both doubled his sentence and increase that by seven years at the time petitioner was threatened a defendant could qualify as a career offender if one or more of his predicate offenses fell within the residual clause of the career offender god line and yet all now agree that the residual clause is so unintelligible that it is impossible to discern its meaning petitioner here submits three things first that in and third that boarding the residual clause also invalidates the guidelines commentary that identified petitioners offense as a crime of violence as such petitioner is entitled to a recent meeting without the careerist under  agree that there is nothing in precise about possession of a sawed off shotgun where the constitutional concerns come into play with the commentary it's actually at the point where the commission was interpreted in the residual cause in order to identify the possession of a shotgun offense as falling within the residual clause and the reason why that ball violates due process it's in part is because the commission was attempting to clarify a provision that can't be within would be the residual clause we also know it because when the commission amended the commentary to include the possession of a sawed off shotgun offense the reasons for amendment stated that it was doing so based on lower court decisions concluding that no your honor but that would be because the offense would be in the text of the guideline itself and here the issue isn't just the vagueness but it's also the i respect that the court has to give to the agency's interpretation of a guideline and with a commentary here your honor the the commission was not interpret ing its own words i mean the text of the guideline was not language that the commission itself  but they didn't have to do that no they didn't but they did so they that they were their own words and they interpreted their words commentary yes your honor but in terms of the deference that this court gives to agencies interpretations of its regulation where a commission is i'm sorry where the commission is interpretating guideline text that is not its own words but it's the words of a can of congress here the langage the text of the guideline is the same text as the arc or criminal act the commission in adopting the was not part of the the guideline that was submitted to congress for approval the commentary was adopted in two thousand and four with without congress approval let me ask you a more fundamental question i don't want to unduly shock the attorneys who are here from the sentencing commission but i imagine there were no sentencing guidelines so you have a criminal provision that says that a person who is convicted of this offense may be imprisoned for not more than twenty years that's all it says now is that unconstitutionally vague no your honor well that seems to be a lot a lot vaguer than what we have here so how do you how do you reconcile those two propositions well your honor we submit that arbitrary determinant sentencing such as with that of a guideline is not the same as an  indeterminate sentence schemes such as the court described our position is that the use of a vague that guideline in fact is is worse than indeterminate sentencing because it has to magically injects arbitrariness into the entire sentencing process in there is more there was a system before the guidelines exactly as justice alito said moreover that system is existing today so i buy side with the gods in any case in which the judge decides not to use the guidelines so i don't get it i really don't and you can be brief here because it's really the government that has to answer this question for me i don't understand where they're coming from on this and  would seem to me that even the vaguest guideline would be an improvement and so difficult to argue that it's too vague to to be applied i disagree your honor because in even in an indeterminate sentencing scheme due process did apply the courts early cases in townsend versus burke and united states refused to talk or indicated that there were due process concerns depending on considerations that the court was using there it was material misinformation here the court ideas about retribution deterrence and incapacitation and what practices there were judges who under that system always imposed a very light sentence for a particular offense and other judges who always imposed a heavy sounds for that particular offense yes your honor but it was always an individual lies determination and i would respect that i have for federal judges make me believe that that was not done in an arbitrary way where is the problem or there are going applies to state systems as well and you're telling us that the more specific the legislature or an agency tries to make guidance for the judge the more chance there is for vagueness and the supposed to impose a sentence and here district courts are required to calculate the guideline range they are required to consider that the career standard residual clause in every case in every case the court must consider whether a defendant's predicate offense disqualify and those are just i mean just open this at ground zero you're under the same concerns were expressed in johnson with respect to the court's application of the vague nice vagueness doctrine in that case concerns were expressed about other provisions being ruled vague and the court fantasize about what the average case is like that's correct your honor and so guidelines that are you're being asked to apply to specific facts are revealed by a court aren't that we can look at the facts and say was the judge right was this more than minimal planning or not that direct your honor but it's almost impossible according to johnson to find what an ordinary case would look like because there was no standard of comparison  the proposition that less is better i would have thought that's cool to your argument and it's not it sounds bad but it's not i mean it may be less was going to be more susceptible to another challenge like it's arbitrary but you can see that it's it's not a vagueness problem i mean if you know the coin toss proposition if you say the sentence will be decided by a coin toss it's not very good everybody knows