our fourth case this morning is united states versus mcguire and asked her changing up council here and let me at him say for the other lawyers in the courtroom the next four cases have some overlapping issues related to sentencing law so if you'd like to stick around after your case it's called and you're done not but in light of the recent ruling and melinda molina versus matt martinez or the court found the supreme court found that we need to start with the right guidelines and the guidelines are basically the cornerstone for the senate saying we believe a full rematches is necessary prior to that only  we could have said that you want to limit remain but that case your honor they looked at whether or not the guidelines and self walk rock the district judges understood they could center outside the guidelines of their baba below just cable that guidelines are advisory right correct your honor is the supreme court ever applied the vagueness standard that it applies to statutory mandates to advisory you which outdated which just came out there's no vagueness excuse me for challenging guidelines she's she can take advice and i've got to say i mean i was looking through the pre sentence report in this case and this guy qualifies i mean the number of felony battery aggravated battery robbery with a gun grand theft auto escape illegal possession of a firearm twice a battery aggravated assault of a police officer into domestic battery convictions none of which are counted in this calculation right in fact when you looked at is guideline range that i calculated without going to career offender the guideline range w something in the middle or two forty or two forty i don't know and i don't believe i can substitute i guess what judge rowland stengel would do unless we get back in front of remap she did say this was go to the worst criminal history she'd ever seen right that's correct on it but she wondered why the government had not asked for a statutory max that's correct but she did not ask she did not very often or she very didn't talk in the range let me ask you how your vagueness theory mr gable would apply to some other provisions in the guidelines for example you're familiar no with supervisory role and the answer was yes and we has struggled with those we've got multi factor terrorists and so on why isn't that unconstitutionally vague to under this theory you are those could be maybe depends on the circumstances there apply that right now the biggest one that we keep on here and there's no one gets a reduction because a limit roll they always get the standard of vegas probably doesn't apply to mitigating factors right are maybe you think it does i don't know the argument should be able to be made both ways obviously and that trouble is that when you talk about supervision there's just some hard factors usually you're looking after one or more and you're either part of the chain of the flow of drugs there's something that you can hang your hat on how about the guidelines that provide for upward enhanced parents for sadistic a bank robbery it could apply on a kidnapping a lot of those are being looked at by the guideline commission right now on the child porn cases and the reason why has because it there live universally and not selectively and  start getting a case where everything let me let me go back to understand they may want to relook at those but let me go back to my question about applying constitutional vegas standards to advisory guidelines because i would think that you theory would apply to all of those kinds of some point open ended standards like cruel heinous supervisory role substantial impacts victim mean should that you should be aware if you cannot someone while you're doing a bank robbery or you're going to be enhanced you should be aware if you shoot somebody during a bank robbery you're going to be and i'm not saying that they the shooting is vague but how about sadistic masochistic heinous cruel i supervisory role and so on i think those are vague and the reason they're very they say are transitional to under your theory i'm right there yes or here what is your i hope problem here i just do not understand why a limited remember wouldn't be reasonable and other words the district court judge says she would not have given the same sentence had she known the residual clause was unconstitutional then mr maguire gets a full reconsideration on re sentencing but if she states determined that a limited dream man does appropriate and follow you know you know either the guidelines were correct the guidelines that that's it after book or the guidelines were the correct guidelines so you know look and whether or not the guidelines are incorrect you look at whether or may peace accord james pierce united states as judge hamilton noted the defendant patrick mcguire has essentially spent his entire adult life committing crime and the fifteen and a half year sentence that he received though not a career offender the government's view was within the statutory maximum and not plain error because there is no reasonable probability well you've you've conceded and in fact agree that it was plain error it's just not reversible because you want a limited remained so that your your argument gillespie that the writ of johnson should apply to the residual clause that the career effect of the guidelines that satisfies problems one in two we are making an argument just to make sure that our belief is not as clear as it is it could be that there is not a reasonable probability that he would receive a different sentence right that we've already rejected the application of pelligrino to a guidelines miscalculation error in many cases so you can't really have it both ways you can't saying we've already we've already rejected that and in many cases in declaring the palatino procedure improper when there's a guidelines miscalculation we've said that a guidelines miscalculation does affect the defendant's rights substantial rights and and that's why i am a bit confused about the position that you're taking here we've but that categorically for closed application of palatino to have guidelines miscalculation case which you know a recent case of the supreme court in which it specifically focuses on plain error in the context of the guidelines miscalculation and there the supreme court says quite clearly that the fact of the supreme  guidelines era does not necessarily mean that the third prong of the plain error test is satisfied now came pretty close it did come close touch hamilton and it said it said in ordinary cases in your usual case and the government is by and large in these cases conceding that