into and the government has also argued procedural default for failure to raise this challenge at the before the trial court and the sentencing court we do submit that this case falls within the a legal sentence exception under both to blur and torres and i think that you know the government has argued that in this case we don't fall within that those cases because we're not attacking the sentence but rather were attacking the  conviction and i would submit that that is incorrect i think that this court's on bank opinion in the united states versus brawn which is not in our briefing but i can hand the citation or would be happy to submit if you want to have an additional citation if you can just send a twenty was challenging and i'm twenty four so you sentence that what the petitioner was really seeking to do was to set aside his sentence and that as a ground to do so he claimed that his conviction was void because it wasn't authorized by law and that's precisely the circumstance of the court as presented with here in this case mr williams asks the court to set aside his mandatory consecutive eighty four month sentence on the th twenty four c count and any challenge to the one twenty four dollars c conviction is merely a ground upon which he relies on asking the court to set aside that illegal sentence the government has also argued that with regard to the collateral attack waiver in this case that the court should interpret  sitting on bonk noted that a plea agreement the plea agreement analogies can be helpful in assessing waivers or plea agreements and waivers but that contract analogies are quote not perfect and the court noted that a plea agreement is not a commercial exchange and for that a person's time in prison can never be restored to them such that contract analogies don't apply exactly because the parties can't and particularly the person who's been in prison can never be returned to the initial position that they were in prior to entering into a contract what i was struggling with committed like draw a little chart with all of these all of his procedural situation but that is your argument that you know under blackstone and it were the same that he had violated or missed them one year bar issue but you say well no that's not good law anymore after davis but davis is not been made retroactive so perhaps you can walk me through why we wouldn't just stop there when i have a great deal to add to briefing on that except to say that it's a position that because johnson dictates davis that johnson and the johnson timeline is really the trigger the one year timeline and so we don't need to sort of wait for an additional case or mr williams doesn't need to refile specifically under davis i think that to say that would require would be inviting essentially waves and waves of petitions with petitioner i mean if we were to i mean i hear what you're saying if we were to dismiss it on the blackstone ground we would get maybe not us but the th circuit district court would get another petition on this question of davis extending johnson to is that what your responses yes and i think it's also important to note that there weren't sort of additional kind of logical leaps or additional cases that the supreme court added in davis in order to reach its holding it is a strict application of johnson it is dictated by johnson and so i think that this is distinct from cases where perhaps the rule that comes out of a case well informed to a great degree by prior precedent also requires other cases in order to reach its conclusion  which was not the case in davis with regard to the government's argument that you know essentially mr williams should file another petition and and can ask for permission to tell a nd or successive petition i don't necessarily agree that he would need to as a procedural record i would note that if that is ultimately the way that the court goes we've asked the court to consider granting him permission to file that petition mr williams is giving advance yes more at least  sort of know what about the propriety of that permission and the reason for that is really quite honestly in some senses practical i think the government has agreed that it would be appropriate to file mr williams its current projected release date is april of tw one with potentially halfway house placement and things i think if we had to go through litigating whether or not to file that practically speaking any potential relief would be sort of it's rated at that point as a practical matter defendant in this situation is his liberty and by this situation i mean with plea agreements i mean that what's at stake for the government is just punishment for violations of the law and its interests that an innocent act not be punished so on the whole we would ask the court to find that this case falls within the blurry and torres and boron with regard to the government's arguments about procedural default we would submit that mr williams is excused from any default based upon both actual innocence and because he can meet cause and prejudice cause because this claim was a constitutional claim apologized was unavailable to him at the time that he was tried and sentenced in light of james in two thousand and seven and sykes in two thousand and eleven which johnson then explicitly overruled and with regard to prejudice he can establish that there's a reasonable probability that without the error the result would thirteen of the heaviest petition pages three through seven did you want to save your remaining time yes thank you honor's may please the court mike morgan for the united states procedurally this case is a mess and there are just myriad obstacles to the court reaching the merits i mean the most fundamental one is that blackstone makes crystal clear this case is untimely i'm perfectly cognizant of the practical concerns that we're just shunting the defendant off to a nd two thousand two hundred and fifty five but that's the statutory scheme the scheme is set up that way and the defense argument that somehow or other because davis sort of followed logically on from johnson well was considered blackstone it's like this is a different rule it's an extension of the johnson rule to new context that's a new rule so if they want to take advantage of that new rule they need to file a nd petition so and then we'll get the same briefs we have here this is visible statute and what that is that is absolutely true and of