residual clause as it was written in the arm career criminal act was hopelessly vague and that when it is used to fix a sentence it violates due process that same residual clause this time appearing in the career offender guideline had the effect of increasing jeffrey reso sentence by one hundred months at the time mr reso was sentenced the guidelines were mandatory the district court was required as a matter of law grant him relief from his sentence the district court denied that motion because it said that the court the supreme court has not yet applied johnson in a mandatory guideline case and the district court thinks that that step is necessary in order the district court has missed to find the right in johnson because the right has are the right that mr johnson mr russo a search to relief has already been recognized he doesn't need another newly recognized right to proceed on his claim the right that he asserts is recognized in johnson when johnson said that a statute that has those two problematic features of india indeterminacy in the way th but the cases that support our position are cases which have allowed a successive petition to proceed because a person was sentenced under a mandatory guideline and there a offenses likely appeared or likely was deemed a crime of violence under the reasonable klotz so the first circuit for example and more versus united states has allowed a plane to proceed in mandatory guideline case the third circuit circuits and i think the cases it's cited in my brief there are number of district court cases that have allowed this claim to proceed under the five f three because we were hearing the same argument from other parties before back holes that johnson supposedly decided the advisory guideline residual clause to and we said in that donald cases you know that no that was reasonably debatable and therefore not the same right to do you think that that's the right standard at least that if they claim reason if it's reasonably debatable whether johnson extends to the advisory guidelines of the mandatory guidelines then it would require a new right second new rule what i don't i don't reasonably debatable isn't that the standard for t i don't believe that's the standard for to gets basically is it is a a rule a substantive rule that breaks new ground or is it dictated by precedent  so i know but how do you decide whether it's dictated by press well i think you look at the president i mean the president in this case would be johnson but i was also welsh we have beccles itself which recognizes the right as we as we it but just says that that right therefore does not apply to a provision that does not fix the sentence i mean beccles is basically identifying the right as we did and then saying but it doesn't apply because of the nature of an advisory guideline you can also look at sessions versus demaio all of those cases define the right consistently the two problematic features which contribute to vagueness and either the fact that th at the statute criminalize an act or fixes a sentence that combination creates time constitutional vagueness and because that's the combination that you have in a mandatory guideline case that right has already been brown case in the fourth circuit because again i think the problem consistently in all of these cases that go against us is that miss their midst defining the right and in johnson and they're narrowing it down so that only a case that falls within the four corners and that basically hey biggest case that is an active case where the prior offense was adjudicated under the residual clause those are the only people entitle to relief and johnson and particularly welch and buckles and to my at don't support that conception of the rule the rule has been defined much more broadly and those in those cases after johnson but i would argue even even johnson did not tether the right specifically to the a c c a it wasn't the reason that law was vague was not because it was in the a c c a it was because it had those features that were problematic and that can't i'm going to reserve a couple of minutes for rebuttal thank you johnson mr russo filed the twenty two fifty five motion alleging that johnson would invalidate the clear offender finding in his case and should call for a new sentence that raises an issue of it is his twenty two fifty five motion timely his twenty two fifty five motion was filed more than a decade after he was sentenced in so in order for it to be timely one of the exceptions would have to apply mr russo says it's timely because under twenty that doesn't work and the first one is the supreme court has not recognized that right within the language of subsection if you agree with the opposing counsel that it's it comes down to the characterization of the right i believe it does but i think it's we have to look to supreme court precedent because the right has to be recognized by the supreme court so i think you look to their holdings whatever they held i think it has to be firmly acknowledged by the supreme court it can't be application of dicta to determine what might happen and you look to the case and back holes justice sotomayor said that whether or not johnson might apply to the mandatory guidelines is an open question and she made that comment in her concurring opinion without any other comment from the other judges critiquing that that finding or say anything about that conclusion so you have the supreme court in back all saying that whether or not johnson applies to the mandatory guidelines is an open question has yet to be decided  suppose another excuse me suppose that johnson and welch dictated a conclusion in another context within the meaning of t that would that then be encompassed by the newly recognized right i don't think we can reach that because you have you have johnson which makes the finding that it applies to a statue and as the reasoning back was talked about there's distinctions between  at a higher level of generality which is what legal standard do we use to decide whether the guideline rule is in compassed by the johnson welch rule and i was wondering whether you think that we should use the t dictated by prior precedent or some other standard i think it is much broader than the statute i think in this case we look to this statute and  f three says is that right that's been recognized by the supreme court and i think the language there indicates that it's been firmly acknowledged or clearly you know clearly established by the supreme court and i think that's going to morton the say that it's as if the right has been written newly recognized by the supreme court and made retroactive and i think we're going to so you're taking the position of government staying in the position that if johnson and welch in some hypothetical situation dictated the same result in another situation so there was another criminal statute for example that had the exact same residual clause and you're saying even if johnson was dictated the same result it would not be within the scope of the right that was recognized supreme court it's got to be exactly an a c c a case to qualify under after three i think that is true because if you look at some of the cases that are coming down they're taking a