good morning good morning my name is kristen cope and i represent the appellant mr lauren robinson mr robinson is currently serving a minimum sentence in a michigan prison of twelve and a half years but constitutional protections should have limited that minimum sentence to no more than six the attorney general in this case does not dispute that the sentencing judge applied offense variables to more than double mr robinson's mandatory minimum sentence range based only on judge found facts that were never found by the jury because the judicial nature of these findings is uncontested all that remains for this court today is an issue that's a simple question of law whether the supreme court's holding in the lany prohibited the use of judge on facts to increase robin statutory mandatory minimum sentence range the attorney general is asking this court to reach multiple holdings that are contrary to elaine and to the michigan supreme court's own interpretations of michigan law i'd like to address two of those points today the first is that elaine is clear holding and rationale invalidated the very sentencing process used to double robinson's mandatory minimum sentence range and second the statute issue here is exactly what michigan law says it is it is a mandatory minimum sentence not merely a parole provision that is free from constitutional scrutiny under lamey first of all usually deal with a range of mandatory received was seven years which was within the range of permissible sentences under a proper approach but the elaine in court held that a constitutional violation occurred because the problem was not the number or numbers chosen as the sentence the problem was that the minimum sentence possible the shortest sentence in the range to which she was exposed had been raised without a jury find the bottom of the range was r crucial by correct your honor that was based on judgment absolutely or are in fact a laney held that and i'm quoting the legally prescribed range is the penalty affixed to the crime a laney was not concerned with i think the penalty ultimately imposed whether that be one number or two elaine he said that if the floor of the range that a person is exposed to is raised that that is when it is mandatory when it is sometimes a phrase used it is not absolutely your honor yes obviously and the state of michigan we all know after this the fact has recognized this very system used on mr robins was unconstitutional under laney and has fix the system for later prisoners by making a fully discretionary but it's undisputed the in this case the sense applied to mr robert if we were to rule in your favor this would not that it's not so much that the trial happened after allegedly because it did because it was still on appeal by the time of away me that's right so the relevant in effect people or people whose cases did not become final before rolling me yes your honor i don't know that the district court in denying heaviest relief here incorrectly applied harris the supreme court holding and harris  and correctly held that that had to still apply to mr robinson's case because he was sentenced prior to lanie but the clear rule in these habeas proceedings is that if his conviction was not final undirected appeal prior to the outcome of the laney then  be analyzed under pavia standards as applied to mr robinson and here a lady came out actually before both the michigan court of appeals and the michigan supreme court considered mr robinson's direct appeal but neither of them even we can't be talking about unreasonable application because they didn't apply it precisely are we have to make a decision strictly on directly contrary precisely or honor the standard that is slightly more deferential  of unreasonable application or the fair minded jurist standard only applies when the state court acknowledged the controlling supreme court precedent and simply applied it differently here we actually have the opposite which has happened which is that the standard is that clearly stop if it's contrary to clearly established federal law then relief is required and the supreme court has said that that happens when the court applies a rule different from that applied in supreme court case here rule was very clear any fact used to mandatorily teacher point your honor increase a defendant's minimum sentence range must be submitted to a jury and found beyond a reasonable doubt the court did not start or didn't it held any fact that that rule applies to any facts that alter the prescribed range of sentences to which a defendant is exposed the michigan court and considering mr robinson's argument did not actually do a separate analysis of his argument instead the michigan court of appeals despite the existence of the laney blindly relied on prior michigan case law which itself relied on harris's proclamation that the constitution permits courts to impose higher minimum of review is that this court must look to the reasoning in the last reasoned opinion from the state court the last reason to pending that we have is actually the court of appeals decision because the michigan supreme court didn't address anything on the merits it simply approved the ruling of the michigan  appeals so all we have is a decision that relied on prior michigan case law which itself relied on harris and harris is rule is directly contrary to that no lady and itself was expressly overturned by a laney this is one of those rare cases where the outcome is contrary to clearly established federal law to for us to make the decision whether it's contrary to clearly established federal law we look to the michigan s after this decision was made by the michigan supreme court however the court can now have the benefit of lockridge as decision the highest court of the state interpreting its own state law but not federal correct your honor of course this of federal off but the important thing here is that the federal law was really established here and what purpose would lockridge serve other than does lockridge say that michigan has a guy did system is