recollection but why why i don't understand how johnson who governs this case when there is such a material difference between the way a a judge tell you i think that i just disagree that there is a material difference between the way saying the a c c a fixed as a sentence and their way that the mandatory guideline fix the sentence he recorded in booker made very clear that those mandatory guidelines were not recommendations to the sentencing court the sentencing court had to fix it sentence within that range the government agrees that this record judges had to fix that sentence with the in that range this court or a we stuck panel of this court in more essentially said there would fixed is not a is not a term of art in when the when the supreme court has told you that you are mandated to fall within a particular range that would mean fixed you know to the extent that the distinction that the government is trying to draw between a statute and a guideline it's significant that a very similar if not the exact same argument was made and rejected by the supreme court in both her and the book or the book or courts just said in our judgment the fact that the guidelines were promulgated by the sentencing commission rather than congress lacks any constitutional significance and the reason why they said it lacked constitutional significance is because regardless of whether it's being done by a statute or a he was applying without rule from to a statue and when we got to booker they are applied the same rule to arrive on maybe would help of you just address the way in which we know x doesn't the defense is not fixed if it's a non mandatory guideline even though it's sentencing error to misapply miscalculate the guideline why is it fixed under the mandatory guidelines in other words the mentor guidelines unlike a statute does not tell you definitively what the ultimate sentence will be because there is the argument as to why it makes sense to treat x as we used it and more in describing the johnson rule fixing the sentence as in caps late in what happens under the mandatory guideline regime i'm roger five minutes and that could be true under the battle's regime also under the the non mandatory regime a guideline error can change the range so i think what you need to show is something about the way the mandatory guidelines operated is not just that it affected the calculation of the guidelines but that the consequence of a calculation under the mandatory regime is fairly described as fixing  them it can't just be because it sets a range guideline calculations that's a range of threats a range under the non mandatory regime also what about the mandatory regime makes it fair to say it's fixed in the way that a statute fixes th me but i think what i'm just trying to figure out is to the extent that the district court has no discretion to deviate from the reins it makes very much sense does that it was this we know in the non mandatory regime that the case they can vary a court judges ability to do those downward departures restrained by the guidelines themselves so it's not it's not as though the court could just disregard the guideline entirely it had to have a specific basis and it had to be tied and given permission by the by the guidelines themselves the upward and downward departure provisions we feel ramana room for the district for the sentencing court to to exercise discretion and to do and to do fact finding a it in there's no there's no magic formula for example to determine whether a defendant has given sufficient systems to the government to warrant the down with the proctor for substantial assistance that's why up to the district court's judgment and the district courts discretion and that's true of mandatory sentences mandatory minimum sentence for say his non i and twenty four dollars c counts left proves zero under the statute to two hundred and sixty two months under the guidelines  and there were no downward departures in the record available to mr oh i'm sorry excuse me wait a minute ok thank you i am thank you so let me begin on the mandatory guided by an issue by focusing on what i think the question is which goes it just so use st question he pointed out eight or nine d circuits have ruled d on the status of women d teaching question that a a guideline claim is untimely that's not just important because we want to follow other circuits that's important because what we're doing here i think is an analysis and your team to see whether reasonable jurists can all agree that johnson extends to cover the mandatory guidelines situation in all we have military don't agree that that's the rule d then what f three requires waiting for the supreme court to make that decision now excuse me and and she's saying that whereas of appeal three courts of appeals have decided it's untimely and this is an important question the supreme court to take it up for that reason and they didn't but that tells me that even just a sort of or things there's another legal step that has to be taken and what's important about after three is it says the supreme court has to take that step that's important in the construct at because as you get away from the case becoming final i think the goal at is for there not to be legal innovation done by a lower courts in cases that are proper move from judgment so by requiring the supreme court to have announced the rule whether there's plenty of discussion even more about the tentative nature of an age to decision that the president of whether an x x thing fixes the sentence there's nothing say more i'll take it more says it fixes sentences that was the panel's view i'm not here to disagree that that's wrong what i'm saying to you just parrot is that you know that's not accounting fine that's just because we got late to the party doesn't mean we're bound now to say it must be debatable just because the judges came courts came before us is not like the last circuit in this down by the st eight circuit but why is it substantive matter ok a that a mandatory guidelines provision does not fix this is debatable as to whether it picks and why it's debatable is that the supreme court in johnson is dealing with a rule  enhance the range well it does not enhance the statutory range you are still subject to a