client and yet not open the door to requiring attorneys to forecast the law well we do not think that this case requires any new rule to have binding in favor of mr certainly at the point where counsel is aware that this legislation has passed both houses of congress counsel sits down in recent terms so we don't have any concern for example about imposing a duty upon council to monitor pending legislation or sentencing date guideline and we do we know that i certainly think that any objectively reasonable attorney would have moved or at a minimum a continuance to allow for that ten day period for the bill to become law on palm presidential signature that overarching tutti to advocate on behalf of your client where that counsel is aware of this legislation that has just passed congress and manifest a personal belief which as you stated is not science everyone knows it's going to become law and that counsel also takes the step of actually calculating the client's reduced sentence under that law counsel must take the de minimus procedural step that in mr abney some particular post absolutely no downside risk of moving for a brief continuance so as to preserve your client's chances at a statutory mandatory minimum sentence that will be reduced by half it's a long rule that's a lifelong rule well basically what you're saying is a reasonable attorney would have asked for  there's nothing on the face of the statute that deals with retroactive to right i still have a reasonable attorney reading the statute wouldn't say this as a retroactive application that is where we disagree with you your honor so certainly there was no provision but i think it's clear that strickland deals in reasonable probabilities not certainties and strickland doesn't pose upon counsel a duty to pursue more than those extremely obvious sure fire success arguments sudden express retroactivity  provision would have provided here counsel sits down and read the law in critically their section eight in the fair sentencing act and in section eight and i'm paraphrasing here obviously hungriest effectively said to the commission get revised guidelines in accordance with post your absolutely i do think that counsel likely would have been objective leean reasonable and not taking that night moving excuse me for that extra continuance out till november the far end of the sensing guidelines but with that said i don't and certainly certainly for that reason we think that at a minimum any objectively reasonable defense counsel would have sought the ten day continuance and for mr abney space there can be no argument that obviously would have been enough here a ten day continuance just meeting that base of the date of their sentence and so when congress and section eight said to the commission and act on an emergency basis as soon as possible but no later than ninety days guidelines that are going to conform to other guidelines provisions and post office a law that  necessarily that congress is saying that those proposed f s a guidelines are going to apply to all offenders preamp defenders and post act offenders and certainly that emergency instruction and emergency direction would have made no sense whatsoever if an argument if you need to know i think the the argument in let me be clear in the verbiage of strickland is that there had to be a reasonable probability that the statute would be tied to sentencing day and here there certainly was that reasonable probability when one looks at the text of the statute which we know counsel did hear when one realizes that no retroactivity whatsoever would have undermines the very goals of the fair sentencing act itself and when one thinks about the practical on likelihood of the idea that congress or the courts were going to reopen for sentencing decades worth of offenders sentence that is very hard rule homes here and that's why i'm trying to understand what you're arguing standard is so i think the standard is and let me be clear i think you know strickland is a fact by the very fact intensive case standard of review what would you would it make a difference here i don't think it what i think mr abney wins under any possible standard of review that this court would apply with with your honors grace how reserve my remaining time for well basically we've is no fixed hundred of review but every other circuit applies to novo review i know when we have remained agnostic on the point right we said we haven't faced a case where it made a difference i'm trying to understand what your argument why there was  conclusion that is supported by four justices of the supreme court three circuit court of appeals in the united states i mean think of me reasonable reasonably effective representation does not include the requirement the counsel predict be plausible couldn't be inconsistent and he knew what the federal principle was on sentencing and the prosecutor and the judge basically all acknowledge that well we may not have contested it but there is no record to support that the only case is that they can if i may in the first instance counsel said i've studied the law and and concluded that it was not retroactive that was the government's only in the context of future legislation council was very clear that future legislative there may be a lady's lady of the notion that anybody at that hearing understood that or or foreshadowed that the supreme court might create the for the first time as just east just judge easterbrook points out in his analysis and holcombe this is the first time in dorsey that supreme court has ever applied a partial retroactivity and they did so under an implied theory of congressional intent despite the fact that there was no expressed retroactive we're going yes well no for twenty years it's been an effort to reduce the arrange it the top of this was going is if i have a client who's facing a ten year mandatory minimum and i know both houses of congress have passed the statute that's consistent with what the president has said he wants and so i know he's going to sign it when in doubt about that why why wouldn't reasonable counsel say to the district court judge at least put the question before the district