if we do should weigh if we should is that twenty twelve motion second or successive if it is not then you should this national notations be told if it is a second or successive motion based on what happened twenty two thousand and eight should a rule sixty motion be granted which your suit reasons could debate or if there's a cost to not car situational to mention to it such that there's a fundamental defect which inherently results in a complete miscarriage and as i indicated in my paper i think both of those the big a argument if you look at the facts of this particular case and if you look at what was said at the sentencing hearing which is permissible for us to look at isn't th that the government has made is that there was a mention in the pre sentence report as to one of the simple assaults and that the defendant didn't object i don't think it was a plea proceeding i think the plea proceeding themselves say very little about the factual basis  but i agree a panel of this court has held in siegel that the court may look at missions made to the p s r my response to that would would simply be first of all i think it's i'm not going to argue i'm not arguing with the but i just think siegel expands that proper shepherd dog documents that that this court talked about in johnson what it overruled dorsey and said that and enforce the case ensure the shepherd documents don't talk about p s r admissions and the reason that i think siegel is subject to maybe in banks some time is that in this case the original plead that simple assault was many years before the game was on the horizon and it's just seems unfair that it offended with would be required to make an objection about something that had no meaning back when it was done so when you're looking back to one thousand nine hundred ninety six or whatever that simple assault was and you say well he admitted that it was an intentional act or it was a violent act and therefore if it is counted maybe he would the only thing i would say your honor this is that this simple assault constituted a slapping and a spitting on a person so with respect to the speeding was it intentional ah i don't know we don't if it goes back to change would be that instead of being sentenced to a for a mandatory twenty to life this changes it would go from a mandatory life to twenty years to life excuse me so it doesn't count unless it's been adjudicated on the merits or dismissed with prejudice and neither of those things happened here so that opinion goes on to say well you can also look at the intent but the person whether the person with drew and that's not in this record what this record shows is a very well i think he's a confused explanation by counsel as to why this was being dismissed you know he told the direct relief for mr doe oddo know what that means i think that he was simply saying something to cover up the fact that they're getting on with the rule thirty five and they really weren't interested in this or he wasn't interested in yes but so so yes you are because well because of the merits of the case the fundamental miscarriage of justice that would ensue the fact that this secret offender case the fact that this gentleman was originally we were told that we read the gonzales because we case of the supreme court from zero five is the hope that a change in the law is not enough you need something more so that a change in the be what could be in addition to the change in along that might give your client the ability to suggest that hey court you really should look at this under sixty day and revisit what was done with regard to the laura when can the u s attorney's office in the western district on behalf of the government i could not agree more about the nature of the difficulty of this case but i think the easiest most straightforward answer is that this court should bake a in return to the district court with instructions jurisdiction and here's why this is when you file the second position that you only twelve he was required to obtain authorization or certification to make that filing he never did that he never requested that mr because the district court decided on the merits it's clear if you look at the entire record but that's exactly what was going on the person this was and he quoted he said i don't know what this means i don't know what it means either but if you look at the rest of that record starting from think you can win she may have been speaking as to the ship clearly as opposed to the big a clean well i suppose if you look at that statement in isolation but it's very clear she says at one point i am not going to  know that from another perspective as well if you look at this entire record again the issue for the just a quarter or the two thousand and eight motion as well as a thirty five b in motion it when you look at it it's clear obviously thirty five b jurisdiction to decide whether to grant c l a and our position is yes but also recognize that there are there is no jurisdiction at the get go because wholly separate reason and that is that he failed to either request and i think he can by and then my question was should we consider a rule sixty route in all honesty i never thought of that with all the other issues in this case it never occurred to me mr when this is this is like an exam yeah i'd be happy to brief it if you'd like to like me that i'm i would not be representing my client adequately if i gave an opinion on that because frankly at this now and i can't remember will answer question i just want to point out to the court before we can get to those questions you have to issue to see a way you have to find that he has shown a constitutional injury or under subsection four that he otherwise isn't tied up a cloud of relief i'd be happy to discuss that in greater detail but keep in mind that you lack jurisdiction to jeannie answer the question you have ok but i'm i'm considering whether we got a rule sixty motion that should be by mr dowd there never has been a claim by mr darrow of a shepherd problem in this case so for him to now claim that he improperly in violation of sheppard or anything else admitted to these offenses it is there's no in our brief under it's in the last section about data patient morale to this case to show that in fact it shows knowing it's not intentional conduct so i'd like to go back to that to the next question if the court constitutional right it's debatable and the mechanics of that one thing my brief did not make clear and i would like to clarify that now and i polish guys for not being clear is that that analysis is must is that he's going to have an eight year term regardless of whether he's qualified as a career offender that would be our position that that is not an injury our standpoint that is very unique to this case  thirty five the motion and its resolution once that was decided in our view that sure the problem of having a clear guideline clear guideline kind of carrying the discretion of the district court under thirty thirty five fifty three in rule thirty five before those things were taken away the rule thirty five re sentencing the district court said to him even if you want to clear fandor it doesn't look pretty it doesn't look good for you she recognized that she was without throughout the discussion at that hearing that that's what happens when you get a cooperation those things are taken away she sends him two hundred eighteen months so it's our position that this is unlike a case that my other you know it is a now since then you've got you do have the eighth and the eleventh circuit and fourth but why what makes you think those cases were all supportive of your position well from the general principle that even this court and several in this part of the remains could not the court said guideline the stakes are not generally cognize about there was a pretty good said there may be an outlier but the general rule has been since the advent of the guidelines that those who are not in prison stakes are not cognize about this new development of law which as you indicated is is developing ritually as we speak has taken a new look at the career fandor and asked whether that doesn't take it outside outside of the of discretion standard on review a just a quirk after the reasons can go outside of the heartland so our position would be that it's because there is that discretion is greater now there's no doubt about it but it's greater now but  that the the top of a guideline where the body of the guideline range is incorrect and as i mentioned earlier we believe that any type of carrying that was inappropriate was eliminated by the rule thirty five percent say thank you very much i think is flawed and the descends in spencer had they been out back this summer i would have just heard a copy denman put my name on and used them as the great because i think they absolutely make the case as to all i just want to try to touch it i might just on one matter that has to do with tolling the government made a tolling argument in the government has said that well you know it's forty months from the date that  came down to the date that he filed his two thousand and twelve titian but i think the operative time period it's not from that date but from the date that mr doe's before this court raising  gay issue and he was here this court decided because it came up as a rule thirty five issue that it was inappropriate for this court to also rule on big a at the same time and suggested  issue if the court is interested in it if you do wish to brief it i would say is the twelfth how about two weeks from around about a week from this friday so this friday is the  ok then if you for a file something by the twenty third if you could could you have found something by the by friday the thirty there's a possible word you want more time