it please the court michael mcginley from decker l l p on behalf of the petitioner appellant mr magnum rain like to reserve two minutes for my rebuttal please in this case the court certified a single question namely whether mr magnum or in sentence violated the supreme court's decision in a lane when the sentencing court imposed a mandatory statutory minimum sentence not authorized by fax found by a jury or admitted by the petitioner the court's decision in robinson only last year resolve that question the state is now conceded that quote under robinson this court must conclude that mr magnum ran sentence violated the th amendment right to jury trial as clearly established by elaine that should be the end of the matter mr magnum range should receive the same thing that mr robinson has now received that i is that there's a distinction in this case as i see it and so maybe you can walk me through this because i'm having trouble conceptually understanding why this isn't a lean problem and not what i would call a booker blakeley problem and maybe i'm misunderstanding michigan law so when you references in your brief you say whatever the ranges you say i think you say ballpark four to seven years one ma and there are the the range the judge used he or she used is high but that to me right under lockridge what the michigan supreme court says is we are booker rising to quote our guidelines and what we're doing is we're taking them from being mandatory to being advisory so it's not a lean problem which increases the mandatory minimum it's a god lines issues so part of the confusion might be that mr magnum rein like mr robinson in the robinson case he was sentenced after  ine but before lockridge so at the point in time when he was actually sentenced the operative sentence that applies here was while the regime was still mandatory right no i agree with that ok so hold on ok ok ok so you've got to answer that but let me let me just walk you back a nd when he was sentenced to the ten years right let's let's talk about in the years because he ultimately got nine and that's where i think  but when he was sentenced to the ten years i agree with you was mandatory guidelines it's ok you but that's a book or not in the lean problems so we keep referencing a referencing in my mind the wrong case and that's what i'm asking is there something unique to michigan yes go ahead you know go please do the way that michigan works is that you have there's a the guidelines dictate a range both  minimum sentence and for the maximum sentence and so what the what the judge does when he runs the guidelines is he says ok i have calculated the range for the minimum and i pick in this case st ten years then nine years ok and so let's assume there's a range for the minimum and range for the max and now i've got this big range and what the judge does is he says ok lockridge gives me the ability to not reset and see him but to say ok i've looked at this and i would still give him the same sentence and i'm sure it handing therefore fact so and to drill down just a little bit more so what the judge actually does is gives him a minimum sentence and a maximum sentence and then functionally  sentence and stop being dictated largely based on the parole board because what happens is he goes into prison and he serves the minimum now which point he's eligible for a promise my last question could jump in for now but when he gave him nine years what was that is his minimum so he had to serve at least nine years and then there was a maximum beyond that that frankly i don't recall because it has been that it's a yes but  he's within a range for the minimum exactly right and so that's why it's in a leaner problem as opposed to a more likely problem or an apprentice problem though and you're ok i'm looking at what he wrote when he gave the time the michigan book arising case had come down right but it had come down when he gets it again correct is that right yes or no that's correct all right so this is what he said he says because the sentencing advisory only the issue before this court when deciding whether to reasons based on logic is based on lockridge is and then it quotes from lockridge in this case the court meaning itself considered the guidelines which are based on various bomb law after accepting and going through it a sentence i didn't then feel constrained by that then mandatory guideline the nature of the guidelines maybe should have if they were then mandatory but he didn't feel constrained and so therefore he says i would have applied the reasoning regardless accordingly lockridge doesn't require recent thing in this case my to set it in a different way and made it easier for us but basically he's saying i come to the same conclusion so i'd say a few things to that your honor the st thing i'd say is with respect to the alain claim he denied that claim he denied that motion he did not actually this language right here what is he doing here that wouldn't be sufficient on a back to him to do something different so what would happen on a real man now is he would no longer be constrained to actually follow the precise terms of the guidelines and so we would be saying a nominee not cool in the rain this is what i do well yes but the argument working lisa this is what i did instead of this is what i do right but i think there's a distinction between saying i ran the guidelines exactly how how i was obligated to do even if i was allowed to choose a different number using those factors i would have chosen the same number and the and what can happen now is you can actually argue about all sorts of other things and you can argue that for example the ten points that are assigned for certain offense variables should be are too high and so in the weight of all of