a fifth case cummings versus the united states really easy here because the supreme court already decided it in welsh where they decided that johnson's new rule is retroactive to cases i'm collateral reveal now the government says the cummings claims which i usually just college johnson claim is not really a johnson claim but there's no precedent for parsing a new rule into a whole bunch of new rules depending on the context in which it's being practically they probably will make a decision before this court could but you know the court could do a lot of things in battles and certainly some of those things would affectively moot this case other things would not and so it's really not clear and mr cummings at this point has been in prison maybe we want to wait and see what they say so we don't do or contrary to them you absolutely have the right to your honor but again i think practically speaking they probably will issue a decision before this court through what will issue a decision before this court no since that hurt or your argument back in the number we're pretty fast sometimes you have i will and i hope you are in this case  you know but assuming this case does get to retroactivity i think the big day chambers the line of cases is really the most relevant out of this court after it's a big a in chambers in the career offender cases we were talking about a different rule the petitioners could rely on big a and then the court could move on that doesn't mean that everybody has one of course but the court was able to consider the underlying issue now of course before this court to consider underlying issues there's a second issue here of procedural to fault and potentially even if beccles does rule  retroactivity assuming they rule in favor of the defendants not case just procedure the fall would still be a life issue and cummings is relying on the reed vs ross standard for as good cause for his default and i think we agree with the government that mere futility doesn't excuse that he felt the fact that you wouldn't have won doesn't excuse a default but under read a if if a supreme court has foreclosed an issue or if circuit precedent has foreclosed an issue not one circuit but many circuits if there's nothing to rely on then at the time of direct appeal we don't penalize defendants for a raise for not raising that issue in fact we don't want i certainly you don't watch every single criminal defendant to appeal and when they do you don't want them to raise every issue that they can possibly think of that might someday gain recognition and overturn earlier precedents so in this case with johnson it overturned two prior supreme court cases one of which came out nearly simultaneous to the sentencing in this case and reversed a unanimous body of circuit court opinion that it was true that it was  before cummings with some sense of well and at this point dozens and possibly hundreds i didn't count all of them just your court judges have reached the exact same conclusion that judge stephanie miller reached in this case which is that it johnson claimed like cummings meets the reed versus ross standard another point i want to make in relation to the government's argument here it's interesting because it's relevant to both is that their arguments are would lead to an increased complexit and what i think is already pretty complex litigation and it could be unworkable for the courts on the retroactivity issue if we are just citing retroactivity not necessarily on a case by case system but claim by claim certainly we wouldn't just be talking about this case which is advisory guidelines you'd see mandatory guidelines nine twenty four c cases sixteen b cases which this court has already held  johnson does apply to things would get very very complicated with retroactivity it wouldn't reduce it wouldn't in some ways that you could say that it increases finale but it would explode the litigation in this area and then on procedural default you have increased litigation at a different level because that's you know we criminal defense attorneys would know that we do need to raise everything we can think of an arts preserve  claim for a potential twenty to fifty five in the future cover the never buy as hopkins matter so i won't get into that but you know at this point judge stan miller and the parties all agree that chris cummings is not a career founder he wouldn't be considered a  us thank you may please the court my name is benjamin tables and they represent the united states this appeal is about the advisory sentencing guidelines the johnson case was about a sensing statute that is a simple distinction but it is a fatal  hurlburt but of course we know that decision want to hear for judges did disagree it's not to say herbert was wrong or decided just that it was an open question and required an extension of the logic of johnson it's also why the supreme court is hearing battles given both the issue that was in her claim about the advisory sense and got us and this court said to call an increase in sentence like however effectuated procedural for two purposes might seem like a misuse of the word but the supreme court has reserved the label substantive for rules that and makes reference to the fact that if these claims are allowed retroactively the floodgates will open and thousands every sentence or appeals will well both through them a quick note on procedural default  permissible james was decided months after cummings sentence came down so cummings most certainly could have raised the biggest challenge james was later there was no impediment to embracing the challenge of the day mr cummings appeals because he believes  by shooting should not have been treated at sentencing as a crime of violence if the supreme court unbuckles makes a new rule retroactive that allows him to do so he can do so then until then and it seems the government of finality in this case should not be  if you have no questions thank  you thank you i'll just fund to a few points he says that johnson have to dictate the result as if in each case the supreme court case has to both applied retroactively and absolutely mean that you win i think as i covered in the briefs stringer versus black sawyer versus smith if you have a new rule of constitutional law then that's part of the body of law that we get to rely on now and it doesn't so you can into new circumstances and the government is really talking about i mean sort of an imaginary case that in which the supreme court has ruled the johnson applies to the guidelines i suppose that rule follows directly from johnson which is exactly what this court said in her overt and then in terms of comparing this case to conrad which talked about pugh there was no welsh talking about pure i mean here we have a supreme court case holding that johnson's new rule is retroactive so it's not for this court to do the initial retroactivity decision if it did it would be of johnson's new rule but of course the supreme court has already done two more very quick things in terms of when his sentencing was in relation to johnson it was a valve a month after his sentence became final actually i think a little less than a month the judgment was issued at the very end of february james came out in early april before any briefs could be filed certainly james that foreclosed it but at that time it was already four closed by solid wall of circuit precedent so there was absolutely nothing that he could have relied on to raise the claim he's raising now and then finally in terms of the floodgates i'll just point out that actually in most of the circuits there have been at least some districts i mean it's in the end it's a pretty big number district courts who granted motions like this went straight to recent thing and already mostly lowered sentences but certainly did the