apologies l n h on appeals for the first time a new judgment in his criminal case entered following his successful section twenty two fifty five motion that judgment must be vacated for three reasons first the district court erred under posture really when it failed to recognize its own sentencing authority to re evaluate on sentence second under cycle a in pepper the district court was required to rescind its age on to novo third  finally the resulting senates is illegal because it contains plain book or error in an invalid career offender enhancement this court should also hold the age on need not obtain a certificate of appeal ability to pursue this appeal the c statute by its plain text does not apply to an appeal targeting only the new criminal judgment that results from a successful federal habeas motion this court's jurisprudence internalizes that interpretation in every circuit to consider the issue has held consistently unless the court has further questions on that point i would like to stand on my briefing on that issue and address that merits were things that simple we could  it seems to me we've got an interesting arguably difficult dilemma here because the supreme court seems to say in interviews that this is of the nature of a twenty to fifty five and therefore you pretty seems to me quotable solution where then you don't have to call but is it true to enter that's the problem you want to speak to yes and i would give three  that neither appeal can proceed until a sensually both a final order that resolves the merits and the new judgment or final there are good very good reasons for this and if you could proceed on the new judgment without a judgment that could not legally exist and i would also point out that the court there did not closely parse the text of the c l a statue which says that a cia may only be required for a final may not be it may not line up perfectly but i think that the best response is the one that said this court gave in saco lay it recognized a distinction between an appeal from the from the motion and an appeal from the resulting judgment of the court distinguished between those two and held that the contents of the former did not control rip you on the latter also this court on many occasions has done exactly as sensually what the result was here this court has recognized that when a court a district court uses section twenty two fifty five proceed your own mechanism to reinstate an out of time appeal what was oh it's is a new judgment that contains exactly the same terms as the old judgment and in every case this court has granted director of you without requiring a c would i would give to responses and first would be this court is recognized in the united states versus means that the petitioner is required to file separate notices of of appeal in the order denying  the order denying relief and the resulting judgment and this is so because those two are different proceedings one is a criminal proceeding and one is a civil proceeding that requires a cia but when we get to the appellate stage there are good reasons that a a prisoner's challenge to one count in the multi county conviction the district then has authority to re evaluate all the remaining sentences on the other counts at this point is now not in dispute on page twenty six of the government's brief the government says and the advent of criminal row procedure at thirty five which i believe occurred in one thousand nine hundred for the collection proceeding their addresses a technical or arithmetic error this  count ten was no technical arithmetic air and that was a sentence convicting age on every crime that did not exist the court could not simply excise it as it would in a rule thirty five proceeding also says that the effect of challenging kind of a conviction is the destruction of the finality of the remaining sentences that the court and accepted the government's erroneous arguments that  first of all this is not a second bite of an at the apple this is not a windfall as the government contends the government has taken advantage of this exact same rule of law under pesca relay usually to the prisoner's detriment there's an equal possibility that his tenants that any prisoner but with respect to the original judgment sekali holds this while the review here is not in any way confined by the issues that could have or should have been raised in the section twenty two fifty five motion it please the court deborah brennaman for the united states this case poses the interesting question about under which circumstances if any a certificate of appeal ability is required for an appeal from the grant of twenty t fifty five relief the issue is never been decided by this court likely because very few criminal defendants who prevail on twenty to fifty five review then seek further review and relief from this court particularly on claims not raised in to my knowledge had and is the only case that holds that an appeal from the amended judgement following the grant of twenty to fifty five regardless of whether or not it's a new sentence regardless of whether the guidelines are injury calculated  appropriate without a certificate of appeal ability most courts have created this equitable exception so to speak to this certificate of appeal ability requirement wherever the grant of twenty to fifty five relief involved recalculation of the guidelines range or re sentencing hearing on the ground that defined it would otherwise be deprived of appellate review of the new sentence fact had in court specifically said that they said our purpose here is to put the defendant in exactly the same position he would have been had there been no error in the first place the error that the district court was attempting to correct you know that they cater of the conviction and sentence on count ten based on the error identified in combs did not affect any of the other accounts and vacating only that count whether or not interdependent which was the situation and ask a relay because they were not interdependent the court could vacate just excise that one count and the corresponding sentence that's how you distinguish best really that in that case the  end result of the vacation was