noted that we noted two lawyers were arguing this two cases on the same day and there was one significant common issue each case seemed to have a separate issue so we thought you could get the common issue handled of fish and lee and then you could point out when you when you're talking only about one case or the other something else i think this works out wonderful your honor may please the court my name is dan gober going to represent clint identical and i do think there are some distinct contra's as judge loken just referred to but what i'd like to do start with mr harlow's appeal because i think it's a helpful vehicle illustrating why both cases are entitled to a public really relief harlow was my fine his term supervised release from five years to three years which of course was the correct thing to do but what the district court did not do was modify his term of imprisonment which was improper because that too is an essence harmless because the district court could have sentenced him to the same sentence by running that the terms consecutively i think there's two problems with this argument one is legally and second i think he's just looking at the sentencing stated that it was quote required to impose the statutory minimum of one hundred eighty months in fact that's what they sentenced him to was the bare minimum sentences of one hundred eighteen months i think the other interesting feature  taking this as a as a look back question i don't think the alternative sentence decision determination is a look back it doesn't matter whether the way that how he would have gotten there before i have done and he was telling us like quite clearly i would have done the same thing obviously by a different route i think and i think that's that our case law says that i thought way you could do this i think it's a very astute observation your honor i don't i think you're absolutely right the district court did say he would have done it all over again i don't know if people feel to refer back to his original sentencing prints were my only point is i think there's a real rub there but i think the other that you make that is an excellent point is that we also have to look is is that alternative sentence reasonable or constitutional i don't think it is i think when you strip away the a c c designation what you see is that we have to sixty three to seventy eight months if not wholly down to thirty three to forty one once the government hasn't disputed this they haven't even really engaged this and now also this because i think it really takes the wind out of their sails that somehow the judge would have done it all over wonderful observation your honor in no in both cases they did not so for example mr bowser this case it's quite literally still a sentence in excess of the statute now could have the district court term to the same since one hundred ninety months yes but right now what he is serving is two terms of one hundred ninety months which is above the one twenty ceiling so to recent in some to one to ninety he would have to do eighty five on one count eighty five on two counts on the second term and then running consecutive that wasn't don so i think that's that's problematic that oh well it wasn't done you mean the district court didn't articulate it government did her good they won that one a district court says you know if if basically if i was if i was required to resentence i would do the same sentence and act and basically did did somebody march through the the the sentencing calculation that you would have to do without the a c c a and you said no and michael ok where's the procedur that who had to do what well i think in the give the district court stating its bottom line the fence counsel that saying well how do you get there right i think what you have to do under eight months still a reasonable sentence and what the government has argued is for example in count two he failed to appear in place guilty of that the judge sentenced him to eight months in doing so the judge said well that's required and it's a problem he didn't seem excited about it so the notion what the government's now arguing is that eight months sentence can become one hundred eighty month sentence i don't see how that's reasonable and so i think that's both procedural and subsequently prejudicial but i think there's a a bigger problem is that you know both of them were sentenced to very lenient e c a sentences almost the bare minimum under the statute so they are now going from the most lenient sentence to stream we punitive sentences and to do so when you're no longer a violent felon i think there's a rub and the only way i think the government can get to that result is by relying on the old case in case of course is a case that was handed down or years ago it's not published their ports not binding on this court and has been cited to by this court since it was handed down four years ago and i think for good reason let me just sort of i think special distinguishable from this case in the olden case the defendant was sentenced originally to the top of the guidelines because the district court quote viewed the facts as extreme and believed that a longer sentence was appropriate due to th distinct that was not dealing with the due process crime like johnson and the supreme court has held as a distinction with a difference here that quote condemning someone to prison for fifteen years to life does not  with the constitution constitution's guarantee of due process that's johnson well i also thinks problematic and that the singular concern expressed in that case was whether the same sentence could be reimposed i put it in different w i hear you making that the johnson