hoskins after sentencing persuaded a in two thousand and fifteen persuade a vermont state judge to vacate one of the predicates for his career offender status and that's the reason why he then went back for section twenty two fifty five of you now continuing  with your question the two thousand and twelve pre sentence report found the career offender sentencing guidelines they also did a non career offender guideline range which was very low because the the  it's investigation at the time had only the i'm thinking ten or eleven control fairly small crack cocaine buys from the defendant the government didn't turn over the the grand jury transcripts reflecting the investigation unit engage which both parties were familiar with for purposes of the two hundred twelve two thousand and twelve percent of the report which you're not supposed to the attorney general's guidelines on this with the u s attorney's report says you're supposed to tell the ordinarily confidential we didn't because we didn't since the i don't really want to pursue this ok you know darn well you had that information separate apart from the grand jury so let's not mince words when you did what you did because you were cutting a deal with the guy then and when he came back for sentence he would no longer interested in any kind of a generous treatment and so then you charged you held him accountable for the full quantity of drugs that he did i think three hundred thirty gra i think that that's right i'm suggesting to you you're not supposed to withheld information from the sentencing but go at that's not the argument today ok and he did it it certainly informs what happened but many   initial one count charge based on one of the buys investigated the case and then in late two thousand and eleven negotiated with the defendant how to resolve it government was poised to bring a superseding charge  and justice here yes the fundamental issue if it if it's if it's just one issue it's drives everything it does it's whether there are whether or not there was a fundamental miscarriage of justice completing his second supervised release violation of getting out of your friends custody in the wake of completing that in late two thousand and ten prior district court in vermont had sentenced him to eighty four months the last time around  sentence that was well below do i understand you correctly we get that and you're you're arguing basically it couldn't been as a miscarriage of justice because he wasn't sentenced within a career offender and i thought that was your argument it is and i think those are both two ways of going at the complete fundamental complete miscarriage of justice now the district court in granting relief said that it gave its one hundred twelve month sentence in light of the career offender enhanced meant the career offender calculation provided the framework for the court's acceptance of the agreement i'm quoting from the district court's decision here so where i understand we're not the sentence was not within the career offender range where the district court nevertheless said it informed its decision how does that affect our you know substantial other sentencing guideline enhanced once applied if that's the entered were to go forward with twenty to fifty five litigation as a fundamentalist parents complete miscarriage of justice then any error as to guideline and handsomest or adjustments that were discovered post sentencing could subvert the original sentence and they are my correct that you're saying that both the supreme court and our sister circuits have concluded that once you're out of the mandatory guideline that back cannot be an argument for a substantial injustice is that yes argument you're making yes a series of several circuit courts have held that that well first of all sentencing guideline errors are not cognizable on twenty five of you but in particular even persons not rise to a complete miscarriage of justice under section two hundred fifty five and we also have him losing his career offender status under it seems to me somewhat interesting circumstances the vermont court did not conclude that the criminal conduct was not prohibited in vermont it found that his allocution was insufficient because it was simply a inquiry to his lawyer as to whether stipulated facts were correct and there was no colloquy with the defend himself which the vermont court said was essential so that's not i assume that led to a vacate yes ok and what happened after that in firm up to that that charge well that was a not satisfactory the latter ok so then once it was vacated what happened in vermont to that charge they didn't the state didn't pursue that they dismissed it well that the court threw it out and the court didn't pursue it so i suppose you're right if in the wake of being thrown out there's still a charge there that was dismissed but i think so much time and gone by that they didn't want to pursue it and mr austin's was serving a substantial federal sentence and he was already on time at the time it was binding pursuant to the language of rule eleven c one c and should not have been vacated later second of all we also urged that the complete miscarriage of justice standards that's a very high bar for twenty to fifty five review because  the law is that once a senate final conviction becomes a final it's it's not supposed to be changed or revisit it in future absent a fun a complete miscarriage of justice such as actual innocence for example the only supreme court case to find one was found actual innocence and so we don't we don't think that we think that that sentence was was binding also as just on the on the circumstances here you know this defendant is a risk recidivist offender he gets eighty four months from judge sessions on his first federal sentence comes back long criminal history lengthy dealing right after getting out for his second supervised release violation and is charged again we think it's one hundred twelve months was a was a modest my name is barclay johnson and tourney with the federal defender's office in vermont i'm very pleased to be here on behalf of mr hoskins mr costin's claim falls squarely within well established supreme court and court of appeals president including from this court to escape this the government resorts to mis characterizing his claim into other red herrings to start with even though its reply brief the government continues to urge the mr hoskins is merely raising some type of guideline count application or it's wrong from the beginning mr hoskins has argued that the guideline calculation was