good morning may please the court care hartzler on behalf of mr spitta and mr grotto all begin with a question that the court asked us to address whether the defendant is guilty pleas for close a collateral attack in light of the supreme court's decision in class and the seven circuits decision in davila class controls this case dead on and the reason is because both in class and here the person pleaded guilty and then they made a constitutional challenge to the statute of conviction class said in those circumstances a guilty plea is not foreclosed that's exactly what we have here so that resolves the question and in fact as we pointed out in our twenty eight j at least three other circuit courts have held post class that class applies to similar circumstances the only thing that i think could run of the skew of this is davila and there's several reasons why davila is no longer good law after class first of all  predated class by at least two years and individual basically what judge easterbrook said is that the question of whether a person can go ahead and bring a challenge after a guilty plea turns on whether the the district court originally had subject matter jurisdiction class found that that is actually not the correct analysis basically what class said is the analysis turns on whether the person could be convicted so it's not a matter of whether there was initially subject matter jurisdiction it's a matter of if you look at the indictment in the record on its face is is it possible that the person could be constitutionally convicted and that's why  control here because if you used to deal as reasoning in class class would have come out the other would say or do i have all that here are you really challenging the constitutionality of the statute of conviction or more than a underlying predicate offenses for which would enhance the sentence of your law we're challenging the residual clause of one thousand foresee and i think that that's that's what we're raising the constitutional challenge through to through our twenty to twenty five  like in class where he raised due process challenge and second amendment challenge to the the statute of conviction so that's why we think that these cases of the same i've been wondering whether we need to get to the residua he was tying his guilty plea directly to its being a drug crime and the judge was tying it directly to being a drug crime and if so it doesn't need to be a crime of violence so you're out or you're in the honors is correct that the indictment but i mean what i'm talking about is taken together with the rest of the indictment and the guilty plea to the individual count whether he was admitting that what the gun was used for was in connection to the drug conspiracy so your honor we don't think that that's possible we think that it can only relate to the crime of violence as both a question of law and a question of fact as a question of law it can't be nine twenty four c can't create two two different offenses in other words in this case though what would have been proper if it was going to wrestle with both reading two different offenses because there would be at nine twenty four c that rested on the drug trafficking offense and then a nine twenty four c that rested on the crime of violence the duplicitous of the charge and sentence was designed so that he would have an increased sentence because it connected to both but i don't see where that would matter here well your honor i think basically the indictment charged two separate offenses that's why it was duplicitous it charged a nine twenty four c that related to a drug trafficking offense and then it also charged a nine twenty four c that related to a crime of violence that's why the and then there was the exact same situation where there was basically a series of incidents a series of offenses and the the court below had said no you know this can't be this can't satisfy johnson because in one t could rest on both of them and the eleventh circuit said no that would creep the problem of duplicity so when you're looking at which type of offense a crime of violence or drug trafficking crime that the ninety four c rested on you can't have one  that what he admitted the key thing he admitted was the robbery and granted the robbery was of a drug drug dealer but the robbery was the key thing and if i could just read to the court from the matter that would be the key thing as long as it's connected to a drug trafficking and i think that if this were only about a drug trafficking crime to be right but it can't be both it can't be a crime of violence or drug trafficking and that's the key and why i came to the vote because it would it would violate the language of the statute it would violate the curious what's your best case and says that well gomez i think would would the eleventh circuit case there's also a case that the that the government cited called smith and basically it said look you can't have one count criminal enterprise right there because the both of these individuals were in charge of collecting the tax says it was the failure to appropriately meet the tax that then caused them to in one instance do this robbery in connection with that kind of retaliation in the other one actually can one thing the drug dealer so it's connected to the drug field and you're saying well you can't look at it both as a robbery and a drug trafficking offen so why can't we just focus on the drug trafficking offense nature of the conspiracy so i think the court is bound by not anything in the record that related to anything other than the factual basis the factual basis what mr stewart on mr gr admitted is what controls and i'm going to read from your two forty two this is from mr studios and what the the prosecutor said was that he did aid and abet command induce or order such robbery to occur and then mr spoto says in that respect yes i'm guilty of that what he just said that only related to a robbery it didn't relate to a drug trafficking offense and when you look at mr grottos the same thing applies basically the over arching factual basis was that there was a robbery and the other more most important thing is that that robbery already took place after the drugs had already been delivered in other words the drug transaction had happened the robberies would never have even taken place of and were all in them for some of their drug