that's what your purposes i mean other than locker just say it's kind of persuasive in the sense that another group comes to the similar conclusion that you want us to but it's not it is not something that directly influences our outcome dispute but because you have two justices of michigan that are disputed is that it evidence of maybe it's not really no your honor it's not for a couple of reasons the first is that as i said because the michigan courts here did not graft with a case the standard that this court has to apply is not the deferential reasonable jurist standard which would be more deferential and ask the court to look at whether reasonable jurors could disagree on as the standard is more clear that on its face is the rule that's being applied and the lainey different from the rule that was applied in mr robinson's case and as i said the rule itself in a lanie over and over again is if you have a range and the bottom of that range is mandatorily moved without a jury finding it violates the sixth amendment it's very clear or workman disagree with your out of the dissent in in lockridge made basically most of the arguments that the attorney general makes here today ok but because you've got a disagreement with the supreme court is that i mean is that evidence that maybe it's not i see my time it's no short your honor it is not evidence that they that they may disagree and the reason for that is because the court's decision was primarily based on the idea the i'm sorry the dissent was based on they did this is really a parole provision and in fact the attorney general's brief creates this confusion by saying that for example and i'm quoting from their brief  that the court could have imposed a flat thirty year sentence for extortion and required robinson to serve every day of that so they're at their argument and the dissent and lockridge asserts that the real sentence here is the maximum number imposed that's the only real sentence however that statement is not accurate because under michigan law it would be unlawful for the court to simply impose the maximum number and the statute says that when a person is convicted the court imposing sentence you've got to serve a minimum before the parole board even kicks in your honor that's right and that's why we say it is truly a sentencing provision and when the floor of an minimum sentence is moved the punishment to which a person is exposed has where my brief was quoted saying that the mission in court the trial court could have imposed a flat thirty year sentence unfortunately a portion of that sentence was delighted from the quote the trial court could consistent with the federal constitution have imposed a flat thirty year sentence for extortion and that's true michigan doesn't need to provide we didn't say of course that under michigan law we could provide we could not simply to could have done that under a different system than the right right michigan could have a system where it doesn't have parole michigan could have a system where parole is determined michigan so we could have a system where every every a crime has only one punishment exactly exactly not were arguing about it's not exactly how strong the help tough it is right it's whether it has this guy did right feature exactly in the michigan legislature has decided that it's going to delegate to the trial courts the decision about how much of a prisoner sentence it's going to serve now i disagree with how much of the subtleties how much of this is going to serve he get received a thirty year sentence up how  much he's going to serve started before becoming eligible for parole so the parole board interests that the maximum and then the their argument is that the judge finds facts of the fence variables that set the only violated exactly because of because we call it a minimum sentence and in michigan what this case really comes down to is a question of form versus substance i believe if michigan system had was set up so that the judge sentencing says i said and see to thirty years now go down the hall and you will be informed when you become eligible for parole i don't think anyone would blink an eye but because we call it a minimum sentence because it takes that form but it isn't it is that or is not subject to the parole until the service is minimal right exactly right but it's what the united states supreme court has never held that the sixth amendment right to a jury trial relates to how much of a sentence you need to serve before becoming eligible for what does that have to do with parole is it because that because it's about the minimum that i forget the parole board before the judge found the facts and help me if i've got the numbers wrong but approximately before the judge but i'm being told by opposing counsel and forget about parole but the only effect a bit of sentence has in michigan is parole board jurisdiction so if you well wait a minute you don't if your minimum sentence so that you're saying that th ere's a possibility to get out after let's say six years and after the judge finds these facts you have no possibility to get out until twelve years and you're saying that doesn't matter it's united has never held that that implicates the six the memory to a jury trial and in fact they have held in a different no it's a different procedural circumstance but again this is about form versus substance in substance the united states supreme court has held that a state employee can say i'm going to delay or parole eligibility based on facts i found not submitted to a jury that was well for us as mcdonnell now they say that's that's a parole case that's not a sentencing case it doesn't matter a state employee says i believe you have done this thing it's not  state had had a system which simply said whether you get anything less than the maximum is up to the governor right then it would have been fine well alina was about the maximum sentence i mean it was called a sentence but it was a maximum sentence it was a seven but a lady was a minimum so you know it was the minimum