may please the court richard summa i represent the appellant although wilson this case comes before the court to resolve the question of the timeliness of supplement to mr wilson's first twenty two fifty five petition and his reliance on supreme court decisions and disc arabs and the johnson case from two thousand and fifteen as to the johnson claim i think the answer is clear because the supreme court  held that johnson states a new rule of constitutional law which applies retroactively on collateral review that's the welsh case and mr wilson cited johnson only two weeks after it was issued so therefore his johnson claim is timely not clear what we're manning what is the purpose because you think you might be able to show it more likely than not that the discourse relied on the residual clause to greet the reaches decision there were three crimes ri yes judge carnes exactly and that's my question which is i think there's some cases where that might be an argument that might have some persuasion with me but on the facts of this particular case as i read it you are conceding in your reply brief that the aggravated assault and the robbery would can't that means the government only needs one more and the one more could be the drug conviction because whether or not that violated a cam drug conviction has nothing to do with the ricin jewel clause of the arm for criminal act and all of that is true and adding to that the fact that the same judge who decided this twenty to fifty five judge was the senate saying judge and he says even today they all can out suggesting he was up would have been on the sign mind when there was less law back when he sentenced in two thousand and ten or whenever it was that the a c c i would count my question is what's the purpose of remanding with all that well let me be clear i am asking the corps to enforce the waiver of the statute of limitation has that odd that one get less assume that your waiver arguments disagree respectfully and if you could because that would be helpful because the government will i we expect that the government will not rely on the sale of cocaine conviction number one well it has no choice what it has no ability not to rely on oh it does have a choice i mean that's within the government's discretion to waive the statute of limitations and take a different position  not if the court holds them to the earlier statute of limitations in that in that earlier motion they said your hope is your hope is that you've got a shot at this ali if the government andrina and says hey after all of this litigation we've changed our mind we're not going to we're not going to rely on the timeliness argument well that's like iraq and then that should that sure how well that's my primary contention here i mean i would remiss if i did not cite as to the timeliness that there is a split of circuit authority on that question and i know the court is well aware of those cases geos of us in winston from the ninth circuit so in the event that i would have to file a certain circuit decision you know i i want to preserve that but i don't think i need to be that pessimistic because i expect on remand if the court holds the government to its waiver of the statue of limitations number one the court will not the government will not rely on the sale of cocaine and then when it comes to considering the other offenses under the analysis that even the district court applied when the district court assumed that the be manslaughter and the robbery could qualify under the residual clause the district court made a mistake there because the burglary also could have qualified under the residual clause and if you actually have a beam in type hearing and the court men applies the historical fact test when you consider the burglary offense it will be apparent that well in two thousand and seven the supreme court held that the florida burglary statute is not a generic burglary and that increases the likelihood that the court at that time like judge none of this matters anyway because think my interpretation of his daughter is he was adopting the alternative analysis that the magistrate put into his report recommendation but that analysis is really  analysis which wouldn't even satisfied the standard of consideration that would apply in the beam in hearing another words the court there's a question about there still is a question about the vehicular manslaughter at at the time of his sentencing the court the rule of this court based upon the palomino garcia case said that the element of reckless causation doesn't satisfy elements clause and the palm ino garcia clase was based upon an earlier leo cow case from from the supreme court so those are all considerations which make it more likely that the conviction was based upon the residual clause if it gets back to remain and the we would be we would be arguing that the perjury for further consideration looking at those documents he wasn't actually convicted of sale cocaine he was convicted of a simple possession of cocaine which is a third degree felony under florida law punishable by a maximum of five years in prison so that would qualify as an a c c a offense either so if we had actually have us that is really a pure camp argument forget it there never been a johnson or a mantis or anything like that long long time ago anybody could have looked at what he was convicted up in arms of the dry think that it raised that argument on direct appeal even not even so none of that ever happened well none of that ever happened but it could happen and especially if the government says we're not going to rely on that sale of cocaine conviction and so we