isn't really clear the complexity or way the government is trying to make this case seem more difficult than it is the government says the court in this case needs to decide a choice of law conflict between circuit law that this court has to figure out there is petition is based on math and science math us both the th circuit and the circuit out your argument a great deal of complexity and many very serious substantive issues sort of lurking beneath the surface of which the which target law applies is one of them and the circuit of conviction so i'm not sure we can escape that issue quite so easily as we might in a civil context where we would say there really isn't a conflict we have so far you have clear we certainly now it's uncertain so i mean we do have that at some point if it's not in this case in a later case just like that issue and why is this not the case to do it i mean that's how i read the government's argument we  decide at some time this case is as good as any so let's decide it sure and this car may have to sign it sometime or perhaps the supreme court will take this up soon and the reason you have to say in this case is because circuit has specifically just cost quarrels since it happened in reign and all it said is that it's been called into question and it sent it back to the district court the government in that case argued that i mean the court can certainly opine on that choice of law issue if we're absolutely not arguing that this court uses its own precedent over the circuit of conviction and i think it's clear from davenport on that different circuits but that's just not what we have here we have two circuits that are in agreement and then mere possibility that the government at some point in the future might convince the circuit to go the other way although so far it hasn't degree does your argument depend on understanding massa's to be a new rule sort of a sea change kind of decision the district court here didn't think it davenport was not talking about new rule of constitutional law because it specifically about a statutory interpretation and the supreme court has repeatedly said that in a statutory interpretation case is never a new rule in the sense that we talk about it was constitutional rules because it's merely saying what the statute has always said since it's been enacted incident davenport rule is about a n lifts the law that was previously foreclosing relief there was previously an impediment to dean going there proving that she was not an arch criminal napa's has lifted that impediment and finally created  this his st opportunity to show that he was illegally sentenced is an error rate so i agree with a huge amount of what you said in that the supreme court indulges in this fiction that now that we've announced on statutory interpretation this is what the statute always meant etc but what what's troubling me is that we have in a couple of cases tried to think about how big a change that this made and one of them actually one of them was in tw sixteen holt's against united states one of them was last year hansen hansen argued that matters recognized a new writer maybe somehow was was changing the statute but there is language in ma in which the supreme court says our precedents make this is straightforward case for more than twenty five years we have repeatedly made clear and so on solid so the supreme court's own language and math is tries to posture again newness under davenport is is just it's a different thing that it's talking about here but also i mean this court can access the briefs and cheesemonger which went into this in a lot do here we don't even have to deal with that because there wasn't even camps there's direct appeal in those twenty to fifty five predated that and so there is simply no question that his claim was utterly utterly foreclosed it to the extent that somebody could argue that to camps and lock chains and clarify that because that was taken heavily briefed and even host to camp it's circuit held absolutely not this is not divisibility doesn't work this way and it took men now to finally push the th circuit into recognizing what the supreme court of course claimed it had always been saying i believe based on misfires argument that perhaps the disputed is a little bit narrower than i originally thought because she said that if it were the case that that her client mr guns there could not obtain relief in the th circuit then he wouldn't be able to obtain two thousand two hundred and forty one relief and mr good so it sounds like the dispute primarily is about is not about this court's decision in jayson or some of these more complicated issues but rather what the state of the law is presently in the th circuit the the supreme court's decision to coral's d the th circuit reasoned in the macarthur case that the minnesota burglary statute at issue here was not an actor predicate because the defendants in not have to have  there because one of the fundamental questions said bothers me a bit about your argument is that you know courts speak through their holdings in their judgments you know we don't reverse and remand to tell a district court to write a better opinion  we very frequently will say you know the rationale may not be a plus but the result is is correct and you are arguing for a degree of deep diving into an opinion that  i'm not sure is consistent with this rule to it's the judgments of the court that make up the law it's not the opinions so it's the outcome and so i recognize that the eight circuit threw out a ration owl originally and that rationale may not work but of course once a court is offered one rationale opinions would be even worse and longer than they already are if you had to put six or seven alternative rationales every time speaks only through its holding it really shows one russian had accepted one rationale for that reject others it didn't say not this not that not the other thing it mean that's not course