can resolve everything here today that sense with alan the i've just come out and we don't know whether that's going to be that's going to have it's got whether all be called on bonk or exactly what the finality is i have a question though in terms of in my twenty eight thousand dollars pro se motion to file supplemental briefing upon which this court granted the certificate of ability ability he same to argue that johnson versus the  that that johnson two and sessions versus the maya applied directly to the three strikes argument and now i don't see that really and your opening well let me say and i apologize i haven't reviewed that appeal so i do see a so i see something i see as i see something there so i had a question of bravery do you know whether what your position on whether the sentencing parties and did you let me follow up on that because i would it's it's my belief in terms of reading the record that it's not entirely clear which clause of th transcript at the sentencing and what she did at that time she simply adopted the probation officers justification for the sentence imposed and the pre sentence invest report writer merely concluded that monroe was life sentences proper because monroe had two or more serious violent a felonies otherwise the transcript is completely unclear as to which provision she was relying on whether it's in numerated for surveys it will cost you follow me yes it is and i'm probably not suggesting anything to you that you haven't already thought about but it seems to me that if it is unclear that you would have an argument under johnson two but you seem to have completely waived that argument by conceding that the petition was  untimely the petition would have been timely because it was filed within a year of johnson to well certainly if that's the court's view i well know i'm i'm suggesting that that is a possible way of looking at this and i'm following up on judge callahan's question to make myself clear why didn't you pursue that i mean why have you abandoned apparently that argument is that because you're just convinced that she relied on the based on the written that the way that it was litigated by the parties at sentencing and the court's resolution of those issues and its written tentative order but certainly if the court has a different view i would request the ability to  they use the word actual innocence it's really a miscarriage of justice kate when i think once we look at that we recognize that miscarriage of justice can apply to a sentencing error as much as a conviction error as this court recognized in our molina non bank case from several years to encompass sentencing claims like this particularly when it's a life sentence something that's just less than severity than the death penalty and illegal sentence is actual innocence and by illegal you mean a rolly is a sentence not just a sentence of where the statute says what the max is in the judge mistakenly sentences to more than the max well in this case yes the situation here i mean the court can leave for another day whether a sentence that might be illegal because it was an illegal mandatory minimum but it's still when the maximum it is looks at differently could be looked at differently but here we have a case where the maximum for the sense was twenty five years but for the three strikes statute once that kicks in in life sentences not only authorized but mandatory that i think under any definition of miscarriage of justice you're saying any miscarriage of justice it amounts to actual innocence and in this carriage of justice of this kind of this kind of what we do which which is and i want to put it in the context of there being the actual innocence gateway it being twenty two years i would hope not but i understand given the court's processes that the court would probably if the court feels that ellen vs eyes which is a very significant in the civil rights case is a dispositive case  then it should hold up for that may i ask you this too about you know we do get some cases i'm not going to say i don't know that your client is the most sympathetic of some cases that i see on a broader spectrum in terms of because it's i can hardly say that his robberies were not violent i mean you know one of the robberies there are shots fired between two talers another people are asked to undress they have to pull their pants down they go hey i mean that and he hasn't committed any crimes for twenty two years but i think we know why as a committed any crimes for twenty two years he's been in custody but they're pretty violent crimes as far as that goes so if let's say if you discretion so that would be the st step of the for the district judge to say should i should sentence just on count two which has a twenty five year maximum in which case that would be the maximum or am i going to open up the entire sentencing package as the government points out theoretically nine hundred and twenty four c has a lifetime maximum i have never seen a life time maximum in a nine hundred and twenty four c case where the mandatory minimum is five years and somebody has gone let alone in the guidelines era know going back the judge said well i'm sentence you to a life sentence because the law says that i have to did the judge say i if i didn't have to i wouldn't give you a life sentence she did not say that the him i feel like there was a transcript reflects a reluctance because she recognized that she said quote mr monroe is starting to turn his life around and again and then i think that particularly  that your client is raises connection with these rd twenty to fifty five motion filed in two thousand and sixteen but that was in relation to the count a court gives us the opportunity we will make whatever changes are necessary did you read i'm just curious and this is my last question did you read the th circuit memorandum disposition and let me get it specifically here in united states versus morrison morrison united states versus morrison which referred that case morrison back to the trial court and then the following decision of judge sobrante from the southern