right in the middle right in the middle proceeding below everyone agreed that is aca sentence was unlawful but the district court denied his hey b s petition based on the could have imposed test and what i mean by that is the district court said jefferson prior prior case so that's one reason why i think that ok i think another reason why eason is distinguishable is that in eastern africa had no effect on the guideline range the guideline range was driven i believe on had a drug count but that there was no indication in the record that aca drove the sentence instead the indications were that the career offender count drove the sentence in fact his sentence was above the one hundred and eighty month mandatory minimum that is completely distinguishable from the record in this case the sentence is one hundred and eighteen months that's the lowest a district court could go three at least three separate times in the sentencing transcript they just record said hey i can't go argument was the could have imposed standards is wrong as a matter of law that's correct and i think that i don't i don't see that from those cases i respectfully disagree with your reading of those cases i think that in here below everyone agreed that the aca sentence was unconstitutional was on lawful exceeded the statutory maximum and therefore the district court was without jurisdiction to impose it and that's exactly what craven's but that you  concluding in fact relief that's not the test right i agree that the sentencing package doctrine is discretionary and it's not mandatory that the district court impose it but the test isn't if that was the test no one could ever get relief in th situation in the sentencing package doctor would never apply and we obviously know that's not the case because craven's came out the exact opposite way so the task is rather whether  instruction that the district court would have discretion sure the right things could act right there any reason to believe judge davis wasn't aware that he could apply the sentencing package doctrine i mean it was a district judge for a long time it's hard for me to imagine anybody sitting on a federal district bench not not aware of that situation i mean it seems like one of these reversals that's a matter of mere semantics you know you send it right back and you'd say ok judge davis tell us what you really think and he's going to say yeah i really think one hundred and eighty months is the right answer go away good bye c a he never said that in two different orders that would have been so easy to say would have been so easy to write  never get it wrong i mean that's not true courts can get something right one time and then mess up in another context so my basis for concluding that he didn't know about the sensing package doctor he never said a peep about it he adopted a legal task that is completely contrary to what he said if i could  same sentence you are not entitled to his relief as a matter of law that's wrong that ignores craven's that ignores the sentencing package doctrine that is not the correct legal tast moreover the record strongly suggests strongly just trying to cut off the argument just leave me alone i can't do anything last much more than i'm really contemplating i mean you read what district judges say district judges frequently say that within my power i would send substantially less than the mandatory minimum in this case you know but they oftentimes tell people don't bother arguing with something below the mandatory minimum because i can't consider it right different different analysis yet and but but that from take alton there the district court on the sentencing transcript said hey these are extreme facts and a sense of the top of the guideline range is warranted here judge davis went below the guideline range so i actually think the record is strongly in my favor on the point of whether he would receive a lower sentence can i say with certainty now but that's not the test cravin said the test is whether it's harmless and that boils down to whether we can say with fair assurance that the court would not have imposed the same sentence had it you know vacated the improper count and looked at it in new there's you certainly can't say with fair assurance here i mean what's the record support for that it be entirely different if he sentenced him to even one hundred and eighty one months because that would show that the aca wasn't setting the floor i mean even his written statement of reasons beyond the form says the sentence i'm imposing is due to the mandatory minimum while the drug sentence has no mandatory minimum and then the guidelines clearly provide that you treat everything together that's what the p s r recommended there grouped the commentary to section d c as when their group you treat them as constituting a single offense right the court did exactly what the guidelines provide in fact in the judgment of commitment the court didn't even separate out that the supervised release was concurrent on counts one dollar and two dollars if you go look it just says five years supervised release and in the sentencing transcript it's the same thing that again underscores the judge davis was thinking about this as a total thing and that the aca was the bar to considering a lower sentence this case i think is better than back on right back on the person got a win within one hundred and eighty eight months sentence so yeah you have i answered your question yes do you want do you want to address the twenty eight a recent that alone which one judge so our position is twofold st we think that the government has waived this argument for several reasons quarles is an interesting case because it was a circuit titian filed by  so the government knew as of march th teen that it wanted the supreme court to take this case it thought that the rules in circuits like the th circuit with macarthur were wrong and i was urging the supreme court to adopt a contrary position which is exactly what the supreme court  this case so the government has known about this argument for a long time i mean i fought tooth and now with the government about mcarthur that was my case they made those same type of arguments the government never asserted any of that at any stage in the briefing on top qualls came down i believe on monday they couldn't argue it to our panel they can still assert the argument and say that we realise it's foreclosed by macarthur but they can still say it's wrongly decided especially when the solicitor general is pursuing on the supreme court over remaining if you look behind some of the statutes it that