here as a point of personal privilege i want to mention that this is a very special occasion for me personally in the nominate people i mean by county formally practiced law here as did my county of your residence and i had to be approved by a character committee here and it needed to practice and it was minutes before judge nicol kramer whose portrait is on the to our left in the corner vacated teaching on retroactivity principle is not jurisdictional which means that the government may waive it by making a deliberate choice to forgo a sword against the government intentionally relinquish any  waving at affirmative defense and waving an affirmative defense as what the government has done here with the argument seems to me that both the government and i disagree with throwing the judge under the baath and i disagree with the judges including how controls the out of outcome in this case let me start by saying at the district court to properly reach the question of summons retroactivity it was wrong when it when it concluded that sentence does not apply retroactively to start with teeth does not apply to sentence for two reasons first of all sentences substantive and not procedural the court must ask itself this question when sente makes miller and at least one hundred other defendants that we know of innocent of criminal conduct how is it possible that summons is a procedural rule identifying that category of offender that falls within the reach of the statute why isn't that a procedural rule how sad that kerry story was procedural because it limited the court's inquiry to the judgment that is the hallmark of a substantive decision now powell does not are you saying are you arguing that powell was wrongly decided that we need to reach that question i don't think you need to reach that question and let me explain w how many folks are out there who would be impacted by that decision if you can obtain it here well beyond the nine twenty two cases i don't have the numbers the relief as well so you're here for mr miller but really here for everybody that's true and again we agrees with this is also true which is strange situation that you come in here is a controversy because the district or disagree with us so now there's a controversy but let me explain how how how will this not control the outcome of this case the only way to reconcile powell with supreme court precedents on the retroactivity of substantive decisions is to conclude that summons holding extends beyond carry jury and this conclusion is correct for a number of reasons first of all character it was not even a criminal case it interpreted an immigration statute and the criminal statutes that it referred to are not the statutes that were at issue but second the panel opinion and seven says that the meaning of the phrase that is punishable in section eight zero two forty four and whether that term had to take into consideration the particular defendant in question and issue again that was not addressed in territory first bite or twenty to fifty five really direct appeal this is first time well the fact that it's his first fight at the apple means that the working consider the case under twenty fifty five and doesn't have to go where they were when rights the decision of the court asked for supplemental briefing on mean there that the defendant had had it was having his second by and twenty to forty one wasn't available to him and so the government the certificate was properly issued because miller's claims raise a debatable constitutional line he doesn't have to show that a single judge ultimately would agree with him on the outcome of those planes he and he ultimately meet that low burden by in this case because the the district court decided it based on retroactivity and the two the two issues are and it struck ability and it's not necessary that the court come right out and say that is based on this constitutional issue but even  character e resent it was a procedural rule you can see that yes ok he seemed to suggest if not outright hold and the last few paragraphs of the opinion that simmons should also be viewed in that light it wasn't necessary to the holding in that case but he seems to suggest as much which is why that bigger is the sent by a judge who shall be unnamed but appears on the bench right next to me was a as vigorous as it was because it seemed to suggest that the scope of power went beyond carrot yury and might implicate the ability of defendants such as your client to get relief and subsequent cases so why doesn't pal control i'm not sure i agree with the court that that's what the majority said because the majority never talk about whether how it was retroactive or not and in fact it pointed out the government's position and how the government specifically stated how that it believed that sentence was r and the majority pointed that out and then made no ruling on whether simmons was retroactive or not and i suggested the court that if there is any unspoken implication to you that it doesn't have it's so we held that because no findings of recidivism or aggravation appeared in simmons's state record a conviction these enhanced myths could not be considered in determining whether the offense constituted a felony drug offense under the c s a that determine that beyond looking at the record of conviction you now go beyond that record to look at other information to make that determination but it remains nonetheless a procedural rule is that right that may that's the argument that he's making but i submit to the court that that really is not seeing the forest for the trees because if you look at what has happened to miller into other defendants and his position in fact they've been convicted of conduct that is no longer criminal and that is be unlawful when mr simmons received his enhanced when we now understand under sentence is entirely lawful so an individual like mr miller who could possess a firearm for purposes  against retroactivity does not apply because it falls neatly into the exception to teeth for substantive decisions of criminal law with that same results apply if we were dealing simply with a sentencing enhancement the only yes yes absolutely just yes the question that teeth raises is what is the rule is the rule itself retroactive or is it not so if it is retroactive as to some purposes for post conviction question is it does it apply retroactively at all so it would apply but let me be clear the question of retroactivity in cognize ability are