the balancing that's done in a discretionary regime you shouldn't actually view the sentence ranges and carefully but i want you to i want you to go back to that one sentence that judge rogers read just now where the judge  the cohort would have applied its same reasoning regardless of whether something occurred before or after lockridge so with respect to the question that judge rogers pos don't understand where where where you find there is a constitutional era when the judge is clearly aware of its ability to do a member of things the place that i would identify the constitution as i'd say that's not actually correct harmless for judge found facts in the advisory guidelines lockridge allows for judge found facts in the advisory what he says is they were mandatory guidelines before they're now advisory i agree with you there on a minimum there advisory now if i was to redo this i would reach the same place and i'm allowed to find the facts i just have to recognize that i don't have to sentence in the guidelines where the facts would take me but i would sentence in the same spot rate but we would say that so the st point i'd make is that under discretionary regime now if there was a sentencing we would be able to make arguments outside of the offense variables at the time of his initial sent of his st three sentencing was obligated to that's a great point so that's a great point so tell me and i hate b s regime so your argument is he didn't consider all the arguments but then the question is is what lockri contrary to clearly establish law in to me it's not because we have this cross we were three mm and the supreme court never said crosbie was problematic irrespective of what we said emmeline and so how is that right so the st thing i'd say is i'd quibble a little bit with your characterization of what the supreme court has said in booker i think if you look at the last two sentences of justice breyer's remedial opinion it's pretty clear he sets up a taxonomy where he says and preserve claims and then justice breyer says in the final sentence the court says non constitutional claims can be subject to harmless error review because remember in book where you had some claims that were not six memmott claims it was just the guidelines are mandatory and i want to be discretionary those can be subject to harmless error review so is your best case for where the supreme court is reversed because of an inappropriate remedy on a th amendment violation i don't know that there are any but is there and then if not are you relying on booker for relying on booker but we're also relying on elaine because the reasoning in elaine in justice thomas opinion is he says you know member the dissents entire argument was he that elaine could have received a seven year sentence even under a five year mandatory minimum and so the no harm no foul i mean that that's sort of the entire analysis of the dissent and also was the basis of harrison mcmillan and so and justice thomas is that doesn't matter when you have a th amendment violation you're entitled to a constitutional sentencing regime we would say the same thing here it doesn't matter that the judge if he wasn't constrained wait walk me through the only one point because the only one point i still struggle with because it's a statutory minimum versus guidelines right so that ok taping taking one step back robinson says this court's decision robinson says that when you're that there is a in a lane problem the rights and i understand it's our decision and so it's binding on me i disagree with that because of the way i think about elaine and maybe my one of my problems is i think about it more like justice scalia than justice thomas and i recognize there are on different parts but elaine goes to mandatory minimums and a jury has to find that in every world whereas guidelines a jury never has to find unless you're talking about the original meaning which i can't go back to right now sure so what are we talking about here and i think that's why you have to look at the reasoning in elaine and then you look at what book actually does right and what this court says is in milan they don't know you have to actually look at what they did they ordered re sentencing in booker but that isn't just what they did so there is no the answer i guess the me back up to my question which is there's never been a case where the supreme court is reversed because in an inappropriate remedy you're saying look at the remedies they've given and then make that well it's more than just that because it's not like booker said nothing about what you would do in terms of plain error harmless error review it actually talks about it and it very conspicuously leaves out preserved constitutional claims as available for harmless error review it would make no sense for the opinion to say no unconstitutional claims can get harmless  'm a little daunted by judge parr's questioning because i'm sort of left at an earlier stage of the analysis i was concerned about your answer to  the question of why what i read didn't make a difference and part of your answer was that there was they were never given the chance your counts your client was never given the chance to argue what i undertook to be something in the nature of  we would call it a variance at least never been given that kind of chance if you were making that argument then i don't know what argument you have but maybe you were making that argument but i wonder if it's holds after his st recent sing and after lock which came down you move for a correction of sentence that correct and you argued that the sense in part a part of it was this business about what was the middle if you counted by months and what was the middle if you counted by years and so forth on which you did