the argument asli i would first like to briefly address the due process violation and mr of there as removal proceeding then i would like to argue the main issues that the two cases have  common which is whether the new definition of extortion in both the career offender guideline and the illegal reentry guideline which abrogated this court's decision investor lopez should be applied to cases on appeal turning to the due process violation daniel rivera had a viable way of avoiding being deported back to the country where he had been tortured as a child there is no dispute on that issue there was not contested below or on appeal the only question is whether the immigration judge fully complied with her obligations to accurately and carefully explore those options with him in context is critical here mr of there i had an asylum application that it had been pending for five years a delay that has not to this day been explained he was in detention and he was on represented in that context it was misleading for the immigration judge to indicate that he would have to file another application for asylum because it implied that he would have to restart the process from the beginning in an implied another lengthy delay moreover at the end of the hearing he changed course and asked the judge what can i do to stay in the country the judge did not tell him what he could do the judge said you have to stay in guatemala and this court has made clear that an immigration judge has the obligation to fully explore with a respondent appearing before her all options for relief and that is just as true at the beginning of the hearing as at the end of the hearing at the end of the hearing he made clear he did not want to accept deportation you know he decided to appeal the decision the judge said do you want to accept this decision or appeal and he said he wanted to appeal to anyone who's familiar with the immigration court process that decision made no sense because there was nothing for him to appeal in the immigration judge knew that but the immigration judge did not give him an opportunity now that here at the end of the hearing to play for the relief that very well could have saved him from being deported back to guatemala briefly then turning to the issue regarding the guidelines and whether the whether the change was clarifying to me i need to get to that question in there if we decide that the two thousand and two deportation was not sentimental a fair no if you agree with me on that first argument your honor his conviction would have to be reversed so he would not have to address the sentencing issues so sentencing issues would only be if this court agrees that the removal proceeding was fundamentally fair so briefly if the court doesn't have any further questions on that first issue i'd like to briefly address th the clarifying versus substantive argument the only difference between the change in morgan that this court found clarifying and the new definition of extortion that's at issue here is that in morgan there was a circuit split so morgan laid out a list of non exhaustive indicators of what might make a change clarifying or substantive in morgan itself the change of morgan itself did not meet the first or the second of those factors and then the court said look there's a circuit split and it cited to a seventh circuit decision that said when the guidelines change  ambiguity in the original definition of the guideline it's clarifying and morgan said when there's a circuit split on the issue that's a key indicator that it's merely resolving an individual in r t existing ambiguity in the guideline now we can see there was no circuit split in this case but morgan did not say that you know the black and white ticking of the boxes as to which courts have decided each way of the issue was  positive and again they relied heavily on the seventh circuit decision in hearts which phrased it broadly as to whether the change resolves an ambiguity in the original wording of the guideline here we have the term extortion that was entirely undefined up until this change and it's a term that does not necessarily have a set definition in fact federal law defines it in different ways the hobs  definition the court and best for a lopez chose included threats of property but for example the federal three strikes law in its definition of what constitutes a violent felony contain definition that limits that is limited to injury to persons much like the new definition that the commission has decided these are both reasonable interpretations of the term store sion and when the guidelines and when the commission merely chooses chooses between reasonable interpretations that is a clarifying change there are no questions on this you point to my colleague  cing due to the court's procedural error and failing to address defense counsel is specific and non frivolous argument that the guideline applied was unsound and this puts this case on all fours with henderson there the issue was these policy disagreement with the child pornography guideline and the district court stated essentially that it would await guidance from the ninth circuit and made no specific ruling on that kimberly used request for a rejection of the child pornography guideline and hear a defense counsel made it and other specific non frivolous the policy argument that the guideline applied was unsound defense counsel explained that the commission was amending the guidelines and a mending the definition of extortion specifically to exclude offenses such as two eleven which include nonviolent threats to property and it was doing so because courts had strayed from the intended purpose of the career offender guideline which was to focus on the most dangerous and repeat offenders