please the court my name is brandon back and i represent l s a oh good boy the appellant here today your honour's the approach to resolving this case is a straightforward application of the text of the guidelines in conjunction with the recent judicial precedent in there are three reasons why this court should reverse in remand for recent and seeing under the twenty fifteen version of the guidelines first the sixteen level enhanced meant only applies if the texas burglary statute is a crime of violence under the guidelines harold tells us it is not the second the eight level unhandsome it only applies if the statute an aggravated felony demaio tells us it is not in third neither of these conclusions is at odds with beccles your honour's the starting place in this case should be the text of the two thousand and fifteen guidelines and as the topic of most recent discussion i'd like to begin with the eight level aggravated felony enhancement your honors what's important to note here is that section two well one point two does not itself define aggravated felony instead it delegates that responsibility to congress by cross reference in the big takeaway here is that the sentencing commission by its text intended the meaning of aggravated felony to be coterminous with its statutory meaning i'm getting this from comment three of the application notes were the syncing commission states application of s subsection b one c which is that aggravated felony enhancement it states for purposes of subsection b one c aggravated felony has the meaning given that term in section one hundred one a forty three of the i n a print assists eight us c eleven zero one a forty three so when we're trying to evaluate the breadth of what an aggravated felony is the sentencing commission tells us that we turn to the united states code in particular section eleven zero one a forty three when we turn there we see that congress has defined aggravated felony about eighty different ways of those the relevant subsection here today is subsection f that subsection says that an aggravated felony is any offense that satisfies eighteen u s c section sixteen which is the statutory definition of crime of violence just recently the us supreme court has held in sessions vs to maya held that that half of that particular pursuit provision specifically sub section b is unconstitutionally vague in the very context of eleven zero one a forty three and what we're asking today is for this court to give meaning to demise holding and also to respect the text of the guidelines which tells us that the meaning of aggravated felony for guidelines purposes is the same meaning that congress gave in eleven o one a forty  surely you agree tell me if you don't but if the language of sixteen b word just cut and paste written directly into the guard lines that would not be subject to a vagueness challenge  that's correct your honor so what is what is the meaningful difference then between the language being directly cut and pasted into the guidelines in the guard line simply incorporating that language by reference your honor the meaningful difference is that we have to give meaning to the sentencing commission's decision to delegate the authority to congress to define the breath it i'm not i don't necessarily agree with you they delegated to congress the guidelines change all the time the commission is free to change as they see fit so in there's no question at the time this guidelines was drafted that we already had the definition on the books honor at the time this guideline was drafted it also excuse me let me back up i think the point i want to make is that when the sentencing commission wants to cut in paste a definition and fix it for guideline would do that and we don't have legislative history here and i'm not sure that that's necessarily would be relevant i think we have to take the text for what it is but what the sentencing commission perhaps was doing is thinking about aggravated felony in the context of immigration as having the most severe immigration consequences and the parties involved here that are in the best position to be able to evaluate what those consequences are and how they should  d in the future our congress and the u s supreme court by way of judicial review so is it your view that sixteen b by virtue of the mine is whol repeal it is off the books for all purposes yes your honor that is my position and i want to tell you where i'm getting that from in a case before this court on bonk or united states versus gon which to my overruled by name one of the cases cited there is a village of hoffman estates versus flip side and when the court cited that provision the court said and i'm quoting declaring a statutory definition void for vagueness would have wide ranging effects because the supreme court holds that a successful vagueness chalons renders the law incapable of any valid application now that's also consistent with what the supreme court had held previously in the united states versus pretrial o in one nine hundred forty seven holding that the result of declaring a statute unconstitutionally vague is that the statute is void in toto barring all further actions under it in that in every other case now what's important here though is that we are not making a vagueness challenge to a guidelines provision the supreme court has told us in this very context eleven zero one a forty three this provision is void for vagueness this provision is unconstitutional and i addressed part of your question about the breadth of a successful vagueness challenge but i also want to talk about it in terms of time a successful vagueness challenge is also retroactive through all time so the law absolutely your honor now when we get to the hay vs review it certainly gets more complicated but if we look to welsh versus united states which the supreme court decided in two thousand and sixteen the court explained all new substantive  i mean this is a substantive rule it's a new rule in fact in welsh the supreme court defined substantive as a role that alters the conduct or class of persons the law punishes the the welsh courts all that is absolutely the case and johnson and i think the same result would be here it's exciting to be you would agree does not itself fix a sentence that does not itself proscribed conduct that's exactly right your honor but if we look to how it's incorporated in eleven zero one hundred forty three that certainly the case in that's the same conclusion