sentence of between zero and twenty years what mandatory guideline to do is say where within that statutory must you be sentenced within some number of months with the possibility of the parkers that's not mandatory i do i'm not saying i will but they said it they say it at that if the judge thought that you should get probation and the range call for a minimum of five years you could that was not possible under that overstaying well it's not hot if the statutory range started five years it's not possible under the current regime either it's only possible i range you should send a man the question is when johnson said six sentences doesn't mean that now in johnson it's talking about a statute that's going to increase the statutory minimum from zero to fifteen so what it does is it sets a range and that's a mandatory range but it's a range so you can be within the range but you cannot deviate from the range if that's how the mandatory guidelines regime worked when johnson control is it exists within regime that already exists or even caught one possibility is you would like us to conclude that the whole thing is a formal distinction between whether it's a guideline or statute that sets it independent how binding the guideline is that's one possible argument if we rejected that argument do you have another argument as to what johnson is not controlling in the mandatory regime well i mean we have the departure area but you told me to forget about that no now i'm telling you to remember ok so no going back in departures why is it that if i disagreed with your contention that the fact that this is a guideline rather than a statute in and of itself means johnson doesn't apply why is it that the fact that there are departures allowed in the guidelines regime that was mandatory makes it so it's not a fixed sentence in the government's view given that there were limits on when you could depart it well again i'm not here judge karen just say definitively what the right answer is what i'm saying is there's an argument to say that the judge has some room to say this is not within our grant for the following reasons i'm going to give a different sentence that could be the kind of discretion that okasaki and how should we think about a case in which there is no claim of a departure being political so what you said  more is that perhaps it requires a case by case analysis we have if it does is it debatable here or in other words there is no claim of a departure so in this case the guideline would set the range and does that mean your only argument then is well because it's a guideline not a statute there's a debatable point i suppose when it means that there was no departure i mean the defendant may not have raised the argument the court may not have granted one it doesn't mean that there wasn't an argument that could have been made we don't know how the court would result but we don't you know yet this person didn't get a departure and he may not have moved for one but that doesn't mean that though the arguments weren't available whether it was make don't make arguments all the time that they could  happens all the time and judge your variance now but then a departure of the judge me granted may not so i you know there was some discretion there was some discretion now you can still say it might be correct to say that's not enough that's that's the significant question under after three i do want to come back to that and that's why justice sotomayor is trying to get the supreme court to take it because the f three puts the onus on the supreme court to resolve the discussion that we are having which is a hard one i'm not here to say more is wrong more very well may be right but it's not one hundred percent sure that more is right more didn't have to decide it was one hundred percent sure that it's right and i think all the other law from both the supreme court thirty seconds thank you i i do think the attempt issue is hard not on timeliness i agree after studying for this oral argument while i still think the government's position is right i would not have an objection on the intent issue to allow more litigation and more development of the legal record so that it would come back more fully developed because i'm only asserting that is not for an alternative basis for a firm and but i would be content  litigate that st in the district court and then hear thank you good morning i'm go i'm going to pick up with the government's position that this court must wait for the supreme court to makes them make this decision that just cannot be true and i will give the court the example of streamer versus statute despite differences in the statute and despite some differences in its application the court on the government relies very heavily upon this reasonable jurist standard the supreme court has said th just because there is disagreement does not mean that there is any rule if you look at right versus west to the explain very clearly what this reasonable juror a standard is it says under the reasonable jurist standard when the distinction under consideration does not change the force with which the underlying rule applies then the distinction is not meaningful in any deviation from the president is not reasonable the distinction that the government is trying to dry here about about how tightly the shoe fits with her and it's mandate that the guidelines were mandatory at the top and under right versus west it would not be reasonable and they are finished was doing with regards to departure bunker itself in allies departures intense were said we understand there are departures here we also understand that those departures are very strictly limited and mostly not available so that is  vagueness claim the right way to think about it does the discretion that might in here or even in a mandatory regime have anything to do with the concerns about the vagueness of the provision if they don't then they really shouldn't that you're into the analysis where is it in the non mandatory regime the big miss of the provision really what of implicated or acted by the fact that it was a advisory range because it was just guidance so how could it affect it that th basic point that's exactly right thank you thank you that concludes the argument in this case