do rely on that the government waive the statue limitation for equable reasons they said the burglary doesn't this is in the earlier motion for for vacate and remand they said the burglary doesn't qualify they said the sale of cocaine doesn't qualify and they said there's a genuine doubt as to whether the vehicular homicide case qualifies those are three zeros or three of the five counts where they could all go mr wilson's way and i think the merits do favor mr wilson and that district court but don't get too excited because that seems to be a minority view on my court but let's say you do go back to judging cole why aren't you mr wilson's two felony battery convictions from two thousand and four because this is what you would be talking about they are and i just wonder what your answer would be to judge bangle if he ask you that question the two felony battery convictions from two thousand and four how why are those not violent felonies i don't know and truthfully i haven't consider those because the the initial imposition was going fine to these five prior convictions so i don't know if there is some defect in those that may become pertinent because they were not part of the a c c sentence i think again and that would be appropriate matter for the government to raise upon the remained but i i just considered it outside the scope of this appeal so i didn't i didn't i wasn't even frankly i was the aware good morning they please the court mr jordan learned on behalf of the united states unless the court has any questions or would like me to address the front end i think i'd like to begin by clarifying the government's position with regard to mr wilson sale of cocaine  wilson has never challenge the factual basis of a stale cocaine predicate when we were briefing this issue up on appeal we discovered that it seems like it may have not actually qualified so this could be an easy case because court to res under this court's precedent in freights and luckily mr wilson's robbery conviction undeniably qualifies as a violent felony under the elements caused mr wilson also has an aggravated battery conviction that he's not challenged that undeniably under discords precedent turner would qualify under the elements clause now this court also has existing precedent that a for sale cocaine conviction under the florida statute that the s r indicates or suggest that mr wilson was convicted under what also qualify as a serious drug offense so as the district court did i would say ms unusual for you to change positions like that midstream in a case  are you told us and a pleading earlier the you were not going to count was mere possession but now you've changed your position we haven't changed our position our position before is we're not going to make the argument that this court should affirm that mr wilson remains an armchair criminal today based on the sale of cocaine predicate and that specifically what our motion said that we will not rely on it to conclude that he remains an arm's career criminal actually the that it appears it should not have qualified but the court the government has always intended to hold mr wilson to the burden of the claims that he has brought before the court so the district court concluded that mr wilson still has three predicate convictions as it as the law exists today based in part on the sale of cocaine predicate the government's not asking the court to affirm based on that argument we're asking the court to rely on the south looking predicate to hold that mr wilson would still be in arms for really but then you're saying no we would what simple words but what is your position i pod's i mean confused you are so we're not asking the court to refer him to look at his predicate listed in the in the pre sentence report and conclude that he would still qualify today but a song promise that you did not advocate for saying it will bait and including based on the sale of cocaine predicate but we're here on before the court on a day can't claim in a johnson claim which has a very specific burden of proof that mr wilson has to satisfy and the sale cocaine at least in regard to specifically to the johnson claim that predicate did not qualify under the residual clause so you're saying it could still  be you're saying if you were saying that's brand new today that's that then he might have a certain position about the drug right but let's talk about the argument is that if he's looking back historically in a twenty two fifty five having the burden to prove certain things that that it's a whether or not the government waives the statute of limitations to that claim and allows him to adjudicated on the merits would pass to be something that we would consider at the time it's presented to us why you again yeah you're now you up or down i mean i understand it presently he's being sent for the drug and you may have position but is your position now though that on a twenty to fifty five finality of conviction he has the burden that he's not met his timeliness argument it have to be a did not contain an explicit withdraw all of that defense i think our motion recognize that there was a timely johnson claim here and expressed some concern that the district had not properly considered  time and the circuit how to deal with the high johnson claim that implicates de kock was still an open question and so the understanding was that there was a possibility that his descant that the defendant could use the we know it's a question of historical fact and so the government's position with regard to the johnson issue is that yes yes the johnson claim is timely but the defendant still excuse me mr wilson