good morning your honor at issue in this case is whether this court should authorize mr chen section twenty two fifty five petition so that he can bring a johnson challenge to his nine twenty four c conviction now your honor at this stage of the preceding mr chen has a very low burden and a low burden that in ray hubbard dictates he had satisfied i know the government wants to run from hubbard they want to undo hubbard but it's a law in hubbard this court held that a movement application processors ation to seek a successive petition should be authorized if the gate keeping requirements of section twenty to fifty five are johnson then that is met because johnson is a new case that has produced a new rule of constitutional law that the supreme court has made retroactive so it follows that mr chen you know if we're going to  very formulaic look yes you know then it seems to me we ought to be consistent across the board on that and johnson really dealt only with i'm twenty four  and you're asking for an extension johnson twenty c requires a new decision and probably a new rule so if we're going to just look at what this would be resulting in a new rule but in re hubbard made very clear the court said that the question about whether or not johnson applies to sixteen b or any other provision i something for the district court to resolve on the merits i mean this court address that was my point my point is to do so requires an extension in other words you can't come under the holding of johnson because johnson addressed the peculiar artie's of nine twenty four and so extended to statute nine twenty four see which has different language it may be something that can be instan but it may not be but it is in any event well it requires a new rule in other words you would have to now decide that nine twenty four c is unconstitutional but hubbard said that whether or not johnson applies there extends to nine twenty four c or sixteen b or any other provision is not the relevant question at this stage of the proceedings the relevant question is whether johnston itself produces a new rule of constitutional law and this is a quote your honor from harbord it says that the most plausible interpretation of the government that hubbard's present motion fails the third element that a new rule was previously unavailable not because the johnson rule was previously on a veiled was previously vailable to him but because the third section twenty two fifty five h two aliment implies that a movement may only authorization with a new rule becomes available to him in so far as it can affect its case thus the government could be understood argue that a plane it cannot proceed even from this early stage if the new constitutional rule cannot affect the provision on which his conviction or sense was base the argument fails here how or for because it is for the district court to determine whether the new rule extends to the can't get in because of another new rule then that would gut harbored because in hubbard also the supreme court has not yet said that johnson applies to sixteen b yet the court authorized the petition so you  under hubbard there's no way out the gate keeping requirements are met here and now your honor hubbard did say that even though the focus of the inquiry at this stage of the proceedings must mostly remain on the gate keeping requirements which we have just talked about this court said that a cursory glance of the merits can be done but even there all that means is that we have to show that we have a claim that is not implausible nothing more and the court emphasized that this is a very very very hard burden for the hurdle for the government to get past the court said the government has an almost insurmountable hurdle in arguing against the merits  only way the government can win here your honor at this stage of the proceeding that is a different a is if if the government says that its argument is frivolous essentially honor we don't have to be right we don't have to be probably right we have to be maybe right that the section one twenty four c research will clauses void for vagueness and certainly with all the litigation with four circuits now saying that identical sixteen b res honor again our burden here is very very low we just have to show that our claim is it is plausible your honor that's it so we the very fact that we're debating whether or not the section nine looks like you're telling me that it's just virtually nothing we can just wave on past that and the you know the question that i do have is that we talk about rule made retroactive by the supreme court and that word married is in the past tense and i'm wondering if you're trying to say change the word married in the statute to might may and other words and that's one of the questions i have and then the other question i have is by the supreme court not that now that there might be a new rule so what what what right concern is is that you're you're changing the whole nature of  statute and one of the fifty five page to from something that has been done and has been made retroactive into something that might be done and is a subject of speculation and this is just changes the whole time timeframe from from past to future i mean it there's the rewrite statue you know you know you would have to say hubbard rewrote the statute th because in hubbard the court the supreme court hasn't specifically said and had not said when hubbard was decided that johnson is retroactive as applied to sixteen b and in fact the hubbard court said look were in welch the supreme court had said johnson is retroactive retroactivity doesn't depend upon context either something is retroactive or not if it hasn't it hasn't even decided to question they set an argument day for that particular case and so that very fact that the supreme court will consider in the future well there is a rule here and whether she'd be made retroactive that itself is a concession that it has not been done it's it it's all in the future and yet the statu reads in terms of what has been done and the case hasn't been even heard yet well your honor will that would that hubbert then because in hubbard the this court found that even though the judge the supreme court  yet said that johnson is specifically retroactive to sixteen b the court found that it is not context dependent the supreme court has said that johnson is retroactive and that means  right right but it can do is have to say it but it can't be implicit