exactly what's going to happen but it might be arbitrary so in that  better if you did not have the provision about a coin toss which narrows the uncertainty then that would be better well your honor i mean arbitrary arbitrariness is the main concern here with the residual  clause and also with the commentary because the arbitrariness comes into play when the commission is interpretating the vague language of the readers it will cause him to conclude that certain offenses fall within it the commission was undertaking it an effort that this court n at that sentencing the court would establish a dotted line range to the sentence within that range and then apply the same forty percent reduction based on his substantial assistance to whatever sentence the judge the judge see why you have to get into the constitution but even doing it that way it then becomes a matter of the extent to which the federal courts are going to review the substantive got itself an open question so rather than get into that i might think about your case like this why was the statute vague it was vague because with three examples preceding the residual clause they tried to apply congress to thousands of state criminal statutes the very in a variety of ways one from the other that's what caused the problem i think now if that was the problem that isn't present here because these apply to federal statute i have i have i'm proceeding because one way of clarifying the kind of the ignus that's there in the statute is through example if we'd had twenty examples instead of three we might never have had to get to that constitutional issue so here what the commission did was provide some examples that all and one of the examples was a sawed off shotgun so why isn't that sufficient no meaning and because it has no meaning the commission is in no better place to interpret or clarify that language or language is meaningless how can it be clarified and the courts struggled with this as you said prior to johnston  james and psych and began a in chambers the court attempted to narrow and clarify this language and provide examples but for the very reasons that your honor states it was impossible to do so and the career offender provision is even broader than the arc or criminal act do is to regulate the defendant's conduct not possessing this thing or not committing a crime of violence and he knows because the commentary tells him that if he does possess a sort of shotgun he's go at sentencing for imposing what the defendant already knows is illegal or will subject him to a greater issued or you have a municipal ordinance that narrows the city narrows in its administrative processes and all of those cases when they're challenge for vagueness we look at how the statute is applied to the individual how is this situation any different if the statute was vague it's very dim what we've done instead is say no it's not big because the agency has two responses your honor with respect to the cases involving state and local provisions and ordinances the court as a matter of federalism has to look to the clarifying constructions that the state court or agency or local  governing body has given to that language and accept it to be the an interpretation of the statutory provision or whatever the provision is and and accept that as a clarifying construction of the state provision with respect to respecting the decisions or the clarifying actions of a regulatory body a federal regulatory body the court will do that only in certain situations and here that that kind of deference should not be afforded to the agency's interpretation adopt it in view of the questions from justice pryor and justice alito and others on the bench i think it may be useful to start at the outset to describe what we think the due process rule is in this case and why it does not call in question traditional discretionary sentencing within a broad range that is not informed by sentencing guidelines so i think the starting point for analysis here is due process due process does not itself and that all provisions of law not be a customary dictionary due process protects fundamental fairness and when looking at fundamental fairness the court examines history and way the idea that due process vagueness analysis would somehow invalidate that contradicts cases like medina which take as their touchstone for due process historical practice i also think that the purposes of what later was announced as the vagueness doctrine are not implicated in traditional sentencing the reason for that is not that traditional sentencing produces uniform or predictable results it does not it maximizes instead another important value of sentencing which is individualisation or proportionality sentencing involves a large array of factors that are very difficult to reduce to rules the traditional sentencing process relies on the judge and the defendant in the courtroom with counsel to examine the multiplicity of facts that bear on appropriate sentencing and then to select a sentence within that range that is not arbitrary we have to did in footnote two of our reply brief a case from this court where the court described that as conscientious judgement rather than arbitrary action it therefore does not implicate the purpose of the due process vagueness doctrine on the other hand of the sentencing guidelines as this court has described them in recent opinion study that examined the advisory system that's been put into place post booker stressed that that system injects law into the the judge must calculate the guidelines range the judge must make big cognizant of it throughout the sentencing process that guidelines range informs the judge's selection of a sentence because the judge kno reflects the considered it expert views of the sentencing commission filtered through congressional policy and because of those features of the sentencing system in the district court the court has described the guidelines range as having an anchoring a fact which tends to influence sentences it's intended to do so and has that effect and it is continuing to have that effect since two thousand and eleven the rate of within range and government sponsored departures in the guidelines has remained relatively constant it