distinct those two questions we first under t have to reach the threshold question of retroactivity and that's what this decision this case brings into play the second issue is c it is the government's the government has argued in the district court that quite a few of the defendants who have sentencing errors under sentence should be entitled to really we have agreed to that leave you know  carefully but i think when the question of how many defendants might benefit from the sentence or otherwise would not exist if it were not held retroactive is in much more than one hundred because that's hundreds hundreds at least if not miss hester argues that in addition to winning on the merits of tape we don't even need to get the take because what we're dealing with is a non constitutional interpretation of the of a statute or is the government willing to go that far we do not we have nots taken a position we have not waived the team defense in this case so we don't agree with the defendant in this case that we have affirmatively waived that defense and the reason we can waive it is because it doesn't apply you don't waive a defense that does not apply and this is an exception to that defense the exception is for substantive rules of criminal law a decision that makes a change in the substantive reach of a criminal law that decision sentence is one of those decisions so we don't need  applies and so we don't believe that that i think that that waiver issue is really a non issue in this case we didn't purposely waive it because it doesn't apply you  not our position was that characterise and that was itself better understood as procedural or substantive was a very close question but sentence the question of whether symonds is retroactive or not we do not believe it's a particularly close question and  we made that and that's not to suggest that the district court in this case was just off its rocker i don't think that's true either but we didn't draw the district court under the bus because we argued this point in the district court it's not as though we came out appealing we're arguing something else that decision and the honest application that decision is that it is a substantive decision that renders lawful conduct that we understood earlier not to be lawful you know with this be a correct statement as in part of the reason that you've taken that language certainly exists but i don't think that we have to run from that language because i think what the court was saying and how the majority was simply saying you know taking a small part of a sentence and noting that the sentence court was looking to going into the pal litigation you know we were aware that that that question of timeliness was important to establish and that troy powell was one of the few and that doesn't that's not really relevant here except that simmons did not construe the controlled substances act for purposes least not a forty four day it didn't also consider whether or not someone had committed an aggravated felony for purposes of the i it was not simply taking a rule and applying it to different facts indeed it was as the court recognized in power extrapolating interpretive principles and the government's position is that and this is what we looked at when we decided the position to take in power was that we didn't have any supreme court case that arose in an immigration context that did not apply to a criminal case that had been held to be a substantive decision for purposes of retroactivity every case that we've found baylee santo's skilling watson all of them rose in the context of a criminal case and that makes some sense so what we've looked at was that at a minimum a court had to take the character in rows and rule and apply it to a criminal case for it to be a substantive decision of criminal law character rosendo itself did not do that it answered perceivable questions but to the extent it could be considered substantive did so only in a criminal because it's not simply a matter of what we look at and in reference judged yes to your question earlier doesn't it sort of just change what documents we look at now we still look at the same criminal just what we looked at before the criminal judgment in north carolina what class of people who could be prohibited from possessing a firearm and that was a substantive narrowing it wasn't simply looking at a different document i actually looked at the same doc so how did not decide the case of the simmons retro activity perhaps because the government will not rest because it just rosen on a wholly different procedural posture this case and one of the reasons we didn't use rule forty eight and we haven't tried to you know we haven't looked for ways to get around the decision in this case is because we believe that this court should properly issue a published decision holding that sentence is retroactively applicable on collateral review it does apply it will have application to there twenty to fifty five is a motion that a government that a defendant may bring rule forty eight is that motion of the government may bring the government by consenting to a motion under twenty to fifty five is not bringing  right and we did not do that and you but you agreed that to convict shouldn't should be vacated we've said that in your pleading you said that in your brief yes but one of the thing that this court recognized in rice is that rule forty eight is very much about the government's discretion there is otherwise it's it's a very similar situations a different statute and then with what had occurred in the rice case was no longer an offense and so mr rice was saying that's right what i did is no longer a violation of law so i shouldn't be burdened by this conviction and be doing all his prison time right but the difference is that none of the post conviction motions and mr rice could have used were adequate they did they would work and that was the first part of the rice holding and so what th was look at the fact that the can and i think it was critical that the government had filed a motion in that case they collect which you have to say that it was critical they filed a separate motion if i do questions whether that makes a difference it was here you didn't follow separate motion but you said we agree that's right and we agree we agree that the conviction should be they think i have wholeheartedly to do that is that a distinction without a difference or it is a distinction with the it's a distinction that makes all the difference as