sort of shaken out is the government has always agreed that johnson versus united states applies to the career offender residual clause they have been opposing that at all but the in front of the taylor decision decided october ninth there's a panel of the circuit now that has held that a vegas challenge can go back and be made in the district court and that johnson can be argued there argument there that johnson applies but there's at least the panel held that we have all doesn't bar those those challenges but life is never that easy the government says well we don't really care whether career offender for b one point four b won a point i'm sorry the alphabet soup there is eluding me now but the or b one point two yes thank your  yes and the government or the court there relied on the residual clause to say that the the burglary the third to be burglary conviction counts as a crime of violence but they said that even if it didn't  that the other part of that clause which says reza one of the numerator offenses residential burglary that doesn't mean residential burglary it means we're not holding alternatively that it means generic burglary so we're reading that limitation out forget about residential burglary says that it doesn't mean that now since then no court has ever relied on that alternative holding it's just sort of been out there and we're asking  taylor did not even address that sentencing guideline provision so it's a huge leap to say that taylor which was just simply trying to decide how do we define burglary what method are we going to use say what burglaries count and they adopted a categorical approach they didn't even go anywhere near the career founder provision and or the career offender provision was borrowed from that use is basically identical language except for residential burglary so i agree there might be somewhat of an inconsistency there but how do you without addressing congress right to have sentencing guidelines and the sentencing guidelines decision to say we're not going to go with that part of the definition we're going to say residential burglary we're not going to completely mimic the armed career criminal provision now there's good reasons why they get to do that and why congress and the fact that congress could have changed that if congress said this is intolerable you've got to have the career center provision read exactly like the career of criminal provision congress could have rejected that they didn't do that just means generic burglary needs to be litigated on its own not just sort of snatched from a distance by in a case that isn't even considering the well that issue wasn't even raised normally don't decide issues that are presented to them and so just cry creating an issue out of whole cloth and saying we're going to decide this now goes beyond what a court can and should do the other problem is even if the court had procedurally the basis to reach that issue their reasoning just doesn't hold up they said that well under labonte  can overturn sentencing guideline decisions well if you look at what happened in the bot it wasn't anything like what happened here in the box the issue was the sentencing guideline commission had ignored a statutory directive from congress should be subject to that they're not saying no we're not going to do it essentially they did in the bot they said and all through this category we're just going to say residential burglary so i hear your argument about is wrong can you spend a minute on why you think it's not controlling on this panel is one reason is the parties didn't raise it and it wasn't briefed it was argued well that doesn't appear in the opinion opinion doesn't say a thing like that the opinion has more so so addressed the words of the opinion well in in stymie they do make the statement that the government didn't even cite bell and bell was where this idea of having a clearly alternative holding you know so and that the courts sort of chides the government council for not bringing it up but it's also part i think of the record this court can consider what's in the briefs and what's in the senate oral argument and i went back and i argument it never came up the government never said so by the way you should have an alternative holding in which he said in bell you should make that the rule now and the court never even brought it up the court never said and as i listen to it and i agree that without any input never been raised in that it's controlling me and if that had been the only basis for the decision i don't know how you would argue that it's not controlling seems to me your only possibility here is because it was secondary maybe there's some argument that it was unnecessary to the decision and therefore is not controlling but he's phrased it at least as an alternative for holding well i i know this goes to sort of attacking the logic for the position and whereas you i think you're talking about the procedural care about the present and whether yeah prior panel as well i don't know of any precedent for saying just lying out there and now you've got the supreme court the says no this clause is invalid but now we're going to hold it under this basis that it ought to be litigated on its own and i guess that's the best when a community about there and no other circuit has done that or else the alternative hold and again it's never never been cited it's not as if there are people who are serving sentences based on this alternative holding it's that's never been cited at all and the other  stymie us so i can't be positive about that thank you i think that that has to be noted that that's because they were consistent they all of told the same story and they were believed obviously we also had raised an issue of severance and i think the court certainly in reviewing this case would note that the last evidence in this case was a videotape of my client's codefendant burglary in a gas station alone and it was a very effective video very interesting and had absolutely nothing to do with my client the government in closing decided i think that maybe or maybe really highlighted the problem with the lack of severance and that is the government said the fact is that these defendants steal and they steal together they steal with each