correct but the conviction upon which the sentence was of justice here is exactly what the court has identified not so that judge murtha makes it clear that the guidelines here the career offender guidelines are having exactly the loadstone or framework of fact that the supreme court has described  consider the sentence called for by the guidelines tell us how that doesn't get addressed by the supreme court and add nice yeah which suggested that i a guideline error calculation is not a constitutional or jurisdictional concern and that you need a complete miscarriage of justice to get twenty to fifty five relief based on a misapprehension as to the applicable guideline that's a misapprehension about the guidelines i don't i don't think so the cases that the government relies on are all cases where some subsequent legal decision sentencing now that the fundamental facts upon which is sentence was based facts indeed that the court was required to base his sentence on have changed that's that's the i'm reluctant to call your nerve but that's what's changed it's too narrowly here and you're saying the judge when he sentenced him thought that he was a career offender and didn't think that that sentence was appropriate because he wasn't under mandatory guidelines he had to he had to exercise his booker discretion here and he thought the plea deal was appropriate and and now he's finding out well he listened to career offender under as i said somewhat curious circumstances here i'm not sure how that doesn't fall squarely within the standards talked about by admi zio in most of the circuits that have said that a guideline calculation error doesn't doesn't  going to affect the individual being sentenced in the supreme court there is a parole commission changing its policy doesn't it doesn't satisfy twenty to fifty five because quote this change did not change affected the way in which the when when he exercised his judgment add a new c e o it's the judge right in the moment saying i think something in the future is going to happen here we have the judge being into and winding up being correct of incorrect about that miscarriage of justice standard is the part of twenty fifty four that we're looking at here it's one of the parts we also believe in of argue that there's a due process violation for precisely the same reasons so we're not back to add and here we're not arguing that judge murtha thought the sentence would be carried out differently instead the claim here goes to the lawfulness of the sentence and we're arguing that that central fact  ere the prior conviction upon which the sentence was based and which it had to be based under twenty two under thirty five fifty three based on it it's it's a factor that the judge i mean you guys for not being a career offender and that was a deal that was cut to full light him be treated as a career offender so he's not treated as a career offender what's happened now is that a conviction that would have made him a career offender is vacated or dismissed not because anybody found out found that he was not guilty of it or even that the government had proved its case at trial but rather because the guilt was established to a state and by use lawyer rather than a colloquy with the defendant i mean that's hardly a finding that he's innocent so i am having trouble understanding how we would ever conclude that the sentence standing represents a complete miscarriage of justice you know it's a it's a but it's within the range that would have applied if he had been a career offender ho him just as we know that no the about the range that would have applied now but at the time he was facing a much lower guideline range precisely because the information given to the court by the in the l exchanges with coun i see it was eighty four to one hundred five months that defense counsel thought he was sacked that was applicable and the deal was struck at one twelve is that right yes the the bottom line though is that as a career offender he faces a higher sense even if you're comparing the career offender sentenced him with the final guideline calculation was most recently it's still a four year increase on the bottom and then a five year increase on the top and that's that's a bigger and bigger yes yes but he wasn't satisfied with the career offender guidelines so he was he was literally a career offender and the judge took that into consideration and the judge has to take that into consideration and that's what's having the loadstone effect because of thirty five fifty three a it's an error if you were to not do that or if you would were to have done it incorrectly and this is the fallacy of the government's argument it wants the court to believe it was presented with here's here's the deal judge this many months but that's not that's not that's not how our sentencing system works the sentencing system eleven he wants to see one see that the judge still has to take into account the applicable guideline range if you were if you were to not do that that would be error if you were to do it incorrectly it would be error isn't it isn't it clear that odd to do that and what i'm going to what i'm concerned about and you can ask you about is whether if that can create a complete miscarriage of justice then surely state courts can continue to suggesting is maybe the floodgates would be opened by this and i think the fact that really this is the third case and you know almost two decades to have an issue like this suggest that that's not the case  but it is i mean the thing about floodgates is they open at a certain point but if they would have opened already if it were you're conceding that if you are correct then state courts  as it were create these kinds of complete miscarriages of justice simply by revisiting an old conviction and without even deciding that the person didn't do it just this idea that there's a flaw in the eye but i think that would also do it for the purpose of affecting from the sentence i think that would also you have to keep in mind that there are other requirements such as timeliness and diligently pretty pursuing the the remedy that narrow the floodgates quite a bit to the extent there are any floodgates this conviction increased the sentence there's no way i think to get around the supreme court's admonition that the sentencing guidelines even today have this a loadstone or framework of fact and that that is exactly what judge murtha is saying when he when he was and sentenced within the guidelines that were determined by by that factor mean in fact with the district court did was