occurs from the public defender's office on behalf of mr craven's this morning this is an appeal from a denial of mr craven's twenty two fifty five motion to vacate his sentence he was convicted of two counts of being a felon in possession of a firearm received concurrent sentences of a one hundred twenty months and two hundred sixteen months with concurrent sentences of three years and five years supervised release mr craven's contends that he is not properly sentenced under the arm career criminal act aca because he does not have three qualifying predicate offenses the offenses relied upon by the p s r are missouri burglary illinois burglary and assault of a law enforcement officer he concedes that the  it says that mr craven's juvenile adjudication for forcible rape would count as an act of predicate i disagree with that a juvenile of adjudication can count as a conviction but it must involve the use of a firearm knife or destructive device that's the language contained in nine twenty four two subsection b of the statute so our contention is the forcible rape could not qualif the government can see and we agree with this concession that his domestic assault conviction would not qualify as an act of fans that conviction was in two thousand and ten the offense conduct for the two felon in possession counts were in february of two thousand and eight in september of two thousand and nine so the only three prior convictions at issue here are the two burglary offenses and the assault of a law enforcement officer now the government concedes that illinois burglary is not in our fans i think the government is correct in that assertion i just want to point the court to one recent case decided in september of two thousand and seventeen united states versus bias that's b why yes says that illinois burglary is not an act of predicate the burglary statute is too overbroad although it includes the term building it is so broadly defined that it includes trailers phone booths car washes tents and chicken houses so that just simply isn't going to be within the scope of generic burglary distinguishing factors of those two cases one yes the court if we sentenced the district court could impose a sentence of two hundred sixteen months if it runs the two counts consecutively it could not however  impose the five year term of supervised release the felon in possession count as a c felony would carry a maximum of three years supervised release and i believe under section thirty six twenty four eat those terms would have to run concurrently so although it can get to two sixteen they can't get to the five years on the supervised release more importantly though those cases are really about what claims are cognize well under twenty to fifty five motions essential you have three choices you must have a constitutional claim a claim that the district court was without jurisdiction to impose the sentence or that your sentences illegal and that has a specific meaning that must be in were in excess of the maximum mr craven's on the other hand has a cognize of a constitutional claim based on johnson residual clause being void for vagueness and therefore in violation of due process of law to consecutive if you if you chose to and if that was substantively reasonable and i think that it should because in the judge's twenty two fifty five order he wrote that if the illinois burglary does not count and he assumed that missouri burglary did not count he said if that does not count mr craven's warrants relief he did not say this is the same judge at both sentencing and in the twenty to fifty five he did not say in the twenty to fifty five order you know i would reach the same result if this illinois burglar or even if he's not a career offender under aca i would i would reach the same result nowhere did he say that he also didn't say it at sentencing now i do agree with the government he made some comments that you know the court had to impose a fairly lengthy sentence to protect the public from m said that mr craven's wasn't going to like the sentence that would be fairly stiff but there's no indication that he would automatically go back to two hundred sixteen months was the two sixteen a guideline range sentence based on the arm criminal or departure to get to sixty you're saying it's not clear he would that is correct because with the aca he was one hundred eighty eight to thirty five now it only comes down one offense level without aca he's one sixty eight to two ten so originally the judge imposed a mid range sentence if he would do so and of course technically the guideline range goes down to one twenty because that's the maximum but if you add up all of the enhancements and do the analysis you get one sixty eight to two ten so if you would again impose a mid term sentence that would be roughly one hundred eighty nine months which is a little over two years off of my client's term of imprisonment and then it would be two years less on the supervised release so it is injurious there is prejudice to mr craven's it's not a whole lot of time that's different but two years i they please the board morning good morning thank you your honor of the united states agrees that in light of johnson and subsequent case law that the armed career criminal act should not have been applied to mr craven sentence it does not follow that mr craven's is necessarily entitled to be recent and so under section twenty two fifty five this case is procedurally virtually identical to the facts in the old and in as much as we have a tenant who was deemed to be an armed career criminal based upon two burglary convictions that in light of subsequent authoritative case law were no longer held to be accurate predicates is also similar in that the sentence that was imposed in the aggregate was in excess of the ten year statutory maximum sentence that would ordinarily apply to a felon in possession conviction and if i could alton's prior california burglary conviction should not have been used to enhance his sentence under the c c a and the two hundred thirty five month prison term on the phone and possession count alone exceeded the ten year statutory maximum for that count the same two hundred thirty five month sentence could be reimposed were