timely filed second because the district court misapplied the gatekeeping standard for a twenty to fifty five motion based on johnson and third because mr patten has shown that his arm career criminal acts in the ins is illegal and unlawful now that the residual clause has been struck down so returning to my first point your honour's the notice of appeal was timely filed there are two reasons why we continue this is the case first because the gonzalez vs crosby doctrine does not apply to this motion and second because even if the doctrine did it would not affect the timeliness of the appeal or this court's jurisdiction the reason i submit that the doctor does not apply to this motion is because first of authority at the gate keeping stage to preclude a marriage determination so one of the straightforward language of gonzalez versus crosby itself the doctrine does not apply to a post judgment challenge to that order but are you arguing that the texas robbery is not a violent felony on the force we are your honor but the merits determination your honor it was an america determination here because the district court understood it could not reach the merits now there were some so there was substantive reasoning that was attached to the district court's gatekeeping determination but it was a determination that precluded a ruling on the merits for purposes of twenty two fifty five now we are submitting to this court that we are right on the merits because mr patten has over served a ten year lawful sentence and so he's entitle to immediate relief the same as happened in lawrence taylor so we are making that argument on appeal but the post judgment motion itself was challenging a gate keeping order but even if the court would agree with me on that point the post judgment motion also attacked defects in what gonzales calls the federal post conviction proceeding they call the federal a b s proceeding the document clearly express intent to appeal to this court and we complained about the fact that our motion for authorization which contained basically the crux of our argument was never filed in the district court so that alone that footnote alone in the motion would be enough to allow us to avoid the application of the gonzalez doctrine here but i'd also submit that even if the doctrine applied if we were wrong about this it would not affect the tininess of the appeal or this court's jurisdiction now i will concede as we did in our reply brief that there are statements in this court's precedent that say if the doctrine applied the notice of appeal wasn't timely but from what i can tell in every one of those cases the court has found the doctrine did not apply do you think through fifty two and fifty nine are the appropriate motions that provide an authorized success in twenty to fifty five in other words extend the time your honor i think that those motions what they do is they keep the judgment from becoming final so and that's from the straightforward application of rule for a floor so as we say in the reply it's not clear we could we could treat that either as extending the time to file an appeal which the district court has asked tori authority to do and the supreme court has the authority to prescribe rules governing that so it's like a per se extension more it is it stops it from being final which again is something that the supreme court has statutory authority to do you'd say that those are just as effective as a rule sixty b motion for purposes of your argument i would say they're more effective than a or b motion because the rule sixty b motion creates a whole lot of problems about finality it's not nearly as limited in terms of the grounds that you can bring it on but certainly at least as effective and that's straightforward from a straightforward application of the rule this is a timely appeal moving to my second point your honor i'm happy to talk more about your stiction the sort of subject only an appellate lawyer or a judge could love but i do want to talk about the gatekeeping standard as well  district court decided this case at that stage without the benefit of this court's decision in lawrence taylor and lawrence taylor makes clear that this was a incorrect application of the gatekeeping standard  in lawrence taylor this court said we will not penalize a movement for what might or might not have crossed the district court's mind at sentencing so just like this case lawrence taylor involved a silent sentencing record in terms of which of the problems of the arm for criminal act was being applied and the government again argued there was any potential possible legally erroneous theory under the elements clause maybe the district court was doing that therefore they can't show that this was johnson error this court said no we are not going to attribute to the district court a legal error in order to avoid a claim for relief under johnson in other words it would have been eroni as for the district court to apply the elements clause on this on this facts on this record and discord said that does not defeat a subsequent showing of successive motion under johnson in other words we are allowed to say the elements cause would have been illegal opinions substantive opinions apply for purposes of collateral review and that's from the supreme court's case in both sleep where they say if you are attempting to show a federal constitutional error you may rely on intervening substantive decisions those would include curtis johnson as well as all of this course forest clause cases i would also submit that that same argument could have been raised in lawrence taylor as a matter of fact it was raised by the district court in lawrence taylor and that's in this court's opinion the court says there's no evidence that we were thinking about the residual clause of the time this court recognized that does not preclude relief on a successive johnson motion why because the district court doesn't have to say why it's in hitting some one s act much like jury instructions not because of all indoors tori's it's the district court doing that instead of the jury but the instructions are submitted in the disjunctive like a black box and so you know you put the input into the black box the arm for criminal it's comes out and the majority rule the better rule says if one of the prongs in that black box was wrong then you are allowed to get in the door on a johnson claim and show that was prejudicial in other words shows the sin it's illegal but in this case we also have reason to believe it was a residual clause that reason to believe it is it would have been wrong to apply the elements cos and this court has consistently held that there is a distinction between the use of physical force and the causation of bodily injury and began holding that while this case was on direct appeal so if we wanted to give it the narrowest possible construction of the gatekeeping standard let's say let's go back and the only thing that we but again i don't think we have to show that it happened while the case was pending because the supreme court has said we are allowed to use intervening substantive decisions to show federal constitutional heir that's the straightforward holding of both l taylor stands for the proposition that if the record is silent do not