procedural rule that regulates only the manner of determining a defendant's cup ability or sentence this court applies a straightforward test for distinguishing between those rules that are procedural and those that are substantive assuming perfect trial or sentencing procedures does the new rule change the authorised outcomes of the criminal process if no meeting that a court could have reached the same outcome had applied perfect procedures that we're dealing with a procedural rule where if you do  which authorized the punishment for a class of persons here the class of persons who absent the residual clause would have had two or fewer qualifying crimes under aca and bows with a class of persons were those who merely possessed firearms but to answer your procedural due process in the sense that it does control or regulate which criminal prescriptions congress can or cannot pass in a way that we don't think of when it comes to procedural due process so johnson didn't say government if you provide notice to people or greater notice you can still come after them under the residual clause what johnson said was there was a general clause is facially unconstitutional no person may be sentenced to fifteen to life under the residual clause so what we know now is that people like petitioner are spending somewhere between an additional five years to the rest of their life in prison based on that where there was no valid act of congress which authorized that punishment and that we believe is very clearly a substantive rule under boughs lee before you get you continued to deeply into the substance of your argument could i just ask a possibly irritating question about the facts of this particular case the first question that you raise in the circulation is whether the district court was in error when it denied relief on petitioners twenty two fifty five on that page can you tell me if you were a district court judge would you have seen in that argument the argument that the residual clause of the arms career criminal act is unconstitutional leave a your honor we believe that with liberal pro se putting standards that what's said on ninety six and what's said on page eighty three work history invoked his fifth amendment right  to due process combining that with the language here that he does not mean arm meet arm criminal requirements because it's quote ambiguous vague and was that without any violence we think that would satisfy but more importantly we think that they're all just i mean i wasn't exactly the question i asked particularly when i was on the court of appeals and we reversed the district court judge they would always complain that you know you're asking us to you or to you know understand our situation my my question is if you were a district judge would you have seen in this sentence petitioners robbery under florida state statute section eight twelve etc it's ambiguous vague and was without any violence and or physical force if you read that as a district court judge would you have seen in that the argument that the court adopted in johnson you know i think the answer is yes again when you were at the sentence before and but more fundamentally i think the answer is that it doesn't matter because there's no question  that petitioners entitled to the benefit of johnson in this case not matter you're arguing that the district judge made a mistake so your answer is you would have seen it there and you would be a very pression district  complete answer is that the questions presented that were dressed in this case and granted by the court were drafted by a pro se litigant and i think that taking the two questions together what those questions asked are did the court of appeals err in reversing or denying a certificate of appeal ability so the first question if you're far into did it err on the basis of the elements cause question and that raises really the question of whether reasonable jurists could disagree as to whether petitioner conviction qualified under the elms clause and the second prong goes to johnson's retroactivity which again raises the question of whether reasonable jurists could disagree as to whether johnson is retroactive it may be the case that the first question presented as drafted by the pro se litigant when it was and granted by this court suggests that the question is that whether the district court erred but i think back on the residual clause as many courts at this time did because the residual clause as this court i think acknowledged in johnson frighted a relatively easy standardless analysis that would allow that many people could be subsumed within and that's really the problem here is we're dealing with an instance in which there was no act of congress which authorized this under johnson and what we had was essentially court deciding whether people did or did not fall under this this clause that this court has described as nearly impossible to apply as a judicial more out of the black hole which frustrated any attempt to apply and we think it follows from that that this is clearly a substantive rule getting back into the merits of retroactivity and if you will your honour's i would like to just appeals courts of appeals have concluded now if the court denies retroactivity here what it would be saying what is if the three justices and skilling had their way and instead the court had concluded that there is no possible interpretation of the statute it's incapable of interpretation all of those same people if the court with the further step all of those same people would be denied relief and then we think that's entirely arbitrary and it shows in the context of itself so this court in the gay said that dui does not clearly fall within this residual cause and then in chambers the court said that failure to report to a penal institution does not clearly fact we have no idea what congress did or did not want to follow so nothing clearly falls or almost nothing clearly falls within this clause that retroactivity nobody would get the benefit of retroactive and we think that's an untenable result  thank you mr chief justice and may it please the court united states agrees that johnson constitutes a substantive decision that's retroactively applicable on collateral review the effect on johnson controlling inquiry here what johnson did was a limb and a substantive basis for imposing an enhanced sentence under