this court recognized that's what you have to say to get us to the retroactively question it's also the question of what i would say based on the rice decision itself which recognizes that the government's the whole point of rule forty eight is to give the government discretion and that deference by the court to join in the relief and that's just king's point that the result it would appear to me to be the same well the mis judged yes i think the result might be the same but there is no exercise of discretion in analyzing the law and deciding whether or not the defendant or the petitioner has stated a claim for relief under twenty to fifty five we have no discretion on that if if the government reviews a motion to and believes that the law and believes that the law properly entitles the petitioner to relief i don't have the discretion to tell the judge that that's not true i have to on behalf of the government give the court the government's understanding of the defendants in total and so that really there's no discretion free or vacate their convictions or alternatively a suggestion that this opinion be heard by the or this case be heard by the court on bach and then powell be overruled i think either way i thought it was important to work consider all the potential and i think that makes sense because if you look at it unlike say a statute of limitations which is a personal offense for the government like all statutes of limitations it's something that is personal to a party and of course being waived or forfeited and that the court need to honor that  itself is not a constitutional claim i think if you even look at the structure of the constitution there are the framers created a path for people i haven't actually spoken on with me but certificate abilities not resolve the thing it just that it applied to mr power situation and i think that's an important point to consider because really if when the majority in power looked at the case and said well i character actually is a different holding it's not the same holding simmons there would be no need to write an entire published what made that point that this this was a case where character and simmons really on this issue they are the same holding which is that in a case like this you can't consider what a hypothetical defendant's possible punishment would be look to the record of that happens what do you think of that rule but i think there again are some challenges that gives a lot of power to the prosecutor it certainly does in fact you're i was very surprised when i read right thinking i was unaware that that power in fact i'm not sure what executive clemency and the president powers violation here but i certainly think it's so close to the line of separation of powers in a case like this that again i think it's very dangerous to when the government hasn't made that motions you construe a response or the pleading or orders have done so and  very briefly is that if you examine what the ultimate consequence of the sims decision on it ninety point two g case like this one what you really have is not a class of people who are now no longer this conduct is no always you can look at the papers that are filed with the judgment in the north carolina state court and you'll be able to see somewhere on those papers what the maximum possible sentence was that this particular defendant could receive but even that circumstance the government for example may look and say this is a really bad guy this in the tories drug deal and we know he's been arrested in a bunch of other places and i don't think there's anything in the law that suggests the government would be bound by what was in that state court clerk prepared for and they could come before the jury and prove beyond a reasonable doubt that in fact this particular defendant could have been convicted of more than one year in prison and therefore that they satisfy the elements of nine twenty two g i think that really highlights that this is in essence an evidentiary ruling it's required about what process has to be followed by the government what it needs to prove in order to satisfy the onus of the problem is that any different from a requirement that for example in bailey where the courts or the spring course of that using a firearm requires the active employment of a farm the government has come forward before jury and make out its case presented sevens and he that defendant falls within or without that class of defendants was guilty of that offense how is that any different than what we have here i think the difference is that bailey was a case that changed the range of conduct  firearm that that conduct actually been married is no longer a crime and that's a different situation than what you have here where the class of the fence in this case we can now say that it's not the worst possible of thunder but an offender who actually was eligible to receive more than one year in prison have we done the same thing here what minority your honor is that no the class has not actually been there that for example if you compare this to the cases for example in the our criminal act with the question what is the violence down when you say  thank you your honor very quickly pal does not control when it is not necessary that this case take power or this case on to overrule power because power doesn't answer the question  a suggestion that there's any in this net need to take this case on bonk in order to reach the substantive issue and hold that sentence is retroactively a political on collateral review the government disagrees with that position  the power for specifically did not address this issue and to the extent there may be language in there that that some folks have construed as having done that that is not binding controlling language of did the person actually commit the crime that we now understood and as we now understood standard should be defined and in this case it's not simply possessing a firearm there's one other element which is the person has to been convicted of a rule how can you say that there is no class of people outside of the statute when we can look at the state court judgment and determine that at least one hundred people are innocent of nine twenty two that is a question that amicus has not to point out to the or that using rule forty eight would only put off the retroactivity decision because the government can only use that in cases such as we like to put things off but i can tell you that the cases are going to bring this up