has not dropped significantly it's still around the eighty percent range so basically your argument is that there's a continuum so that if you have complete judicial discretion barring the consideration of some impermissible invidious factor within the statutory guideline range there's no vagueness problem on the other hand if you have mandatory guidelines you may have to apply vagueness  principles to the mandatory guidelines and i hear so someplace in the middle you get you you aren't close enough to the mandatory that that has to apply that's just that's your argument yes we have not taken vagueness purposes now suppose what the court had said was the guidelines are purely advisory now you know there are these signs in commission very respected group studied the problem judges well you ought to read them you ha taken into account but in the end it's your call based on the factors that are sent out and set out in the sentencing reform act with the result be the same i think it would depend justice alito on how the guidelines were implemented and whether additional rules that were procedural and character designed to reinforce the primacy of the guidelines were adopted it's hard to answer that question in the abstract what we do know today is that based on the analysis in pew and  rearrange what will happen ten years from now let's say ten years from now when you have there's no district judge anymore who even remembers the mandatory guideline regime and there were departures in eighty five percent of the cases and the judge through the drill bit you know they calculate the guidelines and all of that but then they go on and they impose the type of sums that they think adequately serves a legitimate purposes sons and would your argument be the same then well we made a version of that argument in pew and this court rejected it and i think in pure recall evidence is not suggesting that sentencing courts are drifting radically away from the guidelines and one of the reasons for that is there is a feedback loop in place where the commission examines the guidelines in practice takes note when district judges are varying or departing from them and incorporates those refinements into the guideline maybe not radically departing but steadily increasing their departures isn't that right i don't think  statistics this weekend and there is a trend line that hovers around the eighty percent level for within range sentences plus the government sponsored departures which are incorporated into the guidelines and recognized as not being non guideline sentence because the government is seeking them within the framework of the guidelines so that the guidelines are continuing to have an influential role in federal sentencing as they are intended to do precisely because the commission is looking at the same thirty five fifty three a factors that the district judge does the commission takes into account actual experience in sentencing and where finds the guidelines in order to incorporate those improve presume within range sentences reasonable on appeal which the court recognized in reader would likely to me that that explanation is in conflict in considerable tension with your argument that this is not that this is procedural slips so i think that the justice kennedy that the reason you're taking two different positions on these points and i think that's because there are two different legal tasks that are in play the vagueness doctrine is looking at the potential for lack of notice an not the right statement the test in retroactivity is much stricter than the question of whether due process should apply the test in retroactivity as this court most recently articulated it in the montgomery case and again in the wel and that test is narrow because it responds to the very compelling finality concerns in the hay vs contacts that are different from when the court is examining what the constitution really is the thing i would like you to think about and and potential risk of physical injury who is the word put them over here they appear in the gun put them over here they appear in the statute when they appear in the statute they have a meaning and it's fairly limited and there's likely to be one and eventually they'll be an authoritative meaning when it appears over here in the guideline it could be viewed as having an authoritative meaning or it could be viewed as leaving up to the district judge the job of interpret evening the se in the case just like we used to do and then the commission goes around first to review it for reasonableness at the court of appeals and then the commission goes through the feedback process that you  that you describe now that would mean one a system that works itself towards a more logical sensible approach in terms of punishment and it also would mean that the normal words of vagueness in the constitution or if you like they did through the statute enabling legislation it would it would mean that they would have different meanings in the two constitutional versus statute versus guideline but the purpose of that would be to get better guidelines so justice prior i agree with the impulse of that question to the extent that we're talking about the enumerated attentions in the commentary i think that those whether they're viewed as constrain the language of the residual clause or providing an independent specification of what is a crime of violence they satisf process vagueness concerns where i part company with that description of how the constitutional analysis is affected is that the commission selected the residual clause language to mirror the  guidelines were framed to be administered bowl in factual and judgement always that courts administer all the time in criminal law what was different about the residual clause is that the court doesn't congress instructed the commission to put together a career offender guideline that covered people who had crimes of violence or serious drug offenses for their instant offense and to others and they were older than eighteen the commission originally defined the crime of violence by borrowing the section sixteen b definition offenses instead of saying burglary and said burglary of a dwelling but otherwise consciously sought to adopt