trafficking activity i mean that's arguable but again i think we're really bound by the the factual basis and the factual basis hinged on the robbery and the robbery took place after any sort of drug transaction occurred because of that and because you can only have it rely on the drug trafficking offense or the crime of violence we are in a situation where it has to be the crime of violence and the crime of use or brandishing or discharge of the firearm in multiple counts in connection with the simultaneous furtherance of multiple crimes and each of those court concluded that it would be multiplicity s because the unit of prosecution in one t c is the actual discharge or brandishing and as a result it's not duplicitous because for it charge to be deployed as that means we are charging two crimes in one count there's just one crime contained in count to eleven and twelve at issue here and that one crime is the brandishing or the discharge of a firearm which happens to simultaneously further two separate crimes that's not a duplicity issue but even if it were what this court connected to both the crime of violence and the drug trafficking offense and for the reasons your honour's have already identified i'll start with mr spook though the factual basis certainly showed that his brandishing a firearm was in connection with a drug trafficking offense what we have to fifty three to fifty six to fifty seven in two fifty eight are missions that showed that his very participation in the conspiracy to distribute narcotics was as a result of his taxation program mr sputum imposed taxes on drug dealers which cost them to raise their drug prices through which he received tax payments the offense that he pled to in one thousand and four c was for robbing a drug dealer who failed to pay taxes should be and it almost is a passing remark that having two separate crimes makes it duplicitous when it clear analysis of the statute shows it's not because it's really in the use of the firearm that the activists write yes of the statute  itself but second the analysis in goma that discusses the problem in the strain of duplicity there was that there were potentially multiple uses of firearms in connection with multiple crimes that were not connected in the way that we have here the rico conspiracy was the drug conspiracy i mean for all intents and purposes the rico conspiracy that mr speedo led was one where drug distribution occurred and he collected tax payments through robbery through violence the sort of core of the affronts was the distribution of narcotics and the nine twenty four offense one twenty four c offense here was during the lay sion to that drug trafficking offense all that's required in the supreme court precedents for dealing and relation to is that it facilitated or had the potential to fulfill a take the offense meaning that the involvement of the firearm was not the result of accident or coincidence that is precisely what we have here grados factual basis is the same what we have our admission that mr grotto collected taxes a year to forty five he admitted that he distributed drugs at the r two forty six and importantly he admitted that the overt acts contained at paragraph three thirty seven to three forty four which is contained in to sixteen to seventeen that those over acts were true with those over access stablished is that mr grado had agreed to distribute methamphetamine and had sent one of his associates to go collect that methamphetamine when they learned they had been shorted of the methamphetamine that they intended to distribute so it was part of the conspiracy to distribute narcotics they went and  confronted the drug dealer where he was the discharge of the firearm occurred and the drug dealer was sure they were shocked exactly your all of that was during and in relation to the conspiracy to distribute narcotics so the factual matter we believe the record clearly shows that the offense rested on a drug trafficking offense and then as a legal matter we don't believe there's any duplicity issue at all but even if there were in the context of the plea we have here as well as on sure that the subordinate dealers don't short the conspiracy correct your honor that i had one of what he was charged with the nine twenty four is shooting the drug dealer rather than dealing drugs twenty four senior yes argument as opposed to having waved it by pleading guilty pleading guilty your honor i'll just say that none of the cases that ms hartzler cited applied class in the context of a hate b s proceeding ordinarily what we know for hey b s is that once you plead guilty to an offense only challenge you can bring it to the voluntariness or to the knowingness of the plea itself blackledge in men out of the two cases described and discussed in class sort of are an exception which is whether there is a right not to be sort of semi conceding we probably have to get to the merits of this case but i would i would suggest we never raised the waiver issue before the district court or in our opening briefs the court doesn't have to address whether in the first instance class actually does extend right thank you thank you counsel just briefly on the on the class argument i would point out that blackledge itself was a hideous case and this court has in fact applied the blackledge mina doctrine numerous times in the hideous case i'd be glad to do twenty a j if that would be helpful but as to the issue it  yeah that's what i want to spend a lot of time on it here is the one most important reason why and nine twenty four c count can't be supported by both the drug trafficking offense and a crime of violence there are hundreds if not thousands of cases out there where the government in the past has used the same counts as part of the same incidence to charge to nine twenty four c offenses and if the court holds what the government is asking it to hold basically the court is going to be getting hundreds if not thousands of people the opportunity to do a hey vs saying oh they weren't allowed to actually bring a separate nine twenty four c count on this other count that i was charged of so i think that's a very important thing that the court needs to think of and because we also believe as we said before that the fact as a factual matter this relies on the robbery rather than the drug trafficking offense which occurred before we believe the most m