back old diversion or distinction should apply to old versus this case that it makes it distinct yes johnson i think makes a categor or guidelines probably absolutely your honor i think it's a very astute observation and i think some there was also really grounded in some pragmatic concerns of interpret the guidelines and that the about holton is the same sentence cannot be imposed in its totality and we cite to a district court case and i know that's not binding i do think it's persuasive that when the logic bolton doesn't apply in full fashion which it doesn't here in either case it doesn't apply because of the supervised release term so you can't just reimposed the same sentence i think we need to send it back then and i think that's a proper spritz ija here is to send it back that's that's not har scar and my expectation is that there's a substantial likelihood that both defendants would get it all in the last i need you to i mean you say there's no arizona case that to the contrary of your argument and i wearing was not cited by a alan i mean you know so what's wrong with that in the way of looking at right i think there's three issues that why i don't think the arizona conviction proves having a weapon circuit that it lacks the element of use the tempted use or threaten you suppose a force it doesn't satisfy the force clause second it was what was the year one was it was a post johnson turner remember i mean yeah it's probably good that we use the residual clause all the time when the now when we're having to reexamine burn up your honorably post you know post sentencing post conviction after johnson i think it's a fair point is so is long really that powerful if it was pretty johnson and they just use the residual cause i would find that very probative framed this question but they did make the express finding though that it didn't satisfy the ok but i don't know how that was the arizona statute material materially different than the missouri statute that we've held did qualify under the force class good question contrast requires an angry or threatening manner there's no alternative means so i think that that's a distinction with a difference especially when you turn to arizona case law the pierce case were the arizona court which i think we six there is i think two ways it can be done because there's an or there and let me just read you what i have is the statute of a person who not necessary of self defense in the presence of another draws its any deadly weapon in threatening manner or who in any manner unlawfully uses the weapon in a fight or quarrel and it keeps on going on so i'm focusing on the or who in any manner unlawfully uses the weapon in a quarrel and i'm not saying give me an example of something like that that you know fine or a quarrel that would qualify give me a manner that wouldn't be violent are a threat of violence there's actually a case in arizona case the new york case there was a threat going on that was like after school threat and the defendant's brother was getting beat up and so the defendant goes down to a ravine he gets a gun i don't think you're right on the facts ok i think that's a force  situation well the fact that you know that he went down in the ravine and then but then he shoots in the air and then i mean i i don't i don't think that's an example of an arizona case is that it is within the for act after johnson however the government acknowledges that glenn harlow is no longer to be an on career criminal but remains legally subject to the sentence legally and illegally imposed by the district court it remains the position of the government that thomas boaz remains subject to the  well opposing counsel before i think as we get there you would concede there is not an alternative sentence found to be a violent felony under the force clause just a polio which i feel like i've been litigating now for the last decade has been repeatedly affirmed by this court most recently i believe in hudson manner it would appear that the original boaz opinion i found that the arizona statute does fall under the fourth clause and i would respectfully submit for this panel to find otherwise would require to overrule that earlier panel decision  the johnson case is not withstanding i think quite clearly with regard to the arizona crime we do have a fourth clause offense i would note that the case cited by opposing counsel was decided in  hundred five it is an unpublished opinion and the quote that opposing counsel used that is that the crime lacked the element of use attempted use and the court goes on does according to long their conviction does not satisfy the categorical analysis approach for the purpose of night section one twenty four read the court then writes we disagree and then they get into a residual clause analysis and quite clearly they decided long under the was just quoting the relevant part of the part of the statute relevant to wearing or whether the statutes change so i soon you run that down so it goes and the judge runners question how long has there been any distinction between the clause again i don't think there is any meaningful difference between missouri's unlawful use of weapon statute and arizona's even if you include that what addition of the manor certainly allows it creative lawyers to come up with a far broader range of hypotheticals that might conceivably be prosecuted and we have to search the years on a case law and where that's ever happened and i have i've i've looked at i was on a case of a ha as best i could and i couldn't find a case in court that would suggest that this crime is not committed in a manner identical to the way that is committed in the state of missouri under