yawner because the supreme court has said to you that type of rule is retroactive and then that rule is applied then it's a two step process that can make something retroactive yawner and so you honor him here if johnson was to apply to nine separate challenge as a distinct case and they don't regard or will issue somewhere in the area of rule vacate remand they regard it as a different case and it is in that case that they really either announce the rule or decline to announce the rule or make it retroactive or not make it retroactive and that's what the statute is which is  requirements say that the movement must rely on a case that's produced a new rule of constitutional law that the supreme court has made retroactive and this court said you look at johnson itself not johnson as applied to or extended to any other provision because that is something that should be left for the district court to resolve your honor the twenty to fifty five age two it's a gate keeping requirements it doesn't seem to be in your limits on that and it didn't you know and and the limits are explicit and they're not hard to follow and the reason is you've got to say was a gatekeeping requires not much of a gatekeeper requirement from your honor it's still there's going to be a rare case like johnson which i allowed us to come back and under the gate there have been many cases book or a blakely to ca and specifically said whether or not johnson applies to any provision is a question of the merits for the district court to resolve and that here if it move it relies on johnson the relevant rule is od morning the court has it exactly right mr chen is premature the fundamental question here is whether a petition or a can use the vehicle of a second or successive collateral attack on a conviction to argue for an extension of supreme court precedent the answer to that question is no and the government urges court to think of the two possibilities that could result if mr chen wins here and i allowed to file his second or successive i think by now it's his third havey as petition on twenty year old conviction either the district court would have heard yes your honor i disagree with the government disagrees with the petitioners position that the court has to overrule or gut hubbard of course one panel cannot overrule a prior panel's decision hubbard dealt with section sixteen b by its very terms it did not deal with nine twenty four c there were two questions presented the originally including the question of whether johnson extended to one twenty four c but by the time the court actually heard hubbard a different panel had decided that bank robbery the predicate crime was covered under the my colleague said in the prior argument as well there are differences between sections sixteen b and section nine twenty four c but i don't think the court needs to reach that here it can limit limit hubbard to its terms and its terms alone  d move forward with its consideration in this case i would urge the court to think of the two possibilities that might result from a district court's decision on the merits in this case say mr chen is allowed  vagueness not nine twenty four c so it's still a different statute maybe a little closer to the mark but we'll have to see i guess once that case is decided really what the government's position at that point is between sixteen b in one thousand if you're sorry but is that if and i know that there was some question about whether to hold this casein pending the decision and to maya i understand that the united states position about whether sixteen be in one thousand foresee or identical might be fleshed out a little bit more in the briefing on  o so at that point depending on what the supreme court's as you know we could always come back and sort of address the issue at that point but now we're further a step even further removed from that we have no ruling on sixteen b or nine twenty four  r all we're dealing with is aca if the district court agrees with mr chen and says one twenty four c and johnson applies to one twenty four c well then we're in the untenable position of a district court having made a answer to a grave constitutional question in the context of a second or successive collateral attack and that's a question that's going to come to the fourth circuit in this very bizarre procedural posture that it's not suited for this is not the procedural posture where the court traditionally engages in its function of refining and modifying precedent as our brief pointed out but the more dire situation perhaps for mr chen is if the district court says no johnson does not extend to nine twenty four c mr chen is gone at that point even if in the future the supreme court grants are on the question of whether johnson applies to nine twenty fo agrees with mr chen he's out he's totally done with that challenge because one court has already passed on the question and he can't raise it again according to ed pub because that will be a prison a question excuse me that was presented in a that this rule really is consonant with the precedent that's set in ed and the case law but the government does actually believe that it's the fair rule for the four defendants as well they wait and mr chen can solve that opportunity they wait for the supreme court to actually rule on the question in their case and if the supreme court rules in their favor and then decides that that decision is retroactive at that point those petitioners can in fact file their second or successive petitions and obtain relief but that is not the situation we face here and so we believe that the defendant the petitioner here is is pretty  government about hubbard this there is no difference on the gate keeping requirements here because in hubbard also supreme court has not yet held that johnson it applies to sixteen b or is retroactive to sixteen piece of the gate keeping requirements weren't dependent upon sixteen b nine twenty four c or any other provision in hubbard what the court said is if you rely on johnson because johnson itself is a new rule of constitutional law that has been made retroactive then the petition must be authorized and consistent with that your honor there are been hundreds of petitions that have now been authorized  this court so i just wanted to address that and with that said your honor as far as the a merits goes again this court can only look at do a cursory glance of the merits and surely the government cannot say with a straight