the court we begin with three provisions of sentencing serious potential risk of physical injury substantial risk of physical force against the person or property of another and substantial risk of de or serious bodily injury the first two of those are undoubtedly unconstitutionally way we know that because that was decided by the supreme court in johnson with respect to the first and by this court measure two and the supreme court in the mire with respect to the second the third provision is the one issue in this case and i begin here because there can be no doubt that if this court reaches the merits of the question the language of these three provisions is that in all material respects identical and the respect i don't think that it is the question is not so much whether or not that to point adjustment had an effect back in one thousand nine hundred three which would have changed his his guideline range from i think it's fifty two to fifty but rather th agree that would have had no impact on the success rate i'm sorry your that would have had no impact on his sentence at that back in one nine hundred ninety three it would have had an impact today however but anyway have i asked you the question whether or not isn't isn't isn't our focus on what effect it had them not whether it would make a have an effect if you wish we sense didn't over today with respect to your honor i don't think of that as a proper focus the focus of course is not so much that he would have not had an effect back at the time but whether or not he was sentenced under a constitutionally impermissible imprimis one handsome missing words you still have to show prejudice the same could probably  such as a retroactive application such as this one has been held to be is itself a cause and that the prejudice is the sentencing under an unconstitutional unconstitutional provision of law irrespective up and i would say only in the case where the level where the level determination is itself completely uncontested in incontestable and that's not determined until the sentencing hearing with curtis the present report makes a recommendation the judge makes  now rather than looking at the impact on the sentencing that happened at the time at the actual time of the person's name if the best set of authorities would be what happened in all the post booker re sentencing cases that went through this court under the new advisory series of guidelines rather than under the previous mandatory sentencing the court this court could have adopted a rule was akin to the one that's being advocated or that's been suggested by your questions which is to say that it said what would you do with your book or what would you do had they been advised or at the time and we didn't sort of re calibrate all kinds of other things into it and what you want to do is not ask the question of what would have happened if this two point the johnson claim is the cause and the prejudice of the error but the demonstration of why it will be prejudicial why it will be beneficial to mr hicks to have the man is be is because in the post a printed post poker world he will be subject to a different sentencing regime i see that i'm almost out of time and i haven't addressed the timeliness issue of the twenty two fifty five and three suffice it to say that that is a an issue that that has split the circuits and has also split the district courts at least two district courts have found that johnson is retroactively applicable to mandatory guidelines questions such as the one presented by this court i'd be happy to address the the reasoning in a more detail on rebuttal or now if the court would like but i don't want to trench on recently on your time thank you will he sentencing as pretty makes clear the prejudice inquiry turns on whether the error worked to the defendant's actual and substantial disadvantage and in this context it would be his actual and substantial disadvantage through your argument on the alternative route around the procedural obstacles namely actual innocence i don't think that a poet has asserted actual innocence he doesn't  actually innocent of the offense of offenses of which he was convicted and i think that to establish to to get around the cause and prejudicing paree and to establish actual innocence he has to show factual innocence he hasn't made that that me be the case appellants sentence is not in jeopardy for that reason alone he can't take advantage of that new constitutional role here you know he hasn't made any assertion procedural bars if it chooses not to it's a court which is to visit them to consider the merits of opponents claim it is clear under johnson that appellant's claim has no merit johnson makes clear that the rule it announced does not apply to the many laws and provisions that use an indeterminate standard like substantial rest but ask for a court to analyze the defendant's own real world conduct through other then some imagined hypothetical version of a crime so even turning to the merits appellant simply cannot is it simply not entitled to relief if the court has no further questions thank you your honor appreciate that the quayside could not call your honor was william martinez versus united states supreme court case from two thousand and sixteen holding the pendant sentenced under an incorrect guideline range that error will be sufficient to show president presidency precious here finally on the last point the counsel of government made regarding the rule in johnson we don't think that johnson can be limited to the c c a itself if anything the supreme court's decision to maya establishes without a doubt that the johnson rule goes to all provisions that fix a sentence based on certain assessments of risk that case obviously involving not only not the c c a but not even a criminal