the aka framework and i think it did so largely to simplify the administration of complicated criminal history determinations in recidivism cases in federal prosecutions it added to that specifications of particularized offenses which it had done before one section sixteen the language was controlling so it always had a list of the numerator defenses in the commentary and it were to find those likely but it retained them so i think the proper way to look at this is that the commission was seeking to model this language on congressional statutes in the aka and courts across the country come out in favor of the government and said that the residual cause was vague across the board sentencing courts no longer had a legal framework at all twin turret the residual clause except for the commentary the commentary provides specificity but the this court condemned as producing a shapeless provision a provision that was a black hole of uncertainty and confusion that language existed and the problem with that from a due process point of view is that it leads to arbitrary assignments of classifications such as the career offender classification or the firearms guideline which also keys on prior crimes of violence that the defendant had in its history and it leads to the assignment of a range which then serve anchor for sentencing that provides a arbitrary framework the judge thinks that the commission intends that this individual be treated as a career offender or somebody who has a firearms offense with a crime of violence in his background but the judge has no way of knowing whether that is arbitrary or non arbitrary because the commission having borrowed vague language ends up with a vague statute mr treatment can we go back to justice kennedy's question  montgomery we had a room that appeared procedural just like this one the judge at sentencing could still sentence a defendant to life without parole  montgomery sense because they are an anchor on what a judge does why isn't there a substantial risks like in mongomery that a defendant is going to be sentenced because of the guideline and not because of a finding that he or she is entitled to that sentence and i take that to be that substantial brister be proven by your own statistic eighty percent of judges sentence within the guidelines but more importantly for those circuits that have permitted or or have applied retroactive activity to johnson and defendants have been recent in this the vast majority have received a much lower sentence so just sort of are let me try to take the conceptual point and the practical point  ptually montgomery interpreted miller vs alabama as basically requiring a finding to go to a life sentence of finding of incorrigibility that prior law had not required in a fact finding was not made the defendant is not eligible for a life sentence if you say juvenile homicide defendant so montgomery rather than looking at miller and saying well is it likely or unlikely that you will get a life sentence it interpreted miller as imposing a requirement and that is why it satisfied habeas not because there was some likelihood analysis if likelihood was the test the court would not have had to go through the analysis that it did and focus on the incorrigibility aspect and that's what distinguishes miller from the guidelines still have to make a finding that there's a reason to give a defendant a higher sentence there may be some judges who determine the nature of the past conduct criminal history justifies the higher senses we don't doubt justice sotomayor that the guidelines range is in clench all the question is whether it sets an eligibility threshold the test is not likelihood of outcome that would in effect class collapse one aspect of the test for a watershed procedural rule into the criterion for a substantive rule for retroactivity a watershed procedural rule both has to have a fundamental a effect would it have how many cases are there in fact except i guess it's the felon in possession cases would be the one example that the guideline that the guidelines haven't already been structured to take care of for career offenders so our position is as the court knows from our submission and welch that in armed career criminal act cases where the effect of the residual cause was to change a defendant from having a maximum of ten to a minimum of fifteen johnson is retroactive and we have sought and supported retroactive rulings in the cases where somebody is no longer qualified for an armed career criminal acts under john outside of filling johnson and welch be operative they are as i understand it in virtually all cases most others the guidelines are with the statutory noxon that's right well i think in all cases fact before the judge can sentence outside the guidelines that was the problem with mandatory guidelines advisory guidelines allow the judge to look at the totality of the circumstances and to make policy judgments that may be at variance with the commission now they don't do that all that often because the commission is doing its job and that is why we are on the side of petitioner with respect to the due process issue  any collateral review case a case the threshold question is retroactivity because of the new rule that the petitioner seeks would not be retroactive to cases on collateral review there should be no adjudication of that prisoner if the court wanted to decide something else before then but the reason why the government thinks that it would be in the interest of criminal justice for the court to resolve the retroactivity issue is that there are thousands of cases waiting in the wings that are being held up today has actually ruled on retroactivity the circuits have ruled on vagueness all except for the eleventh have either said vagueness applies to the guidelines in the residual clause falls or they have said we accept the government's concession that vagueness a but there's been this one the reason that those cases have gone forward are most likely because the judge took a look at that defendant and said i actually am going to sentence him to a lower sentence maybe time served i do not want to wait for the supreme court's decision in beccles the vast majority of cases however are on hold which i think