the aca and the effect of that is to create a class of people that the law cannot punish under this is the court's language and sure over summer land on the definition of a substantive rule the reason troubled by the use of the word class of people i make is right that that's almost a circular argument you're a class of people because i say you can't be covered by this doesn't make much sense and charms can't be covered by this law what's isn't there a simpler way  arguing this which is that if your co counsel is petitioner's counsel is suggesting that if you can be retried under the existing law with a corrective process that's a procedure all is as this court knows from montgomery versus louisiana the government's view is that all law that invalidates a mandatory minimum punishment within an existing range is a substantive rule because it expands the range of outcomes may not a limb in a the outcome that the defendant actually received but it does create choir an expanded range of outcomes and we regard that as a substantive holding but with that caveat i entirely agree that the basic distinction between substance and procedure is the substantive holding changes the question that the court or the sentence her is answering it changes it from in this case did the defendant have a conviction that qualified under the residual clause to does he have a conviction that qualifies under the elements cause or the enumerated offense clause only it strikes from the statute a basis a discre basis for finding aka applicable and that is i think as you correctly point out just a sort of my or very different from a procedural rule that would say you have to give the defendant twenty days notice before the defendant litigates this or the defendant has to be able to introduce certain kinds of evidence in support of the defendant's claim but the court is still answering the very same question was there a violent felony under a preexisting definition on altered by the court new ruling and once the court divides the world between procedural consequences and substantive changes in the law that alter the question the very question that the court is answering i think that w that the sentence the judge gave after making that finding was within the maximum permitted by statute yes if the substantive basis for imposing that sentence is altered so that the judge could no longer rely on the fact that he did why on to impose that sentence and it alter substantive law and there may be defendants and in fact petitioner may be one for whom it is still applicable because there's an alternative way of imposing the same continues to raise that strong arm robbery doesn't require as interpreted by florida law at the time of his conviction violent force this is what the court held is required to satisfy the elements clause aka in the other johnson case the curtis johnson case so he argues that violent force wasn't required that the eleventh circuit looked at some state law precedents and said we're just not going to decide this issue is here to  resolve under the residual clause so it remained an open issue under eleven circuit law and the courts below just haven't decided and i think there is a very substantial argument that a proper reading of florida state law would lead to conclusion that you do need to use enough force to take property from another person to be convicted of florida strong armed robbery and that would satisfy the critics johnson standard in which case his conviction would count but on an alternative basis but he has arguments to the contrary they have never been reviewed by the courts below and that is why the government's view is that this court should resolve the retroactivity of johnson in this case if it concludes that johnson is filing of a second or successive twenty two fifty five motion a defendant has to go to the court of appeals and request authorization and receive it under twenty two fifty five and twenty two fifty five age to permit certification when a new rule of constitutional law has been made retroactive to cases on collateral review by this court so it requires a ruling from this court that the ruling that relied upon is retroactive and the courts of appeals have split methodologically and substantively on whether this court has made jonson retroactive to be very brief about it the government's position is that this court has done so to a combination of holdings it's a syllogism all substantive rules are retroactive johnson is a substantive rule therefore this court's jurisprudence makes johnson retroactive but that is occasion substantial disagreement in the court of appeals unfortunately congress preclude its or shari review in the d p a so this court cannot directly review that conflict if the court in this case were to hold that johnson is retroactive it would make johnson retroactive and thereby entitle the second or successive filers to come in and the government believes that that would be appropriate because if in fact they are serving in iraq a sentence based on a residual clause conviction  an jail for a minute i'm of five years longer than congress ever validly authorized and in the government's view that's the kind of substantive holding that justice harlan had in mind in the maquis case which was the progenitor of the opinion it's means that the criminal process has come to rest at a point where it never should have come to rest the residual clause was not found read to be unconstitutional until johnson but once the court has concluded contrary to the government's argument to be sure but that it is facially void it means that congress never supplied a valid basis for those sentences and we think that it is consistent with the doctrinal framework that the court has announced for hideous cases and for the substantive versus procedural inquiry to hold it retroactive you know the amicus in support of the judgment has offered an alternative way of analyzing retroactivity i its approach is to look at the source of the underlying right rather than the effect that it has in the criminal proceeding that approach is in some ways reminiscent of the first step in the retroactivity analysis under linkletter versus walker the very approach that the court overthrew in teak that inquiry said what was the purpose of the new rule being designed they makes this argument would send the courts back to look at that as opposed to looking