henderson may proceed thank you and may it please the court my name is peter henderson i represent his history and i do think this there are a number of issues here i guess the about really the bottom line doesn't error affect the judgment and so if there's an erroneous jury instruction but the judgment would have been the same we call that a harmless error in this case the judgment has three co or at the very least one count which the government agrees on that should is not a crime under federal law and that's as a result of the invalidation of the residual clause in the united states versus davis  and johnson and so the judgment is is wrong there is no harmless error here the the judgment would have been different had the error been corrected so that the district court heard in that respect the question really is remedy what does the district court then do and it has a number of options to start the prisoner or the sentence and or grant to the trial or correct the sentence ask me appear appropriate and that's what the district court shouldn't done here is determine uses reason discretion to determine what course to take so for example we all agree that count naing which charge the one hundred and twenty four dollars c conviction in relation to a conspiracy is an unconstitutional conviction that sentence that the sentence on that count was five years because that was the st one hundred and twenty four suit conviction the senses on the two other counts were twenty years because they were nd one hundred and twenty four c convictions so even if you agree with everything the government says on the merits the district court should at the very least adjust the sentence as one of the other nine hundred and twenty four c convictions because we're getting rid of the five year sentence so there's no st conviction last  and so the total of forty five years should be reduced to twenty five years not to forty years but all of that is to say that the district court has discretion to determine what the appropriate remedy is and it went wrong here and  well it's it is doctrinally you know just distinct by its terms because we're not dealing with a concurrent sentence here we're dealing with the consecutive sentences but when i look at our court's opinion in the ryan case from two thousand and twelve what i wonder about is how your position on harmless error here can be correct and our panel decision and ryan also be correct well so i think that there are two things involved one is what do we do with the conviction with the consecutive sentence and i think that needs to be either you sustain it or you get rid of it i think what ryan is talking about really is the remedy is that nd part of twenty to fifty five and so if the district court were to decide this has no impact on my sentence i you know because it's all part of one sense i'm going to exercise my discretion to correct the sentence ask me if you are appropriate and in this case that means i vacate the conviction and leave everything else the same best that's a different story and that would be reviewed for abuse of discretion we hope to make our best arguments as to why the court shouldn't have but wasn't on wasn't governor ryan arguing with respect to the mail his mail fraud convictions and there were a half dozen of them or so he was arguing about whether the those convictions could stand and as i read our panel opinion all we did was say well it is important to make sure that two of them can stand because of the rico predicate rule but beyond that we don't need to conduct a review of them because of the concurrent sentence doctrine and the concern that i have of course you can you can see if you just go a couple of steps ahead is in a circumstance where mr ruiz you know faces a statutory mandatory life sentence whether the in the reasoning of ryan doesn't map over to make the to make these errors harmless so i think despite i must say the strength of your substantive presentation mr henderson on the merits of this right and i so i think it doesn't matter the difference between you get rid of some how you get rid of the mandatory life sentence maybe that comes ten years down the line but if you still got these forty five years on your sentence then you're still suffering a consequence and so in governor ryan case they were all concurrent sentences he was going to serve no more time under any circumstance so long as two of the convictions or were appropriate but in this case we've got a real problem given the limitations of federal habeas review that if we don't vacate these convictions and correct the census now there's a there's the next you know change in the law we're going to come in and the government's going to say well it's you know i'm not prejudicial because you still got forty five years want to go after this so you know i think the concerns that the supreme court laid out in super are orton's about making sure we correct errors and at the appropriate time instead of leaving it to another day but i think the to answer your question directly the main difference really is this d is a consecutive it's and we have a lot less certainty about the prejudicial effect of these sentences in the future relating to simple kidnapping that's how the jury was instructed it's even clearer on council level because both indictment charged and the jury was instructed to find mr reese guilty of simple  to charge one crime you can't on the field say well that crime is unconstitutional but in fact the facts show under harm was there that he committed a more serious crime and so firm that way so that was your time is your henderson  from the kidnapping the jury instructions i think you're right do not instruct that that's something the jury had to find so i don't know what you're getting into a math is kind of discussion about what's an element and what's  just some some lesser thing which which tells us that that it wasn't the death results part of the kidnapping statute that having to answer the government's argument that when you look at both the indictment and what the proof show and because of