sentenced under the section nine hundred and twenty four dollars c residual clause that clause is now unconstitutional moreover at the time he was convicted and sentenced the crime of assault with a deadly weapon was not under clear th circuit precedent this was the settled and clear law on the th circuit and that standard that the indirect causation of audibly injury was not physical force was widely shared among the circuit courts of appeals in the th circuit at the time of the incident giving rise to this case it was unexpected that this settled law would be attended by the supreme court's decision in castleman it was further unexpected that castleman holding in a case involving the term misdemeanor crime of domestic violence with then be extended in us beyond to verisign the th circuit to the term physical force as it is used in defining crime of violence under federal law at the time of the incident in this case when he was convicted and s under the due process clause i want to turn now and discuss the implications of this case under the due process clause supreme court precedent provides a clear line of demarcation between the natural progression of the common law on one side and judicial decisions that constitute an unexpected and indefensible change in the law on the other the change from parents who are guests in and r various was not the simple natural progression of the common law it was rather analyzed at the time history musket pleaded guilty and was sentenced an indefensible and unexpected change in the law that analysis of what is unexpected and indispensable looks to whether it judicial construction of a criminal statute is unexpected with regard to the law as it existed at the time the often was committed indefensible in this case there was nothing that would have given mr muskett the fair warning and notice that a crime that could become aided by the indirect causation of bodily injury would qualify as a crime of violence under the force cla analysis in rodriguez and reconsider mr muskett had no fair warning that his conduct would qualify its physical force under the force clause absent the knowledge constitutional residual clause mr muskett would never have been convicted under nine  my your honor i believe that there was some implicit disagreement in the circuit but even in the th circuit which at least based on my reading of the law seems to be where most courts find the circuit essentially says that drugging a victim's strength is not the use of force so even in the th circuit there was an intra circuit split if but garlits of any disagreement which i don't think that there was a significant disagreement amongst the circuit there was clear there was there were a number of circuits including the nd circuit the th circuit the th circuit that had agreed with parents of our guests but regardless of any disagreement in the circuits the clutha law was clear on the th circuit that indirect causation of bodily injury was not the use of force and particularly the rodriguez and rica's decision goes through a very detailed analysis of why that is the case it would be unexpected for someone at the time to think that that law would change given the amount of consideration the th circuit has given it both in paris markets and particularly rodriguez and re case at the time  start in curtis johnson which was issued nearly three years before the condom giving rise to mr muskett chart criminal charges the supreme court indicated that violent or is force capable of causing physical pain or injury to another person shouldn't that start to give notice that they were looking at force differently then the th circuit had interpreted it i think if anything the johnson one curtis is us you've heard of johnson case indicated that violent force was of the type that would be intellectual or emotional for which didn't necessarily need it had to be directly physical would you agree with that i think curtis johnson was focused on the definition of force as it applies to a host of various state crimes and curtis johnson focused on how to state misdemeanor battery or the type of contact the issues with a spate misdemeanor battery is not the type of force contemplated by the force squad there that's the focus of curtis johnson and i don't think it signals anything about a change in the law that would open the law to a rate redefinition of force as the indirect causation of bodily injury in for a circuit split is a nice circuit on this issue of whether or not your used to be a bargain issue that was a great bargain is it a honor the question of foreseeability and the question of whether something is not expected or unexpected look to the point in time when an incident arises when something happens that could be or could not be a crime in this case the question is was it what was the law at the time of the incident mr market's case and the law was very clear in that circuit of the indirect causation of bodily injury was not it was not physical force some of the force clause that is the moment in time that we analyze whether something is expected or unexpected certainly laws change but the question is is that changing the law such that it renders something that was not previously climb under a particular statute renders something that was not a crime now becomes a crime because of the change in the law we are not we're not talking about a situation where the the development of the common law such that let's take an example of the progression of the definition of being just weapon under under this particular provision eleven thousand three hundred and eighty three where one court may say that a dangerous weapon is a gun and another court may say it's a hammer and that that common law is all that such that eventually a belt is considered a dangerous weapon and a pair of shoes that is the natural progression of judicial construction the statutes or common laws a dramatic change in the law where something that is previously not a crime becomes a crime that is the point in time that we analyze the foreseeability of that change or the unexpected nature of that and the import the due process definition of fair warning and do notice include being aware of the interim circuit split within the th circuit in the interim circuit split between the th