at the the effect of the rule and justice harlan i'm so himself i think offered us a very clear indication that he understood that it was the effect of the rule rather than the source of the rule he examined two cases in combination in the ma basis for criminal liability in other words punishing some for failing to incriminate himself just as helen said that's a substantive a fact and it's entitled to retroactivity when on the other hand it simply gives rise to evidence that should not have been admitted in an otherwise valid proceeding it produces a procedural rule that justice harlan believed was not entitled to retroactivity same right to different outcomes depending on the effect in the particular case and we think that that a fact based approach is what the court adopted ensure over summerlin and in t again it's applied in numerous other cases and it's also the basis for the government's view that while johnson does apply to the sentencing guidelines in the sentencing guidelines context it does not create a substantive rule that creates a procedural war the sentencing guidelines serve as information that the judge must legally consider imposing the sentence but it does not alter the statutory maximum or require a statutory minimum so a mistake in applying the guidelines functions as a piece of misinformation it's analogous to wrongly weighed facts or legal considerations within a preexisting range and in our view that is under the definition that just sort of my articulated and other definitions a procedural rule it influences the way a guideline sentence influences what the judge does but the judges charge remains the same to impose a sentence that is sufficient but not greater than necessary to achieve the purposes of punishment within a pre existing statutory minimum and maximum was to suppose that the judge said in the guidelines case because you are guilty of a crime of violence i find you within that class of persons to whom i will give an  enhanced sense procedural i think it is still proceed within the meaning of the teague line of jurisprudence because ever that result in a judge giving too much weight to a particular factor in making a discretionary decision fall into the procedural basket this court has a number of death penalty cases in which either the jury was deprived of considering certain information or it improperly gave weight to certain factors it received instructions that may have relieved itself of a sense of responsibility or ignored mitigating factors and the court has said those are procedural they don't change the ultimate outcomes that the court has before it they only influence the way in which the party gets to the outcome and they may be there maybe they're quite serious error but the question for retroactivity is not whether there is error it's whether it's procedural error or substantive error that actually alters the range of conduct that's being punished here we believe it's the latter and you have any view about what we should say about whether they did this issue was properly raised i believe that the appropriate thing to do justice alito would be to leave that issue open for the eleventh circuit to evaluate in the first instance it has not been passed on by any lower court i do quite agree with reading of the district court complaint i do not believe that a vagueness issue was properly raised in the district court it was called to the court's attention in the application for the certificate of appeal ability and in your quest to hold that application for johnson at the time that the eleventh circuit denied those things it committed no error either because johnson had not been decided and that makes this case as i think we said in our brief somewhat unusual procedural vehicle for clarifying the law as to johnson united states filed a brief at the petition stage saying just vacate this case and we manage it so that the eleventh circuit can apply johnson and of course it would be free to apply other procedural rules and we still think that's the right result can we do that and we just decide an abstract legal question without deciding whether the issue is before us yes i before i think that the court has jurisdiction to resolve a pure question of law and to make clear that other procedural impediments which have not been ruled on below remain open for the lower court i don't see any jurisdictional obstacle to this court doing it and the court has in some other context resolved legal issues so i mean the answer and to a lower court with leave for that court to apply a procedural bar if in fact that was the appropriate thing to do but the government didn't raise the bar we are most certainly justice ginsburg not raising procedural default in this case i was meaning to refer generically to the category of procedural issues along the lines that justice alito mentioned that should remain open for consideration below but the united states has waived procedural default in this case thank you counsel walking mr chief justice and may it please the court in the twenty five years since t v has decided this court has never held that a new rule based on the central procedural guarantees of the due process clause in either the fifth amendment or the fourteenth amendment nonetheless constituted a substantive rule that could apply to overturn final criminal judgments you should not do so for the first time here how can it not be s test that they draw from a statutory construction to case bruce lee is not the proper inquiry for asking whether a new constitutional rule is substantive or procedural since penry which after all was the case that first extended teague's first exception into the sentencing contact in the first place they are the court looked for the existence of a quote substantive categorical constitutional guarantee and adverse and that's what this court has looked for the foundation stone as you said just two months in montgomery is the existence of a quote substantive constitutional guarantee that must be the lodestar for whether a new constitutional rule is actually proves my point about the proper analysis and summerland justice scalia looked to the sixth amendment right to jury trial which was the underlying constitutional basis for the new rule announced in writing and he said well it can't be substantive because the sixth amendment jury trial right has nothing to do with the scope of