really right and the other part of the argument had to do with you also argued that the sentencing court had relied on judicial fact finding in violation of a lien so you argue  is the equivalent of saying since this is after lockridge you should make this decision on the basis of non binding this of the guideline right and i don't see why you couldn't if you didn't say this would be an appropriate case to go below the guidelines so if you had if you had the option to argue that i don't see what the harm is in looking at this as if the court did exactly what we should if we accept your argument send it back and tell it to do so i'm just not saying how i think it's misleading to talk about this is harmless error the way to look at it it seems to me i'm an extra instruct me how i'm wrong is that this was an error in the st in the last place in the place before the appeal the decision the final decision as to what the sentence was was a nine year minimum based on the exercise of my discretion having found the guidelines to be x i think that's where i would come down as well because i'm not bound by the guidelines and that's what we would be sending back asking him to do  like to have a new sentencing proceeding in which you are no longer bound by the guidelines in their mandatory state which means not just that you have to pick a number within that range but that you have to hew to the to the offense variables set forth and we want to be able to present a different type of argument the court's decision in love ins and the court's decision in villa garcia make it very clear that there is a fundamental difference in nature between a sentencing that occurs under mandatory regime and a sentencing that occurs under under discretionary what you're saying is look we wanted to present these additional arguments which point is you had that opportunity you presented it to the district court the district court then decided no i'm not going to hear it pursuant to lockridge and sentenced you to your client to nine years and i don't think that's quite right because what we were asking for in that motion was an antecedent to two saying here all the reasons why we think point but my point is that cries b is post book or the supreme court has never said it's impermissible and lockridge adopted it all part of the reason the supreme court has said never said it's in permissible with respect to preserve constitutional claims is because even the nd circuit doesn't continue to take that view i think the state concedes that with respect to preserve constitutional claims people i'm going to ask you now to complete your answer to judge your question because we're seriously i'm sorry and  the st point i was making was that what we were asking for was the ability to articulate different reasons which we couldn't do in the prior sentencing and one of done in the elaine motion because the motion was to ask for that opportunity i don't know that there was law in terms of what will and won't happen on remain and if he gets a recent unsing the fact is that the guidelines are going to be scored exactly the same way post lockridge just like in the federal system post booker doesn't affect judicial fact finding and so that error which appears in the reply brief in saying that the constitutional error here is the judicial fact finding and not the mandatory guidelines that can't be true because we still have to dish a fact finding if we understand departures i think that's the variances that maybe you're referring to you can argue it will scheme arguing for a variance is a different kind of argument than arguing for departure oh well ok i'm not familiar with the federal system in terms of a variance at all so i  probably shouldn't step into that whatever you feel is consistent with the general requirements or is part of the within the specific provision of the guidelines providing for departure yet i think i think  what departures were is essentially that the statute requires there to be substantially compelling reasons and that's a very subjective standard and defendants are have always been free to argue that there are substantially compelling reasons for a downward departure just as prosecutors routinely pre occupied argue for michigan win michigan booker prize they adopted the federal scheme in it and they had to because you still have departures which as you pointed out you could have done create lockridge but now you can also argue judge i recognize the facts may meet that guideline but you very out of it and i'm using this federal terminology you judge have the discretion to sentence me to las t i think there might be a misunderstanding of the guidelines ranges set the same pre lockridge and post lockers the offense variables are scored the same way and pretty large and post lockridge the judge gets a range and then at that point the judge can sentence within or outside the range as the judge feels fit based on the arguments and you're saying they could do that pretty lockridge it's just that pretty lockridge the judge had to find substantial income telling reasons to justify going outside the range whereas now they just have to have they just have to feel that it's proportionate sentence so so so yeah but i'm not sure why you've been answered their argument that i didn't get to present all these arguments that i do get to present post now i can't prove i'd never got the chance to present them because to the extent that they want to argue that you should depart downward now that the guidelines are advisory and i think that's what they're out to concede it was much more difficult in a creed lockridge what's more difficult to succeed on the argument i don't think it's much more difficult to make the argument i think they could have made the argument