that case the petitioners brief so i don't really know how far the issue's going to go but i think it certainly could address this type of issue and we certainly by could nighest that in most cases this course inquiry as hell but guilty pleas waive anything that could have been a waste prior to making these arguments like the government is about to my arch preserve certainly based on class or the potential of class i will address the merits of the combat what might otherwise be as kind of violence are not crimes of violence so the completed crime of robbery requires one actually take money and property right correct so if you're dealing with a client say mr wheeler in this case let's suppose variation in the facts and he tells you i didn't actually intend to take any money or property we were just through this was a prank or we were trying to show the the failure the lack of security measures at the bank maybe it was a political kind of stunt we never intended to take any money that would be a good defen intend to threaten or to use force that would also be a good defense correct correct so he can't be guilty unless he intended to use force and took substantial steps towards doing so correct under your theory is it correct i was trying to make a list of you identified to attempt crimes that you think would be covered by this in the hypotheticals was let's go back to nine eleven and suppose one of those groups of hijackers had been thwarted by their crews and passengers would that be a crime of under your theory it was attempted hijacking not knowing the elements of hijacking it's hard for me to answer i think that an attempt to fly an airplane into a building may not be a kind of violence that the turnstile a crime and they would still be obviously punishable for that and convictable for that the question is whether nine twenty four c comes into play here we're certainly not arguing that mr wheeler can't be convicted of attempted robbery that he but there's a video there's clearly a connection there the question is whether nine twenty four c applies because that crime that are that crimes a crime of violence and the intent to use force is not listed under nine twenty four see the use attempted use or threaten force so congress could amend it to include the intended use actually shot and wounded the victim of this sort of robbery why is there an injustice if we were to read just declined to decide this issue i think particularly with the one twenty four c because it adds ten years the river in this case also has nothing to do with the question presented in class versus united states the question presented in that case is whether a guilty plea waives a constitutional challenge to the statute the conviction and  reach the question presented of course here we are talking about an exquisite waiver in mr wheeler's plea and second class concerns only constitutional challenges to the statute of conviction here in the record is crystal clear that mr twenty four c three a is unconstitutional instead the crux of his argument is that he is actually not guilty under nine twenty four c three a because the crime of attempted hobbs act robbery can never satisfy that definition that claim is explicitly waived and his plea agreement interesting re the record indicates that mr wheeler actually did attempt to negotiate a conditional plea agreement with the government in which he would have preserved the right to appeal certain issues raised that waived any issues he may have raised in any pretrial motions that should simply be the beginning and the end of the night twenty four c if you hear independently mr wheeler also concedes that this issue is subject to plan our view under that standard and under this court's recent decision in chariton he must lose if his argument is quote debatable and as is reflected in morris and armor and in the decisions of other circuits and perhaps most  claim is also subject to clean air review and again that standard is fatal to the dean issue as well the most glaring deficiency in mr wheeler's dean argument you can probably see it prank three of the  tast which requires him to show a reasonable acaba billet eight that his sentence would be different under jean he does not even attempt to make that showing and he cannot the district court here gave mr wheeler a mandatory minimum of ten years on the one twenty dean issue is not a waiver problem it is a fact the chair wasn't raised at all because everyone was prevented from making the consideration that's now allowed and that goes to kronk three is the district court who has not been a district court prior to robers and had ability similar to when the guidelines were mandatory to consider the separate the sentences either separately i'm sorry i gather as they relate to each other therefore there is a substantial probability that it would be different the district court should be