now counsel explained this and the court stated essentially i have no intention of reading into the future i have a difficult enough time understanding what is happening today and that was insufficient for a meaningful appellate review and remained as required on this basis the error was not harmless as the government claims because it did result and guideline that and a sentence that was three times the low end of the otherwise apply couple names and this is in light of mr vittles serving a significant state sentence of nine years for this offense and the court ordering a consecutive s now there is another a procedural error that requires a rematch in this case and that is the court's failure to correctly calculate the guidelines by determining that two eleven was a crime of violence and i'd like to first address the threshold question which is what is the legal landscape that this court is confronting in the wake of johnson and in light of buckles now the government asks this court to sidestep johnson entirely and to rely on pretty johnson precedent in prince which relied on the residual clause and that is wrong for two reasons the first quite simply is the government has waived any reliance on the roads and on the residual klyde and the constitutional vagueness principles do not apply to be advisory guidelines and then provided a roadmap of how to understand the effect of johnson under those circumstances and she first describes the dual effect johnson one johnson explains that deriving any meaning from the residual clause is a failed enterprise the residual cause is inscrutable and backhoes did not retreat from that assessment whatsoever and second johnson expressly overruled the supreme court's precedent inter breeding the residual clause it overruled be gay and james and cites and chambers and in so doing it also specifically overruled application of the ordinary case test so they're no longer in the test in the circuit for application of the residual clause and with these principles in mind she concluded that johnson quote so undermines the residual clause that it cannot be accurately interpreted and therefore quote a district court would commit procedural error and abuse its discretion if it used the guidelines residual clause to calculate the guidelines range and this is why the government's simple citation to prince that only commentary that interprets or explains a guideline is authoritative or entitled to deference and in this case just as a brief reminder since the guideline is different than that it is you and mr  interpreting one of the numerator defenses plainly makes no sense to say that robbery interprets use of explosive for example and finally robbery cannot be interpreted the residual clause after johnson because johnson state good morning your honor this may please the court ashley all for the united states very little of these cases is left after beccles and this week's decision in china square this which resolved the core common issue of whether california robbery  of extortion which appears in amendment seven ninety eight of the guidelines is not retroactive under any of the principles are articulated in morgan notably morgan and quinn terra laver and van all stein and cattle and all of these cases that found amendments retroactively applicable they all identified circuit splits and there's no dispute there's no circuit split here but the court need not rest on that narrow ground reading amendment seven ninety eight in my view it is clear that what been covered by that definition before but is not a clarifying amendment that is a change and i think it's particularly clear with respect to well in mr rivera's case in two well the amendments to which humans too well and adopts the extortion definition from seven ninety eight doesn't even apply crime of violence to felonies anymore it's a ground up re rejiggering of that entire guideline and so the crime of violence definition and the enumerated offense extortion felony under an old version of two well i would submit is one bridge too far on the claim of procedural error and mr biggles original claim was that the enumerate offenses no longer could be applied because they were quote the  pivot and rely on the dissent in lee that claim would be subject to plain error first of all there's no controlling authority holding what defendant now argues and moreover the it ultimately this case does not depend and under presser locusts you cannot avoid the two eleven is categorically a crime of violence under the preacher twenty sixteen guidelines and finally on the thirteen twenty six d claims under any standard of review though i submit that the that the way that you know reading the transcript it looks as though if she had not kept cutting him off she would have had the basic information that he had an asylum claim pending that had been pending for six years and then she could have properly advised him she could have adjudicated that claim right then and there and she didn't so it's almost like she didn't even do the predicate work to allow herself to be able to give him the proper advice on this why isn't that a violation of due process so i think i absolutely understand their concern i read the record slightly differently and i have likewise have read it multiple times and listened to it to try to reliable yeah my final question is how could she advise when she wouldn't let him talk so she didn't have the basic information so in my view she did so her first question to him was just a factual question her first question to him was just do you fear returning to the country of guatemala based on particular factors and you return if you're returning for these reasons and notably in my view defendant immediately we knew what she was