reached by the night circuit the important takeaway here is not even necessarily welsh which deals with pay vs review but griffith ask it's absolutely going to be significant down the line absolutely what i meant to say your honor is what's important to mr good boy since we are on direct appeal is griffith versus kentucky which is simply the straightforward rule that any new rule while a case is pending even it's not a sort of just exploring where this your position would take as potentially if it's if sixteen b is now no longer can be used for any purpose a was hants time was under this now unconstitutional definition that's absolutely true just as we've seen with johnson and with welch in that context so i think they are very similar in that way so my answer your question is versus being a standalone statutory provision i think we see the difference how it played out in the johnson in beccles opinions which lead to divergent results of course there are very good reasons completely apart from the vagueness of the provisions themselves that we cannot challenge the guidelines for vagueness if the court all allowed the guidelines to be challenge for vagueness certainly the same result in beccles would have been the result in johnson unless there was a significant difference in the actual context but here we're not challenging a guideline for good vagueness we're not even challenging a statute for vagueness what we're saying is this court should apply the text of and fifteen guidelines as written so it wouldn't be unconstitutional judge will it for this court to apply sixteen b in mr good boys case it would just violate the text of the guidelines because the guidelines tell us we look to eleven o one when we're trying to evaluate the meaning of what an aggravated felony is in that certainly said if the godless if you were convicted under if you're convicted  finance that was described if you actually convicted under sixty if there were such a thing i could see i see your point here but it's hard for me to understand your argument except actually when it's just used for definitional or definitional purposes they're they're not creating off and there's no maximum minimum sentence it's just a definitional reference in your honor i think that's  suggests that it's holding in very invalidates every other speed federal law that incorporates sixteen dance i want to answer your question by implication so the straightforward answer your question is we don't have that statement into maya at the same time i'm not sure that we would expect that statement into my opinion it describes a circuit split ok when it describes that circuit split the case that it identifies as being on the losing side of the circuits lives is this court's opinion in the united states overruled gonzales long horia and gonzales long doria was the exact same procedural situation we have here there was no hesitation in that case the person was too well one point two and this court declined to hold that sixteen b is unconstitutional in one of the reasons it did so or at least when you read the concurrence which forms in many ways the basis of the government's argument today or the origin of its argument one of the things judge jones said in the concurrence is we need to hesitate about reaching sixteen b through to l one point two because that would make it an cost to shoot unconstitutionally vague for all purposes framework and i know that one of the big arguments the big argument was whether a sensing enhanced been applied and i'll reserve the rest of my time for a bottle thank you yes your hon here that happened into my that was certainly a facial challenge to that statute into my what we're arguing today is that when you're dealing with a single standalone statutory provision  cannot change its stripes and i'm not aware of any precedent where you have a single statutory provision that has been struck down is unconstitutionally vague that is somehow able to stay alive for other purposes where it's not copied and pasted in a separate freestanding provision and so i hope you have answered your question your honor and i'll give my opposing counsel an opportunity to explain why i'm wrong thank you may please the court brian portugal for the united states i'm eager to address the court's questions that were posed in the oral argument directive before i do i would like to make one point that hasn't been sort of sussed out in the briefing which focused on foreclosed issues mr good always complaint on appeal is predicated on an alleged ex post facto violation of the government's position is that such a violation does not arise where the law is settled at the time of sentencing and the district judge has to make her decision on which set of guidelines to follow based on settled law mr good boys cited case of pew versus united states makes clear that speculative changes in the law do not create an ex p violation and in any event the ex post facto clause is directed at legislative or quasi legislative action and not a judicial interpretation in this case with the supplemental briefing does make clear is that mr good boy does not have a m issue for a different reason and that is that his burglary quick convictions qualify as aggravated felonies i note the ex post facto issue because i know the f p p is pressing this issue in other cases and at the court chooses to resolve case on the aggravated felony issue i respectfully ask the court to reserve determination of the ex post facto issue if the court wants to pre term it that issue with respect to the aggravated felony issue backwards versus united states makes clear that the guidelines are not subject to vagueness challenges to my and harold don't change that fact versus sessions does not alter guideline cases and herald is not a crime of violence case it is a case about the generic quality of burglary therefore the ordinary case analysis still applies and this court's precedent still applies those  vague the alternative route proposed by judge jones in or concurring opinion just simply to say that the guidelines are not subject to vagueness challenges was the path adopted by the court in backhauls so to the extent that there is any question about the demise effect on gonzales and gloria it affects the court's holding but the separate decision and beckles reaches the same result as the jones concurrence would have ask you how can we tell the court to rely in any manner way shape or form rely on a statute the supreme court