still has to show that it was more likely than not that the residual claus that burden so let me just make sure i understand what you just said so when you filed your motion to vacate remand in this court there was a possibility that you had a valid statute of limitations defense to the de comp claim is that right  under subsection f three and then we moved on to say but there is a time when johnson claim here and there is a possibility that the discounts the retroactivity  have an impact on the adjudication of mr wilson's time when johnson kline and because that issue had not been briefed before the district court in fact the government never filed a response to mr wilson's johnson claim in the district court that came in the reply to the government's response to his supplemental petition and so the government never never had the opportunity to respond and assert its position below  talking about the timeliness of johnson and the impact of the time we johnson claim would have on the adjudication of the merits of mr wilson's but i mean we agreed to some extent of the district court had erred in the way that it reviewed the merits right the district court relied on a burger conviction bargain at the time i don't know if this is before the court i don't believe it was before the court had help florida burgers don't qualify but the government of the time was conceding it in light of mathis the florida burglar wouldn't qualify so there were certainly open questions about is that  cannot make a representation though as to whether or not the district court when it sentenced him to perhaps consider the burglary that the district court was necessarily relying on the residual clause the district court may have been relying on the today there's no dispute from the government that conviction but not qualify so let's go to number the second one was robbery that still can't go that still count of third one vehicular manslaughter and there's some question about that one right the government's position it and this was an argued below but the government's position would be that that does qualify under current elements closure jurisprudence because a recommends ray of recklessness in the government's view is sufficient  cocaine the government has you know but it's basically argued it doesn't count and it does count well i want to be very clear we've argued that if he were cents today it would not count but looking to what the dish i wouldn't count of the  if we were going into sentencing today what the government but stepping back again we're talking about historically what happened in mr wilson's original sentencing here and based on the record as it exists and based in the law at the time when mr  position is he cannot show that was more likely than not that the residual clause is what triggered his armed career criminal acts sentence and i also know to the extent that they complicate in this i frankly don't believe that mr wilson has what the representation the pre sentence report was stating of what that conviction constituted that florida statute this court has held subsequent to mr wilson so after he was sentenced by this court had held previously and at least an unpublished case is that convictions under that statute categorically qualify as a serious drug offense and you're ok and why do you say now it wouldn't go because in fact if we were going to sentencing  ment a conviction would not show a sale of cocaine that's correct your honor list regard to the to whether or not you waive the statute of limitations would you agree with me that regardless of how we come out on the the the  important time is at the time of the motion to remand or vacate right in other words we looked at whether or not you waived it then and what the government did subsequently has no bearing on whether or not it was waived i see that my time is thank you as as the discussion has been unfolded there's been a lot of talk about whether certain convictions would be found on remand to have been based upon the residual clause and there's even discussion of other convictions that are not among the five that were presented here and those determinations are determinations of fact and it's basic that this court is not a fact finding body and that's why every man is necessary the district court should determine all these things in the first instance and i have cited a couple of cases by supplemental the rule of this court there are under those cases states that if the appeal is pending or if the district court's ruling takes place before beeman is decided in beeman is decided while the appeal is pending then the normal practice would be to remand because mr wilson hasn't had the opportunity to go into that beam in required hearing beamin itself was an unusual case it's a rare case where the government will rely on beaming when a case is pending on appeal and that would not result in a re manned the only reason beamin resulted in a firm and was because mr beeman in that case conceded that the record was complete in fact conceded that he could not prove that his offenses were based upon the residual clause so this is a typical case where the appeal is pending there was no beam in hearing finding of fact and what the government what the judge relied on in sentencing so i'll conclude by saying i request that the court room in for further sentencing proceedings on the ground that the johnson case was specifically remained is warranted because with eamonn was issued long after this you district court dismissed the twenty to thirty five petition and mr wilson has not yet had an opportunity to prove that his aka sentence was now call the case of