seventeen mr dunlap committed his crimes which were bank robbery and felon in possession of a firearm if we fast forward a little bit not quite a month after controlling and vacated swaps a sentence on the ground that nd degree robbery was not a violent felony under the circuit precedent of bell on may th almost five months a little and eighteen well we were waiting for a decision the the final p s r came out in mr dunlap's case four count one the maximum was twenty years and for  maximum was ten years there was no mandatory minimum sentence required the guidelines were fifty one dollars to sixty three dollars months and those were grouped and so because count one and count two are grouped if there was a change to count two which and for shadowing for later that will also affect count one so that was fifty one to sixty three months a march th two thousand and eighteen the party showed up st sentencing in front of the district court and the government filed one i'm sorry orally moved in court that day to continue with the sentencing and hope that we would have a decision from this  process rights when it retroactively applied the swaps and bonk decision and there are three reasons why that was it was a due process violation because made the punishment for the instant offenses more burdensome after they were committed and we have to look at the law at the time that the offense was committed which was january rd two thousand and seventeen it deprives mr dunlap of the defense that he did not have three predicate offenses at the time of the instant offenses and swaps was an unforeseeable judicial interpretation at the time the instant offenses were committed and the reason why i was going through the timeline like that again is because the government is arguing that the decision was not unforeseeable and indefensible and we believe that it was on forseeable because of the fact that bell had been issued just prior to the fact that mr dunlap had come committed his crime so just prior to that and the fact that the government did not file a petition for rehearing and or any thoughts on well your honor i believe that the the th circuit doesn't have to be the supreme court for it to be precedent i think that circuit the court circuit courts of appeal  e precedent as well i think that if the facts were different in this case and if the government had filed for petition for rehearing and bell and if this court was considering taking that and bank or they had you know said yes we will take it for a hearing in pollock then i think we could say well at the time he committed his crimes we did not have circuit precedent because it was being questioned since the court had accepted it for rehearing but because that was not the procedural posture i don't think we can say that and so because the mandate and bell had issued with no petition for rehearing  the government i think that we can say that was actual precedent and that is why i also was focusing on the specific language and in the swaps panel decision because your honor entered shepherd curiam opinion specifically said the bell was a circuit precedent and so the due process is about notice and it's about noticed at the time that you commit your offense and billy has great language about that and so does davis and the issue is if a judicial construction and this is language from billy if a judicial construction of a criminal statute is unexpected and indefensible team so is your question if the supreme say swaps had been a supreme court decision instead of not by a decision same timing same issue just came up from some other circuit i would say the that and that's why i feel like the timeline is so important if prior to january rd two thousand and seventeen there was this litigation happening then i would say that you can't you can't rely divided panel of the circuit though and i mean where i guess doesn't matter where there is divided or not but it was just a panel decision of the circuit and i think that or a hearing is whether that's enough to sort of guarantee your client what the rule of law is or whether it's always subject to revision by the court of the supreme court and your honor i think that if he had committed his crimes after things were in flux we didn't know how things were going to turn out because the government was now arguing that bell was wrongly decided but because the government did that after mr dunlap committed his crimes i just don't know how we could say he had notice we we presume that people out in the world know the law and so i mean that was the law at the time and so your honor i did focus in my brief on a couple cases i had or whether it was the th circuit or another other circuit well that's that's interesting and so bell mentioned the fact that the th circuit had held very similarly and so we have some th circuit  circuit case on point at that time and so for example if i talk about larsen the th circuit had ruled rather not escape was a crime of violence but the th had the th had the th had the th and so if there's nothing on point in the th circuit but other circuits have said it is a crime of violence i think it's a lot harder to be arguing that something is indefensible when other circuits have ruled that something is a crime of violence but we didn't have that here we had bell furthermore we had the th circuit gardner decision that had come out and prior to bell and as referenced in bell so we had another circuit that you could rely on and so the sort of there were there weren't circuits out there that were going the opposite way and so i think it was fair notice to rely on bell and to rely on the th circuit garner decision at the time determine the final meaning of that it should not be anticipated that that could happen when you were construing a statute i don't i don't think it it is i think that when you look at nine y four and the fact that robbery is not enumerated there and you have to look at the force clause and the fact that johnson came out in two thousand and ten dollars and kind of gave us a physical force definition to use a violent force definition and when that exact analysis was used and bell for physical force and those are identical terms for those two sections i think that a defendant should be able to rely again on bell and the th circuit this whole area of law has been in flux for a while and i think that the best that people out in the world can do is take the fair notice that's been given to them and in this case back to that language and billy it says if the statute is unexpected an indefensible by reference to the law which had been expressed prior to the conduct and bell had arguments the bell opinion did not extend to the on career criminal act the bell opinion by its terms was restricted to the sentencing guidelines section four b one point two now i understand and perhaps a small percentage of federal practitioners who operate in this area of law probably understood bell to mean that sooner or later a panel of this court was obliged to find that  also apply to section nine hundred and twenty four easy but at the time of the offense the defendant reliance on bell seems ill founded and as much as strictly speaking well the not apply to his determination of whether or not he was in on career criminal and again i recognize that bell necessitated the decision and swaps one seconds