talking about that was just a factual question but he said yes honor but i don't wanna i'm afraid to go back there but i don't want to get that i just want to get deported right now so from the very outset as she's complying with the c f r requirements that she figure out the factual basis for a possible form of relief he's knowing what she's talking about saying i don't want that like i'm afraid but i don't want that and she does it again she doesn't stop her advise and i think this would be a much harder case if after that first denial she had stopped and said well you said you didn't want it and so i'm not going to keep advising you but she kept asked being the factual predicates not only first first for withholding from the oval then for cat she kept repeatedly asking him these factual questions and he repeatedly said not all he said yeah but i don't want to i don't want to it was only seven but the problem is i context of his having already spent five years waiting for that decision and he has can i get a little he obviously didn't want to go to what you could tell at the beginning of the end exactly what this court has repeatedly said and i have to do which is go through the advice since under the c f r provision she was doing exactly that and i understand the concern that he had this thing pending but when he told her that she said she asked him if he file in that moment another one in order and then it would have been set for a new hearing no doubt they could have gotten their hands on the other end location that's correct i don't think he would have had to pile on he had a pending application with the government last year why would he have to pound the other one so there is a hint in the record as to what was going on that i only discovered him prepping for argument at your one ninety five when he ultimately did get notice of a hearing all in two thousand and five long after this there's a reference in that notice to him being a potential what's called c class member i looked into this just out of curiosity the a b c or first to american baptist church versus thornburg which was at the last action settlement regarding a whole host of asylum claims  government was overwhelmed with asylum claims from guatemalan during the civil war for understandable reasons many of which were denied some airily or held for long periods of time when he ultimately did get his interview or a notice of an interview in two thousand and five there was a reference to that but i admit that is that's the only thing on the record explaining why there was a long delay between his filing and ultimately getting an interview and then there was a notice of an interview in two thousand and five and nothing happened after that understand what his choices were particular standard this court has always been tied to i think it's twenty eight c f r i think it's twelve forty dollars eleven which says what i do has to do to advise aliens of their potential eligibility for release this applies in a number of context but if you get the factual basis you have to find out whether they do have a viable claim for a voluntary departure or in this case cattle whatever it is and then advise them of their potential eligibility based on that factual record and it really can't be said that the i g didn't do that here she did do that here he just kept saying he wasn't interested and while i agree with the court that the record on what exactly he wanted to accomplish particularly in light of his ultimate reservation of the right to appeal is muddied i can't say that what happened is fundamentally unfair from the perspective of the i j a who did exactly what this court has repeatedly said the i j a supposed to do  enforcing due process rights in immigration hearings the court looks to whether it mean the typical case you have a failure to tell the alien anything about a form of relief to which they're eligible certainly that didn't happen here or you have a missing guys meant that they're not eligible for something that they are that didn't happen here and i'm looking at all of the historical cases that have identified due process violations in failures to advise cases none of them are of the type here where the the i g did advise him there can be no his eligibility but he said no and as judge walter found in his findings here he not just said no once he said no repeatedly and effectively mooted any further inquiry by the i j a because he was so insistent that he didn't want something and thank you your honor i will i will briefly respond to the government's argument regarding harris and then mr manning or can handle any other remaining questions that the court may have for him the government is advocating in this case that the commentary have freestanding legal effect and i wanted to make clear that that presents a separation of powers issue this court has explained in mistretta that the reason that the sentencing commission pos was constitutional muster is because congress approves of the text of the guideline and congress does not approve of the text of the commentary and therefore placing the commentary on par with the text would create the precise separation of powers issue that mr avoided so the government's avenue  would just on the thirteen twenty sixty issue i would just point out that the government has still not really addressed his change of course at the end of the hearing and i would submit that under these clear cases that say and i do need to explore avenues of relief that applies equally to the beginning  sparingly and we need to get back to the initial intent so we need to broaden that and that's very much what happened here at the commission said meaning to get back to the initial intent of focusing on the most violent offenders