course the court can affirm on any ground if a court is inclined to reach the merits because it thinks that's an easier disposition the government doesn't object to that i mean we certainly don't waive any of our procedural defenses i'd be interested in hearing  sure ok this statute everyone agrees the statute is it least visible into two parts the st part which sets forth the what i'm calling the standard offense nd part the enhanced offense the defense seems to be taking the position all of that none of their briefing actually addresses it that the st part of the statute is just one offense but that the statutory language makes that impossible because it's three offenses it's assault it's robbery it's years and then you get to that i think which is the more interesting question for me is the divisibility aggravated offense and at what point can we peak there right well you can certainly we've already peaked well you can see certain right you can certainly peek at the st part just to see whether or not it's an aggravated offense or not and if it wasn't an aggravated offense then you would be sort of looking at the top part and if it's an aggravated offense well you can look to the aggravator or alternatively and the governor would suggest logically you can you on aggravated because we have a couple common law robbery definition it seems to me in focusing on aggravated and if your analysis which we easily means easily divisible that way yes and if we peek there and determine that he's convicted that's questions that you know that's different yes crime yes ok so not trying to put words in your mouth no i am trying to follow along you know and you're right it's sort of it is kind of like a double peak it's a peak and then now that we decided that it's aggravated now we can actually go down the jeopardy that is a threatened use of physical force so what about this notion that this statute would tolerate recklessness standard well that issue was decided by the court in watson in respect to the bank robbery statute which is materially instinctual and the court read the supreme court's carta decision the says that all the acts have to be knowingly so it has to be a knowing act in watson of intimidation but he would be unknowing act of placing the defendant's life in jeopardy so that's where you get the intentional right question right in fact as the quote as the jury was instructed in this case that the court the jury had to find the defense of the defendant intentionally  intimidation to the is a sub in for life in jeopardy which i'm not sure why they use that but that's the instruction was given but nevertheless the jury was instructed that they had to find the defendant acted intentionally in a manner that would put the defendant's fact this element the placing the defendant's life in jeopardy has an intentional requirement it's not a negligence you can't be guilty by negligently putting the defendant's life in jeopardy is not going to be a stickler but we look  it just wasn't but stepping back from the instruction setting back from the instructions i think just taking the analysis in watson and there's no reason not to import it here i mean they're both robbery statutes they were an act at the same time there's no evidence that congress ever intended a robbery to be any different so it's a it's an intentional crime it's a knowing crime if you want to specifically intended anything but you have to knowingly act in a way that puts the defense life in an objective risk of jeopardy that legal to meet the intentional standard and just i would like to circle back just quickly even though i understand if you agree with that the aggravated counts you can avoid the top part but i think after not a lot of room to argue that a common law statute doesn't qualify as a crime violence stoping says common law robbery counts common robbery included putting in fear which is what we have here so i don't see how consistent  you can say that a common law robbery statute isn't a crime of violence i don't like that argument is open anymore unless there is any further questions thank you thank you q so if i may i'd like to begin kind of are we just left off with regard to the court's questions with respect to the aggravated offense both about divisibility and then whether all three of the components of the aggravated are and hence penalty cla ever so with regard to divisibility of the nd piece and sort of the shepherd documents and when do we look i do agree that we have this sort of it is always an odd posture where you have a statute that is very clearly because of the different penalties government even says in its briefing that viewed in isolation the language could be construed as stating that two thousand one hundred and fourteen a includes a single aggravated crime and that wounding a life in jeopardy variance or just means of satisfying this aggravating element aggravated element and so i think that w unanimously find as sort of the touched again time is ticking so what you're doing with the aggravator aggravated offense is dividing it into not into thirds but into two thirds and one rd is what you're doing correct and i don't think that our briefing at the opening brief clearly did that but i think that what i did like what did i think we got and again we apologize to the court and recognize the record here could be more clear so that that's your argument yet help me out with that yes that you want me to decide that the two thirds of the aggregate offense is not divisible so what's your best shot honor so i think that frankly knight supports that proposition and the government has said that it's not aware of any case that says that means can be sort of separately divisible within a statute i am not either i am also not aware of any case that says that it can't be or that they can't be and the government hasn't cited case for that and so i think that where we're dealing with means that would fall outside of a pretty and then one that would fall within the next hour with an exception rather to apprentice i think that it is sensible to say that where there are reasons to find that the factual means that have to be found by a jury are indivisible that the presence of something that is an exception doesn't render them or doesn't sort of this  that the ability to find them in this bill thank you thank you the case argued williams versus united states is submitted thank you both for your argument this morning