here that's your weaker argument yes  because he was a foregone conclusion me so it was and again i guess i guess it depends on why do you want to lead with that argument because it's out there and i think if you're going to say i relied on the decision of  split panel of the th circuit at the very least that opinion should have it at least contemplated precisely what it is that ultimately you are going to complain about except you're at the same time saying it was a foregone conclusion but i think that all these ex post facto in the process cases that they do you are what i do but i do believe that if you're going to rely on a decision that decision should directly apply to the issue at hand and again i'll move on to my nd argument because again i think that is the weaker of the two arguments but if the court pointed out  the decision in swaps too should not have been unforeseeable far from it in fact in terms of what this court does there is probably nothing more tenuous than issuing a split decision in a case that  that was looking at these particular issues at the time i think aspects of the armed criminal statute were probably among the most hotly contested issues that were before not only this court but courts across the united states and your honor judge calls in and made an excellent point with regard to litigation going on in other districts and and fact stokely which i dollars and at the time of mr dunlop's bank robbery was pending before the court of appeal that decision of course and come out until april of two thousand and seventeen and the united states supreme court didn't issue its opinion until the line of cases beginning with buoy in order to find that that a person properly relied on a case on an issue being or his due process rights were violated by an unexpected an indefensible act of a court we're looking at cases that go far busy beyond what we see and this particular case and boom we we have a ruling by the south carolina supreme court that was clearly an forseeable and appears i don't think i speak out of turn by saying to it appears to have been completely driven by race or racism we move on to rogers versus tennessee and in that case the tennessee supreme court decided that they would no longer abide by the one year and one day rule in their homicide prosecutions but nevertheless the supreme court with stakes being considerably higher than they are in this case  said that that one year and one day rule only had the most tenuous foothold despite the fact that it had been apparently the de facto law for decades in evaluating a case similar although not precisely the same as this one this court united states versus pape looked at due process to alleged due process violation when a person was determined to  be in a c c a by virtue of a flight conviction and then that the court noted that at as part of its opinion that even before sykes they address tyler which apparently it held that flight was not a violent felony but the court did note that one member of the court a sort of the tight tother was wrongly decided and again in this case coming back to this case when you read bell when you read that opinion not only do you have to read the majority opinion the two to one majority opinion but the reasoning set forth by judge grounder in and dissent i think was compelling and i think it was readily forseeable that given the split in that panel that that issue would be revisited and in relatively short order and given the opinion or the dissenting opinion and given the the rationale and i think it was fairly well thought out i don't think it would be an forseeable for this court to come back and essentially adopt that dissent and ultimately that's precisely what the court and bank did and they need to one decision it was clearly forseeable that swaps two would be decided the way it was and in fact i would note to the court that this defendant pled guilty on november th of two thousand and seventeen some four months before psych swabs to was decided and that out of an abundance of caution the parties advised mr dunlop of the penalties for both being a felon in possession of a suggest anything differently when i'm saying though is what's the relevance the relevance is that it was foreseeable as of the time of the guilty plea yes even the swaps are not been decided but that's not the role of indeed i understand that but there was the relevant dates if you will as it is a range of dates between bell and swabs to being decided and what what my position is the parties certainly understood that bell was on very unsteady ground and there was a possibility there would be overturned and i just don't understand where how that gets you very far if you can say as of the date of the guilty plea everybody understood when i thought the question is whether they had to a certain extent but there still was no decision well even if nothing had changed well said i don't think so the certainly certainly the law had not changed the procedural status of the case may have certainly changed and obviously it did up being actively litigated at the time of the crime as well hadn't quite got into briefing the new allegation but it was out there and i i  think at bottom at the very least we can say that's what's too was clearly forseeable from the time bill was written well if anything was the departure from what  that and i can't speak for my colleagues in st louis i don't i don't i can't speak to that decision no no i don't think your point is whether you made a good or bad decision  can a guy rely on the fact that the government let go and again i think strictly speaking it's a it's not so much a matter of reliance it's a matter of whether or not it's foreseeable that that opinion may be overruled and again if and considering my argument here obviously there are considerations of detrimental reliance but make colorable argument of detrimental reliance you must prove that the person knew about the opinion and then acted to his detriment by virtue of that opinion and i clearly don't think that's the case here the the only thing that needs to be decided is whether or not it was forseeable that a split decision by a panel of this court would someday be overruled and given the fact that that opinion was on very shaky ground from the outset i think it's impossible to assert with any credibility that it was on forseeable that it would ultimately be reversed by either this court on bond or of the united states supreme court certainly an again you're on to raise the the question of what would have happened if the supreme court's had done this the supreme court did in essence come to exactly the same conclusion and stokely what was decided in january of twenty order and i just want to remind the court that we did show up for sentencing on march th we were ready to go and so it had not been decided that was over a year after my client committed his crimes his guidelines were fifty one dollars to sixty three  that's part of our due process argument as well that wendy when you commit your crime you should have fair notice of the penal consequences as well and i think that bell by its holding gave him fair notice at the time of his crime of those penal consequences and so i think that he should have had to suffer the consequences that were in place with the bell decision when he committed his crime