other and they still it's steal with him instruction is simply an adequate the i mean it just this the as i'll touch a little bit i guess with regard to the expert witness we requested part of his testimony in his research  is that juries believe witnesses that the court allows to testify that that's proof to the jury that this is true but sometimes the witnesses disagree so experts say then well i think he would say that they're the jury is is seen to honest opinions perhaps or to differences of opinion but i think the research and we trust the jury right there to yes but i think that that and certainly to me it was very startling juries believe that these witnesses have been vetted so they're truthful and i think that and that jumps to the other issue that the expert witness we asked to have a hearing pretrial of course testimony to bring the witness to bring the expert in the law the the the judge to take a look at the expert and determine under the gate keeper role whether he had valid evidence to produce i was denied within asked to produce them a trial under the idea that we had a right to a defense under crane that was the night and i think the most interesting only there it was the night when the judge said that she had to balance the prejudice of such testimony and i am left wondering who the prejudice was to allowing this gentleman in to testify on these presumptive factors that juries carry in whole the lack of severance the lack of the expert witness the lack of an ability to put on a defense that we were asking to put on i think leaves us with cumulative errors understaffing that in and of themselves each in want each and every one perhaps not johnson issue i would like to just touch on these others if it's ok with you because otherwise i think i'll forget to come back to them later just as it relates to mr benedict the defendant's argument as to severance fails for a number of reasons there are significant public policy that recognized by this court and every circuit it's addressed the issue that if you've got coconspirators jointly indicted they should be jointly tried it's up to the defendant in an appeal to show that there was some significant or severe prejudice that has not even been alleged here the court we cite the man case the court this  recognized limiting instructions are sufficient the very same instructions of held in man case were the ones used by the district court here so there really is no issue as to severance is far sufficiency you had five any questions about that i'm not going to go any further on sufficiency of the expert witness issue i think the proof is in the putting just on mister just on the statement made here by mr d when the court asks what judgment and what happens if you've got two government witnesses who give conflicting testimony of our government defense that's what i was thinking of but the point is his response was that the expert would then say they were both honest in my response and that is that's exactly the problem you can't have an expert witness get up and tell the jury yeah these folks are honest the case law is crystal clear that expert witnesses are not permitted to testify about the honesty the veracity of witnesses that something that's uniquely left to the role of the jury he would have infringed on that role that would not have under the part under the language used in these in these cases have been of any assistance to the jury and in a nutshell i think that's where we stand so unless you want me to answer any other questions about the other issues i thought i'd get into the johnson issues first of all the government's position is the johnson does apply to the sentencing guidelines on direct appeals and we based that as i know you all are familiar having judge murphy and judge colleton been on were not familiar because the government filed a one liner in that game no reasons in that case in taylor yes well if there's a reason for the government's position and be helpful the knowing i'd be happy to deal with that first of all your honor when you look at the prior of the circuit will specifically is what i'm referring to which held that the guidelines don't or aren't susceptible to a vagueness challenge and eight chunk of that decision was based upon the fact that these are not the guidelines don't prescribe certain conduct that what they do is they relate to sentencing johnson's was very clear just justice scalia in writing the opinion stated that statutes sentencing statutes you think judge bowman's opinion was ignorant of that and thought no i don't mind a sentencing i certainly am not saying that i thought that's what you just what i'm trying to say isn't about conduct and sentencing what i'm trying to say your honor is the conduct that sentencing issues it was made clear earlier then in johnson that statutes which don't deal with conduct but which deal with sentencing it was made clear that they are susceptible as well to the vagueness challenges now granted what justice scalia wrote in the opinion was statutes and i realize that there some issue ok what about the guidelines that's the whole issue well i think that their issue is has got to be informed by the prior supreme court decision in pew and i realize we're dealing with ex post facto analysis but the fact of the matter is the argument that the government made initial in favor of not applying the ex post facto clause to the sentencing guidelines is look you've got guideposts rather than fences that the there are very broad the judges have a lot of discretion is really don't have the force in effect of you know a statute which prescribe which sets certain punishments because it's so broad in spring court had none of it and they said look in under the federal system everything in sentencing starts with the sentencing guidelines therefore they have that effect as a statute would and therefore that's the basis of the government's position between pugh and johnson that the guidelines are the johnson does on direct appeal the plight of the guidelines and i'm trying going further than that but i'm happy to answer any questions you might have about the finding a holding excuse me by the supreme court that the way in which in the residual clause is they and the fact that the language