mr barth when will not serve a single day longer in federal custody regardless of the outcome of this appeal mr bergman is currently serving a three hundred sixty month states with a consecutive sentence to come after that and he is currently in  custody the thesis of the results morass case was to look at the amount of peril that a defendant faces and that incorrect guideline range would lead to an inference perhaps that they're serving longer in custody than they would otherwise so what makes this case other than usual or other than ordinary is that that's not mr bergman situation what happens though if he went to a state habeas challenge right so now we've got this really lengthy s and you know they shortened they shortened the state's sentence and so it actually matters to we don't have to come back and take a look at it again under the fourth promise under the government's approach i don't believe so your honor because the  facts of the appeal as they currently are is that he's going to serve or at least i believe even if it's only the three hundred sixty month sentence and there's a further adjustment to the consecutive sentence that's coming with the way state time is calculated he'll be serving at least two hundred  while he's serving his three sixty and state custody exactly right and i think that's why the result the court the majority focused how do we know that we know that that's the state law and we we have any  briefing when parole and that sort of thing we know how serious he you said to forty is the minimum he would serve how do we know that so it we know that the state the way that the state calculates it sends which is going to be a total of two thirds of his total  nothing out he's looking at at least trying to i'm just wondering how we know some of us harness from a with minnesota criminal law you know in iowa or some other state you get three and sixty months you wouldn't serve three sixty months right collagen in the record on those calculations i think i would have to ask the court to take judicial notice of just how the state time would be calculated otherwise we could supplement the materials and provide that authority because we didn't have the opportunity we were going to take judicial notice where would you look i would need to look at the exact minnesota statutes for how they're calculating good time credit and so if you want the actual statutes i would supplement the record on that point but we'll discuss that and if we want a supplemental filing we'll put out an order to that effect because you didn't have a chance to address resolves or ellis but and the government would be here point is you think you could show under minnesota law that he'll he's required to serve at least to forty conservatively  less there's action of the governor to commute or post conviction proceeding correct and what what if what if that happens then where we are if it's already been asked an answered but mr berger has filed a petition for further review it has it has not yet been granted but the government's position would be on the record as it's currently constituted and where mr bergman is currently serving his time which is state custody not federal big deal why not just the judge to go back and use the correct range and make sure that there's no risk that he will serve too much time you know extra time if there's some quirk in the state situation that reflexive inclination to just correct something on appeal that wasn't preserver wasn't plain below and here the district court as as you asked opposing counsel was not on notice that there was any age based challenge to this conviction so we'd be living in a world under your question your honor in which a defendant could come at the appellate court and say i didn't ask for a categorical approach i didn't ask the court to do this analysis but if it had it would it should have been corrected so what's the big  deal and the big deal is that's not how the process is supposed to work you need to preserve your air below you need to give the government a chance to respond to it you need to give the district court of chance to analyze it and get it right but those are all arguments that would have prevailed for the time never did so i think that it possibly would have been obvious had it been noticed but the case law is pretty clear that it's not just with the benefit of appeal is it obvious now if it needed to be obvious then and if it wasn't obvious at the time of appeal think it is long as there was notice to address it below and so i would say here in plain error assumes there was no notice to addressable that's the whole point of plane error review right there was no these statutes are being attacked by by offenders who are facing long sentences so to say that the error is obvious i think would be putting the cart before the horse some ways these issues need to be addressed they're complicated issues and it's a complicated analysis so to look now wit sixty eight are you familiar with that case i've looked at some of the cases that came after was also morale is i would not say i'm an expert on the holding well here's what the fifth circuit did in my case it's clever i'm not sure if it's too clever by half or or what's going on there but basically it appears that the fourth requirement what they do is they depart or potentially depart from the categorical approach and say if we have evidence in the record for an as applied to this case the child was actually under twelve we're not going to send this back down three cents saying and sort of take a more hard line view of that fourth requirement is there any evidence here that the acts here happened to a child under twelve and that those are the acts that the jury convicted the defendant of there are your honor and i think that's exactly how the issue was missed below the court looked at the p s r in the court looked at the guidelines and the definition of a forcible sex offense which was a victim under the age of twelve and looked at the victim here who was under nine at the time that all of the conduct occurred but there were there were acts that occurred but when between the ages of twelve and thirteen for the victim right or did all of the acts proceed age twelve i believe that the record is that all of them were under the age of twelve and i would have to look to be certain of that but that is my belief ok but i would i know my time is expired if i might have just briefly conclude your question you may i think that the fifth circuit case and some of the cases that have come out after results morality or building a continuum results moralities didn't create a world in which you come up on player you say look there's an incorrect guideline range it has to be remanded there's space there and i think the unusual circumstances of mr bergman there's also executive action in a pardon and there's also the possibility of habeas proceedings in federal court once the collateral state remedies are exhausted and sense this federal sentence currently is one hundred fifty one months an argument as it would be changed one hundred  thirty five this court has to speculate out over ten years in the future about whether his convictions would ever be shit you know his state sentence would ever be undermined this court doesn't have the resources to do that in fact can't do that that's an unknowable inquiry moreover if this court accepts the government's argument i see that i'm out of time but if you just make court accepts the government's argument that like well you know he's he's going to serve time state court in something does change he will have no remedy because he can't win on a twenty two fifty five because this is a mere guidelines here that's not constitutional in nature and  will preclude him relief so what the government is asking you to do is forecast out over ten years in the future take the bet that all these remedies that he can still pursue which we have know of ability to forecast whether they'll be successful just say it doesn't matter and then if peril of incarceration many other factors public reputation and fairness undermining the court the accuracy of sentencing guideline determinations i invite the court to look at that there are many other considerations finally on the point that plane you only get pla counsel what's your view i just want to know the factual question were there acts the jury could have convicted the defendant of that occurred between for that the victims were between twelve and thirteen years of age or all of them twelve or under under twelve i believe that some of the acts were after twelve so i read it differently than my esteemed colleague i'm not positive i guess i would have to go consult the record but i think it is actually true that there were factual instances after the age of twelve and it's not the case that everything was before then if this court is going to relate ten years out about what really happened and so forth but what about the fact that the burden is on our to get relieved when he failed to object and if he can't show that there's going to be effect on public reputation integrity and so forth then he that's not speculative well he's serving his time and forgot to mention that's well he's serving his time inspector the question yes yes yes yes it's a good question ron while he's serving his time in state court he has a federal detainer on him from th that affects his eligibility for programming for treatment it makes his current conditions harsher than they otherwise would be just like when we have clients since in federal prison we see this all the time if there's a state detain or it affects their eligibility for treatment for programming to him to his sentence so it's only speculative on the narrow question of peril narrowly defined as time incarceration is not speculative based on the things that i just mentioned that his state prison time is made harsher by the fact that he has a federal d r mean for the last sixteen months if you yeah right he's easy he's obviously better off with having a federal detainer that's less than one hundred fifty one monster vs a federal detainer that's one hundred fifty one months because the detainer has adverse consequences to how do we know how do we know that i corrections and i read some of their policies because i had to subpoena that there may be questions about this there's nothing in the record but i was told by the department of corrections that that was the case i was told by the state of politics enders office that that was the case it mirrors what happens in federal court there's nothing in the record to that effect but it and finally in your question it's also not speculative with respect to the other considerations if you don't have to speculate that this undermines the public perception of the fairness and integrity of judicial proceedings as honor said why not just do the facts well because it's his burden maybe and he didn't object and we don't go through meaningless exercises would be the response but for all the reasons that i've said i don't think this is a meaningless exercise i think that there are considerations that are this morning and for the weeks of the court will be in recess until further called the docket