sentencing rights most collateral attacks on conviction and sentence and so on but the court went out of its way to say the agreement said nothing about the right to raise on direct appeal the claim that the statute of conviction was  express waivers could here just can't be waived because they are challenges that go to the fundamental power of the government to charge and prosecute at all do you think if that if that reading of classes correct johnson don't you think the supreme court would have drafted its opinion in broader terms as judge is judge hamilton is you know recognizing there were certain claims that were waived in that agreement there were certain claims that were not waived right near the end of the opinion the supreme court comes back to that right before the dissent begins the court says it referring to the plea agreement it does not express they refer to a waiver of the appeal right at issue right here at issue so i just i have a difficult time reading classes saying notwithstanding any waiver  no matter how it is written a you know a defendant can challenge the constitutionality of a statute of conviction just seems contrary the way the opinions drafted yes your honor and the involve challenges that were brought to their either statutory challenges rather than constitutional challenges or they were challenges and what underlying charge was still valid under one hundred and twenty cities elements provision which has broadly what qualified as a matter of statutory interpretation as a crime file so it's i'm having trouble understanding what you think is the difference between the waiver that we enforced it worth and you know the waiver and the argument isn't that there's a distinction between the labors the argument is that there's a distinction between the nature of the claims at issue and more of an unlikely issue here the claims that issue here chaired purely on whether mr you are you asking us to hold then that that you know in a plea agreement no matter the language no matter how clear it is a defendant cannot wave attached to it your honor we don't believe that there was a legal obstacle but the government chose not to tell us what effect would that have had on the sentences that ross and oliver were facing for the robbery with the shoot not brains targets for the killing like robbery with apologies i would like to reserve a little bit of we've taken up some of your time i'll give you a little bit of time for rebuttal is there anything else you wish to tell us whether any further questions may please the court good morning your honor is nathaniel whalen here me at the united states of america five times a defendant has appealed an argument that there qualifying conviction doesn't qualify as a crime of violence despite pleading to a nine  carson worth than mitchell and davila and we reckon seven are briefs we represent them in our supplemental position statement and what this court has said is listen you wave your right to appeal we're not going to go back and look at the merits of whether you r crime of violence is actually classified better under the elements clause or the reason defendants argue really that their case is different because it's the government's power to bring them to court to hail them into court on this one hundred and twenty four c charge i think constitutional problem with the government charging the underlying crime of violence under the elements cost and that's cases hobbs act or operate in this case that from a federally licensed firearm dealer right it would be unconstitutional for us to charge out under the we might loose you might lose a roll twelve motion as a matter of statutory interpretation the crime might not fit but there's nothing unconstitutional about it and that's the difference between the cases defendants rely upon and the argument they're making now and can't you when you also say there's no there's both nothing unconstitutional about it and nothing that if you did bring the charge that would suit it would suggest the district court lacked subject matter jurisdiction to proceed that's correct you are the district court had and that's the difference between the argument again the cases defendants relying upon like class or the supreme court's cases about double jeopardy prosecutorial addictiveness and all those cases the defendants have admitted every allegation in the indictment and said there's some constitutional problem with bringing this charge here the defendants are actually disputing an allegation in the indictment that there crime underlying crime is a crime of violence that's a big difference between what's going on in those cases in this case and that's why this court hasn't reached the m whalen what is the record show here regarding the scope of bargaining over these waivers for the appeal and collateral challenges jarod the defendants got very generous concessions change of play they necessarily admitted every element of hobbs act robbery and that's why they're not actually innocent of nine hundred and twenty four c because they've used a firearm or brandish to fire him actually in furtherance of a crime of violence in terms of the illinois robberies the prosecutor makes numerous statements at i believe all three sentencings that how lucky the defendants are that they weren't charged with nine hundred and twenty dollars foresees based on these house act robberies and if they had been what would the church  the sentencing prosper to look like you know i think it's somewhere like eighty one months or i'm sorry eighty one years mandatory minimum with the stacked consecutive right into this is just more of a st step back and so it would have been for try to do it charge what would that have looked like for sentencing problems well it would have changed the indiana robbery as a nine hundred and twenty forests that are not exact yes so are you saying that substantive had sacked as well or just know we also did cap mr ross a sentence of twenty years but the final agreement yesterday he was a career offender and so he was actually guideline ing about that before the three levels of acceptance responsibility that we also gave them by just taking the plea to the and forcing waivers for example collateral relief waivers in circumstances where this court has held the statute to be constitutional yeah you're on our dime twenty four c isn't unconstitutional and i will say that we have debated the waiver in this case pretty extensively we've honored it we've argued a bunch of johnson cases in front of this court including judge hamilton you've been a particle bunch of these where we've waived the waiver we didn't take this decision to waive the waiver lightly we've ran it up the flagpole a bunch of different flagpoles before deciding to assert the appeal and there are two large considerations in asserting t because they know the benefits and so here we are nine and a half years later dealing with this case where there is the issue of spoil that ends potentially and where we are getting very little benefit to our bargain at this be well the statue of limitations has run on these offenses will just blow or you want to blow up the whole deal will blow up the whole deal and will go to trial all four of these yes that's going with the time passage here are assume it's not very practical research that is not a practical response to this in your honor and i think that a usa statements at sentencing he wasn't clairvoyant but he was actually very good at creating a record for this particular issue nine years later really does make clear that we had other nine hundred and twenty four c's excuse the pun blocked and loaded that we could have charged based on the hobbs act robberies and we chose not to and i feel extremely confident that had this court dealt with this issue in two thousand and ten or two three illinois robberies as well as you know we obviously couldn't control that charging decision because it was in illinois but i think given we had two defendants who admitted in the grand jury that they committed all these robberies in illinois and we had mr ross who admitted before he got in the grand jury before he had any minute he admitted these robberies we could have been able to persuade illinois office to take the case and i think would have been a very strong case two minutes for a  conduct so this case is exactly like last there is no dispute that the that a gun was brandished during a robbery no one is disputing that the only argument here is that they couldn't have been charged under ninety four  remedy that we're asking for here is not just a caterer and releasing them the remedy that we're asking for here and it's really at the government agrees as appropriate is that this court vacate the nine hundred and twenty four dollars c counts remand and the man the the defendant breaches the terms of the plea agreement by trying to bring a collateral challenge why isn't the appropriate remedy simply to vacate the plea agreement all the convictions and start over your honor we don't believe that a breach of a clear agreement is what anyone's asking for here you know i know your honor what we believe class establishes is that these constitutional