morning and welcome to the th circuit we also welcome the students from clark law school who are here with us this morning the st case for argument this morning is united states versus raymond and we have submitted on the br related case of raymond versus sa me also just say that we would like to welcome judge huck who's here from florida sitting with us by designation as he has done on a number of occasions that we welcome you came up here for warm weather successive petition is a term of art mr raman cbs journey began in two thousand and sixteen when he filed a two thousand two hundred and fifty five motion challenging his base level offense since this motion was based on johnson the district court on its own state the matter while beccles versus united states was pending when backless was decided and the matter know that the matter was no longer state mr raymond voluntarily filed a notice of dismiss government had taken any stance in the matter before the court took any substantive action and without any concession of defeat at least ask you this as a as the th circuit said in parts didn't he recognize with his counsel's assistance that his petition was due your honor with regard to potts i think that the record is somewhat it's least not non ambiguous to whether mr braman would have recognized that it was assumed the notice of voluntarily dismissal doesn't indicate it just says that he's withdrawing it because he no longer which is why and why would he serendipitously at that moment after beck also came down or any other reason to withdraw the motion you know and i think that i think that's there just isn't any support in the record of why mr raymond would have filed the notice to withdraw that motion after but i mean did the timing within back uls is there but i still think on the record there is not you don't s that there was any procedural problems with the petition do you know your honor and you know it suggests that there were other issues that were looking in the background or you know something else that was going on that se and he had made his other claims maybe it would be in a different posture but out appreciate your comments on the fact that he had this counseled petition and whether that makes a difference pretty much doomed the joshing plain right and since there was counsel their counsel had seen me ethical obligation not to proceed in a case that he knew was frivolous she fall and much less support what i think the fact that there just isn't in the record the record is not ambiguous or ambiguous as to what mr raymond would have been his reasoning behind the notice of withdrawal is just  absent and that contrasts for example the filter case where the attorney had there had actually been hearing set and at that time the attorney was unable to obtain affidavits and explicitly in the notice that withdrawal or the motion to withdraw explicitly indicated that the reason was because of the affidavits and that she was no longer be able to meet that burden of persuasion and that type of explicit language is missing in the notice that was filed by guess the records just silent as to what what the conversations between mr raymond and his counsel had been at the time that he was at the notice of withdrawal course that the record is silent but it could have been supplemented or we could have declarations could we not and then we would know the answer that's correct your honor but neither he nor his counsel decided to put that declaration on the record correct that's correct  i think given that this was his one opportunity that there has not been any type of a district court ruling or a decision on the merits we would argue that the district court erred in dismissing this is a nd or successive petition thank good morning your honour's ryan well then appearing on behalf of the united states i want to start with the reasons for the withdrawal and just give the court a brief timeline unless there were any other questions but i think that the reasons matter and i think you can see that in the record just because of the timing so if i'll start with we have the st petition that was filed on june th of two thousand and sixteen that's in the record it thirty three and then you have the back calls decision where the  certainly there is the back calls petition for writ that was filed and so the court orders a response on june th of two thousand and sixteen and then the same day that the u s supreme court agrees to hear the case  and so then three days later there actually is the noticed that the court says that this is going to be stayed and then fourteen days thereafter we can make a determination as to how we're going to proceed with mr raymond's petition then we ultimately have the decision from backhauls that comes out on march th of two thousand and seventeen and then eight days later we have mr raman through counsel filing a motion asking that the case  for a ruling and in that i think that that's important the language that council use uses because i know he doesn't say we're going to lose the petition but he concedes and i think rightfully so that baucus has decided the issue and he says on march  two thousand and seventeen the supreme court issued it's decision in back holes in back holds the court held that the advisory sentencing guidelines are not susceptible to a wagner's challenge under johnson that is the exact purpose behind mr raymond's petition so that is the concession in defeat the then the petition is withdrawn at that point and so we have each before that is it and i took time to talk my client and he made their representation then came back and dismissed that's correct or yes he wanted time to speak to mr raman at that point and then it was ultimately withdrawn and i think the whole idea behind it is we want to make sure that mr raymond has the opportunity to present  writ to proceed through twenty dollars to fifty five dollars proceedings but we want him to put everything together so that it's one petition that is filed and he could have amended he could have done multiple different things through counsel he didn't do that and now he then files an additional petition do you think it makes a difference if he's represented by counsel i do your honor i think that it makes your decision as a court much easier we did cite in our brief ramos decision from the th circuit i realize that that's on published but in that case the defendant was actually not represented by counsel so the th circuit ultimately said though that since there was a specific concession of defeat then that was sufficient for us to then move into that nd or successive petition here i actually think it makes your job much easier because you have an individual who is represented by counsel i think if mr raymond had not been represented by counsel we might be in a different scenario ok thank you the other thing i wanted the court just to be aware of is we're in the awkward position that this is really the st time the united states has appeared on the matter we haven't even had the opportunity to present a stand yes we haven't even had the opportunity to present other defenses that we might happen so i just wanted the court to be aware of that we have the nd or successive petition hurdle that i think is very difficult for the defendant but keep in mind there are other hurdles and procedural defenses that we have yet been able to present thank you all right thank you for your time to me but all time if you'd like to thank you i'd like to thank both of you for the argument this morning and also for coming over from montana the case of united states versus raymond is submitted