range it was that that's the problem this minimum is being used in two different ways the sentence that was imposed in the lane it was a maximum sentence it was the sentence at the end of which the defendant gets to walk free from prison now the number in question was the minimum range of the range that was used to determine this isolation was that the minimum was jacked up right the minimum of the range to settle back and actively they said that once you did that then it was unconstitutional regardless of what the judge ended up doing right by restricting analogy here is that it's the same thing except you're saying well by the way the peru board could make you serve more or less a but the minimum exactly right right and so how is that different from the fact that in a laney the supreme court says doesn't matter what the judge actually did doesn't matter how much time you're really going to have to serve as long as they jacked up the bottom and we know you've got to serve that much bigger as i take your argument you're saying well yes they jacked up the minimum but that doesn't matter because they could stay in for a long time based on the proportions that a fair statement of it i think it is the right answer why is the parole board different than the judge in the laney because because he's not establishing any right to release there's no right to parole there's no federal constitutional right to parole at all and in a leni what the the aeronaut isn't complaining that he doesn't get paroled right complaining that the bottom of his range was jacked up just as him five years but that five year sentence or the hypothetical five year sentence or the actual seven year sentence establishes an entitlement to release that is his top that five years or that seven years or the fifteen which i think was the maximum he could have done is at that point a laney gets to walk out of prison twelve and a half years six years whatever it is for mr robinson if he doesn't get to walk out of prison at that time thirty years is where he gets to walk out of prison there were no judge f sentence this is the maximum sentence under michigan law is the an analogue to the sentence under federal law which was at issue in late the minimum sentence under michigan law has no analogue in the federal system because it's a parole provision that's all it is it is called a sentence but all it does is establish when the parole board gets jurisdiction over the prisoner in the united states supreme court has never held that that determination involves the six of them a right to jury trial and in fact wolf again different procedural circumstances that help the opposite it's said you do have due process rights right you can't just arbitrarily push back somebody says parole eligibility date but you don't have to impanel a jury and that's all that happened here they pushed back his parole eligibility date they didn't impanel a jury to find the facts and there is no u s supreme court case that deals with the only supreme court case that dealt with it was mcmillan and obviously there's some disagreement about the status of mcmillan the reasoning of mcmillan was under signed by elaine the result of mcmillan was correct because there were two bases just like in this court's decision in montana which we also cite montana says for one thing you're talking about raising a floor rather than a ceiling harris rejected that so you lose that way and then in a numbers does not establish an enticement to release that's published circuit president that was not discussed it wasn't an issue in a lane because elaine has a different was is that the federal system which is different and so that was not overruled by a lame the reasoning at that part of attack lockridge there are two bases and we're under which i think if we do lose this case law which has to be upheld which is the remedy book arising i don't understand opposing counsel's argument that he should be subject to a sentence with the guidelines scored zero michigan decided just the same way as the u s supreme court decided in poker to book arise the guidelines to make them advisory so if he has to be recent and his guidelines should be scored as the michigan legislature commanded and the guidelines should be advisory that's the federal that's the state remedy just send it back to a judge and say ok now with the visor why the new well and that and that brings to the second point which is whether a full the sentencing is required the u s constitution does not require sing for circuits decided this circuit did not but four circuits in the state of michigan decided we can do a difference is there between a quote full recent and seeing and asking the same judge to say would you have given the same sentence that just seems sort of odd to me that are you saying that the judge shouldn't think about what he wants now the judge has to think back seven years and even so then that could cut either way that is he could he could say he could say well now i think he's a bad guy and i want to give him fifteen years but if i think back to what happened seven years ago i should only give him five years but advice of that kind of a silly way to do it is it well it saves a lot of resources because a reset and sing requires the victims to be notified requires the defendant to be written out it requires the court to prepare a new sentencing investigation report it allows the court to consider for better or for worse and actually  to consider post of offense conduct post sentencing coming everything is done in prison that might help him that might hurt him there's a lot of resources involved in the reasons and because it is day novo across the remained you say look think back seven years if the guidelines have been advi here and we're dealing with federal law why why ok even though michigan might do it a different way why would we why we're not compelled to follow michigan supreme court's remedy earlier i think that as long as michigan's remedy doesn't by this court's this court's brief in this case is to make sure the