could represent a view by the sentencing judge is that they are not so confident that they will reset the defendant to a lower sentence after all these defendants haven't had a change in their criminal an efficient result but i think that for the i was known for their and that's admirable but for many of the judges that are that are sitting on hundreds upon hundreds of these cases and for u s attorneys that are grappling with old records and attempting to reconstruct sentencings from many years ago look they are looking to a decision by this court on the retroactivity question if i think that it's retroactive should i stop there should i go on to consider whether it's vague or should i just accept your concession that's vague well i think that the court should decide the legal issue we have submitted to the court why the due process rule that we think doesn't exist would not be retroactive if the court disagrees and thinks that it would be retroactive if it is true that i think the court should go on to say that yes vagueness applies to the sentencing guidelines but in view of the commentary here that specified the sawed off sho the residual clause is not vague as to that particular offense and as a result the judgment should be affirmed but i think that the systemic interests of justice right now in the wake of this court's decision in johnson and knowing the pendency of beccles is for the supreme court to pronounce authoritatively on whether retroactivity should apply to the new due process rule that petitioner seeks out of the government thinks in light of this court's decisions in pew and molina martinez is correct so the sequence of analysis in the government's view would be first to address retroactivity if the court agrees with the government that this is a procedural rule that does not have the consequences that one welsh and montgomery attributed to procedural rules then the case is over if the court concludes that that due process rule would be retroactive if it were correct i think the court should go on to decide whether vagueness applies to the guidelines i do not agree that any other guideline is going to be invalid under vagueness analysis just this one except insofar as the commentary has specified enumerated offenses and that's pronk we believe that petitioner loses because the mr chief justice and may it please the court i want to start off correcting something that my friend said when he referred to historical sentencing as not being arbitrary the united states senate report on the sentence reform sensing reform act  capricious method of sentencing will not be a panacea that's in the senate report on the sentencing reform act judge franco understood sensing was arbitrary under the old system it was arbitrary it may have been individual ised but it was  one judge could have put different values on a reason in one place and in new york in different values in california that's a very different form of arbitrar don't think so when one looks at the sentencing factors in three five five three eight two the purposes of sentencing that my friends both agree are not subject to vagueness challenges these purposes are even more vague adequate deterrence respect for the law just punishment yet they result in the calculation in the mind of the judge of a single number a fixed determinant sentence my friend referred to arbitrary determin sentencing arising from the career offender enhanced residual clause but think about what three five five three a the first sentence says the court shall impose a sentence sufficient but not greater than necessary to comply with the extremely vague purposes of a treaty but his point i think is that yes all that you say is true but this is a special kind of guideline this is like a threshold this is  rule of law that says get into this career offender business if and only if you satisfy this rule thus most rules are telling the judge judge go back to your history of what this is about look at the offender figure out what he did and then try to find an appropriate sentence in light of the factors this isn't that this is off on you either are in the career offender or you are not and just as you couldn't even before have decided the sentence through a throw of the dice so you cannot now interpret and on oft rule to say it's no worse than what you're talking about in justice prior that amounts to an argument that because of the clear offender enhanced residual clause isn't quite that vague it's more subject to constant it is saying you can't rely on how sentencing used to work in order to say this on off rule then what was worrying me and are going our conversation is i could think of other parts of the guidelines for example the part that deals with concurrent versus consecutive sentencing which you know is a nightmare is also the notion of a kind of on off rule and i'm afraid of what we would do here so that's where i am in this i mean i'm not saying don't go ahead go ahead but i think he's trying to make a a qualitative difference in what we're talking about here i do want i do want to i do want to get back to the eighty two factors but i all addressed your question directly my friend said that the problem here is molina martina's in pew and the weight that the guidelines are given and that weight in part comes from a reader which  appellate court can presume a god within guidelines that is reasonable because that reflects the judgment of both the commission and the sentencing judge that the three five five three a factors have been met but that's actually not true  and that's because the career offender and hansen exists at the command of congress in ninety four age the commission is not actually deploying its expertise when it made the career offender enhanced when it's doing something it was commanded to do which is make sure that sentences get at or near the statutory maximum for the rationale for the reasonableness presumption of rehab completely goes away with the career offender guideline and that's why the career offender and hence we should not get that kind of weight and that's why it doesn't my friend referred to eighty percent of sentences being within guidelines ranges it's seventy five percent outside of the guidelines ranges