paying attention here mike really took me a while to unpack my stuff so thank you guidelines claim and post conviction if it hadn't been raised on direct appeal so if he was just kept count wine after johnson overruled sites his argument is the application appeal your honor that would have been something that he would have been able to raise on direct appeal if he'd been able to raise a challenge to the career offender and hansen well anderson bear if you don't raise your your guidelines cl happen if so so you're you came out of the gate saying all the parties agree that he's currently no longer a c c a yes so if you went back to recent i'm saying what would happen decided rendering mr smith's enhancement unconstitutional the proper remedy was to vacate that unlawful sentence and then decide what to do if the court vacated under this court's precedent then the law of the case would no longer apply and the court would three sentence under the current guidelines so that's one way that mr smith would have been able to be restrained based on johnson and also be able to not only argue that the current sentencing guidelines apply which no honor having what cases has agreed with that analysis sentence really had nothing to do with the sentence on count one then to give the relief you're suggesting is just arguably seems like a backdoor way of applying the career offender guideline amendments retroactive yeah i'd like to hear what you say about her but i do want to emphasize that first we do have a motion to supplement the record which demonstrates that mr appellate attorney knew about johnson and the examine whether or not that count one sentence was appropriate secondly of ol under the sentencing package doctrine counts one in three were interdependent and because they were interdependent earlier with our  was the was the the sentence that the court would have imposed on count one regardless respectfully than your distinguishing of easton is just not it was not right respectfully your honor the arguments that i just does mean grouping grouping has a a specific guidelines impact and the and here it was two to make the count one in the independent sentence predominate your honor rice respectfully disagree and i would point the court to enry davis the eleventh circuit's decision where the where the defendant there got the same concurrent sentences on two counts and because they were grouped together he said his control appeal then they would have been cognized the ball it's a freestanding argue it is a free standing argument but it does not it doesn't affect whether the other argument which is you can get around buckles by the sentencing package dark it is part of the prejudice that mr smith faces with respect to the courts in alice of the concurrent sentence doctrine it's one of the prejudices he faced because his claim was never raised the guidelines claims where mr smith had said sikes should not apply to me if that had been one of those claims that had been a raised direct appeal it was obviously viable during  to supplement the record on to add an exhibit to the record that email exchange with mr smith appellate attorney indicating that the attorney chose to raise the guidelines claims later knowing that  decision that was totally wrong understand bear it was not there was no upside to ever waited for guidelines claims to be raised on post conviction and so given that the that the appellate attorney made that choice we would at least ask for remained on the evidential record but i would also at least ask a court to grant the motion and i do have copies of that e mail for the court if the court at this hearing is willing to grant our motion without seeing what you're talking about we can't we can't and i have it here today if the court would like to see what i'm talking about want to hand it off today but you'd better better supplement your motion think the discussion about golf sykes and mcmillen as sort of freestanding claims and third is other considerations under the i c claim so first with respect to east and the government would argue and submit that on all fours with this case both factually and procedurally and then with respect to the standard applied in nice and would be applied in the same way in this case to affirm the district court exercise of discretion to apply the con that same analysis would apply to the career founder but to take when easton from the government's perspective is what the court held an isa and is that where the career fenner guidelines range at the time of sentencing at the time he was originally sentenced is not impacted by the a where the sentence imposed was not driven by the ac a mandatory minimum which we know what in this case is we did a nice and because the two hundred twenty month sentence is forty months higher than one hundred eighty mandatory minimum and where there is no prejudice from not correcting the alleged error on the a c c a sentence so your position is that in east and there was no analysis as to whether upon a recent unsing on the sentencing package dr and whether or not he would remain a career and under the sentencing package doctrine because he felt he might get a lower sentence on the career for under count it doesn't reveal whether the parties agreed whether he would still be subject to a career follow or sentence but not necessarily i would not left the other sentences untouched and what i think the foot i mean it's with respect to misconstrue the sentencing package doctrine is that the sentencing package doctrine is a trump card for the concurrent sentence doctrine in other recent on that count anyway under the sentencing package doctrine that's not how the sentencing package doctrine works the sentencing package doctrine was adopted by circuit courts it is a court's aware when when you when the court decides that a district court figure out whether or our decision about the sentencing err would mean that the district court would maintain its prior sentence because in a case where sentences are bundled perhaps perhaps their sentencing intent would no longer be satisfied based on our decision that sentencing package doctrine which operates primarily and we manage to allow a district court to reevaluated sentence when this court finds err it is not the controlling analysis here wells that depend i think that's right or head and it might be a different case is that the upshot of it i think that's right as long as the court is acquitting interdependence with the a c c a enhancement affecting the other offenders guidelines on what i thought