court  your honor i'd like my client to get the benefit of this statute big and let's continue it would you agree to a brief continuance and the judge might have said no but and until dorsey but see if any question as to whether counsel could for see what the supreme court decided in dorsey and i'm looking at it as the strickland says what would reasonable hounslow have thought in terms of giving his client the best opportunity to benefit from this reduction in the disparity clearly if i can say his client is you know less an official physician if he's sentenced or the statute states that maybe he has a very chance afterward but if you talk about probabilities and how one best represents a closet a reasonable attorney and this is recognized in the office of the public defender right now they recognize that in their view at one point in time this was a mistake in hindsight there's no question about that two years later there's absolutely no question when counsel caught up with that at that hearing some already hard to believe that you if you were representing somebody in the situation wouldn't ask for  continues just on the chance right the chance that you might get a benefit from it because what we're talking we're talking bit of liberty interest here we're talking about a period of time that your client is going to be in jail or not and this change that's out there that that by getting the even the sentencing guideline reduction was not going into effect until november of two thousand and ten twenty four going to continue much to the ten day signing had absolutely nothing to do even even if the sun insane you know w i'd like to sentence you to less and course he didn't have the legal authority all right well not with the mandatory minimum snow well he said you know there was an exception you know under the mandatory how you can get is a two decade effort because the sentencing commission and finally both houses of that disparity was on their well but even it indeed it is on the order and it's unpredictable that time because no court had ever a springboard or otherwise had applied a novel theory of partial retroactivity by plucking out a standard from the sentencing guidelines realm it seems like the question from the bench raises an interesting question which is really what standard are we looking at normally we say was it have just had we reasonable or counsel to have done something here where also looking at was there a reasonable pop probability that something would have changed in such a way that counsel somehow would have had to at position was arguable as as the problems of argue about whether or not it we've been reasonable not to ask not to take that position and it is not unreasonable not to take that position in light of the fact that no court had ever come up with this novel viggle theory to apply back congress declined to make it expressly retroactive they know how to make it retroactive than they want to and although and as does reason as well i doubt that you'll ever be in a circumstance where you'll need an attorney in a criminal matter but you'd want your change to take that standard before that it would counsel that holds counsel to an impossible task to the predicted dorsey and the court also said also on the second issue even if counsel was required to have made that point found clearly did this should have been sentenced two years ago but three years ago he's in jail on been in jail this entire time so in terms of protecting the public with so i just want to be clear about what we're talking about the other cases talk about as a gap said whether or not there had been a continuous and rule thirty two requires that courts should impose sentence without undue delay so we've already been delayed almost three years it was as the court indicated in making its ruling on this it didn't know whether extraordinary deal an opportunity and the court in denying the motion expressly said the seriousness is of crimes and it noted the school's own well i grew up kong and the loaded gun and decided that the appropriate sentence the box it wasn't until the eleventh circuit in rojas that move the date in their theory that later folks up in dorset well what i'm trying to get you to focus on is you're representing a client and no court has decided this issue and you're trying to put the best argument for your client and why wouldn't you just or the opportunity to rule in a way that might ensure counsel your client because i don't understand well because it would have well you think to be arguing that you have to be able to do i am arguing that and i'll tell you i think i believe that that the rule of this court is saying that counsel ineffective for not having predicted it that will be the rule and i think i don't think that this court will you have to produce accurately or there's no obligation by counsel on counsel to raise an issue i don't i can see that i don't think you have have a case for that i think there has to be some reasonable partial refractive the sentencing day it said that the dorsey produced its own degree of arbitrated of arbitrariness and the sentencing date is dependent on the vagaries of the divisional system has nothing to do with the goals of sentencing even opposed nor see this court the government's position its briefings in here today makes clear the difference between the duty that stricklin imposes upon counsel to advocate for your client's cause and what a disinterested detached observer a fair sentencing act was going to be tied in some regard to the date of sentencing and while perhaps as the government notes it was an uncertainty that uncertainty does not excuse a total and abject failure to act on your client's behalf and imposing upon stricklin petitioners the burden to show that somehow counsel needed to predict dorsey in order for it to have occurred to counsel to move her continuance both heightens the burden unduly and strickland and also waters down strickland sixth amendment protections diluting those to essentially say that counsel need only pursue those sure fire arguments of success that's not what strickland says it requires a bit more than that on behalf of defense counsel