court in general there are lots of defendants including mr who are poor now serving extended time in prison when the law that put them there but that extended time has been declared unconstitutional my client would be seventy seven to ninety six that that that we make it clear distinction between what my client stands which is under a mandatory sentencing guidelines the mandatory guidelines were provisions that fixed punishment and the residual  defender in the southern district of new york in one thousand nine hundred eighty i can tell you with all certainty that that was an incredibly mandatory system the government reminded of that at every turn because you a system that we face now with the departure with up to the judge under any it's a system that requires those and indeed under even their criminal act you can get below that statute by virtue of five one point one in mandatory minimum sentences you can get below  problem with the procedural isn't it's not about being procedural in this instance it's that the deprivation the const unconstitutional begun is that a statute that was applied which claim class individuals and increases their sentence no one was increasing sentences and they were providing a means a different means of how you determined that sentence that was no longer mandatory if we honor i know the federal defenders was incredibly conscientious and i was brought in on this case by virtue of being called and asked if i would take on this case nancy bound by over six of them because of that concern that this was a new world and indeed there was a  split among a number of the lawyers about whether the fact that welch which may johnson retroactive was really the date that we would go by in terms of the one year and how would your ticket whether it's a new rule we have to say that it's have it somewhere where you go ready and you know it's you look at the rulings that this supreme court and there's a reasonable complication of that that's dictated by that but you don't even have to go that far because johnson applies to this is the same language it's a mandatory system if you look at the four i guess case and i sided with the second circuit which is the only circuit i know to have i don't know many circuits that have ruled against johnson applying to mandatory that the second circuit which is no slouch frankly has said that they're going to allow that cases when there were opportunities to go below the mandatory minimum despite it being a fixed sentence it was binding and i think that's really the critical word that those guidelines were binding and they were subject to a culebra view and the court with constrict the court had to work within a binding fixed sentencing system thank you guidelines so my client would be out of luck and i have no i really have no doubt that the government argued that it was an extension and therefore it's not does not state a new rule of law and therefore consecutive successive situation because they made clear that the district court really is the first order to resolve this even if it's a purely it's a purely legal issue because we just need to make that kind  shame that we have potential merit to our petition and we believe we have done that quite effectively the government may argue against that that that's something they can certainly argue at the district court level and them things are seated they can fill that consistent with case for me because it showed a court who saw that but know of a concurring one concurring judge regarding an open question and that did not preclude them from going back to which she said what she really is meaning in my view is less a open question that the supreme court is going to the thigh and more of the way the second circuit looked at and it which was the notion of not foreclosing this argument substantive nature of the rule of the change of the rule you know i'm just asking a question of whether the