ultimately granted in twenty to fifty five relief he requests by imposing consecutive terms of imprisonment for the two counts of conviction under eighteen u s c section thirty five eighty four i think everybody understands that a judge could redo the same so the question is whether this man's untile the relief yes or and then a decision on whether to do that and the reason i brought that particular sentence out is because of the reference to section thirty five eighty four and both section thirty five eighty four and guideline section five g one point two direct to sentencing court to first calculate the total sentence and then in a case where as here we have multiple counts of conviction after johnson to felon in possession counts those counts should be run consecutively or partially and secondly in order to achieve the total sentence in this particular case judge  after after examining the thirty five fifty three factors concluded that two hundred sixteen months was the appropriate sentence to achieve the the sentencing factors under the goals of sentencing under thirty five fifty three he focused a very heavily on the thirty five fifty three factors and virtually not at all on the guideline range and if i could direct the court's attention to one number  particularly in particular and that's two hundred ten months that is the upper guideline range of what the parties now agree should be the a political range of one hundred sixty eight to two hundred ten months there is a large deal of overlap between the guideline range of who is going to serve the extra six months i'm sorry there's a large degree of overlap but somebody has got to serve the six months yes your honor but my point is that that two hundred ten month figure was within the guideline range as determined at the sentencing hearing if judge k s had believed that two hundred ten months was an appropriate sentence on these particular facts it also was within the guidelines range and i think that there is and at first blush your honor i think that is understandable the the difference between a run of the mill felon in possession case and a armed career criminal case significant because you go from a ten year ceiling to a fifteen year floor and so there are vastly different sentencing ranges but if you look at not just what judge k s stated in his  thirty five excuse me his twenty two fifty five order and compare that to what he said at the sentencing hearing it's very clear that he thought a lengthy sentence was necessary to achieve  the goals of sentencing and again he focused exclusively on the thirty five to three factors not the guidelines well last comment held by you know by thirty five eighty four to focus on the thirty five fifty three factors i what the statute says in so course he did exactly what he was directed to do and there you know there's there's a difference between what might be to ten or one eighty five and and to sixteen some sort of those days and and there doesn't seem to be anything very that as your honor knows the guidelines are advisory they were clearly before him and we're talking about a difference between a one level difference in the guidelines the the  shift post johnson took the sentence that the judge case imposed from the middle of one guideline range to just beyond the upper upper bound of of the what olten says about how you just look at whether he could have done any the same thing anyway you seem to be focused a lot on whether he would have done the same thing anyway well and i think what what sun bear established is that we don't we don't remand for research and seeing every every every case in which things have changed since the original sentencing the not really answering the question i'm sorry but i'm trying to get at whether you're saying the proper analysis for us is to look at whether the judge would have done the same thing anyway orse or only whether he could have done the same thing anyway it's sort of a basic core point in this any help although some of the olten as you say is as you point out is an unpublished opinion sun bear if i could find the precise language makes clear that simply in excess of the recalculated guideline is this the type of case that is required to be remanded well it's what about the fact that it's  curses yes but here we have a constitutional error under johnson doesn't that broaden the availability of relief you have a view on that but but still states that even if his sentence had been improperly enhanced which i think is is the assertion here that the sentence imposed was still within the statutory maximum allowed judge case could have imposed up to a two hundred  talking about one offense and whether one offense is within the statutory maximum my reading it right i believe that's correct your honor but i think the reasoning in alton is is very persuasive in this circumstance the the full panoply of or the four range of sentencing was available to to judge a case he he was very articulate in the record that he made as to why the history or the nature and circumstance the history and characteristics of this particular defendant including his violent nature the the and i've seen my time as if i could if i could just finish that my one thought here the  the driving force of that sentence was to protect the public from mr craven's and that's further evidence by the fact that judge case imposed the maximum sentence of the maximum term a supervisor release that he thought was available we just wanted to point out that in sun bear it was a single count murder in the second degree was the conviction in that case what his three hundred sixty month term would fall within the guideline range even if aca was not applied or career offender excuse me he was guidelines so either way he fell within the guidelines range or he fell within the range permitted by four b one point two but the next  believe that the court had to impose consecutive sentences and because it was pre booked book or five g one point two was controlling so that's not a you could have a situation that was a would have or must be the same sentence thank you thank you for your argument prescience the arguments from both counsel the cases submitted in the court file an opinion in due course