circuit and the th circuit thank you your honor and i think the answer to that question some of the you know decision notwithstanding the fact that it was just a plurality the supreme court said this was the law at the time regardless of the fact that everyone may have known that it could have changed this was the law of the time and that's what the defendants based their actions on the fact that there was a subsequent change the law they had no notice and fair warning because the law at the time was the memoir standard john and i see that i'm at the expiration of my fifteen minutes i don't believe that it was your honor the government appears to have waived that issue regardless of the one year limitation i believe that the government and the defense agree that if mr muskett is innocent under the nine hundred and twenty four dollars c force clause have to agree with you on your due process argument right that's right your so if we didn't agree with you on your due process argument is your petition time and i still believe that it is because it was timely filed this is untimely under the statue of limitations which we do not concede in any way that it is i believe that it's timely because it was followed filed within one year of johnson and johnson clearly rendered the nine hundred dollars after residual cla why haven't you who are fitted your ex post facto argue that failing to work the district court that argue that obviously the district court but obviously that if corrected reading the district court records the district judge did have the opportunity i believe that the the ex post facto problems arise with harmless error implications which is what the court which is what we addressed in our supplemental briefing based on the fact that the changes in the t circuit from the supreme court's decision davis to to boeing in the th circuit that made harmless error a live issue in mr muskets appeal which is why the court asked us for supplemental briefing and we had  from this result in a for the elderly and good morning counsel may please the court jennifer resent me on behalf of the united states under current temp circuit and supreme court precedent couple here as musket is not being subjected to a conviction for an offense offense that was not a crime when he committed it further he can't be heard to argue that the bell that the developments in castleman and not to their us were somehow unexpected and indefensible given the state of the law beginning in two thousand and ten with johnson one where the supreme court st began addressing the notion of violent force in the context of a violent felony briefly although the court doesn't seem quite as interested in it vic government does set forth and believes that assault with a dangerous weapon is in fact a crime of violence under the elements cause under  four see and case law does in fact support that as this court knows the court goes to a categorical approach and assault with a dangerous weapon can be committed by a willful attempt to inflict bodily injury or threat to inflict that same bodily injury and what we know from both capital men and virus is that the knowing or intentional causation of bodily injury necessarily involves the use of physical force we know also from on to paris that the force can because through poison or even physically harmful neglect and the supreme court further brought this out in still playing where it said that the forced me not be particularly strong or likely to criminal offense because it falls under the elements cause so really what we need to be looking at is whether or not it was unexpected and defensible and one of the things josh mchugh you pointed out was the senate wants the line in the councilman but in fact the line in the sand began at johnson one and so beginning even there we know that it wasn't unexpected or indefensible but going back to the two primary cases there was an alleged trespass of two african american students who sat and what was apparently a whites only restaurant in columbia south carolina and what the test that statute said was essentially that student that the that the students if there was no notice of trespass and students could not be guilty of that crime but upon appeal to the supreme court the supreme court of supreme of south carolina that is they expanded the statute to say that including staying after being told to leave being given notice while the trespass was occurring was also a crime and what the supreme court said in that case was when a statute is narrow and low the potential defendant to begin given being given a false sense and eighty three what we know is is that back in two thousand and ten the supreme court was already looking at what constituted a violent felony and so there is and it wasn't narrow it wasn't it wasn't creating that that that low of a false sense of security that somehow this would not be found to be a violent crime looking at marks united states a case that came about thirteen years after again an ex post facto case and something my hope and counsel discussed that case is a little bit different because it involved a jury instruction and in fact the law had already changed between the time that the defendants were charged and the time that they were going to trial and so the defendants had requested a jury instruction that actually used the newer standard that had been employed and the district court chose not to and so in marks the court found that that was inappropriate the law had changed that the defense had had crafted their defense based on that  change in the law and so the ex post facto clause applied let me ask you a question about that that would we would then be instructing the district court to sentence mr muskett on crimes to which he did not plead guilty  didn't have an opportunity to see that case before filing and i'm sure that you all have looked at it it's an unpublished case which doesn't have a lot of analysis but in it the united states  had relied on us the smiths and in that case and what the more opinion focuses on is that smith was a trial and so there were facts and so what what i would say your honor is that what we have in this case we have a plea but we particularly he admitted both to the assault with deadly weapon and to aggravated burglary and