which has been combined with glass cracker me please the court these two appeals squarely addressed the issues that was the still rich in the last argument does guidelines is unconstitutionally void for vagueness that's under the due process clause so the only thing we actually disagree on is the remedy here just because you guys agree on something are you saying we have to agree to it to absolutely not your other step is actually going to start by talking about why we agree so i want to talk about a few of the big reasons that we agree on the issue and the first is most obviously we're talking about the exact same residual cause the words are identical it's always been interpreted identically so in johnson when the supreme court said i don't think that's the pressure point of your argument which more properly i helps you affects the johnson analysis in this case and what it means for short since we've got a circuit split on this issue about whether johnson applies to the guidelines that are all right so essential to snare was was issued i mean the two big decisions that impacted our pew and johnson itself to chair rested on this notion that guidelines are merely advisory n the supreme court made it very clear that the sentencing guidelines have the force of law and they're treated as law because of the unique role that they play in sentencing and not just sort of a casual rule but a legally mandated rule they are the starting point of sentencing they provide the framework of sentencing and i believe this court has said post pew that under pew even if i have a sentence falls below the guidelines or above the guidelines you can really call it a guideline sentence because the entire sentencing structure is legally mandated to revolve around the guidelines and then of course and johnson it addressed another issue that this court discussed in titular which is does the vagueness doctrine apply to sentencing provisions which had been implied before but never addressed head on so in johnson of course it it's as clear as it can be it applies to sentencing laws and under pugh the guidelines are a sentencing law therefore where we have the exact same residual clause that has been interpreted in the exact same way then everything that johnson said about the residual clause under aca applies here it well what johnson actually said was that satanists doctrine applies not only to  statutes establishing the elements of crime but statutes six and penalties citing batchelder and that particular language she is what the circuit split rests as i understand the eleventh circuit and and of course johnson was addressing a statute so it makes sense that it would refer to statutes but there is no question that the vagueness doctrine has been applied outside of statutes and the supreme court has applied it to administrative regulation those are laws the supreme court i don't think it got cited in the briefs unfortunately but i'm in a case of gentile versus the state of nevada they applied it to court rules the vegas doctrine and you know the guidelines is a kin to a an agency regulation a court rule these are all the laws that govern how our system works and the guidelines function as as really in many cases perhaps more importantly than the maximum sentence because the same way in irizarry the supreme court said a defendant doesn't necessarily have the right to notice that a particular court is going to go above or below the gu mean in most cases a defendant does not get the maximum sentence but these are the structures that really free him such incentive in every single federal case and that makes the guidelines different than other kinds of things i think it was in pew they specifically rejected a government argument that the guidelines were sort of like a policy paper or like a recommendation to the court and they said they were much more than that because the law requires that the sentence structure to really be built around the guidelines and and i think it's because of that role that it's interesting to think about what would happen if johnson doesn't apply to the guidelines and the the macha decision of the eleventh circuit provides kind of a good example of of how that would work which is because the guidelines because a sentencing judge is required to start the sentencing by correctly calculating the guidelines again because the guidelines are so central to our sentencing process to continue applying the residual cl b one point two is to say that sentencing courts are her acquired to continue applying a provision that the united states supreme court just said is incapable of rational application that guidelines to the sentencing system do we have set up by a law in the federal courts is there any distinction between the concerns underlying the ex post facto yes and the concerns underlying things doctrine that might make a difference here the concerns are somewhat different and i will say that the pew court it was there was a portion of the court that was only a plurality and so it's a little bit unclear  facto and the vagueness doctrine are both in part based on the right to notice but the supreme court has said that the more important aspect of the vagueness doctrine is arbitrary enforcement and that is the aspect of vagueness that the johnson court the johnson court didn't sort of specifically parse things out but they were very concerned about the arbitrary enforcement by the courts in sort of grappling with over the years  this statute isn't in the statute is out and what was the real basis of it and looking back to james and sykes in chambers and the disagreements