in the residual clause of the crew or offender is verbatim the same that this court every circuit which addressed the issue prior to johnson said we interpret these two provisions because they're worded the same as a quiver once that in this case it's a political to look at another section of the guidelines i would say that that argument  whether it's major is there some reason why the other ones would not be susceptible to vagueness challenges as a top of my head i'd have to think about that i don't have a an answer off the top of my head i think of a reason i mean you if this court and other courts adopt a government position i may be up here at some other point arguing that they don't apply and this is why but i don't know yet all i can deal with is the issue in front of me and the issue in front of gay requires a different result we hold ok doesn't the f big a completely undercut your position that we apply that to resolve this case no why not because it's at that's not the way it doesn't say  later case of johnson if doctrine proceed let me you have to look at both cases and what i would say to you here is yes the issue number one is are we dealing with precedent that's binding on the court you look at bell it is clear that the court knew how to say this was dick if that's what it intended that's what bell did bell goes through a long legislative analysis of the compare ability of nine twenty four e and the requirement set up by congress to promulgated crittur offender statute under not ninety four h they go through a lot of analysis and then the court says if we had to decide on this basis we would strike the language but we don't have to because we've got the otherwise or the residual clause ok court knew how to say this is dicta that's what it said then they get then the court in the subsequent cases tiniest dealing with the big a issue and whether that impacted under the residual was the commercial burglary question didn't use that language and it's the same author it's judge loken so he knew it was going to be dicked how to say it they could have done it the same way right because they'd already decided the case and stymie and start another ground they could have but they didn't and that's the important point when they use whole or would home changes whether it's binding language is important or about the if if he starts a sentence on the word importantly as fork as forecast says what do you think happened in bell chides ca usa for not raising it what do you think happened in bell this is where we're going and to me that did not require different result then well it's and are one hundred one on the languages under either of these alternative holdings so to me again that equates to t point is that if it's big a if it's johnson if something the point is big a would have invalidated the application of the residual caused commercial burglary that's what the the courts say if that happens this is what else happens you've got johnson which did exactly the same thing why does that undercut this provision you've got johnson saying look the residual is no longer a political and therefore under the analysis of stymie is you've got to apply that all if you want to call it well it is it's an alternative only but it was the government's position on the merits of that government never raised i think you're wrong to say that we've equated to two in every case we've said in some cases that because the commentary and the guidelines is not in the statute the meanings can be different what's your view on whether this alternative whatever four in the same year congress passed two statutes which were intended to serve the same congressional had the same congressional purpose that you have a situation where congress wants to address repeat serious violen also drug but drug doesn't enter into those violent offenders and that if you have two statutes which address essentially the same issue which is what the court said in dicta in bell bell don't you have to take the equivalent statutory terms and treat them as a put on a why and why are they why do we conclude that they're equal or must be equal because the congressional purpose is to both statutes was the same to deal with career with with repeat violent offenders and that was and the question he dealt with is law and this is why he cited labonte not for the purpose of justifying the ruling here but to show that the court of jurisdiction to consider the got the guideline issue to begin with because that was a question apparently at the time that bell was written but he's a century the holding was or the dicta in bell was that the commission was without authority to go further than generic burglary and that when you have the supreme court decision interpret ing nine twenty forty the equivalent congressionally acquittal and the stars purpose if if the supreme court said that that was generic burglary that was to be addressed which would include commercial burglary then you also have to do the same under the career of thunder that the if you were a fender guy lynott commission was without authority to restrict it and yes so the answer your question is the government does believe it's good reasoning and that we go to as to the merits i see that my got my red light on i don't know if you want me to answer any other that the stipulations need to be inquired into and i don't think it's that hard a thing to do at least in martin the defendant signed the stipulation that court did make an inquiry into the course of the main course here it's got even worse the have just the lawyer sign a stipulation without even asking the defendant well how do we know that from this record value in asking that event counsel it the court made know in court oh you said without you mean without the court asking yes subject your sentence was counsel but that's what i'm going to go it may well have been discussed by counsel yeah but it's an important safeguard to have the court ask because sometimes lawyers have their own agenda they don't want to defend all these other things maybe there's good issues they're just lazy they want to get rid of it they want to fast trial just ask a few questions that's basically what we're saying and i think this court's precedent makes that appropriate thank you m