that language when you think but it's well established that the government gets to pick how it goes to trial and what approves a trial and you can always prove a subset of allegations you know you don't have to imagine everything  an indictment and there are sometimes allegations that aren't elements and so the real question under matheson i think under haynes you'll see we look both to the indictment and to the jury instructions because the government is always permitted to proceed on a subset of the allegations in the indictment so long as you know if you can prove less you can prove more that you can prove less so i think that that's why the jury instructions are  a violence and the instruction no so the district court directed the jury to find that it was a crime violence but apart from that it just gave the elements these questions about what qualify as a crime of violence or not especially start down the path of the modified categorical approach and you start now should we go with the jury instructions or should we look at what the ultimate sentence was you know this gets really really hard and were in areas of law that continued to develop all of all around us the answers just aren't darn clear and these are these are tough questions so what i wonder about mr henderson is your view on whether whether and how that should inform our harmless error analysis in terms of avoidance because i hear you on the prospect that the law can change but on this fact pattern unfortunately you know your client faces a situation where it would have it would have to change in probably multiple ways to result in seven  life sentences right being vacated and so that's where i start to wonder this seems like it that is such a long shot that maybe that should end and we  would otherwise prefer you know to avoid answering hard questions before we have to i just like to get the benefit of your reaction to that right i mean i understand their concern i guess the  thing that comes to mind is that the law has changed every single one of his sentences is unconstitutional at this point now some of them that the change is not retroactive as applied lateral review all it would take is congress and you know our prisons are too full booker applies retroactively go back to court and and that's it so i don't think that there's a number of obstacles because the law has changed in all senses or already cost  that's at least a step forward in the process so that we're not continually relive again the same issues under a sort of deference to you know not not deciding things that maybe don't have a practical impact now thanks sentencing the same sentence would result as a result of those mandatory life sentences but i don't see it the same sentence misc istana it would potentially be a sentence that didn't have a consecutive forty five years and i have to say there are two perspectives that make me think that is significant one of which mr henderson has alluded to we're in a time of very interesting criminal justice reform we've seen the fair sentencing act we've seen the st step back we've seen a serious discussion in the country about the length of sentences i don't have a crystal ball but it seems to me conceivable on a bipartisan basis that congress might do something which point that forty five consecutive years becomes important mr henderson also points out in his brief a number of collateral consequences of those so so i am quite disinclined to say oh you know what's another forty five years among friends if you already have seven life sentences why have more than one life sentence you know why didn't they just you know just forget it on the others and we and we don't do that we sentence on each count of conviction and that's without even getting into the fact that were this case to come up today many of those sentencing decisions would be made under a significantly different framework yes your honor if i may address that in two parts i'll start with the issue of there could be changes in the law that affect the legitimacy of this life sentence as judge crowder noted in response to one of mr henderson's points that that may be true you're talking about one life sentence this is seven life sentences two of which are mandatory and the idea  ryan there concurrent and so you could have seventy five dollars of them and it would be the same or you could have two of them or you could have anywhere in between these or whatever else they may be they're not concurrent sentences so you be harmful error here when you have seven life sentences those consecutive sentences the nature of the fam gets subsumed within a light sentences and so in fact the life sentences are consecutive it makes a difference if you are convicted on eight counts or if you're convicted on eleven counts it effects your your criminal record and i  just you know the doctrine of as long as there is one by sentence then it's automatically harmless error for whatever other sentencing or conviction errors are there is is not one that i find should probably so as long as the united states stick with this longer is better criminal sentencing philosophy but if we should move to a different philosophy in congress chooses to make it retroactive as they've done with some recent reforms we would be in a different position yes your honor theoretically except for the defendant has may end of a life sentence that is under twelve day i know this and he could have had the death penalty for for the same thing i understand that but he in fact got the sentences that he did and i was talking about legislative change and so the the last i checked congress is the authority when it comes to legislative change there's nothing fixed about this and so what the statute says twenty to fifty five doesn't have a separate set of rules for multi count convictions it goes conviction by conviction he could have also had a conviction for drug dealing or something like that given the nature of of his collection business and that would have been separate and we don't deny relief just because somebody has a few life sentences i don't