before johnson and then after that we had welsh vessels do my own and finally davidson two thousand and nineteen for the trial was fourteen years before davis but that is irrelevant because davis applies retroactively the government this is the number of points and ran his brief but not that one and in fact the government has told appeals courts across the country including this court that davis is retroactive in light of the air in light conscript spirit so on one hand we had during and in relation to the robbery and on the other in further lengths and of different conspiracy on men ray should still prevail here because whe there are two instructions that are contradictory that still amounts to constitutional error and that's the sort of case we cited in our brief from this court if you ate from the supreme court and in the us the fernandez which is from the st circuit not in the brief but i want to get the on the record here other than twenty two dollars f rd one of the court said although other parts of the jury instructions accurately stated the requirements for a bribery conviction the fact remains that the jury was confronted with flat contrary instructions and i think that's exactly the case here where you have one instruction thing during and in relation to a robbery conviction for count three and the other instruction saying twice in furtherance of the conspiracy count three i think those are opposed instructions and i think again i think race should still prevail under under the law from this four and the supreme court given that there are two alternative theories of liability one of which is invalid start although the conviction would then still remain on on the record i think that there is no challenge from the government to you know just because it has been released i think it's a conviction we're concerned that which the supreme court has said that there's a presumption of the collateral consequences that come with a wrongful conviction so the relief here would be to to vacate the denial from the low interest remain with an instruction to to vacate the conviction and and i do want to point out with the with the instructions with with instruction you mentioned on page sixty one dollars is that each of the counts in the instructions has an instruction that begins to sustain a charge the government must conspiracy set up and instructions and it is the only instruction in all the jury instructions that directs liability for other counts we're going this is an instruction coming immediately after the definition of since conspiracy directing liability for other other counts and we think that is is just only reinforces the area that the jury must present about alternative theories of guilt and therefore even even if there is no of committing a night twenty four dollars c offense that was predicated on the robbery of the waco credit union in violation of the federal bank robbery statute which is defendant can see constitutes a crime of violence under my twenty four dollars sees us the davis decision had no impact on such offenses the fairness argument that rests on the claim that the pinkerton instruction provided to the jury the elements instruction provided to the jury expressly predicated the ny twenty four dollars a c charge or a conviction on an i twenty four a c charge to a single crime the credit union robbery charge in count two the indictment the acts and in furtherance of the robbery so there's no way that the robbery in france is somehow substituted out which is what would be required here you can have even if there is an argument to be made and and we don't think there is but even if there was an that the jury might have thought that the conspiracy was and dition all basis for liability and that is an additional convoluted way of thinking that defendant proposes that it was the only way that the jury could have been misled in this case the bigger instruction the not and could not have overridden all of the other instructions given to the jury most notably the elements instruction to in a manner that substantially injurious lee affected the result here that's just not doable  we also argue and i think the record is is also convoluted procedurally and it's not it's not at all clear to us and we think that it's it's true that this argument with respect to the jury instructions is even properly before the court as discussed in the brief we don't have to go through the entire procedural analysis to make this clear but the argument that's made here really the only one to one that if an impressive side appeal here is the argument there relates to the jury instructions and argument there was not raised until after the district court had denied defendant belief on his on his twenty to  rather only in a in a post ruling decision they only reason that we're here at all is that the district court without getting the men and have opportunity to comment on the new claim that was made by the defendant way which sent this issue up to the court just ever did rule on this argument about the jury instructions so there's really nothing before the court for the court to review on this issue yet there not it's the court were elected the court reviewed the arguments that had been made the district reviewed the arguments that were made in support of the twenty dollars to fifty five dollars motion including the ones that raised in the abridged t but yet again this argument about the the jury instruction wasn't even made before that ruling was issued it was only made after after the decision was made after gave this came out and it was not the subject of any order or ruling or discussion of the issue by the district court so i think it's  as the four circuit in mcdonald did the court can and should grant that authorization here and now the district court has already indicated how it would roll on the issue and by all accounts the government does not dispute that davis is retroactive  to task for pre filing authorization and i want to return to to prejudice on the government's argument about what was the the predicate offense here and there's a case in the th circuit not in our brief but again i want to get it in the calling planned use a firearm in the robbery maybe so but the question is whether there's a reasonable reasonable probability the jury would not have inferred the advance knowledge if given the proper instruction and so i think again here the reasonable probability in light of the evidence we've shown in the brief that mister ray if i'm not believe a firearm was necessary that one of the coconspirators testified in fact he was not convicted of ninety one year of bank robbery or i'm sorry pleaded guilty to bank robbery he only played guilty to conspiracy and the brandishing charge or one hundred and twenty four c it should be left to a jury to determine whether there is sufficient evidence to convict mister