morning happy to hear argument in our first case number thirteen seventy one zero seven united states versus them yes ma'am please the court mariano jackson representing appellant richard adams no party to this case disputes the fact that mr adams did not commit the crime for which he is currently serving one hundred twenty months in prison despite the fact that mr x rays this argument in his twenty two fifty five motion for the district court the court failed to recognize that actual innocence is an exception to the enforcement of an appellate waiver and erroneous they dismissed his motion appellant asks this court to reverse the district court's order dismissing dismissing his motion and remand the case with directions to for the district court to vacate his conviction of count  back if the court were to decide that on the record as it stands mr adams is actually innocent it would give some direction to district courts who as you know are dealing with several many to be sure it would give direction but the only that's what i was trying to tease out of you a minute ago you didn't say that so if he's your position is that he's actually innocent as a matter of wall because of the changes of  innocence and another can in another context the the the defendant badly had procedurally defaulted on his claim and the court was deciding whether actual innocence in the procedural default context what allow him to get around that that bar if you consider what vows lee and to be clear the part about that requires a defendant who's actually innocent of a conviction as a result of a plea agreement to be actually innocent as well of ever more serious dismissed count in the indictment so that part of badly if you consider it actually requires a defendant not to to prove his innocence of a charge that he was convicted of after a trial or indictment counts one through seven and this is count eight that we're discussing we're not more serious charges of the same type count eight that but i didn't think that the discussion that's right but i don't think the discussion imbali rested on that i don't think you need to go that far i don't know i don't know no no that's not my question is that why the court imbalance least you just as you go you had to go back and find really the things that was got what he bargained for that's right that is correct but the fourth circuit has held that they will not enforce an agreement even if it is a fair bargain between the parties if a defendant is actually innocent of the crime a defendant to prove innocence the opposite of a court legal principle in criminal law the second is the fact that in procedural fault the actual innocence is not the defendant's only pathway to victory a defendant who's innocent and trying to make that claim can either prove actual innocence or he can prove cause and prejudice there's another pathway to victory and therefore a higher standard for actual innocence isn't as much of a worry in that in appellate and in the case of an appellate waiver there's justice rehnquist it would be around but people who signed on to that would think yes that's a distinction but decision doesn't make any difference that's what i wasn't really clear in your brief  mean this report has not been reluctant to say people have waived or that in arguments were closed or that they no longer have an avenue so that i'm not i'm not sure that they would be too move by the you have even less grounds or less less avenues to proceed in this situation than you would have been about above but i suppose it is it is a different it's factual difference and really all we're asking the court to do is to align itself with every other circuit court who's considered it was applied to boost the case and only do so in the context of a procedural default which is the same context of the itself no it to procedural default would keep this court in line with other courts whereas applying it in the context of appellate waiver would be taking a step that no other court made so i said there are four reasons are just to jump back the third would be that procedural default is unilateral action that is defendant has every bit of control over when he makes the argument and whether he makes that argument at the proper time appellate waiver on the other hand is a bilateral action it's an agreement between the government and and the defendant the defendant has as a result somewhat less control somewhat less power over what what he does what if pleads guilty to which charges are brought which party charges are dismissed and therefore less ability to decide or or less ability  to control what what charges he'll have to prove his actual innocence of if he were to later as a result of a change of law as as a result of additional facts being found find that he is he was default takes when would arise in a case where there's been at least one chance for the for the defendants conviction to be reviewed it's if in a context just this direct appeal the defendant would have been able to  to argue on direct appeal that he was actually innocent and in the collateral attack be procedurally to have procedurally defaulted in the context of an appellate waiver there is no ability for any sort of appeal and therefore no there is no review of his conviction or in other cases his sentence you know again i guess those are different but can't you make difference if you were arguing the other side who are example in the real world procedural default is often not the  sort of on the other side there when you have this the defendant is getting something for foregoing the right to appeal where with procedure default he's not getting anything at all so that would sort of go contrary to what you're saying about the two two problems with the  that's right but but getting something i think is is less of a good bargain for a defendant who's actually innocent of a crime for which he's in jail yes but he's that underlie these crimes and in the indictment there was that eight count indictment did occur except for the fact that he was not a felon when it happened therefore he could not have committed the crime of being a felon in possession of a firearm the court would be unable to have two different two different rules you set different sets of rules for actual innocence we'd like to highlight first of all surat which this court decided earlier this year in which it said that it has applied broader principles or broader understanding of actual innocence and different contexts in this case where we are were pointing out that actual innocence can have different standards in procedural default context and in appellate waiver cont and the fourth circuit has said that that is possible in addition in the government's own brief it highlighted the fact that harmless error means different things in different contexts