know of any case that said that i don't read the case law on the same way you honor i think he's released requires that the defendant prove prejudice and that's true whether you look at this as a procedural default or whether you look at it under a harmless standard that court is not say that what it says is if the if the sentence was imposed in violation of the constitution laws etc it doesn't say unless the court thinks it doesn't matter if it's an illegal conviction which thanks to johnson two thousand and fifteen and davis this is it's an illegal conviction and i don't think that that can be reconciled with the court's opinion and ryan which specifically declined to address each of those six were concurrent yes your honor but i don't think that it's necessarily because they were concurrent it was because the courts the syfy clee stated in that opinion that if it were to find that one or two or three of those convictions was invalid it would have no impact at the end of the day on the amount of time that the defendant search and that's an absolutely correct statement for a concurrent sentence yes and the government which is that or if things changed if the whole world could turn inside out and that would still be true whereas that's not true with the consecutive sent yes and the government's position is that it is for all the reasons we've talked about because of these mandatory life sentences the number of life sentences the fact that he will never reach the  time in which he will serve those forty five years all of that in the government's view makes this more similar to that concurrent sentence doctrine then why are you fighting so hard to keep count ten and count eleven by your own account this is meaningless and the government is fighting tooth and nail to keep counts ten and eleven what is it that you're getting out of this well your honor i think that the government's interest is in making sure that he relief is confined appropriately as it is by the sport's case law to those limited in extraordinary circumstances in which collateral review is appropriate so the court does not have as a result of those nine hundred and twenty four c convictions and the defense and his reply brief identifies things like you know he could be impeached in a future proceeding if he testifies he could for example be convicted other things as long as you are in custody and he most certainly is but the question is whether those collateral consequences which also cannot form the basis he vs relief can mean that the court addresses convictions in the absence regarding the kidnapping predicate if i can turn briefly to the merits the defendant was convicted of aggravated kidnapping this is very clear from the genes that were in possession of a tense district court of the enhanced version of kidnapping if this court were to address i mean i agree with rich cutter that this is these are difficult issues of how you determine  look at whether the jury could have convicted of him of kidnapping without convicting him of that aggravated offense finding that death resulted in the answer is absolutely not and that's true not only because of the facts in the and find that the death resulted from a use of force the government doesn't believe it's done as the government's position is although that use of force is not an explicit element that where you have a kidnapping me ask you this hypothetical i know were over time suppose the kidnappers had been driving down the dan ryan expressway observing the speed limit you know taking all care as they are heading off toward indiana and all of a sudden a drunk driver appears from nowhere crashes into the car the car burns up and the kidnapping victim is killed  so in my hypothetical the kidnappers are not engaged even in reckless activity they're just subject to one of those risks that any driver has who is out there on the interstate highway so there's a kidnapping and death resulted but no link and no use of force so is that something that the statute would cover in your view well i think that there is a series of imaginative seen them zipping around on the highways can cause your car to get into a crash and regrettably people die in those crashes with some regularity they're like little posters that illinois puts up in the highways every year you know one thousand people died this year in the illinois roads so i think that there's two questions there one is whether that would satisfy the cause element of twelve o but for causing some requirements as to part of a if there's independent cause the issue and i you know i think that there is a factual question of whether that your hypothetical needs those requirements but even so  least that would be recklessness i slay seeing that individual into the circumstances in which they could and carm during the kidnapping and of course that raises the issues are currently under consideration by the supreme court  by transport you know that you're inveigling decoying confining an individual in violation of the statute for the purpose of collecting ransom and you then willfully transport them across state line results that's not just putting somebody in a car that is the course of events that you can gauge in for the purposes of kidnapping somebody and then put placing them into a position where they are harmed actually to the point that the government's position is th that's not necessarily recent suppose you're right about that mr henderson and i think your reading of the case law is correct but isn't that how do you respond to the point of ok at that resetting scene though the statutory mandatory life sentence on two of the counts would be required to be imposed well i disagree with that as as a matter of law because every sentencing you have to adhere to the constitution and so the constitution says that it jury must make findings to justify those mandatory life sentences and so the court would be authorized to impose life but it would not be mandatory it's different than harm was there once a sense has been in the case will be taken under advisement and the court will be in