may please the court my name is joe howard and i am a c j attorney representing mr john forced and since we filed our briefs in this matter there's been a lot of january fourteenth not there's a number of them your honor i was looking at champagne and just recently the court your honor filed a concurring opinion in case and we've been doing some extensive reading on all of the case law that has developed since then and the crux of our argument is that the residual clause has been by preponderance of the evidence demonstrated as a factor which allows for a success of twenty to fifty five and once we cross that hurdle the records clear that one of the four predicate offenses was a residual and once we clear that hurdle then our interpretation of gollum though is that the court then has the ability to then look at the remaining predicate offenses in terms of their he under current law and in our in our how do you get over the first hurdle the first hurdle judge i think we have some serious issues with you're you're you're you're more familiar with th that determination was decided years ago by the eighth circuit when the defendant initially filed his direct appeal so then why don't you lose if two undisputed and one the third one is under the north the only way we win is if this court understands that or allows us to go forward because we have one valid residual clause under johnson even though that one was not necessary to the sentence isn't that the problem that's the problem but your claim that the problem your claim does not prevail because of jobs that's where that's where when are right right and i concede that i have to concede that under under the case law because the third one was counted and the enumerated cause that's what the direct appeal opinion right so in the event in the event that the court was to re go back in that the residual clause is no longer in effect and if you read the brief they do not strongly oppose that you're talking about the second degree burglary that was would we say you get get there at all if the three convictions don't depend on the residual clause i mean the so doesn't the sentence have to be based on the residual cause speak you want to speak to that i do it because i can't overcome what you have written in your in your opinion what i was looking at in  i took from that that final paragraph of your concurring well it was just turning opinion right but could overcome it if it's just a single judge opinion but i agree judge but but i thought it was good thought i thought that you were implying that we could look at the law as it stands today and you interrupt when we said there and judge benton's opinion said the same thing on that issue which is that if you would lose under current law then there's no need to even decide that johnson issue because you're going to lose either way but we weren't saying you get to skip the current law if you would win on current law without getting through the johnson threshold and yes that's what i'm saying is like all of this is new since we filed the our briefs but you cited something that i thought was really interesting your honor was that you cited th peppers case out of the third circuit and i'm not quoting it for the purposes that you did but the peppers case was really interesting because it suggested that once a defendant gets through the johnson hurdle then the court can look at the other predicate offenses and invalidate them under a decamps and a mathis was there was there ready ruling below which three of these fo were actually relied on yes that's a great question so initially when this case came before on direct appeal the eighth circuit reviewed it and determined that the the kansas attempted burglary was a residual and the court also determined that the colorado burglary was an enumerated does enhance your question your honor well i mean if if in fact that there is in the record that attempted burglary was relied on as they picked three of the four are does that help your case that totally i hope you have that that's you know that's the only way i can survive is what do you do you have that do i have that yes i mean do you mean that four didn't it didn't distinguish which it did what difference would it make even if it had said i'm relying on three i don't need to rely on the fourth that's an enumerated clause it would be obvious that the sentence right was required to be the same know so there's another there's another hurdle here that and this is toward the end of the one our ski opinion giving three giving three reasons why that argument failed in that case third and denying where and when our skees first twenty two fifty five motion the district court held that is three class three burglary offenses but the convictions fell within the enumerated offenses clause they claimed quote and citing an eleventh circuit case that applied h to applied b one though it is and that is that and that is that fatal here for you i don't want to admit that what i want to say is i should put a should in the phrase that i want to say that this this defendant appealed directly that the a c a a c c a was unconstitutional and then he filed a first twenty to fifty five also attacking the a c c and went to camps came down he filed under that he's tried to preserve his record from the point of  g these these offenses that you say you could you could sweep away current law apply correct were exactly what he attacked right prior correct so if there is if there is analogy or preclusion of some kind that that is her forte it is but it's really unfortunate that the court got it wrong so many times earlier and now finally johnson allows us the opportunity to clean up and  applicable my time is up your honor but i'm happy to respond please thank you sir yes they are not retroactive however if we're looking at this people's case i think it gives us a glimmer of hope settled and so i called the court and they said i could just let you know we when we heard you we're here we thought it was settled right judge look at it i think you could have driven with the sun up this morning yeah that was the plan and i preset the courtesy well we  fifty five there is the cans of an conviction which this court ruled applied because the residual clause johnson was made retroactive by welch and so the government conceded that that conviction is no longer valid that left the colorado conviction rely on mathis and decamps if we were to go to this second degree burglary issue a new murder offense do you agree that it would under today's law wouldn't qualify as a qualifying offense under the i believe that is correct under today's law would not and because they're not retroactive he doesn't pass the gatekeeping requirements and so because he doesn't pass he can requirements there are three convictions that are valid to this will but it but if johnson gave him this  promise the first one being twenty fifty five or this court decides whether or not there might be an argument there once it went to the district court the district work is applying twenty to forty four twenty two forty four importantly directs the district court to dismiss had that the district court has not made to be retroactive and then the third reason as a district court pointed out is that we don't we can't there is no portal for for the court to apply is because it would result in treating similarly situated defendants differently so if you had somebody who is in force position who had an identical record but didn't have the kansas conviction and didn't commit that offense that person would be worse off for having not committed that offense because you can't raise a johnson climb so for those three reasons those