good morning everyone and welcome to the ninth circuit judge fernando's and i are happy to welcome judge william sessions from the district of vermont thank you for joining us we'll call the cases in the order on the sheet the first two cases are submitted on the briefs in the records that's united states versus robert law found and the second is united states versus every duran and and the first case for argument is tony green versus calvin john green's challenge to his mandatory career offender enhancement under the guidelines as they existed pre book or meets the tests articulated in all three of those circuits specifically after the time for filing his direct appeal and first twenty two fifty five there was a fully retroactive and substantive change in the law that revealed that one of his prior convictions cannot qualify him for career offender sentencing and the other side argues that there wasn't a change in the law and there are those arguments would have been free for him to raise at the time so even assuming that you could be actually innocent of this and saying and handsome and  that the majority of circuits have rejected including the circuit and that's the macarthur vs goodwill industries and the post vs andersen procedural availability test and under that test for whether somebody has an unobstructed procedural shot a certain circumstances for a modified categorical you could review the actual conduct your honor i'll be honest i'm not sure that i have a specific answer to what the precise categorical approach required of the time of mr green's  conviction and if the court needs to know the difference i mean if it's potentially relevant here i'm happy to submit further briefing on that but what the supreme court said in picking up i think it's controlling where they look at ninth circuit law and say this analysis  until the time that was case was decided we followed the supreme court precedent elice that's my understanding and i didn't see in your brief citing any case to the contrary no there's no case in our brief distinguishing between the law at the time of m sentencing and the law as it existed pre date can't because the government's never raised that distinction and i'd be happy to address it in further briefing to the extent that it's relevant and i'm not prepared to address that right now because it's not a distinction that the government has claimed  is that right he had to not have an abstract and procedural shot to to raise this argument i believe that the law at the time that mr green was sentenced permitted courts to go behind the statute itself and look at what was actually what the defendant admitted for example in a plea agreement i think there will be cases that say that defendants admissions even if they don't track the statutory elements could be considered close to camp that's not ok i think that you don't have a case and i don't have any recollection of a case i mean we always said you have to look at the shepherd documents and see what his plea call a plea set or whatever when you get to modify categorical there and i think the distinction that i'm raising is that when you were looking at the shepherd documents  you were looking at them for what was admitted as far as what occurred and not as to what it revealed about which subsection of the statute was violated because as i understand it at the time mr green was sentenced a person could be convicted based on an admission for example i delivered controlled substances even if the statute was overbroad an individual created a new rule about divisibility that had never existed unobstructed procedural shot it doesn't have to be a change in law for two purposes but a change in circuit precedent and that's what we had here that posted to cam the circuit can only look at what subsection or the overall statute if it's indivisible that was never the test before because checker shephard documents were used to consider what the person did and then that was deemed to be offensive conviction and purely legal error versus factual innocence distinction because i think that's critical here and i think there's confusion about what it means the take away that i have from the case that the judge that the government so strongly relies on rever says that there has to be something more than a purely legal error and this is what the government has used to say well sentencing in a sense is purely legal because there's no factual error and that's not the case the supreme court has told us that there's no analytical problem with saying that you're factually and assent of a sentence as opposed to a conviction that so and that wasn't sawyer versus whitley the other point i want to make about that is that you can have a factual innocence claim even though there's no change that happens outside of the law books and i think it's a sort of counter intuitive approach but that's what we know from our malo and from tuesday the changes in the law that occurred after bruce lee and i malvo encompassed only a change in what the law books say the offense is there was no change there was no due to new d n a evidence no recantation of eyewitness testimony because of course those types of facts could fall into twenty to fifty five but you have a change in the relevant legal parameters and when that change occurred the person became factually innocent even though there was no change in the actual conduct that's the same that we have here where the scope of a controlled substance offense has been changed for its legal parameters the prior conviction no longer please the court maybe potter on behalf of the united states mr green is not factually innocence innocent of dealing crack cocaine and that is the test that this court adopted in morocco in morocco they were very clear incorrectly treated underlying predicate crimes whether he received a sentence that he was statutory and eligible for and whether there was a constitutional violation and these are in fact the exceptions that the sawyer case by the supreme court left open in the sawyer case the issue there was whether he was statutorily in eligible for the death penalty and the supreme court noting that a death sentence is very different found that a defendant could raise under twenty to forty one are factually innocent actually innocence claim that he was ineligible for the death penalty here mr green was statutorily eligible for the sentence he received he not receive a sentence over the statutory max regardless of whether he was a career offender or not that in that case he is not actually innocent of being a career offender for purposes of them or a test for twenty to forty one so i'm not sure which argument you're making i know they make the argument the other opposing counsel makes the argument and your honor i would disagree with that this guidelines were mandatory but there were exceptions made in fact mr green attempted to get a lower sentence based on one of the exceptions by arguing that he was over represented and this court has never held that the defendant at the time i believe mr green argued that he was not as serious as a criminal as the district court found him to be that was challenge and rejected in his first appeal so sorry it was my third thought your honor in terms of the statutory max on the statutory maximum is what the statute said and mr green sentence does not exceed that statutory maximum so we would find that or we would argue that the twenty to forty one remedy is not available to him as is found it by the tenth and eleventh circuit and this court in morocco by saying a career offender cannot challenge his sentence by being by claiming he's actually innocent under twenty t forty one hundred just to turn to the issue of whether it his remedy is ineffective or unavailable to qualify for the escape clause you must make a claim that you never had the opportunity to make and that's the ip vs pun test so case mr green could challenge his sentence and his predicate convictions and his career offender findings from the very beginning he chose not to in his initial appeal his first twenty two fifty five he did so for the first time in a twenty to forty one and as prost and cart and both found that is not meaning that his twenty two fifty five was inadequate  person and he cannot claim and fall within the escape clause of twenty two forty one based on his failure to raise it and the fact that as of today he would not be entitled to a twenty to fifty five second our success a petition respectfully disagree with that disk camps and that this set out as a supreme court explain what's always been the law this is how sentences and prior convictions should be determined and mr green was free to challenge that from the very beginning i believe it was the eleventh circuit that explained instead of having the disk camps case we could have the green case if he had chosen to fight this career fender from the beginning and that is why his twenty two fifty five remedy was not inadequate or ineffective he simply chose not to make this argument and he can now claim and circumvent all the limits congress placed on twenty two fifty five by claiming that he's actually innocent of being a if the court has no further questions else that thank you you have some way that all time told us to do the government's position on the unobstructed procedural shot doesn't follow what this court has said is the test is not nearly as twenty to fifty five unavailable now that's in fact a prerequisite to an unobstructed pre rock procedural shot and we've established that twenty to fifty five is unavailable now and under this court's precedent you have to show something else which is that there's been a change in circuit precedent sends the first