the act and additional to district court didn't get this particular one hundred eighty eight months exceeds the statutory maximum on every count that's their right it the mandatory minimum for the talking hundred twenty months on this sixty months on that eight months on this no in the initial sentence it was one hundred eighty months followed by four years for failing to appear followed by an additional four years for  minimum sentence the court could have imposed a lesser sentence even at that time but chose not to during the argument i asked for a sense at the high end of the guidelines the court concluded that was the the appropriate sentence it's a position of the government that once you eliminate the arm career criminal designation what your fate what your post with essential e is a guideline determination the defendant quite clearly could still be friends two hundred eighty eight months and judge whipple made it very clear that he intend he would have in posed the same sentence regardless of the dozen nations have you ever seen a case like that where let's say the guidelines was according to posing counsel somewhere in the thirty to forty months a failure to appear and it was as high as six hundred eighty eight where they the court actually stacked as i think we have to look at kind of as a practical matter you've got an unconstitutional sentence on the one count is it sure the court could have you ever seen a district court imposed a sentence like i don't think i've ever been faced with anything even remotely approaching the facts and circumstances of this particular case the gun case is about a three year but i can go as high as ten plus five plus five and i'm i'm thinking maybe one hundred eighty eight again i've certainly never seen a case like that but i don't think i've ever been posed with that particular scenario and in fact in thinking about that question your honor i believe that the only two individuals who have ever failed to appear are mr  not unreasonable i went back and i looked at his pre sentence report and i looked at the sense in transcript mr harlow's got an awfully extensive criminal history i noted at some point that he had like seventy seven violations when he was in the confines of the department does that change how we have to look at what the district court can now do or what we can a farm and what they did when it was unconstitutional and looking at  which is a guideline which is a guideline sense but interestingly son bear was decided when the guidelines were mandatory so the sentence imposed by the this report was essential e the mandatory minimum under the mandatory guidelines that we still get with here we do have a constitutional problem right isn't that the distinction are a distinction and that's why i feel do want to articulate it well but that's what you didn't address in your brief and old not distinguishable because here the underlying error is a constitutional error that wasn't addressed in your briefs ok and i guess the point we try to make in our brief is that the government the government's argument is essentially the sentence imposed on mr harlow is part of the package and yes part of the that package has now been changed to a certain extent but the overall sentence itself one hundred eighty eight months is still a constitutionally sound statutorily authorized that there is nothing unconstitutional about the imposition of one hundred eighty eight months on mr harlow the fact that one of the underlying crimes within that package the statutory minimum has been reduced is of no consequence ultimately when you look at the overall the sense itself is constitutionally sound one hundred eighty eight months for the two crimes falls within fault far below the statutory maximum sentence the judge whipple could have imposed i suspect you could  find we all could find some double jeopardy jurisprudence where the fact that double jeopardy is a constitutionally firm and he did not limit or restrict or re sentencing options ultimately judge whipple has as made his intent very clear that mr harlowe will receive the same sentence regardless of how the guidelines are alternately calculated  this case has been litigated extensively over the years judge whipple is clearly familiar with the case he's clearly familiar with the arguments made by both parties and he opted at the end of the day to state that even if all of these other issues are resolved resolved adverse lead to the government's position at the end of the day even if this plan a war to remand it mr harlowe will still be sentenced to one hundred eighty eight months and it remains position of the government that that  is a reasonable sentence predicated upon the facts and circumstances of this case and his nature and characteristics i see my time's up thank you clear that they were relying on the force clause or the residual cause they side to the jackson case which then in turn relied on the residual clause there are two other issues on the boat case that a certificate of appeal that build it was not granted and were deploring to that but i would point out that one of those crimes was an arizona third degree burglary so with that imminent turn harlow and quickly note that some bear actually was decided in two thousand and eleven so i don't think the guidelines were mandatory but more importantly you know i think when the initial sentence was i get what you're saying ok fair enough that's my recall burned up your honor but the same sentence let's say the discourse just does want to sentence him to the same sentence fair enough then and only then i think issues fairly teed up for this court for view and it's not ripe yet thank you thank you counsel