work parties present things and you know i'm worried that you're now putting on us the burden to make sure that we always throw two or three different rationales in just in case the supreme court one day disapproves of one of them i don't think that's right your honor it's mr gunn rd who has the burden of showing that he's entitled to section two thousand two hundred and forty one relief and what he's asking is for this court to assume that he would obtain relief in the th circuit on a basis that the th circuit has never won an argument that the th circuit has never accepted the one argument that the th circuit did accept is one that the supreme court just outright rejected in corals there's there's really no way to argue that macarthur is still good law because it's rationale that the defendant doesn't have to have intended the moment enters the building that rationale the supreme court soundly rejected no there is another argument that this court accepted in van cannon but the th circuit has never had an opportunity to address now the th circuit may well have an opportunity to address that and hasn't happened so the raymond case where the th circuit sent it back down the district court accepted the alternative our rationale from van cannon the recent thing hasn't happened yet so the government doesn't have an opportunity to appeal there there is also another opinion from earlier this month called bolton the district of minnesota similarly granting twenty to fifty five relief so there will likely be opportunities in the future for the th circuit to address those alternative then can an argument circuit decides to accept one of those appeals so that we can have some consistency in the law or are you conceding you know in black and white and orally that the government will not make an untimely mis argument or you've already raised your view right now it sounds like the th circuit after quarrels has disapproved its earlier decision i think your position has to be it just raced it since there is now no longer the rationale clarity  that is correct and the reason that that that that is important is that in davenport where this court st addressed to the exception to that basic st said that the saving clause allowed relief based on retroactive decision rationale was that there must be a change in the law so there has to be a law that precluded the defendant from bringing the claim earlier all right and in the court has already concluded that there was relevant law in the circuit but then there has to be a change in the law and the end of the defendant's inability to obtain relief after that change in law is what creates the miscarriage of justice that this court recognized as being a  central component of such a claim in davenport and there that there are at this point there is nothing there is no change in the law of the th circuit that would enable mr gunther to obtain relief that the mr glaser is that form over substance  given what mathis says your honor i don't believe it i don't believe it is again you know but for the government government's perspective even this even the circuit has too broad a reading of the saving clause but manipulate that by just never appealing in the th circuit right you can keep this guy in prison forever if you just leave it alone your honor if if we if we never challenged any of the district court decisions in the district in minnesota i think that might be a  different situation but at this point it's an open question and so at the very least i want is did explain why you think it would be different well your honor if i mean i think that the question would be would likely eventually reach the  circuit but if it didn't then he could bring a claim effectively saying that the absent had that that the law has changed now again changing the law in a district court decision would be we don't think about that that's right it's actually i think a consistent reading of davenport to say the change law needs to come from the supreme court but the fact that he is denied relief here is really a function of the supreme court's decision in corals and the increasing obligations that are placed upon by the supreme court precedent and by the nature of collateral relief itself mr glaser is there any daylight between the minnesota district court decisions and this alternative rationale invent canon no your honor they they essentially accepted van cannon and buttress that with some additional arguments we believe that the that those arguments are incorrect for reasons that we stated in the supplemental brief and jason jason actually had didn't address that issue at all however some and simply said that van canada's already decided this and so jason did not address the government's arguments that actually it's not it doesn't require an intentional crime to be committed within the  the building but rather it requires some crime be committed and then that therefore can embrace reckless an exam prime so we think those are court decisions are incorrect but we'll have to litigate those in future cases but at this stage we don't court we did not make a binding concession that this court's law applied in fact we at the time a circuit law was clear so we were focused on this court's law subsequently this court's law was clarified by having canon but we certainly did not make a binding concession that only this court's math law mattered and he could have pain relief regardless of the law in the circuit and how is that different from change in chazen your honor we said that the this court your honors look at the writing of the government's briefs in the district court and you can compare their language but more importantly i just want to emphasize how unworkable the government's position in th comes back but it will make an argument that we're not permitted to rely on the circuit decision that it's currently telling us we have to wait for although it's not this that lifted the impediment to rel