look at it they're not making a categor statement that anything that statutes are vague in the manner that the residual clause was or unconstitutional they're playing on a case by case basis and even in johnson that they talked about how the ruling in johnson does not undermine many  criminal statutes that the government was worried that it might and so i think what the supreme court doing is taking a case by case basis and so and so i think in order for if you look at the language of f three it talks about that the right has to be recognized by the supreme court and what  they mean by that and i would take i think with the case law talks about that is firmly acknowledged you know something along those lines more more definite then we might have under under t v so i think that the t v framework is different i think the standard we will look to here and if i understand the question correctly i apologize if i'm not but i think the framework of look to here is has been firmly established and so if you look at it you know in johnson they said that right that the government's concern that this might invalidate a whole slew of carmel statutes is not as not accurate and i think they're taking a case by case approach and if and the fact that there is within the case a very clear argument as to whether or not the reasoning a back ol would apply to with the reasoning that was used by the supreme court in johnson not apply to a mandatory guideline when it is functionally  mandatory sentence that the reason is because it applied to a statute in statutes or are fundamentally different from guidelines as was not in function when it's mandatory and it were if you look to if you look to the reasoning and backless for example they talked about even man and some of the cases after that we said in the brief also talked about that the the case law has recognized that even mandatory guidelines are different than a statute were in some and under the right circumstances a judge may impose a statutes and they one of the parts one of the reason they talk about is prior to the guidelines you had unfettered discretion where that were congress to allow them to sentence anywhere within the statutory range and they said that there are no cases which question which question that notion and so if you can have unfettered discretion within a statutory range they said it's hard to see how you could have a vegan assist challenge within that statutory range and that reasoning applies not just to advisory guidelines but also the mandatory guidelines that reason does not apply to statutes like you do that you have the on current criminal act and so i think that that's one of the differences another differences is back talked about the fact that contr finding what they found and back ols would raise serious issues about whether or not the thirty five fifty three a sentencing factors which courts are required to consider are themselves vague and they were not ready to say that in fact they said that that would be  bad outcome and see what they the underlining reasoning here is that the amount of discretion given to judges within a sentence within a statutory sentencing range is very different from a law which  conduct and establishes a statutory sentencing range and so the reasoning for that reason and johnson is quite different if the vagueness challenge there is quite different than what would be applied to a guidelines finding and so when you have this prim court in back will saying whether or not the rule applies to manage were guidelines is an open question i think that makes it very clear that that that it's not a right recognized by the supreme court and it's not a right recognized by the supreme court then the just report was correct and it's premature and  occasions would apply you also have to look at this court's prior holding and donnel where they made the distinction and said that the that the right recognized by johnson applies to this statute that does not apply to the guidelines so i think w e look at those two cases there's there's case law we said in donal that the reason why it didn't apply was that the issue was reasonably debatable and the answer wasn't dictated by johnson and even even that would it questioning you is you seem to keep saying that the supreme court has to specifically decided just sure why the government has to take such a stark position there could be some case where johnson and welch dictates the answer in the next case where it's not reasonably beatable it might there is within the rule of three if your position here is that it's reasonably debatable whether johnson extends to the mandatory guidelines then you don't have to fight the reasonable debatable standard and i think that i think that to stand however you want i'm just kind of wondering why that would be objectionable i think the teague standard is different from the standard  three and i think that the ruling in johnson and welch could apply if you had a residual clause under a statute which prescribe conduct and which fits the statutory range you know under those circumstances i think that you could say that the right recognize and johnson does apply which would apply vagueness challenge to the guidelines and because of that his time his claim was not timely thank you i just want to address a few points that have come up in mr mo since argument first of all in your decision and hedberg versus united states you said yourself that the eighth circuit equated twenty to fifty five borrowing a standard from the clearly established case law which has a different policy grounding the reason that we look for really clearly established case law when we're reviewing decisions on you know that are deciding the merits decision is because we want to give deference to merits decision on an issue there is no deference to be given here this is a new question so clearly established case law doesn't apply we have to look at teeth and whether or not but if you look at you can you go back to butler vs mco are in the line of cases defining what new rule is don't they say it's whether the question is reasonably debatable or debatable  reasonable you know i have i have to confess that when i hear the words reasonably debatable i think of the standard required for a certificate of he'll ability i'll take your word for it that it may somewhere be in the t case which is another place where i absolutely disagree with the government booker tells us what they do says there's no constitutional distinction between a statute in a mandatory guideline we already have that and buckles reinforced that so if we have a provision that fixes a sentence that's all we need for there's no debate and booker gives us the answer to that question is what do we do with your client's  plea agreement where and he waives the right to seek post convention conviction relief in this case i think you interpret it strictly the waiver says we  waive the right to challenge his conviction he's not challenging his conviction here he is challenging his sentence under the curve and a guideline so i would not hold his waiver against it you would  to a very interesting issue certainly one right at the cutting edge of the development of sentencing law we thank you for helping us with it