specifically in direct appeal and in collateral attacks  and to respond to one of the earlier questions if the court feels as though the record as it stands does not allow for it to find that the conviction should be vacated we would like to ask for every man with directions the district court to hold an h a factual investigation and we want to have a new one on the on the factual on the actual innocence of the of the simmons board charge what possible evidence could there be it's our position  respect to count eight which is what the simmons case goes to no other evidence would be necessary if this court decides replied who's the gloss and and require the defendant to show actual innocence of the other more serious dismissed charges we would like an evidentiary hearing to to  allow for a factual investigation as the court required in bruce lee and as the fifth and the eleventh circuit some also required and in actual innocence claims well didn't your wife could best to please some of the other and i realize that not all say in other contexts the court has allowed for at least the defendant to try and bring evidence of actual innocence of the other of the other charges in this case no ability has been given and that is your position it should be looking at these other charges anyway yes yes that is our position but if the court were to apply loosely we would like an evidentiary hearing well if if he's released from the appellate waiver does that undo the purpose of the of the whole plea agreement so that is innocent does not open reopen the entire bargain please the court my name is michael anderson with united states attorney's office for these from district of north carolina and i represent united states the defendant simmons argument here is both procedurally defaulted and barred by the public waiver in his plea agreement because the defendant cannot show in fact has not argued the is actually innocent of more serious charges that were dismissed when he pled guilty ok can we leave aside the most serious charges for just just a minute i mean i understand that you're making that argument but what argument   the united states did not argue that actual innocence is an exception to the appellate waiver but i'd like to clarify that the government is not he not do not know me and then actually i would like to clarify that point the government does not agree that the defendant is actually innocent the government agrees that the that the defendant is legally an ascent of his nine twenty two g conviction because after sentences north carolina predicate felonies are no longer felonies for federal purposes i hear what you tell me a court would make the distinction that honor because the defendant is only challenging the legal classification of his predicate felonies in this court this court both in united states be petted furred and united states v surat held that factual innocence does not extend to challenges to the legal italy ok actually the united states simply disagrees that the legal classification of this predicate felonies makes and factually but even putting the distinction between legal in a sense and factual innocence whereas this argument laid at the that the defendant has defaulted arguments the defendant has preserved arguments and then united states kearney comes up here and expects to be able to make arguments that it's never made before and that doesn't seem quite right does it your hon i'm not trying to present a new argument to the court and simply trying to clarify with three states i'm sorry but i asked you where it was in your brief and then maybe it is here somewhere just show me where it's not in that in the specific terms of the distinction between legal and factual innocence the united states simply states in its brief that the defendants no longer has the predicate felonies for federal purposes after simmons that at that the north carolina felonies that he was convicted of are no longer classified as felonies for federal purposes that that is stated in the brief however the united states does not rest on the distinction between legal in a sense and factual innocence and instead the united states argues that the balance the standard should apply and it should apply your honor for three reasons first because this case arises in the same procedural context as balsillie second because the rationale underlying the balsillie actual innocence standard applies with equal force here and third because this case and  procedural context this case like bows lee does arise in the context of procedural default it also like validly arise in the context of collateral review from a plea agreement and that particular context is important when understanding the rationale to raise a procedural default argument even though the litigant had not previously raise it at the district court level and furthermore your honor this court has consistently held that it can affirm for any reason that appears on the record that would include the procedural default argument that the united states has raised here and the united states would also note that the waiver argument that the defendant raises is not properly before the court although the united states raises procedural default argument in its informal response brief which was filed four months can affirm for any reason on the pier appearing on the record the united states and that's that this court can look to the procedural default argument however if the court all of these supposed to know that you're going to argue it before you file your brief you know i used to practice law and i never yourself there are things that are raised in the informal brief don't appear in the brief and there are things that appear in the phrase that were informal that is correct on but even if this court were to disagree with the united states's argument on procedural default to cover the rationale for the ballot decision the rationale for the ballot a decision is a phonology concern and supreme court stated that when a case is on flat a review from a plea agreement that those banality concerns are particularly pronounced and like i said this case does arise on flat a review from a plea agreement which makes the rationale the finale rationale the supreme court cited which the defendant acknowledges that makes that rationale applicable here and in addition the this case is factually similar  the defendant's innocence claim was predicated on a subsequent change in case law here as well the defendant's innocence claim which is based on simmons is predicated on a subsequent change in case law and in that context the supreme court articulated the actual innocence standard which requires a showing by the defendant that he is actually innocent of the more serious charges language that would be the more serious charges that were dismissed