conduct that congress can either punish or prohibit and so to here i don't think there's really any question i don't think my friends on the other side have seriously contested this but johnson is a case that is founded on the procedural due process right not to be put in jail under a vague law there's nothing in johnson that suggests there was any concern other than clarity predictability determinacy the verge for vagueness cases that the author of johnson shows appear to have been very carefully selected none of them involve constitutionally protected conduct none of them involve any other constitutional interest in play we have one book law that shows professor tripes treatise that void for vagueness doctrine has always been understood to come under the perceived or real due process component of that due process clause not was the use of a framework that specified the nature of the inquiry to be conducted and the kinds of factors to be considered and the fact that congress can go back and fix the problem with residual cause as members of this court have pointed out and as my friends on the other side concede only shows that johnson did not quote deprive that's the language of montgomery that's the language of henry did not deprive congress of any substantive power if you will to impose fifteen year sentences the problem in johnson was not that something was wrong with fifteen year mandatory minimums per se but because congress just hadn't articulated its statutory goal  that's the coach decision which said struck down a state law i think it was it said that you can't stand on the street on annoy other people and you definitely can't annoy a police officer the court said that is void for vagueness because nobody can tell what the  particular standard is but the court actually went out of its way to say certainly states can regulate behavior on the street we're not saying that states lack the power to do this we're just saying you have to do this in a sufficiently clear way so coach fully support doctrine and those have always been understood to come under the procedural due process component johnson was based on the fifth amendment so there are essentially only two options here mr chief justice johnson was either founded on the procedural component of the due process clause or it was founded on the substantive component and i think that if you've read fairly johnson from beginning to end you'll not see any substantive concern of concern that the underlying conduct was somehow constitutionally is definitively outside the scope of the statute which is what the court did in the gay and chambers and cases like bailey and there we know that the defendants are innocent of anything that you still with them until we are here congress has to redefine the crime that is a step in and pass a new statute so why is it sucks and two in one respect but not another saying two things have to be done the law has to be changed because we have to ask why the law has to be changed in bailey the law had to be changed because this court said the statute didn't reach particular conduct and so the defendants would be innocent of anything that congress ever congress could change the statute to to make nonuse criminal just possession yes and not show and so congress could change the statute to make of this conduct criminal i don't see the johnson didn't deprive congress of the power to legislate in this area it simply said you have to do a better job the court didn't strike down the residual clause because congress had exceeded its powers under article one or regulated something that didn't affect interstate commerce or regulated something some conduct some private primary conduct that is entirely and categorically off limits the court just said you need to do a better job for the court is that when this court interprets a statute we are outside the teeth framework entirely and there of course the court hadn't even reversed itself on the statutory question so there wasn't even a new statutory issue there when the court says what a statute definitively means it is making a judicial determination but the conduct at issue falls definitively outside the scope of the relevant statute here are precisely because johnson said that the clause was hopelessly indeterminate we can't know with certainty that everybody is conduct fell outside the clause at the end of the day it was a function of this court's approach to statutory construction decisions on the one hand which just aren't affected by teague after all the problem that team set out to saw was retroactivity in a world of changing constitutional rules and so statutory rules are to one side we should be looking here to the test for when a new constitutional rule is substantive and i think it's quite revealing that my funds on the other side have not even attempted to argue that the rule in johnson fits within either of the traditional standards for distinguishing substance and procedure in the constitutional context if we go back to just kind of these questions i mean you know the distinction correct and i thought the distinction at least  know the court says i'm sorry dishonorable of that maybe it's unconstitutional let's send it ok there are thirty two people in prison for if the statute under which they are convicted doesn't exist anymore because for whatever reason because for example i did not exist at the time because it was an unconstitutional statute they are serving time under a statute which was then and is now nonexistent and therefore they get out but if the change that was made in the law is a change having to do with the accuracy of the through that was used to convict them of that statute that statute still exists they didn't get the right procedure when they got convicted of it but we're not going to let everybody out of prison for those kinds of mistakes a substantive federal criminal statute does not reach certain conduct and i think the stop there for there is a statute ups but this person is in prison and this a constitutional rule and they don't even say it about as a by its terms applies they ask you to say to adopt a radical new test a comparable effects test but we don't need to analogize by an analogy to a constitutional rule which is what  is about we should use the standard for judging whether a constitutional role is substantive or perceived i would just as harlan have wanted that