show that it was giving lesser weight to that factor by accepting the  what the way you could justify it i think you see you see that's what the loadstone does it moves the bar and so the judge says well the bars over here and so the sentence over here looks reasonable but then  re sentencing when the bar is somewhat further over here the sentence looks reasonable somewhat further down the line you see that it has a hydraulic and hanson effect that may be even more apt to than the look opposite we're dealing in a discretionary guideline regime and we're dealing with a sentence that was below that range once the district court decided not to sentence him within the career offender guideline range all it had to i don't i don't think so i mean that the this court and other courts even after the guy guidelines became mandatory like spencer the government relies on spencer but spencer will clearly says  court differentiates between the type of legal error that the government insists that we're making and the type of factual claim that is that is being made here and the courts mentioned several times you know the nature of the state vacating procedures i want don't want to lose facts that's the case are you saying that any time are shown to be different from what they wore at the time the court's calculated guidelines that you have a complete miscarriage of justice even if the judge didn't sentence within the guidelines you know this is that this is a narrow set of facts this is the vacating of a prior state conviction which is a rarity but not because your client didn't to lose track of the fact that mr hoskins himself filed the petition to vacate his sentence and he expressly argued there that he was innocent to the vermont supreme court has said look this is this is not a small error this is the this is one of the parts of the plea colloquy that helps us make sure that innocent people aren't pleading guilty ages old and he was already doing time and there are a lot of reasons that might inform the prosecutor's decision not to waste resources on a retrial though those reasons exist but again he was points first of all as as as you intimated judge murtha at the two thousand and twelve senate saying after doing something guideline calculation the procedural requirement did an independent thirty five fifty three analysis and should we consider that moving from the hundred twelve months to the eighty six months which is the sentence most recently imposed reflects the fact that judge murtha concluded that there was an effect changed that it's hard to know this is the district who imposed sentence stating on the record that his original sentence was informed by the knowledge that the man was a career offen even if that is the case a sentence shouldn't be reduced in the less it is a is a complete miscarriage of justice which the sentence wasn't and b on say what i understand judge murtha to have indicated and you tell me what i focus understood he's saying at the time i sentenced him to one hundred twelve months because i thought he was a career offender now that i know he's not a career offender i am imposing because i would then have  lesser sentence how was the serving of that greater time based on a fact that's now been removed from the calculation why should we not deem that it a complete miscarriage of justice because if that is a complete miscarriage of justice then so is every other subsequently established error at a prior federal sentencing for example if someone gets an enhancement for say a drug trafficker gets on him for a firearm that's a common hanson and later that the drug that defendants roommate establishes that it was his firearm and he was a competitive shooter or something had nothing to do with the drug trafficking that comes to that comes out four or five years later you murtha could certainly have said your career offender status didn't inform my sentence i sensed you below the career offender guidelines so i didn't give that any weight and therefore now that you've had it vacated it doesn't matter one hundred twelve month sentence stays in the gun case the judge could say whether it was a factor that informed his sentence or not but especially in the eleven one c context why isn't that something where we looked at what the trial judge said i think because it's not it doesn't rise to the high bar of a fundamental miscarriage of justice for purposes of collateral review i mean that bar is up there so that we don't have to engage in these ongoing sort of an ending sentencing process is where the state court throws out and enhancing prior conviction or someone finds the gun belong to someone else or in a fraud case where some of the loss amount was not really a tribu the fraud you know it would never stop so the matter whether the underlying conviction was thrown out for a procedural error respecting the allocution or whether it was thrown out because i actually innocent i think it may matter i think if there were actual innocence then there's a there's an interesting debate as to how that plays how that would play at the federal sentencing under under the supreme court cases davis  know it's actual instant innocence as to the federal conviction again what's being sentenced as opposed to actual innocence of an oven and hansen prior but nevertheless there is that there is a debate about that but here i don't think we get to that because there was no finding the united states this was forty a eight nine s third one zero zero eight eleventh circuit case and it goes to the freeman decision that was the decision you'll recall in which the supreme court addressed c c deals in the context of reductions of sentences after the senate's commission retroactively reduced sentences there's a debate between the parties as to how applicable that is the government urges that just to sort of sort of my oars narrow concurring opinion should control eight or nine circuits have had have so held the second circuit your court has not really addressed that clearly but it appears the supreme court is going to is going to take that on and hughes and decide when you have a split fo four decision from the supreme court with a concurrence how that should be treated as concurrence helps you he thinks that the sentence is based on that lines well as i understand  later because it's guideline dependent but she says if it's not and if there's no mention of the guidelines such as hoskins plea agreement then it would just subvert rule eleven to allow one to change it later and you shouldn't be able to change it and so that's what we think