constitution isn't violated and if michigan's remedy doesn't violate the constitution i don't think that it makes sense to set mr robinson apart from his fellow michigan prisoners and say what well you few hundred got across the region and you took a different route to to relie don't judge and then if you don't do that i would think that you'd have to reset i think that question would be best answered by the judge himself because the judge could say i remember this case well i remember that i thought the sentence was the appropriate sentence or the judge might say and as i said if it's a success or judge the judge can say i don't know what this judge would have done we need recent and saying or i don't remember what i would have done we need we sentencing but that's i don't think it is for this court to assume well this judge couldn't possibly remember a seven year recent unsing period and it leaves it then to the state judge to decide what the right standard is well no because then the state judge would still have to re sentence right across the room and isn't a reset and say if this court says we remain for proceedings not inconsistent with this decision in the united states constitution i think that would be i mean obviously that would mean we lose i don't know what have we ever done across the region and before no i don't believe so because it may well why would we start here because this is a state case and the policies governing and part of comedy in federalism and respect for state court judgments and where the state has decided that the remedy is this and that remedy doesn't if we'd just herman that the state court has violated the federal law it seems like issues of comedy are not quite there i mean we were finding a constitutional violation and what we're doing is we're trying to remedy the understand can i answer briefly because our time again i think that meatless the court i'd like to address three things that the court brought up with my present counsel just now the first goes to the idea of the minimum range alania itself said that elevating the low end of a sentencing range heightens the loss of liberty associated with the crime because the defendants expected punishment has increased as a result of the narrative range that's why this is not a parole provision it's a sentencing provision because the minimum sentence a person is exposed to is the minimum time a person will read the time he was exposed to in the range and again the court was concerned with the range a person is exposed to and the minimum time that he could be exposed to serve in prison went up from thirty six months to nearly triple that minimum number and that was where the violation occurred was a soon as the range was moved along before the actual sentence was even imposed and that's true under all michigan law a laney said that the sixth amendment protections are in place so that a person is entitled to know the range of punishment they're exposing themselves to if convicted of a crime under the michigan system that michigan has chosen to impose by statute a prisoner in mr robinson's shoes will no three things one you will be sentenced to a soul it doesn't so you don't give that help of course not your honor but it is certain that you will serve a sentence in prison of the minimum number you will serve that many years in prison those are definitely i mean you're used the term and i'm not saying is right or wrong but at least because the argument you used that he's changed what he's exposed to his argument is that what you're exposed to is always the statutory maximum your honor that argument was rejected that was the reasoning behind a print that a person is always exposed to the maximum natural to meet exposure and it doesn't matter if the judge pick something below that because you're always exposed to the maximum alania overturn that rationale and said that the same rule must apply to the minimum number that you are exposed to the floor of your potential sentencing that could be chosen from and that's why an individual under a system like michigan that chooses to impose a minimum and maximum statutory scheme that has to be respected from its due process perspective a person who serves their minimum sentence is entitled by michigan statute to then have parole consideration proceedings the state is conflating two very different things rights in a parole proceeding where you're be granted parole and your rights i'm sorry complete my thought and your rights to a parole proceeding mr robinson was supposed to be eligible for parole proceedings supposed if completed his minimum sentence on these convictions a year and a half ago and that is why it is required for him to receive heaviest relief and i will know just as a brief thought that the cross the room and that the state continues to urge is a process that this court has already expressed  plane air review for un preserved claims neither of which is true here but you know their argument that if we don't do the crowds we remember that mr robinson is going to be treated specially and other people  his situation will be contrary to the state defendants it's just you know it's almost equal protection or whatever to treat people so differently that we ought to comedy and everything else follow long before they've already served the minimum sentence because mr robinson was denied by the state court and has now been in jail already eighteen months longer than he was supposed to be entitled to parole proceedings on these convictions he's already been harmed in an some only partially fix the harm in this case the court cannot as a practical matter issue what should have been an eligible minimum sentence the court can't sentence him to a minimum sentence of thirty six months because he's already served ninety three so he's already been harmed so we're asking this court to fix it he hasn't been have a minimum so that he has been rumored are eligible for parole maybe in thirty six months but  not entitled to be granted my understanding that that completes the oral argument