affect count one because the guidelines calculation that ended on an offense level thirty seven i believe were driven by the career offender guidelines d e c a a fact and the guidelines actually would have left the guidelines that i think  thirty four so the career offender guidelines drove the advisory guidelines range and the two hundred twenty month sentence demonstrates that the hundred eighty mandatory minimum did not drive the district court sentence that was a factor cited in easton and  there's been no showing a prejudice here why why does the first step back affect the prejudice your honor i can't say i have familiar with the eight am we have received word of the first step does affect not necessarily the prejudice aspect but i think that's where you have that's where you're going it affects prejudice meaning the collateral consequences your honor if the concurrence and nelson is right i think i think the answer then count and it would have no input that only that is own that is only dominant if there is no prejudice i thought that the concurrent sentence doctrine does not apply if there are any if the for the first step act isn't it i don't know if it's an exception to back wins or an overruling tobacco's or what it is because it hasn't been pledged out yet but it seems to affect what would happen if you remained if you on a johnson remained were with a multi conviction i think perhaps the safest answer for me in representing the government at this point around her is to say that the first act claim if there is one has not been raised in this case and has not been briefed on argued and i wouldn't want to give an inaccurate answer that i think but if the first step back would affect the sentence on count one then wouldn't there be a clatter of consequence to leaving in effect the sentence on count three only if you assumed that you could not for example if you got to the point of remedy and sensing package doctrine and what do we do it doesn't necessarily follow that you would have to resign and count one in right for example the court only recent the a c c account and not the count one count collateral consequence would be that any future reduction count one would be nullified because the count three sentence would stand right i don't believe so certainly if there was a separate basis for  in time count one is the defendant prejudiced that would create all sorts of back doors as the court already suggested and what the eastern court held was that for example supervised release if you leave the a c c can place is there prejudice easte court decided no with respect to supervised release the defendant this case hasn't even argued prejudice a supervised release now the defendant has argued prejudice in the sense of i think i could get a lower in that court that argument was rejected and footnote two didn't two in eastern and furthermore in this case on the record the district court said that even if i recent inst i would give the same two hundred twenty month sentence which i don't wish the government doesn't necessarily believe this court has to rely on in resolving this case under easton but it is a factor that's not present in many of the other cases where for example there's a remained after the sentencing package doctrines applied footnote two says the argument was that the think package doctrine requires it says must the argument was that must a discretionary decision is made that argument was was misunderstood both the origins and the nature of the  the doesn't that doesn't that rejecting that doesn't mean if there was a serious reason to think that count one sentence would be affected here on earth as the author of your argument is stated it would have imposed the same sentence which again is a factor here that's not present even in easton but the concrete district court i mean what we're reviewing is the district court's decision and i'm i'm just i'm just applying to concurren because two hundred twenty one stays the same and i'm not sure that i think the issue is whether that was an adequate exercise of discretion but the sense that these two doctrines the court in this strange world for the reason stated in the government's brief and this morning i do believe was an appropriate exercise if i could just in my remaining time talk a bit about the gall sikes mcmillan argument could i add at least your question about and i think it will be a quick question about the ineffective assistance of counsel which certainly said the council doesn't have to predict doesn't need a crystal ball to be required to have one to anticipate a change in the law if i have the timing right here however the mandate had been issued by the time johnson did come down is that change the analysis in my right that that this decision the hell accord decision for mr smith came down maybe the nineteenth and then the twenty sixth johnson came down there would have been time for a petition for rehearing by the panel does that affect the analysis well it's certainly not an argument made here your honor first in terms of where we stand in the briefing and the claims made  the claim made here is that the appellate counsel should have noticed johnson in its direct appeal and i don't believe what the court is just recited does affect that claim with that counsel in effect of for not seeking a petition for rehearing i don't think it's any different than a lot of the bateson cases in some instances batson had been handed down and the courts doctrine with respect to anticipating change and changes in the law was firmly applied and it's been applied in a variety of your time for bow oh there it is yes i think your honor first i do want to point out that in our brief we did argue that appellate counsel should have moved to stay the mandate that there was plenty of time to do that so multiple stages during the direct appeal process where counsel could have asked the query or through a twenty a j letter or through a motion to stay the proceedings or from motion for supplemental briefing that court or the district court could not have reimposed the sentence that was originally imposed on mr smith not only was it did it exceed the statutory maximum but it also was unconstitutional so under twenty to fifty five the first step would have been to vacate the sentence and then correct or are resigned to and so given the vacation you're talking about sentencing as opposed to remaining range i mean given the constitutional and statutory claims raises are those will the vindictive principle no i don't think so no i would also point the court