our next argument is in collier versus united states year however is with the application of good time credit which you know he may lose money or standing is that he's in a halfway house reentry center in new york and  given i know that were tricky right and there were wrong shifting sand here but obviously this is important to mr collier so if i could turn out then to the new rule or whether it would be a mere application of an old rule and as i understand the government's position and the position of the circuits on which it relies on four six and ten is essentially johnson applied to the it framed it earlier is whether applying johnson to the mandatory guidelines would be an application of the principles that were embedded in johnson and that is to say whether application of the vagueness doctrine to the same residual clause that is relied upon to increase the sentence in such a fix the sentence is merely an application of the principle and johnson the government argues well this is an open question a lot of beccles right  that i would say is not enough to point out stringer complicated but supreme court case involved a series of death penalty cases about this vague aggravating especially heinous commission of a murder and they recognize that following godfrey which was the first case in that line was an open question whether that would apply to six so called weighing states where juries weigh aggravating versus mitigating factors and even even though it was recognized as an open question the court found that it was not that answering that question through the godfrey line of cases or the open versus i'm wrestling with whether be clear to me is that really what we're asking is not as is a different the question is different than what was posed by the circus right on by the government for six in time and that is is it a new role they say talking about is discretion how much discretion of the court have and and what kind of discretion of the court and i think what what you know coon and and and booker and yours are kind of get at is that what we're talking about is could the court just simply disagree with the commission on policy grounds and impose a different sentence in light of the other thirty five fifty three eighty two factors and they couldn't and  discretion did it come from congress or to come from the judge in deciding that particular case and the guidelines as envisioned by congress and act by congress and as an act of by the sense commission  delegation so that you could only depart based on reasons given by the commission or if you found a reason that was not adequate taken account by the commission and then finally if there is outside the two this this crime is not you know not deserving is as much time as commission thinks that is not because it's committed in an unique way because i think the commission is wrong about how about how it crafted the guideline knows mr collier did not file as motion within a year of the time his conviction became final as a result he relied on johnson twenty fifteen and claim that that was the rule he was relying on but his motion clearly does not rely on the rule in that case which dealt with the arm career criminal act instead he makes the claim that johnson twenty fifteen clearly settled with no dispute among reasonable jurists that the career offender i'm sorry that the crime of violence residual clause in the pre book or guidelines was unconstitutional so i have a i have a concern about the timeliness argument which is i don't understand how  the defendants sentence under the mandatory guidelines who wish to challenge the residual clause that was the basis for a sentencing enhanced meant most of those people have been sentenced long ago and the government always have an argument that the one year statute has elapsed and it seems important at the same time that the supreme court consider the effects of  decision on the residual clause in the context of mandatory guidelines where district courts had no or much less discretion in applying the enhanced ment's and it seems like they're being caught and they may be serving and we illegal sentence ultimately under the reasoning that the supreme court has used as to the residual clause but yet because of the  s the question evades review do you have a solution to my concern the only potential solution is the government could waive or give up its timing claim in the twenty to fifty five motion and allow the marriage to be reached but short of that your honor i have to be candid with you know there is no solution i think it very well may be the case that that is a legal issue that the courts will never be able to address and the reason for that is congress made a determination when it amended twenty to fifty five to limit the types of claims we may look at that and some reasonable people may not like that out of course it did that in the context before some of these rulings were handed down so you know it's a little hard to discern congress and ten but but you really did this a supreme court decision called i believe done that addresses a similar issue which is in order to satisfy the after in subsection that's be here not only must the supreme court announcing you're right but that right hast to be made retroactive but the clock starts when the supreme court recognizes the right so there's a delay in time until there's a decision announced as retroactive and the supreme court has said if that delay before it's made retroactive is it is close to a year or a year or longer than a year the rule still applies that's when the clock starts to run so in that circumstance just like the circumstance you posit as exists here there may be situations where we would look at the substantive law and say this defendant ought to be entitled to relief but yet under twenty two fifty five as congress has written it he's not that serious consideration i think the government might want to give it serious consideration not simply