guideline ranges for career offenders only twenty five percent of career offenders in twenty fifteen got within the guidelines range sentences and some of that is government sponsored departures to be sure but an astounding nearly thirty percent of career offenders got below guideline range sentences without the government sponsoring them and what's going on there is that judges are not giving the career offender unhandsome and as much weight as melinda martinez and pew were talking about because it doesn't come from the commission's expertise on the three five five three a factors and the reader rationale is gone and because sentencing judges are commanded to consider the very facts of the offense and the criminal history that they were deprived of considering under the aca in johnson the court made very clear that the saving construction offered by one of the other opinions the so called criminal history or record based approach was not available as a matter of statutory interpretation but under the sentencing guidelines in fact or a one extent in judge must consider those facts so to take the example from johnson of rioting in a correctional institution under connecticut law under the categorical approach probably a crime of violence but there might be the rare violence free riot a sentencing judge under the guidelines can look at what actually happened and look at th severe effect of the career offender and hansen and then sentence below the range and that is what is in fact happening because judges are looking at the facts and then acting like automatons blindly adhering to the guidelines whatever their weight but coming back to the eight lead to a specific number a fixed sentence in the mind of the judge which is more arbitrary or provides less notice that's easy the only other explanation we get is the weight afforded to the guidelines already mentioned that a little bit but another way we can think about it is a district judge is allowed to deviate from the guidelines if it disagrees with them as a matter of policy that's kimber zero and spears a district judge cannot declare that they disagree with the purposes in  and say i am now going to sentence under my theory of radical over deterrent instead of adequate deterrence that would be reversible error under all of this court's precedent so whatever weight molina more tina and pew say should be given to the guidelines the eight two purposes have actually equal or more weight because a district judge cannot disagree with them they're in a sense more binding than the non binding career offender enhanced it and in that respect it goes from discretionary sentencing which i agree historically we've all accept is constitutional and then to the aid to purposes which may be an attempt to codify that historical practice but they are law they are it is a statute it says shell impose a sentence fixed number and they are vague and if you accept that discretionary sensing is constitutional and you accept that aid to purposes are not subject to a constitutional vagueness challenge it seems extremely difficult to accept that the career offender and handsome it is somehow subject to a constitutional vagueness challenge either because of the numerical range it's a fixed number for a two or because of the weight for the reasons i've given one other thing i wanted to raise which related to questions just to sort of i was asking about the recent things i'm not aware of the percentage of those eighty eight what percentage that is of the total re sentencing that would come up my friend suggested it's a representative sample but there's plenty of confounders in those  sometimes it's been a different judge the second is sometimes the dissent the defendant was originally sentenced under booker a pre book or so of mandatory guidelines the third is that in some of these cases and i've looked at the government sentencing memorandum the united states has gone in and said well because the commission has gotten rid of the residual clause we would like the defendant sentence to reflect the way sentences are going to be going forward so we're asking you to impose a lower sentence because we want things to look in the future the way they're going to look for this this defendant today all of those things are confounders on the actual effect that the career offender guideline had in its original form on the defendant sentence and to take an example mr backhoes we talked a lot about molina martinez in pew and some other decisions that are mentioned in pew as giving weight to the guidelines most of those decisions did not exist when mr baucus was actually sentenced only reader was there and mr buck lawyer told the judge at the sentencing judge that all the factors in three five five three a were equal that none of them had any more weight than any of the others and mr back will still got his within guidelines range sentence it is true that six years later the district judge said i would have sentenced him differently but that and that may be just as much an indication of a reader goal style air of over interpret in the guidelines or overweighting them as anything else if the court has no further questions i'm i'm prepared to sit down thank you counsel byrd when you have a minute remaining disagree in part because mr treatment misstated montgomery as an eligibility test in both welsh and montgomery the defendant was eligible for the same sentence so long as the court made specific finding s and here just like my gun marie it will be the rare case where a court can impose the same sentence once the defender the defendant no longer qualifies as a career offender and that's because the court would have to make additional findings just was not true in montgomery there was permanent korb in court ability but here in a very upward from an ordinary god line range to the career offender range would require the judge to come forward with specific and compelling significant determination a justification that would be so compelling that would allow the court to double someone's hands and those considerations would have to be things that were not already taken into account by the sent to you have ably discharged that responsibility for which we are grateful the case is submitted