distinction in the world of constitutional law because it seems to me justice harlan as justice breyer suggested would have looked at this and said well yes but these this person or these thirty two people could not is it is improper for this person to be sitting in jail under any statute that congress lawfully passed i mean it might be that they could be sitting in jail under a different statute that congress didn't pass but congress didn't pass that statute and that makes this sentence for this person improper unlawful under any measure so why would justice harlan have wanted to exclude those people from the protection that he suggested in murky what justice harlan was concerned about in mackey was situations where the conduct at issue is immune from punishment nobody is immune from punishment under the residual clause in the sense that they were engaging in constitutionally protected conduct which is plainly what justice harlan was talking about and it's not enough that this court simply invalidates a statute we must ask why the statute was invalid it wasn't invalidated for a reason that was based on a substantive i understand you're going to tell us on the struggling to understand the reason behind it because you said if the if you weren't immune if congress could have passed a different statute you know coulda woulda shoulda congress didn't pass a different statute and that means he's in jail unlawfully well one who's in jail laughably if at the sentence became final he was they are under the law as it stood at the time we only apply new rules on hate b s when they fall within this now are category of substantive roles and the notion that when this court declares a statute unconstitutional for any reason that makes the underlying judgment or a conviction or sentence unlawful and as if it never wore the void a concept going all the way back to the one nine hundred centuries has been rejected by this court in its retroactivity cases linkletter explained that even when this court invalidates a statute the prior existence of that statute is an operative still you have a point that this is not quite like the past statute the past statute when we say there is no such statute it's unlawful and there they are twenty two people now in jail because they violated a statute and that statute there was no such statute or it isn't in the future and so we say you get out on the other hand if the only reason that they anybody got out is because they were convicted under a prestigious you see it was unconstitutional they are within the class of a valid statute putting in jail a valid statute put them in jail but we're not certain he's the right one because the procedure was unfair is he really that kind of person and that's a procedural thing it doesn't go backwards if those are the two categories this has some of both you're quite correct he was convicted for having violated a legitimate law that was not quite like our past on the other hand after palin has passed a large number of these people are sitting there in prison and there is no statute of the federal government that says a person like you have been told you are deserves or can be put in jail and so in that respect it's like the past and  is it like which is it like that seems to be the problem in this case it was all he wanted to address that or not it's up to you i would like to johnson has to be substantive if it's going to apply on collateral review so if you're not quite sure whether it's procedural or substantive then the default has to go to non retroactivity because whether we want to call substantive due process rule an exception to t or whether we simply want to say they're not subject to tea all the point is there's a particular type of role that qualifies as substantive and if it doesn't squarely qualify as substantive and i think the fact that my friend had to resort to an effects based test that draws from  statutory construction case that analogizes to the actual first exception shows that johnson doesn't squarely fall into the bucket i have a substantive rule and my second response just as prior would be justice harlan ever intended my understanding is that it's properly categorized as procedural if there are some people who could be convicted under it legitimately in other words miranda  you didn't get miranda warnings but you know you were a criminal law professor you knew what your rights were but who is it who could be convicted legitimately under the residual clause were sure yes ok  it's it's vague whatever but you were definitely covered so you shouldn't get the protection of what you would regard as a procedural flaw we certainly agree that johnson invalidated the residual and therefore to answer your question mr chief justice nobody can be sentenced under the residual clause going forward and the residual anybody that was sentenced under the residual cause will get the benefit of that new rule on direct appeal but the question that teague asks is whether that remedies should be available on collateral review and the answer to that depends upon and this was reaffirmed just two months ago in montgomery the existence of a substantive procedural guarantee which we cut the analysis loose substance procedure undertakes first exception cut loose from the underlying constitutional basis for the rule we're going to be entirely at c n n under but my understanding is that the characterization of that as procedural it turns on whether or not there is a significant group of people who could be convicted under that provision where vagueness would be off the table and however it may appear to other people engaging in this type of conduct maybe it's bad for them or for this group of people that's not so we're not worried about not applying it retroactively but we can't know that about everybody that was sons down the residual clause and yet holding johnson retroactive would give relief to everybody categorically that w including some people you think it shouldn't be applied absolutely shouldn't the residual clause apply well for instance let's take the petitioner in this case mr welch his sentence was correct under the residual clause at the time it became final which is what justice harlan said we should be looking at but even today mr chief justice his sentence is plainly correct on the elements clause florida law has made clear since nineteen twenty two what i'm talking