the honorable the judges of the united states court of appeals for the four star permits permits prisoner gives the prisoner a meaningful opportunity to demonstrate that he or she is being held pursuant to the erroneous application or interpretation of relevant law mr well has not yet had a meaningful opportunity to test his fundamentally defective sentence because at the time he filed his twenty to fifty five the substantive change in law brought about by simmons was not yet retroactive and so as the district court and the government acknowledge at the time that mr braswell filed his two thousand two hundred and fifty five simmons was as absolutely no value to him and he could not get relief under benefit of simmons at the time he had the benefit of simmons but simmons was not yet retroactive and that's what this court was saying at the time it said that in jared wheeler's case and it was continued to say that throughout the relevant also result in an exponential increase in frivolous filings with this court and with the supreme court if this court were to say that you're in order to preserve and protect your twenty to forty one right you are required to exhaustively appeal your the denial of your twenty to fifty while honest as he could have done what the petitioner know or did right and seek to hold a simmons retroactive in his case he didn't do  did not and technically i suppose he could have but there was no subtle barrier to jared wheeler receiving a retroactivity determination his case either but of course he did seek that in this court said no fifty five motion but when the twenty to fifty five motion was to nine he was for the st time pro se literally your client you can't claim would fail right if you required if you read that literally through require both a substantive change in law and retroactivity subsequent to the prisoner's direct appeal is that right if you next that change in law must have been made retroactive on collateral review otherwise the prisoner would not be able to test the legality of this detention in a twenty to forty one proceeding which is the ultimate goal of the savings clause and the retroactive change in law could petition did not occur before the retroactive change in the law so so we contend that he does fall within the nd prong wheeler there are a couple of points that the and i because you can't have one without the without the other the prisoner's not going to have a viable claim unless and until that change in law is made retroactive to begin with and i would also point out that as careful as i know that all of the judges are on this court to try to think of every permutation and application of language it's simply not always possible to think about every facts an area that's going to come before the court so judge backer of course i differ to you but you addressed the issue of the waiver of collateral i was just going to get to that if there are no other questions on the on the st issue so the government rightly concedes that resulting in a miscarriage of justice and it's just a fact that parties to a plea agreement when you're going through the negotiation and there's a very one sided negotiation at that when you're dealing with the government simply do not negotiate with the understanding that when they go into a sensing proceeding that that crecy sentencing proceeding is going to be fundamentally defective and that the statutory range that everyone thinks is should apply is in fact an incorrect statutory  out i think it's it's certainly not going to apply to a lot of people not a lot of people are going to be able to jump through all of these hoops i think that if you can jump through all these hoops and get to the point where you are showing that your sensing proceeding was fundamentally defective and it also of course we are talks about that this also has constitutional implications this particular sensing defect range so the the entire statutory range was incorrect and as was the the career offender designation and the course the test and wheeler the test and wheeler never a tie the actual sentence that mr wheeler receives to the analysis in fact wheeler says it doesn't matter what mr wheeler would receive on remain and so the fact that mr braswell received two hundred and sixty two months which was at the very bottom r hear from the from the government petition before i get to the substance of the arguments that i'm going to be making i did want to note that in this licens reply brief she pointed out an error that we had made in our brief which was misidentifying one of the predicate convictions which led to his now erroneous designation as a career offender that was an error on our part and i want to just apologize to the court for that error the nd issue that she pointed out is you know what is the  maximum that he's facing if he's not a career offender and there was some back and forth in our about whether it was zero to twenty or five to forty i think it would be zero to twenty if he's deemed to be eligible for st step relief force prong are simply are simple point was that if this were to be sent back the district court could resounds him to exactly the same sentence because there is the drug conviction under age forty one but there's as we stated that you have to have both you have to have the change in law and it has to be retroactive and i think the the timing of wheeler compared the timing of browse well is important to keep in  there is a fundamental difference and as the court said plain language of the rule and well there's a difference but why does that matter substantively it matter substantively are because the nd prong states that the settled substantive law changed and was deemed to apply retroactively on collateral review versus timing issue wasn't at issue and we were there wasn't any question about that but now that we're faced with that i'm i'm asking you why does your rule make any sense other than that it appears the map on to the language of the of the wheeler decision well your honor in trying to understand and apply this test in wheeler to the facts that we have where we go by the language in in the in the in the opinion which says and it talks about both the change in substantive law plus it being deemed retroactive so we're going by the by the text of  the of the opinion and judge her statement granted which is not presidential but that's one of the things that we're looking at as we're trying to apply the test to this peculiar set of circumstances where we have someone who soon and our response to that is that you know when a new rule is announced some people fall within the ambit of the new rule some people fall outside the end of the new of the new rule we're not trying to be punitive we're not trying to punish  mr brough's wealth for filing when he did but the fact of the matter is that he filed his twenty to fifty five motion he cited to simmons and it was dealt with on the merits so it twenty dollars to fifty five dollars was not an adequate or apple if you burn up your burn up your st twenty to fifty five before a new rule becomes retroactively make it sound like you had a choice i mean you were doing with their time limits ops who would respect to these filing so and in some respects this  beyond the petitioners control it is beyond all of our control your honor because there's no way anyone could have predicted that's true and so and so this this this is beyond everyone's control and then you're i think it's  know the answer to your honor's question my guess is that it is not a very large number of people if so because i think we'd be seeing a lot more of these if that were the case but nevertheless as i said sometimes you have people falling within the ambit rule of the times you have people falling outside the end of the rule and there's nothing fundamentally unfair or on just about that i mean that your ride any time you have some sort of you know and that is is part of a role that some people before the fall within it or not but we keep asking you about the rule itself is there a justification before the rule other than the literal linguistic reading of the opinion i don't mean to say that's not important but i still haven't heard a think a couple of us asked what would be the rationale for requiring overlooking i appreciate that your honor and again our argument to this court is based upon the plain text of the opinion and that that's what that's what we are that's what we are going on your honors and a agreement it is our position as stated in our briefs that he does meet the th prong of wheeler that it is a fundamental defect even if he could end up getting the same sentence at district at the district court he does meet the force prong he would be it is our position he would be eligible for relief as stated in our breece we we recognize the binding effect of real or we do offer our respectful disagreement with it and that's the position i think that the department has taken a position that i'm taking here   i still have a bit of time but i don't have anything further and unless there are no further questions from the court i have nothing f waited as long as humanly possible to file that twenty dollars to fifty five dollars petition probably hoping that summons would be made retroactive while the petition was pending because of course this  and try to bring the summons claim and i'm sure hoping that it would be declared retroactive during the year and a half that the district court was determining the petition and i do appreciate i think that waiver and ultimately i didn't i agreed than the government did never gave a statutory or policy reason for treating mr braswell differently from mr wheeler so for all of those reasons you're