when he pled guilty and here the defendant cannot make that showing what do you know that they haven't had a chance to have a recently problem i mean you're probably right but don't they get a chance to i don't think a day in court on this like you noted your honor the the defendant has confessed to the conduct that was charged in the dismissed counts and the facts to wish the defendant confessor stayed in the sentence p s r the defense and i've got a case in my own court right now involving these four people called the norfolk four who all confessed to something and say they didn't do it open court and under oath at his sentencing nor did he object when the united states relied on those facts as the basis for an up or departure for the dismissed conduct nor did he object when the when the district court relied on those facts for the the government's motion for an up or depart so the defendant had multiple opportunities to object to the facts in the p s r and he did not and in this court's decision in united states the food it this court relied on the unopposed facts in a p because he could possess the gun right you want of the united states simply disagrees with that that conception of factual innocence but them but again the united states is not resting on the distinction between factual and legal in a sense actually committed the again your honor the united states like i've said is not resting on that that distinction the united states for the reasons i've stated simply thinks that actual innocent standard applies here and that the defendant because he confessed to that conduct charge in the dismissed counts  the equities actually weigh in favor of enforcing the appellate waiver for three reasons and with the courts indulgence i'd like to lay out those three reasons and then i would like to return to the first one and spend a little more time on it the first reason is that applying the appellate waiver turn concern is valuable judicial resources not only at the district court level but also at this court should there be any appeal from further proceedings it also allows the defendant to face forward rather than looking in the rearview mirror and focus on rehabilitation for his pending release and the final argument on the equities is that in forcing the appellate waiver here doesn't force the agreement that that the parties reached and the court had previously raised copeland and copeland this court applied an  appellate waiver to bar assessments claim holding that when a an appellate waiver is knowingly and voluntarily entered into that a subsequent change in case law does not suddenly reopen the door to renegotiation and re bargaining and that's the situation that we have and that the court certainly may do that in the court is not seen the united states is not intending to be substituted judgment for the courts or for the defendant is simply noting down to the law my apologies your honor i didn't intend for it to sound that way i'm simply explaining the way that united states the united states reviews or sees the the potential consequences for not applying the appellate waiver if the appellate waiver is applied the defendant will still serve the twenty year sentence that he received in this case because of the other sentences that are not an issue if the cheese and the defendant was twenty two at the time of sentencing so after that twenty year sentence he will be approximately forty two assuming that there is no good time credit appl appellate waiver is not enforced and if the one twenty two g b conviction is vacated the defendant still will serve that twenty year period because of those other sentences that the united states can seek to reinstate the dismissed charges the five dismissed charges pursu eighteen u s c section thirty two ninety six if the united states chooses to do that by statute reinstatement is mandated and the potentially reinstate of all charges include two nine twenty four c counts because  the defendant here has already pled guilty to one hundred twenty four c count those additional to nine twenty four c counts would be second or successive counts meaning by statute they carry a mandatory minimum of twenty five consecutive years each in other words by waiver if there's one twenty three g conviction is vacated the defendant not only will continue to serve as twenty year sentence but faces a possibility of an additional fifty years and i'm not standing here before the court this extraordinary argument  has the ability to make that motion and if you noticed the united states is contemplating making that motion but again i am not stating the united states well and even if the united states does i'm not stating that the district court but you're using it as an argument trying i'm not sure you're i believe that we could not either but i'm not sure unless there are any further questions from the court before you conclude by argument saying no and for the reasons that i stated here and the reasons contained in our brief it's our position that the the conviction can be vacated at this point based on the record as it currently right hands and not sent back to the district court for additional proceedings if we even if we vacated it could and and we didn't brief that we were focusing on the on the issue raised in the certificate of appeal ability if the court would like us to file supplemental briefing on that we do have an argument on procedural default  so i just wanted to raise three to three quick points and answer any additional questions if the court has them first of all the government raised the idea that there are similarities to bows lee and that those those require the court to then apply  in this context our position is that the required showing for actual innocence is different in this in the context of procedural default and therefore any factual similarities are relevant when that is a procedural default context and this is an appellate waiver context second the appellate waiver question is properly before to the court contrary to what the government argued the court issued a certificate of appeal ability asking whether the appellate waiver are in the actual innocence argument if that doesn't if that means that if that doesn't mean that the question is before the court of appeals then i don't know what does and finally as the court suggested the government did not raise procedural defaults below  in front of the district court below that argument has been forfeited and the fourth circuit has has stated that question issues notch listed in the certificate of appeal ability are not properly before the court and the court is unable to review them other circuits have gone as far as saying the court doesn't have jurisdiction to to consider such arguments all right thank you thank you we understand your position we will come down