interdependent with in pascagoula the court specifically talked about a package the eerie and the sentences being interdependent the guidelines range were the guidelines range was recalculated in  that by saying this in this particular case they were not injured correct in most cases they would be and that's why we have so many cases from this circuit and others that say when a nine twenty four c conviction particularly is vacated in twenty to fifty five review it matters it usually matters because then they firearms and hansen is available as for the underlying offense just because of the unusual facts of this case and age and career offender classification turns out it doesn't a to say that you get a full reasons unopposed book or a new judgment it's a very similar case in that the guidelines range was recalculated and his guidelines range was higher the court didn't simply strike that sentence respect to the remaining counts correct but if the government didn't change the sentence then both of the cases they're relying upon are distinguishable correct and we base that on the words of the new sentence i mean it is a new sentence in the sense that the original sentence as to all counts was vacated that's what twenty to fifty five requires but it is not a new sentence in that it was based on any new calculations or new evidence presented to the court you know our position that a certificate of appeal was to based on any new evidence presented the court because there was no hearing and the judge didn't let on he had a john had not alleged any information that would have affected any of the soul relief he requested was you know as to his sentence was that count ten be they get it he received precisely what he requested what would be the procedure that that would be normally followed then after the entry of the twenty five judgment direct in the district court to vacate the underlying judgment here the district i just went ahead and  issued either of them mended corrected or amended judgement to judge however we want to characterize that i take it there was no opportunity presented to the in this case the prisoner then to assert any issues so to say he didn't assert any issues seems to me to be a little disingenuous when unless i'm missing some he didn't have the opportunity to was even represented for purposes of research so counsel had been appointed but not for purposes saying counsel had been appointed for him as to this combs issue and admittedly the government originally opposed his request for relief here we later reconsidered based in part on our treatment as co defendants in this case so what all three of who had the same have perfect way this is kind of like a rule thirty five in the sense that there's additional cooperation during the one year period the government comes back as far as i know district judges are still simply looking at that revising the sons there's no input i don't think from the defendants in those cases where you analogize that procedure to this procedure it's similar in some ways but of course the statutory authority underlying it is very different you know district court can't modify sentence without specific statutory authority here the authority comes from twenty to fifty five and twenty two fifty five provides that maybe i'm getting ahead of myself stop me here if beef i'm not answering your question that any appeal from a final order in a twenty five to fifty five proceeding requires a certificate of appeal ability congress could have clarified to say we mean a final order denying relief they made no difference between grant and denial s the plain language of twenty two fifty three d suggests that we need a certificate of appeal ability in this case although the court entered the order of the initial order saying the defendant would be granted relief it is not as if we need a c if this court were to find the defendant had satisfied the standard we submit that defendant cannot satisfy that standard here because it's not of constitutional dimension or correct because it's not a constitutional dimension but what are we looking at are we looking at the constitutional dimension of this  are called new challenges to the amended judgment or is it sheltered by the original constitutional violation that got in the twenty to fifty five relief to begin with and this is just simply a continued continuation of that process because we're dealing with remedies game when when there's a vacation because i hate owner of the entire new sentence why not why start all over i think part of it's due to judicial efficiency you know here the error percent becomes affected only one count that count was a count that had a statutorily mandated consecutive sentence so it was not truly interdependent and because of the way the guidelines applied to a job as a career offender there were no other guidelines enhancements that had been foregone at the original sentencing you know none that would have made a difference in the final guidelines range that's the government's position which all due respect but nobody was present to counsel mr age at that point correct and that's a fairly critical point for him but a defendant's not entitled to the representation of counsel on collateral review generally so the fact that the court in abundance of caution appointed coun for him as to this one issue doesn't suddenly create more rights when they examine the fact that he gets count ten vacated in the corresponding sentence dismissed three hundred months off a sentence does not suddenly recreate authority to revisit all of the other counts i think that's what this court held in and they can case for example it says that any issues from the original order that aren't modified by the amended judgment can be appealed in that case it's not a twenty fifty five case there was an irish original judgment the court later entered an amended judgment changing only the date in which to find it was supposed to report custody and he appealed from the amended judgment trying to challenge things he could and should have raised from the original judgment here's what bothers me about the government's position if you could humor me to try to explain it in the truck then you can