this is not the ordinary case and that's why our frontline position here is looking at the district court's comments this is not a case that is appropriate for every man and then our follow up  gillespie i believe that's correct are you involved i was not your honor i've listened to the argument but i'm trying to understand why the government is conceding the same standard for vagueness that applies to statutory mandate applies to the advice that the sentencing commission gives the district judge certainly your honor and that's it's been an issue of much discussed the government has taken this position consistently in courts of appeals essentially three reasons that i would offer to the court the first is the type of risk assessment that justice scalia's majority opinion in johnson discusses is the same assessment and faces the same problems how much risk is necessary to determine what is a violent felony how do you measure risk in any event that's going to be the same problem if you're looking at a particular state statute with respect to aca or the career offender so that's sort of the practical problem  but that's the whole point i mean i understand this concession pattern across the country but let you tell me what your other two reasons are certainly out of so that the other two points in johnson that the majority opinion relies on  discussing some of what the vagueness of vegas argument does of the questions of the issues of notice and of arbitrary enforcement now notice there is indeed there is already cases your honor discussed earlier that says a district court need not give any notice for thirty five fifty three a variance is our position it was somewhat alluded to by part mr gobble is the guidelines are different the guidelines aren't the thirty five fifty three a discretionary interpretation that or that a court can do dick the guidelines are legal calculation in fact it refers back in some respects the discussion we had judge sykes that's that if a court the district court makes a guidelines error that's the legal error and so that is in itself different from the kind of a little bit more mushy discretionary analysis that happens under thirty five fifty three ad but it's about advice it's true i mean i just i'm just baffled by this position because since booker came out the justice department under two different administrations has been trying to undermine it by basically trying to give the guidelines as much legal force as possible the government for example tried to confess error in demagoguery in the early stages of those debates and i you know in this kind of a case where we've got a court seemed to recognize itself in some respects to get back there to try to continue answering your question mr goble submitted a letter with some additional authorities including the six circuits recent opinion and the how it's pronounced and that also sketches out arguments that are essentially the arguments that the art of the government feels are the correct ones on notice to sort of continue that through the palak act decision talks about this ex ante notice about the notice of what is what kind of rules you're breaking versus adversarial notice i'm sure i did so i'm trying to picture mr mcguire ok he's trying to decide whether to commit the crime of conviction here and he consults a probation officer and ask for kind of a dry run of his criminal history going i mean obviously for example right now and then we go through by my count thirty two paragraphs pre sentence report with all of these violent crimes not all of them are violent but many many of them are all of which don't count and so he says i'm in the clear and so i can go ahead and i'm not going to get sentenced as a career offender here this makes no sense that i agree that that that's a pretty odd way of imagining some sort of notice in this particular instance but nonetheless  if the risk of is a if the concerns about arbitrary enforcement given the discretion a district judge has under thirty five fifty three i don't see how there's any meaningful protection against so called arbitrary enforcement although it would be done at all arbitrary to get us to require a statutory maximum sentence or again and this is why our our position is on on the third prong having conceded already there the question of the application of johnson to the guidelines that the particular sentence vagueness challenge but but curiously actually remanded that to the district court to determine whether the career offender residual clause was vague the tenth circuit in the madrid case has also held that the guidelines that johnson is a plausible to the guidelines  through vagueness challenge the eleventh circuit and match it as in a published opinion disagrees with the government's position sensually advancing some of the arguments that that you referred to judge hamilton and i believe the third circuit in towns in an of the first person i think the second circuit has also made reference in an unpublished decision but the published ones are the ones i presided so could you address some of my concerns mr pearce about if you're going to apply vagueness standards to the guideline for career offenders how does that logic wind up working with other aggravating factors under the guidelines supervisory role he has sadistic masochistic cruel conduct  sure and i see my time a lot so i assume i can thank you i think the it's important start that discussion through the johnson decision because what johnson said about the residual clause is one of the driving factors w the supreme court's own struggle to make sense of that and not only the supreme court but of course many courts of appeals now certainly there are differing decisions on some of these other enhancements i would disagree with mr gotta like think that this would only have to apply to aggravating factors vagueness works in favor of it demand and i don't think that this would cut when that mitigating factor is at issue but i think that there are those provisions i mean that have to be looked at obviously on a case by case basis i think that there is a business or has the government taken that we haven't specifically articulated a position as to others it would hard to see a logical position why they wouldn't now of course saying nothing on the merits right i think we would get up and very forcefully argue as to all of these that there is there's sufficient language courts interpret that's what they do i can't think of one that resembles anything approaching the residual clauses history of disagreement and confusion so well past my time so thank you very much thank you how much  taking under advisement