district of california in morrison versus united states they did and that's kind of the roadmap n right clear and clarity goes to the right ok all right that's all i have thank you judge good morning good morning ashley all for the united states there's a lot of talk about if i can i'd like to explain both why the correct resolution of this case remains the same after ellen and if i have a little bit extra time to point both claims this is been consistently litigated as an enumerated offenses challenge and that's that's accurate under the under the procedural history of this case and that's why it is not on all fours with morrison that also goes to the core of what our arguments are about regardless of his claim of actual innocence and i want to emphasize this point because extending allen to twenty dollars to fifty five dollars and saying that alan's reasoning says that he's excused from timeliness under twenty to fifty five  directly contradicts blackstone in the final section of blackstone the court analyzed the timeliness claim regarding in one thousand foresee challenge and the claim there was that defendant was actually innocent of his nine hundred and twenty four c conviction after various developments in the law this court held that that was untimely under two thousand two hundred and fifty five f three there is no way to reconcile a vat reasoning with what defendant is now arguing today which is that he's excused from that timeliness bar by the same kind of innocence of a sentencing enhanced meant blackstone compels the defendant's motion was not timely under two thousand two hundred and fifty five f three and regardless twenty to fifty five defendant can't fit through the what would you what was his straight shot from your perspective frankly his straight shot was he raised this in the district court he was oh was that not the question i asked i think about whether that  is not sufficient to show that he didn't have a shot at presenting this claim but the truth is the way that he's a litigator reflects that he flip a gate at this claim at the time of his sentencing he not only had a procedural sort of general s opportunity to do so in any he's even under alan he's not actually innocent we've put this in the twenty to fifty five part in our twenty a letter and i want to explain why he cannot show that he couldn't have received very bad robbers absolutely and defendants argument as i understand it is twofold one is that the court shouldn't take into consideration departures from the guidelines that's just not true it is perfectly reasonable that a judge at the time could have departed upward and he was sentenced to the step of what he would in the stacks would have been in the district court i can't remember if he challenged his career offender status your honor standing here now certainly there wasn't a lot of litigation about it because there this would have been a substantively unreasonable sentence to impose life and that just isn't the case defendant's other argument is that this has to be analyzed count by count so that you can't take into consideration the one hundred and twenty four see it all because the only thing being litigated today is whether what the stat max was on his robbery conviction and that's incorrect for two reasons one bruce lee itself recognizes that in analyzing actual innocence the court doesn't just look to the actual counts of conviction but can look to other account that the government for went as the result of plea negotiations which is to say that because actual innocence goes to factual innocence it is not necessarily subscribe an account by count basis in the way the defendant says it's also as i thought about it today it's frankly when analyzing whether or not a defendant is actually innocent and so for that reason even under alan i submit the defendant cannot establish the kind of actual innocence that is needed but that's only about the time you can answer because i want we went over w why you think you can win without one the way it is right now i think there are two options i think certainly this case could be stayed if there is an ultimately a call in alan alternatively if the court found that allen which is published in binding as of present demanded that there be a particular outcome here it could follow alan if i thought it was binding i don't think it is and then as a result potentially have this case also considered on bo aspects of the rule because it extends the twenty to fifty five in timing rules so i think those are really the two options either a stay or they end up kind of following together on a potential on bank track and again my argument as to why alan isn't controlling  is one because defendant cannot establish actual innocence even under even assuming actual innocence can extend to sentencing and hansen's which allen decided then the defendant is still not actually innocent because a reasonable judge could have imposed  sentence it was well within reason ability to depart upwards from the guidelines frankly somewhat modest is that your prejudice argument that and i know that i know that appellant's council or petitioner's council criticize you for that but i think that you did talk about prejudice previously but then this whole thing is shipped all along so it's a yes your honor it's exactly the same argument that we raised in our answering brief which is that because defendant's life sentence remains legal that he's not actually innocent in the reply brief defendant raise the retorts to that which is that while the guidelines are mandatory at the time and if you took away that the guidelines called for only five years in the one hundred and twenty four dollars c and so are twenty in the argument i just made really is just illuminating that that retort is not correct that just because the mandatory guidelines by default called for five years in the one hundred and twenty four c that does not mean that the only thing the court can consider in determining whether he's actually innocent so it's the same argument we've made from the outset just judge starr comment that i'm giving you a life