about the residual clause yes i guess what i'm trying to ask you is who are the people who can say without a doubt their conduct otherwise involves conduct represents a serious potential risk of physical injury the people who committed the crimes that were at issue in this court's decisions in james and psychs the people who engag johnson overruled those decisions with respect to the vagueness holding but this court itself said that people who engaged in those two particular crimes were entirely correctly sentenced under the residual clause the court actually didn't homicide is conduct that today with the benefit of the analysis and johnson and then in its assuming we were wrong in those cases which i think johnson said yes we're said that nonetheless it's clear that those people the particular homicide people we shouldn't be concerned about applying this not applying this retroactively because another in another category clearly are covered by now let's put aside our cases where i think i understand assault with intent to kill i think all of those crimes would fall within the heartland of the residual cause without a whole lot of debate but the point again is that we need to go back to the existence of a substantive constitutional guarantee the reason why we are here in the sentencing case is because penury extended into the sentencing context by reasoning  justice harlan had spoken of quote substantive categorical guarantees recorded by the constitution nobody in this case has even attempted to fit johnson within that core of justice harlan's theory the case is that justice harlan cited in footnote seven of mackey that famous opinion those cases those conduct immunizing decisions of this court like stanley street and loving the other side does not even mention those cases in their briefs i think that shows just how far johnson retroactivity would be from anything at justice harlan ever intended at the court has no further questions thank you counsel thank you mr all you have six minutes remaining thank you mr chief justice i just have a couple of quick points to make the first one question by you mr chief justice the court suggested that the clear examples under johnson would be james and sykes and i'd just like to point out how this court described james and sykes in johnson this court said that james the case of james illustrates how speculative the enterprise under the examples cited by the government and in johnson and cited by the dissent in johnson were so easy once you looked at those more closely and so the court gave the example for instance of writing in a prison and said that when you actually break that down it's not so simple and the court seems skeptical that there would be very many offenses now did suggest it did except that there would be some that's like you know writing in prison may be right but the example of rape doesn't that clearly fall under that language well the corn accepted that there may be some clear cases it didn't define what those what universe of cases it had in mind but more importantly what the court did was say the residual clause is so standardless that despite that fact we are going to invalidate it general what would be your take on its effect on the guidelines your honor with respect an advisory guidelines and i know that's not the issue we pose but i just want to have a general idea find we think that the guidelines are different in guidelines and this court's pending decision in wm martinez may also comment on the anchoring effect of the guidelines and so there is an argument to be made there but i do agree with the government that it can be distinguished on the basis that when somebody brings a challenge based on the residual part is a person who sent us it's not conviction of the crime he's been convicted but a person who sent us is higher than it otherwise would have been due  unconstitutional provision of law must get the lower sentence even if you sentence fifty years ago that's what we would be saying now there are many many reasons why certain guidelines or perhaps statutory portions of the sentencing at might be held unconstitutional but i think i agree with you the reason this isn't the point in fact is that it's whether the thing is struck out because if it's struck out there's no basis for holding the person in the prison and that's what you're arguing your honor i green and i would i can't foresee in this and maybe you have is what effect it would have on sentencing across the board the government's reassuring because they say well we've thought about it this is seem to have that much of an effect it's important but if you could be reassuring on if you thought about it your honor i will be reassuring i'm know what we're saying is this court to be clear is does not distinguish in the context of retroactive your conviction or sentence and that distinction wouldn't make sense because we're talking about whether someone's confinement is on now what we're saying and what the i think the government the reason it wouldn't have such a great effect is that what we're saying is when it is just one of those substantive criterion in a particular provision which is setting forth the sentence which is struck down it's not simply a procedure or some sort of rule governing how you reach that sentence it's that rare circumstance in which an actual substantive criterion which qualifies someone or makes someone eligible for the punishment authorized which leads to the circumstance which your honor described which is that was not authorized by any valid act of congress now again there may be arguments that could be made to suggest that that ballot it's relevantly similar but it's certainly not something that's necessarily entailed it just like to comment briefly on the idea that  substantive rule should be limited those which in which congress completely deprived of its authority we think that chief justice rehnquist answered that question in doubtfully he didn't talk about congress and intent in fact what he said was that when the statute scope is narrowed like rules which place conduct beyond the power of congress the law doesn't punish those persons you create a set of persons who the law doesn't punish and for that reason in this circumstance we believe it's controlling as well johnson invalidated the residual clause there was no law authorizing the punishment of fifteen years that th