when there's a systemic issue but when it would work in justice in a particular case not the words when the government looked at the merits of the case and said under these facts this defendant ought to be entitled to relief that is not this case and so i would just say a couple things about the timing and then i'll explain to you why i don't think that on the issue of timeliness you haven't raised an issue of timeliness with respect to the nine twenty c claim is that right you've raised it only with respect to the guideline climb no your honor our timing this assertion is the spec to the motion entirely why would it apply to the ninth twenty four c claim i don't believe you raised it with respect to the ny twenty four  sequinned i think you know it it wasn't raised with respect to that but it it's the government's obligation to raise the issue that it's on time line isn't it if the motion raises that issue yes it s i'm not sure his motion raise that issue to do with the issue of johnson's application to the mandatory guidelines it's a it's a straight johnson issue with respect to nine twenty four c it has to do with whether johnson applies to nine twenty four say yes but whether the effect of johnson back goals indicated that johnson wasn't establishing a rule for the mandatory guidelines nine twenty nine twenty four c argument is the direct application  if it were true johnson as it applies to nine twenty four c i agree with you your honor that our pleadings in the score did not raise specifically the claim that johnson twenty in any event your honor i am not taking the position in this court today that the residual clause and nine twenty four states should be the basis for a marriage secession we are no longer reliant on i twenty four state in light of demaio and we light of this in the light of th i'll just say very briefly on that before i move to the robbery actually like i said if i could go back and make one comment about the timing then go on to that and then go on to robert new york state robert convictions with respect to the time in issue three courts have addressed us now the fourth circuit the six circuit and the tenth circuit eight out of the nine judges who have looked at this have reached the conclusion that johnson twenty fifteen does not apply to the pre book or guidelines by definition we can't it cannot be said that all reasonable jurists agree to that application that by itself to feeds the timing climb of the defense and i believe ought to end the inquiry at least with respect to the guidelines claims if not tonight twenty four c with respect to the nine twenty four c claim on the merits every circuit that has addressed the issue about federal bank robbery either with respect to nine twenty four city or the guidelines has said that it satisfies the elements clause seven at least seven circuits of a trust and all seven have reached that conclusion with respect to either one twenty four c with respect to the guidelines or with respect to both that gets me to the new york state robbery convictions it's our argument first of all that the residual clause applies here and that if the court has to or decides to reach the decision of the merits the pre book or residual clause should survive in the guidelines for two reasons first of all it does not pertain or govern conduct one of the principal pillars of vagueness doctrine as it has to give notice to the public so they know if their conduct legal or illegal that rationale is in a play a couple to any sentencing guideline regime as the supreme court pointed out in the book or the second reason is as some of the question today pointed out the pre book or guidelines were not quote mandatory in the sense the arm career criminal act in johnson two thousand and fifteen was mandatory district court judges retained as the supreme court said in croon substantial discretion as they ha before the guidelines were enacted at all and coo made clear that the appellate court review of district court sentencing discretion under the pre book are guidelines was substantial deference so judges under five k two point the version that existed back when mr college resends had considerable discretion to to depart and they could depart even for reasons the guidelines had identified as adjustments or specific characteristics if they thought the guidelines had insufficiently credited whatever those adjustments were so there was a lot of discretion at the time i see my time is up and i continue the final point i will make is even if  this discord disagrees with me on the time incline even if it disagrees with me on the claim that beccles auto apply to the pre book or guidelines mr collier's claim still should fail on the merits because the elements clause in the guidelines is sufficient to encompass new york state robbery and i just encourage the court to look at brown spencer and miles which are all still good law in the circuit and in any event look at the recent six court decision six circuit honor i think the government's timeliness argument proceeds from a false premise that there has to be unanimity of opinion about whether whether application of johnson to the mandatory guidelines applies in fact stringer in the supreme court case i referenced earlier says the mere existence of conflicting opinions is not enough to make a rule new and also look at justice o'connor's concurring opinion and right versus we're looking at the elements clause point the court to the first circus decision stede which disagreed or the six circuit decision perez which the government just cited went the other way and found that the new york robbery does not satisfy its clause the government relies on commentary should or you buy that commentary is not a clickable there are other reasons agency reasons but  just bottom without the residual clause the commentary has no effect it's not some free standing clause that the court can resort to if there are no more questions that are thank you