assume the district court made a legal heir and my third point your honor is that mr patten has shown that his act in sentence is illegal for a simple robbery convictions cannot count as violent felonies they could not count as violent felonies under the elements clause at the time but they could count as violent felonies under the residual clause now i submit that and judge clement you've said there's no evidence of that but i think the evidence of is united states versus davis because there you have a case with exactly the same inputs which was a defendant whose apis and it was based on texas simple robbery challenge it on appeal and this court said it's a residual clause about filling so what we have is a situation who is a c c a with the residual clause that says you know states versus davis not a c c a without the residual clause that's united states versus burris i'm not sure what more the government wants from u this is a classic johnson base twenty two fifty five this court recognized that when it authorized mr patten to file this excessive motion and the district court again operating without the benefit of lawrence taylor and unfortunately operating without the benefit of the argument that we had put forward to see explained that this was a residual clause offense and not an element because if it's decided otherwise we challenge that gate keeping determination as we were allowed  i think that lawrence taylor forecloses some of the extreme interpretations of the tenth or eleventh circuit snyder in beeman cases in other words saying lars taylor clearly as i say prohibits discourse from attributing legal error to the district court at the time but i also want to say that the issue in those cases is a new procedural rule so the question is questions of divisibility like to a cop or mathis are you allowed to utilize that and so the argument that you can't is that really this is a question of prejudice the argument that you can't is no this is a question of whether or not there's constitutional error and so you're not allowed to use intervening procedural decisions but there i want to return to my point that this is not what we're talking about here in other words i am not saying use intervening to visibility law and therefore we can show johnson error i'm just saying use the substantive law that this court has consistently held for more than ten years and has never deviated from and in that  sense i think even under snyder beeman we prevail the better rule of the majority role and i think the rule that is positively discussed in lawrence taylor is represented by united states versus winston from the fourth circuit and those from the ninth circuit as i say they apply the stromberg principle recognizing that in this situation the district judge is operating as the jury you know the words are the requisites for this enhanced version of the sentence satisfied that it's your course operating it and so if you can show the district court might have relied on it in other words it's in the black box then that's enough to get you in the door so they were asking for the question that is put to the court by twenty to fifty five text itself that is is the sentence illegal the alternative argument reminds me of a discussion a cruel defense attorney could have with his or her client that says well you know you make a good defense to the bank robbery except for the fact that they found all of the money in your room and the defendant says oh that's ok we'll tell them that's drug dealing money that's essentially what these extreme of the gatekeeping standard are in other words to try to avoid the recognition of johnson error they say well let's attribute to the district court some other unlawful decision when there's no support for that in the record we think that's wrong we think that it's certainly not required by the text of either twenty two fifty five h two which govern successive motions or twenty two forty four which is incorporated in this court's rate as retain a decision those decisions only require require that the motion contain a new constitutional rule or rely on a new constitutional rule that's twenty two forty four so our motion doesn't books why does it do both because without johnson i can't even come in the door on this case neither at the original sentencing nor afterwards because texas simple robbery was a violent felony under i guess residual clause it was not under the elements clause and never was so in that sense without johnson i have nothing with johnson i have  back and reconsider our its gatekeeping function we're asking the court to and to reach the merits of this claim that just jumps right and to the merits of the robbery the court would not have known harry i'm out what he's really challenging is a brief use all to decide the merits and i think the court's order wasn't a refusal to side the merits if you read the court's order it kind of does a two prong thing first the court says look i don't think you met the residual clause standard at that time we didn't know what that standard was we still sort of don't know what that standard is but in any event the district court so look i'm going to require actual reliance you don't need it but and he goes on and says moreover you still qualify today as it stands and that it's reaching the merits and when you look at mr pattens motion the only thing i don't pay on page three of his motion which is page two twenty six of the record he says the court specifically found that mr pattens convictions for simple robbery quote continue to qualify as violent felonies under the fourth clause of the aca and that is the substance of what his whole argument is based mahela and also of course contesting the district court's decision not to issue the c e o a when know that a motion for reconsideration on the c e o way doesn't hold the time period under rule eleven of the rules governing section twenty two fifty five proceedings and so then the question just becomes ok does this other part of his motion where he's arguing about simple robbery does that toll it and because it's a motion that gets to the resolution the district courts resolution of his original motion on its merits it doesn't for a certificate of appeal ability this is an either of those things but he does ask for this sort of reconsideration i think what makes this different from bailey is that the court's already denied the c e o a and he should know under the rules of  under the section twenty two fifty five rules that doesn't total it file your notice of appeal i do want to address the gate keeping standard and obviously the government has advocated for the actual reliance standard that is the standard that i'm authorized to advocate for but i do understand it's lawrence taylor opinion at least at the very least and expresses skepticism for that standard and talks about other possible standards that might be applied and in this case in the district courts and at ruling the denial of the post judgment motion the district court sort of adopts this snapshot standard in their original one he uses actual reliance when he comes back on the denial of the motion for reconsideration or the post judgment motion he sort of like attempts to take a snapshot of the law as it existed at the time and  says and