sentence because the law requires it what what's your response to that no i agree with mr laughlin that she did not say that this was the only reason she was imposing a life sentence or that she would impose something different having not been there it's hard for me to perceive the same reluctance that mr laughlin identified it seemed to me like she also made a description of why this was a reasonable sentence that said that's not the test is not prejudice one of the things that the supreme court said is that ultimately there is a difference between actual innocence and standard prejudice analysis this court all the time and under player for instance analyzes questions of prejudice was it was it likely that this might have affected the outcome that is not the standard for actual innocence of a sentence and in fact in fact that is exactly what the supreme court rejected in sawyer and it held that the standard is higher the standard is would a six hundred and twenty two thousand three hundred and twenty seven months that's twenty two to twenty seven years i think for a thirty year rule man do you see a difference between twenty two years for a thirty year old man in a lifetime sentence they're certainly different but then again the question is whether no reasonable judge would have imposed a life sentence and looking at the guidelines table i think makes this somewhat clearer were really i would a reasonable judge get from a guideline of two hundred and sixty two two thousand three hundred and twenty seven months to a lifetime sentence in this case by taking into account various factors that were not adequately adequately considered by the guidelines such a house so such as the particular particular terror that he inflicted upon some of his victims one of his victims testified at the sentencing hearing by taking into account the that he got so that for instance he didn't take into account exist that there were these threats of death to various people at different times that someone had their head shot right next to or would this be an upward very i'm sure would this be a reliance on some departure it would be departures because it was under the mandatory guidelines so there were effectively no variances there were only departures but departures were ok that's right there's ok i'm sorry you know so we would have to have done a departure correct we've listed some of them that would have could have applied frankly there are many that could have applied and again the question is would any would no reasonable judge have been able to impose the sentence if you keep going over that and you were about to say it's so miller to sufficien evidence and i want you to finish that thought as i think you're saying even if you feel like you want to cut the guy or break that it's  it's it's a pretty high standard high standards to overcome it's a very high standard in the same way that sufficiency of you is could any reasonable juror have concluded that someone is guilty beyond a reasonable doubt and that's a very deferential standard here if anything the supreme court's jurisprudence analyzing what actual innocence is supposed to mean underscores the deferential nature of the standard the question is supposed to be is this person serving his sentence even assum impose the exact same sentence i don't think it would be subject to challenges substantively and reasonable and so the answer to that question has to be that there is a way in which a reasonable judge could impose the sentence def that the fed it has adopted is incorrect he's not innocent of his sentence he's not serving he's not for instance it's sentenced to death in a case in which actually the facts could not possibly have supported the sentence he's serving a sentence that could be  and if that's not sufficient to foreclose a claim of actual innocence i don't know what is he's not actually innocent of a sentence it could be reimposed under the same terms i thank you for your argument  twenty five years he would be innocent of that if if you are these life sentence illegal but you can somehow get jump to a completely different count and where do you get the maximum well where did you get the maximum of twenty five years that's the maximum for armed bank robbery but for the federal three strikes law right but the but for is really important here right that's what we're saying he's no longer has a three strikes sentence and that's why the local maximum is twenty five but what the departures up to lessons how much that was rare in the book or era well i'm just wondering why though because all of these every time we expand this it really goes i think against the finality of judgments and the time that people are sentenced to crime is fresh in everyone's mind and twenty two years later then it's what if if everyone can be if you can up and everything if you can't show actual innocence then it's always like well now i think two thousand and twenty two years is enough because you were thirty and now you're fifty two and it's the worst crime twenty two years has been so many things that have happened and so it gets forgotten so if we turn a two way highway into a freeway then everyone that's ever been sentenced can be revisited and said well i think now it's enough well i guess i disagree with i mean obviously there has to be some type of significant error that results in a recent thing i think this more than qualifies into i mean i think under the supreme court's decision and pepper would recognize that any time you have a resentencing it's got to be based on the circumstances that exist now if this one rosary sentence now he will be based on not only the crimes committed in the eighty's and ninety's but how he's performed in prison over the last twenty two years and that is he said that it you know but then he gets to say well i haven't committed another robbery for twenty two years while he's been locked up well but your honor i mean i mean he was on a pretty good i mean these were serious robberies and he was on a pretty good run and you know part of how he can say he hasn't done anything for twenty two years