has no intent at all and this court is already held that those alternatives are factual means not alternative elements and that conclusion is not undermined by quarrels at all in fact it's c textual way the does not require intent it is categorically broader than the generic definition and taylor which is entering or unlawfully remaining in a building or structure with intent to commit a crime doesn't matter if i'm again it's a cursory reading but my understanding has been canon dealt with nd degree burglary which for some reason has a slightly different wording and rd degree burglary on your client has a rd degree berkeley conviction correct so it's a difference between without consent and steals or commits a felony or gross misdemeanor that's rd degree and nd degree that van can and was dealing with was just commits a crime sure but it's the same logical structure right a felony or gross misdemeanor or those things in that list just read in rd degree our crimes so and there are crimes in minnesota that don't require intent like rd degree homicide which i believe well it explicitly would be based on the tax or let me give you a little i see that my time you know on this you know realistic probabilities that you have to go to the case so i think i have a realistic probability i see that my time's about to expire may i answer ok so here's my realistic probability let's say i'm a dried out drug addict and i have another friend who's a drug addict and were strung out we need to get some sleep so we break into a building to get some shelter that's all we want to do we sleep  we wake up my body says i'd really like some drugs right now i have the drugs i give my body the drugs he dies and it's clear that he died because of the drugs i've committed rd degree homicide and because i was remaining entering and remaining unlawfully in a building and committed a crime i will also have committed a burglary and it is not far fetched at all to think that people that are on drugs seek out buildings particularly buildings that are either abandoned or qua abandoned somebody owns them you know there are signs saying you can't come in don't trespass but they go in the building because they want shelter and the reason why there's a rd degree homicide that says proximity causing death through drugs is because that happens so that is in my mind a very realistic probability for the basis of a burglary conviction in minnesota where the statute explicitly disclaims intent well the rd degree there's numerous crimes that require no intent they could be committed as well right yeah i mean if you just look at sure you know depending on the nature of the place it's been burglarized there's the indecency laws there's there's just a ton of them there's a ton of them i was just attempting to provide burglary statute and the rd degree homicide statute thank you quarrels st of all the michigan statute at issue in quarrels is just like the minnesota statute it also didn't specifically require that a defendant or a burglar remain in with intent to commit a crime instead a person commits burglary in michigan if they unlawfully remain in and commit a crime that the supreme court dropped a footnote in quarrels indicating that quarrel's had in fact made the same argument about the lack of any intent the supreme court said that issue wasn't preserved but the supreme court isn't in the business of issuing advisory opinions this was a ninety opinion if it had concerns about that intent issue it could have taken a number of actions including dismissing the case as improvidently granted requesting further briefing it didn't it simply said it wasn't deciding the issue but to the extent that this court has any concerns about the intent component minnesota burglary this is a divisible statute as with regard to the underlying crime the state has to prove what the underlying crime committed was if that crime has intent then that there is no argument that the crime that the burglary offense lacks intent and here the p s r shows the defendant stole some bikes and some other stuff from a garage there's no question that the defendant in this case committed of alicia will act of course the united states would welcome the opportunity to brief us if if your honour's would would find that useful but the government's main position here is that this appeal should be dismissed for lack of jurisdiction if your position would regarding the intent on the the crime or the felony or misdemeanor that's committed in a structure so you your position is that and an element and so you could then a federal district court could look to determine whether or not this particular burglary conviction qualified or did not correct the underlying crime committed is an element of the burglary offense so your your position some some burglaries under minnesota law would continue to qualify and some would not under the intent argument on our part yes and no primarily our position is that all burglaries count because it's continuing offense but to the extent there is any concern about this intent aliment it is to visit is a divisible statute because the underlying crime committed is an element of the offense and so th turning to the jurisdiction issue both in front of the district court and as well continuing here on appeal the defendant's rule sixty b motion to reconsider is nothing more than a trojan horse to attack the underlying order denying his his brief he says that the appeal is in accordance with the certificate of appeal ability that permitted him to appeal the denial of the twenty to fifty five order that's only talked about here today that's all he talked about in his opening brief that certificate of appeal ability was legal knowledge because it was issued months after the appeal period ended in this case the defendant had sixty days from the june twenty seven thousand dollars order to appeal the denial of a section tw and fifty five dollars motion he didn't do that so it's the government's position that that resolves this case there's a lack of jurisdiction he chose that certificate of appeal ability as to the basis for this court's jurisdiction it's not here and he doesn't really challenge that instead he switches courses in his reply brief and says no no i'm i'm not i'm not appealing that order even though that's all we talked about here today instead of appealing the denial of the rule sixty motion but an appeal of a motion to reconsider doesn't bring up the merits of the underlying order of the district court that it was a proper rule sixty b motion the district court did and it and then that ma for st of all even