between the dissents in the majority opinion and how one was to decide whether it's that or not so arbitrary and force meant was really at the core of judson and it's at the core of the problem in the guidelines and i think that's what motivated the tenth circuit in madrid to hold that johnson does apply to trend which was the thrust of my question focused on the arbitrary enforcement discussion in johnson and i have no quarrel with that but the ex post facto law doesn't tell anything to do with arbitrary foresman concerns that's correct it's primarily focused on notice although at least a plurality of the court talked about sort of a fundamental fairness aspect supreme court did say that there's no right to notice that a court is planning on departing from the guidelines but i think that's quite a few steps removed from the notion that we have no right to know what the guidelines say that we have no right to know what the standard is that the court is required to apply and correctly calculate at every sentencing thank you you morning your honor they have please the court my name is elizabeth altman and i represent the united states in this case i do have to say that this is a very unusual circumstance i have never done this before  but i don't have any disagreement with anything that this fight has said and her argument today and in fact join in it one hundred percent the only issue where we differ is the oy should we send him back for a reverse rematch reasons because the judges both they were two different judges in this case each of them made it clear they were not relying on the guidelines in this case  first of all we believe that it was plain a review as we put in our brief and so it's a defendant's burden to show that they had substantial rights that were violated and in this case we just don't think that they can do that with regard to gillespie the judge specifically said that the guideline range was not the driver of the sentence and in fact called the guidelines jabal the book which perhaps is why we're here today at least part of it well all right but i it a principle in our law a guideline sentencing that if there's a mistake in calculating the guidelines which this would be classified as a mistake in calculating the guidelines range that's a procedural  that has to be corrected and that would be true if he had relied on the guidelines and he specifically said that he wasn't relying on the guidelines is our position that there was an error and it was a procedural error but because he did not he specifically made a point of saying that he was not relying on the incorrect guidelines that the guy had that the sentence he imposed much harm would there be  i their case there would be none of this court has in the past accepted the palatino process what you know following booker they said it was the most efficient way to determine exactly what the judge had in mind and it also was used following the fair sentencing act it worked well in both of those cases when the government believes it should be used to these cases as well in the second case also the judge specifically said that the driver of his sentence he didn't specifically disregard at lines but he said that the primary driver of the sentence was the date defendant's dangerous behavior so again we're in the area where the guidelines were not relied on to reach the sentences we would we would suggest that the court where other circuits have simply sort of vacated and remain ended based on the government's concession without even really issuing an opinion so it does seem like you know that the wave is going in terms of accepting the government's concession it's just not resulting in a about a month ago and there's now been at least one in the clutch one is it in match at the eleventh circuit opinion finding that it does not apply to the guidelines and there's at least one in the kiss brief in support of that and it's still pending as of yesterday  and so if there's no further questions with that i'll go on to the remedy and really it's not an issue of remedy i think it's an issue of the standard of review and it is our argument that the center view is an overall for a couple of reasons first of all because the both of these defendants argued in the court below that the crime that issue was not a crime of violence and this court has said that where you add additional authority between the time that you're in the district court and  appeals supporting the argument that you made below that's not a forfeited argument it's not plain error if you're looking at the novo and furthermore the government here hasn't made any argument that under existing law or under previous or anything that the two crimes that in each of these cases is still a crime of violence and that's the argument specifically that was made a little so we're talking right now even if we're here and plenary review there's always a question of remedy right we sure  sure but they have not raised any harmless error argument and this wasn't a case i don't know if it was implied that the judge in that dyleski case said you know that he would have imposed the same sentence or something like that there was nothing of that sort he did you know criticised the guidelines in the context of sentencing which frankly i think a lot of district judges do in the context of sentencing but you know as this court has said even in a case where the court goes below the guidelines it's a guideline sentence because when the judge says i'm going below the guidelines it's a sentence that's still calibrated to the guidelines as calculated thank you thank you