has said is invalid well what the court said your honor specifically was that it was unconstitutionally vague and it statutory application the supreme court doesn't have the authority to remove language from a federal statute that language still exists it's just because of the notice problems it can't be applied in a statutory case but those notice issues do not arise as the court explained in beccles in a sentencing guideline provision when you think of other examples where the high court has held was that unconstitutional for one purpose but not for other purposes absolutely your honor johnson johnson struck down the residual clause of the aca that exact language appeared in the career offender guideline and the court said in beccles that that same language that appeared in the career offender guideline was not subject to challenge and could be applied an i would have to i would have to dig deeper and perhaps file another letter brief but to me that the supreme court's explanation that just last term they struck down something is unconstitutionally vague but the identical language is ok to use  i don't know that i have one that comes immediately to mind your honor but the the distinction between cutting and pasting and incorporating by reference i think the jones concurrence and gonzales is the best explanation that that it's just nonsensical and there are good practical reasons in this case for the sentencing commission to have incorporated eleven a one hundred forty three by reference and that is that it's a really long provision it goes on quite a ways in the in the u s code and to incorporate by reference is much simpler than copying pasting all of that language into the text beccles does not bekele says that the guidelines are not subject of a class challenge is the court's precedent and holding that burglary qualifies as an aggravated felony is still in effect as i said before harold into i don't change that and for those reasons this court should affirm or i can your  just to make sure that i follow you judge judge southwick are you to make sure that i follow you judge south again you saying that we don't know whether judge boyle would have determined these burglaries to be aggravated to see if judge boyle would decline to apply the disputed language well i suppose your honor my my best answer to that is to go back to the point i made to start the argument about the ex post facto violation and that she was bound to apply the law as it was settled at the time of sentencing and as as a result of her being bound to follow the law as it was settled at sentencing mr doyle can't show an ex post facto violation based on and this is the language that's in his objections and the language that he used  sentencing which is that you should use the twenty fifteen guidelines assuming that i'm right that precedent will later be  overruled judge the other guy if i'm not following directly i do want to answer your question so i have nine minutes remaining and i have not if the court doesn't have any if the court has any further questions i'm happy to rest on my briefs thank you briefer about all your honor posting counsel has argued that we cannot the supreme court cannot remove any text from the guidelines if we win the text of the guidelines remain exactly the same  completely intact and that's a second your honor in response to one of your questions judge will it i want to clarify this case is not about what's in section sixteen b what we're talking about is what's an aggravated felony under eleven zero one a forty three that's what the guidelines tell us to talk about more specifically this case is about whether non generic burglary is an aggravated felony under that statute the address just referred to sixteen be it be one thing that subsection forty three is is really really low it's really long your honor and i know you had a concern about well maybe they didn't cut and paste because of the link well they know how to cut and paste when they want to yes but it would if we look at the length of the commentary in the drug guidelines it's much longer than eleven zero one a forty three so i don't tarry as well it's not the  black i just don't think that would be unworkable if the sensing commission wished to fix it fix it in the sense of put it into place where it can't be moved unless the sitting and syncing commission changes its mind it certainly could have done so to the commission intended for anything here in forty three that might be declared void for vagueness to be struck from that definition well of course because it's reference to statute and all for so many decades well i would also think the city and commission has reached the conclusion that burglary doesn't count that's why it removed it and i think they've reached the conclusion that the definition is oakleigh sleek law and perhaps but if we look at it you're not worth the candle so they say it's not just burglary it's crime of violence and all the millions of millions of dollars have been spent over the years trying to figure out if a particular offense stated fence was a crime of violence and i think the commission came down the size not worth likelihood of violence than we previously suspected with respect to burglary judge will it i want to get back to your question about what's the difference if you cut and paste into the guidelines and what's not we're not saying that it wouldn't be vague in the guidelines of thing and cut and pasted it still with the same language would have been vague what baffles tells us is we just can't challenge it as very not that it's not fake ok here they didn't cut and paste gonzales long horia the reason judge jones one of the reasons judge jones didn't want to reach the holding of constitution ality through the guidelines is that once you ring that bell you cannot unring the bell of unconstitutional vagueness now it didn't happen there but the supreme court did reach that question and that question is answered and it applies in this case there's also constitutional  so flexible and responsive to the court as we try to resolve it we appreciate and we that we are as a quarter examining reexamining our policies about holding cases while one is being decided that's created some issues  understand we were trying to get to the bottom of a good way to deal with that fairly when you've got the same issue right in so many cases and thank you for letting us come in and explain further our point thank the federal district court for