he set forth very specific facts as to how he committed the assault in detail under oath and so the united states would contend that in fact the court does have the authority to enter would have to ring man and in any case where there's a plea and counts have been dismissed it comes back to the district court and things the government would have to request that the county be reinstated but based on the new the new law i think fundamental fairness would require that the district court do that and i know that the did the defense does cite from felter i would say that in that particular case it's a very unique case where the government government made a pretty big mistake related to the plea agreement and having a defendant pleading missed and you know when in fact it intended to have completed a felony and that's certainly not the case here this is an actual change in the law if the court w vacate the conviction and send it back to the district court sure your honor i mean it is the government's position that in fact at the time that the defendant was convicted and sentenced that that present argus did provide that that assault with a dangerous weapon did not fall under the elements know i want to focus again on timeliness because i found the united states a little bit confusing in the briefing because i'm not entirely sure you're conceding timeliness because after you say that that yeah that's premature but we will treated as timely and then you go into a discussion of actual innocence which would assume from my perspective would mean it's on timely but there's an excuse for on time so where is the government on this i'm having a hard time putting my finger on it i apologize for the confusion your honor  make it technically timely he would have had to a file the twenty dollars to fifty five dollars after davis to within a year and essentially of of davis being issued but that all being said there is from our perspective there's kind of a chicken and egg problem because then you do go to the the actual innocence understanding the actual innocence i guess i'll call it an excuse in that if he is actually innocent of the nine hundred and twenty four dollars c then then his his position regardless was timely and so from the government's perspective perspective we decided to go forward on the merits because in order to decide he has a timely partition if in fact he is actually innocent facto doesn't apply and so he's not actually innocent should we dismiss citizen conley your honor that would be i mean that is the the position of the united states and i apologize that it wasn't more clear in the brief but yes at that do there and i don't think i know what we were trying to do there is is to streamline this whole process because he could have and he put in technically from a procedural perspective he should have filed the two hundred and sixty five should have been dismissed an fifty five should have been filed within a year of davis but what we were trying to do in this case and i i court did not appreciate it that we were just trying to streamline this process and then the court was going to get to this issue  presumably he would have dismissed the need twenty to fifty five would have been filed and we would be right back where we are today and so if in fact the court feels that that we intentionally or overtly waived the t and so the fact that later in two thousand nine hundred the supreme court found a chance constitutionally vague and doesn't change the fact that in twenty thousand one hundred and thirty five or six years earlier everyone understood it to be a crime and so that's the argument that that was retroactively applied i cannot deny that but that all being said at the time it's what we knew at that the time and understanding that he was eventually he was eventually retroactively applied and his his conviction was a kid it's what the people know at the time of the actual events and what i what i'd like to go back to if i may is you know ex post facto it it's really a fundamental rule of fairness and due process and it's probably it's less i believe technical then some of the other arguments that can be made and so whether a defendant knows that something is is criminal or unexpected and indefensible and based on johnson from two thousand and ten and based on the fact that we know at least the th circuit looked at things differently from pres fargus regardless of what the th circuit did below and castleman the standards high it to change and that i think that he's even going back to our original conversation goes back to the fact that that defendant filed his twenty two hundred and fifty five dollars after not before or not after davis but after  johnson because they were seeing that the changes in the law and so i think it has to be completely unexpected completely indefensible like it was and dewey where the service south carolina supreme court truly changed the law in that students who were sitting trespassing in a restaurant having been told that they needed to leave didn't leave that that then became the criminal act as well as simply having no notice to begin of the elements laws and deciding whether to do the assault but the street so that we do have that test so what his argument is it's least in part i  qualified immunity we typically look at whether or not something is clearly established where we establish constitutional violation and we're very clear that we don't look at new case law we look at the case law that was published thirteen based on what a panel says you know in two thousand a say your honor i think from a practical standpoint if i have a case in my office that i've received today in two thousand and twenty that took place and thirty three or four years ago are essentially you know within a statute of limitations but with same exact set of circumstances i don't think that i think i can go into the grand jury and have the grand jury charge someone with an assault resulting in serious bodily injury and  and twenty four c as it stands today despite the fact that that those actions the actual criminal offense took place train all of these cases and so it that is why i use the lawyer now  just wouldn't make sense for me to for a person to be able to raise that as we sit here today being charged today