respond to it you want to distinguish these two cases by saying happen then if that's some sort of magical dividing line if there was a case where the government said these are not interrelated and there's no change so therefore and so on and so forth but the prisoner says no they are in related for some legitimate reason and the district judge simply screws up simply makes a mistake in the reasons because they were interrelated in connection with the grouping or what it whatever it may under the government's position there would there would be no way to correct that error with there because the district court who did it is going to say i didn't screw up i'm not going to grant a call and we can't because it would not be of a constitutional dimension so that just seems kind of unfair but in that case we're presuming that there is somewhere a calculation of the guidelines range i don't see any any case in which i want you to consider any case where you claim there was no duty there were there was no basis to recalculate and therefore a call is required that's the government's position but it turns out that the government is wrong so how does that ever come don't i think you may have stopped using the i'm trying to think through the rest of this hypothetical here i want to make sure i don't speak out of i think that you know the reasoning for why we have a certificate of appeal ability in the first place it applies you know those those public policy concerns that effect when we need one and when we don't need one of things they're all discussed and hadn't remedy if the district court refuses to grant a co i think my trouble with the hypothetical is i'm having a very hard time imagining any case in which that would occur i know that's not a good response to a hypothetical but there this court were to find that they want to adopt haddon's reasoning and the ultimate conclusion i don't have a problem with that you know if this court wants to reach the merits and say a certificate of ability isn't resolved here this case squarely presented to the court to say whether or not there  wire then we get to the merits of these other claims than what your how do you avoid reset your own merit well the reason we avoid resentencing on the merits is because the nature of twenty to fifty five relief is  matter within the broad discretion of the district court and here the court didn't abuse its discretion we know this from the other evidence about how that you know guidelines range or calculated what else was going on that you're going to correct the second by choosing to correct only the count and the corresponding sentence for which an error had been alleged otherwise we're giving to the defendant that true second bite at the apple unwarranted in our view if we say simply by obtaining relief on one claim litigate anything else as to your sentence which was previously affirmed by this court two thousand in two thousand for so was i correct in my exchange with ms here that have the judge exercise question and i realize  necessarily because booker doesn't apply to collateral review proceedings so it depends to what extent the court structures its twenty to fifty five relief and that's part of the reason it's hard to come up with good categories for this because they're necessarily back specific and part the reason we give district court so much discretion over crafting these remedies to solve the harm there with the remedy under twenty to fifty five is is a correction whatever that really means then your position would be booker doesn't apply correct but if the judge chose to exercise his discretion to resentence if a judge decides that full resentencing is warranted the court can nonetheless limit the issues that are litigated at that recently because the point of twenty to fifty five is to put here then what you really then end up hanging your hat on is that the judge chose one of the four remedies under twenty two fifty five but it did not abuse is or her i've forgotten his question in connection with making that decision that's correct we submit the defendant hasn't established any abuse of discretion and so regardless of what this court finds about the necessity of a certificate of appeal ability you know in this context you know i would suggest that we should split that you know had had and speaks very broadly about any case involving a grant i would suggest that the court should at least consider whether that should only apply to cases in which the sentences are interdependent or the court recalculates the guidelines range or you know that i conduct the court i have a lot of issues to respond to solitary to go quickly first of all i would like to point out that two supreme court opinions fundamentally for closely government's position the first is mag would follow a here judgement in this case it was identical it was the same death penalty sentence and here the state in that case the state actually conceded that new errors of the type that the government could not conceptual i could submit a letter but i know the second circuit has interpreted it to be applicable in twenty to fifty five as well but if a you don't adopt mike what's rule here the scope of collateral review would then be actually broader than the scope of director view and that's a  result congress would not have intended second peper fundamentally change the recent insane game when a court has full discretion to resign and say petitioner and the court has held that the the district court has a duty to and the prisoner as he stands before the court on the day of sentencing the goal is no longer to put him back in the position that he would have been in but for the error at that is a fundamental change in the law why is t i see my time is up may i be permitted to respond and it is true that section twenty two fifty five grants the court broad discretion but that statute has to be interpreted in light of their statute the court sees that you are appointed in this case mr farris let me just say on my behalf and i'm sure i speak for the panel as well you've really done an extraordinary job here in what is really really i find it a complicated matter with all sorts of procedural twists are so thank you for