if the district the district court was would have been without authority to reverse under these circumstances and here's here's why and here's why it's not an abuse of discretion the defendant raised three committed error because it should have invalidated the a c c it should have amended the judgment to reflect a new sentence he could have raised that earlier and it's not an abuse of discretion to deny rule sixty b motion where an argument could have been raised earlier he had plenty of time to raise that and rd he argued that he was entitled to recent and sang under the the so called sentencing package cases but it's not an abus or he could have argued to the district court at any time during that appeal period judge you recognize that i'm not an arm career criminal you need to amend the judgement on count one the firearm count oh ok but this  there's automatically no abuse of discretion erection if even if the error is made all the st and the nd time correct because the defendant's remedy ordinarily would lie in appeal to this court you don't keep going back to the district court to try to get in different answer i agree with you that that's that's the normal way things work out but i don't think it's a cat's a categorical rule that we can't we can't review  different their argument is that in the rule sixty b motion even though there was a reference made to the sentencing package docky doctrine that mike davis never said anything about the sentencing package d said arguably eroni asli that he was bound by existing a circuit precedent go away when he could very easily have just said hey sentencing package doctrine i love it it gives me the greatest discretion over  have done nothing as he did and that's countenance by cases such as essential which do not mandate a correction of any legal sentence he could have applied the sentencing packaged doctrine cases and given the defendant full reset and saying or he could have done that taken the path that this court approved up in right where the district court corrected the legal sentence but didn't have a comprehensive recent and seeing hearing so there were three actions the district court could have taken each of which was within its discretion so when it denies the rule sixty b motion the defendant can't show an abuse of discretion when three possible avenues were available to the district court different ways it can be an abuse of discretion always started out with number one and they're all true your honor but that is i'm trying to explain that there were three available avenues to the district court court can abused its discretion by choosing one of the three and in this course he chose the concurrent sentence doctrine passed which was within its discretion where the defendant is serving a concurrent sentence limited and it's only available when the defendant can show any legal or unlawful sentence or miscarriage of justice what about craven's that distinguished and there and alton in a very similar situation is this it's not a similar show a right to be released under those circumstances didn't have to speculate once the a c c a sentence was gone the sentence that remained in place was only one hundred and twenty months the same can't be said here once the a c c sentence is gone there are still lawful one hundred and eighty month sentence in place the question isn't what the district court would have done certainly the test for relief the test for for overcoming that presumption if analogy isn't what was the district there a miscarriage of justice in leaving in place a sentence that is wholly lawful and in here at all times the district court could have sentenced the defendant on the drug trafficking count between zero and twenty years it chose  hundred and eighty whether or not it was cab and its discretion was cabined as to the a c c a count doesn't affect the finale or the legality of the drug trafficking count but but the the a c a countess still do your honor but it's in place on the drug trafficking count it was never appealed so even if the a c c a sentence were vacated there's still a five year term a supervised release albeit it's it's it's beyond the statutory maximum but it's never been challenged so on the judgement there's still a five year supervised release term on the drug trafficking account can i ask a procedural question because i think it's so i understand the background it's relevant to your it and do you know why and maybe i'm maybe i'm asking the wrong person i'm just curious as to what why why counsel was allowed to come in or why the court appointed counsel so late in the game and not earlier twenty that during the flurry of filings following johnson both the public defender's office as well as my office were reviewing defendants who had potential eligibility it's my understanding that the public defender's office encountered mr raymond after the process he had personally filed the johnson motion and i will say that the johnson motion that mr raymond filed pro se was remarkably cogent and did make all the same arguments that the defendant made in his motion to reconsider as to why he was in type three sentencing he didn't cite the case law there wasn't a lot of meat on the bones but the united states certainly understood and the district court certainly understood what the defendant was arguing ok first i disagree completely with the government's characterization of the divisibility of the minnesota burglary with and with respect to the crime that's committed in the united states versus mcfee which is a terroristic threat statute that has an element of crime violence crime of violence as defined elsewhere this court held that because it's just a term that is not an element of the offense it's rather a factual means moreover this court held in macarthur that those two different alternatives undisputable right to be released if you do the often stacking he doesn't i think craven's is totally on point i think that the right case is distinguishable because they are the district court recognized that it could have imposed a lower sentence and chose not to that gets to the nub of the air in the district courts reasoning the district court said i can't do that i could impose the same sentence so you loose so that is completely distinguishable and there is absolutely jurisdiction to review that air that quote that i had from the just a court opinion that's from the denial of the sixty the denial of the sixty order was in the a denim so to claim that i never was challenging the do now the sixty b i think runs contrary to the record in this case unless there are any questions