says look back then this would have been an elements of force clause case i still think it is and i think that's important because this is the state and district court that senate mr patten back in two thousand and one so it's back in two thousand and one he thought it was an elements force clause offense and last year he believes it was an elements force clause offense i don't think there's  support for the idea that this was at the district court back in two thousand and one relied on the result will clause in sentencing mr patten we do acknowledge that davis in two thousand seven made robbery a residual clause offense that that certainly happened after mr patten sentencing and to the extent that there is this argument that the court  garza started talking about this use of force an intentional or unintentional force while his case was mr pattens case was on appeal that decision issued in march of two thousand and one mr patten was sentenced in january of two thousand and one so even if that was a case that was going forward at the same time that his appeal was going forward at the time the court sentenced him it didn't have the benefit of c honor mr r patton has served the bulk of his seventeen and a half year sentence i checked a bureau of prison website this morning he has released to the residential so as a practical matter we're discussing the difference between him serving a five year super term a supervised release should the court determine that his sentence is invalid because of his prior robberies it would go to a ten year statutory maximum under nine twenty two g b and that only allows a three year term a surprise release versus the five year term a supervised release that authorized under the aca and so there is another practical consideration which is because he's over served when it's three years come up let's say he goes on supervised release and is not able to comply with conditions violate his conditions there's a difference if he's be any any teeth to you know right that's the government's position on the i believe the government's position is that we would still have them on supervised release just for the safety of the community there are some even though we wouldn't necessarily ourselves able to impose a prison sentence on revocation we can modify conditions we can you know if he were to violate of course the state would have opportunities to pending on what the violation  be prosecuted for the subsequent crime correct or have any other question any mention at all in the record of the either by the terminology of residual cause or elsewhere is there any mention in the district court record of the a c c a the residual cause at all as part of the sentencing in terms of the original sentencing you're on yes your honor ok and i realize it wasn't a big issue at the time but ok it would have been all too helpful i guess if if we had no  i don't know the answer right this moment your honor i know that the solicitor general's office has it they're considering it and and i'm sure i'm in a yes i believe that i'm not sure if we've already filed our motion to extend that timeframe and i think we have but i'm not a hundred percent sure on that and that process just takes a lot longer than any of us like and burris was issued actually my brief was having tables built when b issued and so because this was an expedited appeal way and so like the court would be amenable to extension here for us to that what arguments we'd be able to make here so to the extent we've made in consist concessions here and tom said threat you for responding to the government's arguments with the gate keeping order was in fact a twofold order that also addressed the merits i think we should accept the government's invitation to read the order itself on page twenty of the record the appellate court directed this court to quote moving continues to have at least three qualifying convictions but the next in its thus movement has failed to meet his burden this is a gate keeping order this is an order that precludes a determination of the merits which is binding fifth circuit authority under this court's order of authorization under the district court's own understanding of it so the district court understood it could not reach the merits the government does not explain why the district court correctly understanding that if mr patten couldn't satisfy the gatekeeping standard none the less thought i'm going to charge right in and resolve the merits in a final sentence so in that sense this is an order precluding resolution of the i do not content that the arguments are separate that they're entirely different these are very close to one another the way that the courts have dealt with these johnson claims but this is for purposes of gonzales and border precluding determination of the merits just as if the district court had said you don't fall under the statute of limitations under f three because you can't satisfy johnson right it would be a timely this determination then which is exactly what gonzales vs cross talk about we also challenge the failure to file a document under your anger versus davis that is an order attacking the the process a defect in the process therefore you can file it by post judgment motion and the government has argued that the motion to reconsider denial of a c e o way doesn't extend the deadline to file but under the straightforward text of rule for a motion to alter look at your colleague judge lindsay's written these two very well reasoned opinions that are on appeal right now we could ask the judge to alter the findings to include the fact there may be some debate about this in other words this wasn't just a motion to reconsider  we asked the court to alter its findings and under the straightforward application of rule forty four that doesn't just hold a statute of limitations it either extends the deadline to file a notice of appeal or it prevents the order from becoming final make that argument to the d we didn't your honor but neither are we required to right the district court also didn't apply that forward i'm sorry you said you were lying on the rule for correct come up with this argument which is the rule of appellate procedure the district court doesn't decide  through the gate and then we lose i mean that was an option right it was wrong i mean was a totally wrong order and subsequent developments have vindicated us about that it's important the district court understood it right that this is an illegal sentence immediate release we didn't want another year or two of litigation the case we won of the guy released so i don't deny that we made arguments that you were wrong on the merits but that is not what gonzales said it says if you are challenging and order precluding determination of the merits then you can do it in other words there's they're connected in terms of substance but this is the type of order allowed to file a post judgment motion and it's a question for this court on appeal on the gatekeeping standard court thought that this was a serious drug addicts and that's what the court thought is just having a really bad day that doesn't change the fact that we're entitled to relief under johnson right this court will not penalize the movement for a mistaken belief the district court may have