and i think also to judge roger's point i don't think defendants i don't think defend defense counsels come into sentencing and say i've got all these reasons that i want the ing give you a lower sentence but you know i don't think they're substantial compelling so i'm not going to present them to the court know that they'll make the arguments of they have the arguments to make pretty accurate and you can see that they had by they objected before lockridge to the mandatory nature of the guidelines i think they objected to the judicial fact finding and guidelines scoring pretty lockridge it was not clear what well wasn't clear how locker it will be decided but also it wasn't clear if the defendants won lockridge what the remedy would be and they argued in fact that we should have jury determination of sentencing guidelines and so i don't i don't think that the argument was specifically made a but that is that's a close that's a pretty darn it is close and i think you know if they made that argument then why aren't they right the booker slash robinson compel us to order a reset and seen here because booker never held that that was required booker how that is what booker did but then practice for preserve claims and the and this is hey this is a twenty dollars to fifty four dollars case we need a holding from the united states supreme court if mr magnan rain is going to prevail and we see as we said in robinson book or did further proceedings consistent with the constitute a i'm making them up i'm sorry in milan we said that yes in milan not a hideous case not a case where this court was bound by the universe of clearly established federal law under two hundred and twenty five thousand and forty if this were a direct appeal case i wouldn't be standing here milan  milan that's the rule this is two thousand two hundred and fifty four dollars you can look at milan but you can also look at palatino which responds to milan you can look at crosby and unless there's a supreme court holding that one of these is wrong then then the state court can do what it wants to within reason and this is reasonable for the reasons that were gotten by judge rogers in his questioning we know that this is harmless because the very decision maker who made the decision said here is what i would do if the guidelines were advisory that's the remedy is advisory guidelines simon though you're saying it's harmless when you say it's harmless it sounds like it's a or i understand judge and based on your questions i'm nd guessing my framing of this issue and i'm thinking i should if for named  judge was bound by mandatory guidelines that were arrived at using judge found facts so that's the error the question is whether that error actually affected his sentence and we know that it didn't because of what the trial court said at the rd proceeding and so whether you frame it as not error harmless error i don't know if it's really important to the result but i definitely based on your questions like i said well it might be more persuasive it's a little bit strange for you to be arguing on this or when you didn't ar it i understand and i would like to respond anderson well at the time we at the time we filed our answer it wasn't we didn't believe that it was a or we had an unpublished decision from this court saying that elaine doesn't apply to michigan sentencing we had a lot of other decision saying elaine applies to mandatory minimums we didn't have a robinson problem here with the district court in this case no the district well the district court did the district court again decided the case before robinson and so it didn't have it had the benefit of kick converses francs which again on published but it held that this doesn't apply and that's what we are so robinson comes along and i think it was right at the time it was decided and subsequent change in law made it wrong but i think that's what that you know after decide that it was right when it was no exactly but i would like to address the idea that we've waived or forfeited the harmless  argument and we certainly have waived it because we never conceded that it wasn't harmless and as far as the forfeiture goes i think part of it i think the st factor i think that should be considered is the fact that we didn't need to we had the law on our side at the time we f answer i would also like to address what in the reply brief go over decided which is the case and when to consider harmless error when it hasn't been raised and he cites it and says well we don't need it and there's no discussion of it lengthy and complex record and harmless error than this i'm relying on three sentences one really important one on one page of the record on to thirteen that's our so st factor that militates in favor of considering harmless error the  second factor is probably chance here is whether the harmlessness is clear or debatable again this is a very clear case of harmlessness the very decision maker said i wouldn't have made a different decision in the absence of constitutionally or the only way they make it debatable is by misunderstanding the error and arguing that they would be the guidelines would be scored differently in light of lockridge which they wouldn't be they'd be scored the same way and that error appears and pages seven through know what the sentence will be because the trial judge has told us whether it's protracted or costly i think is relative or a sentence is not cost free there is and there is also the fact to consider that based on how this court decides this case there are a lot of other cases waiting in the wings and if this court finds mr magnan wins favor and publishes that that is protracted and costly the number of recent things that will need to occur based on  that's the record and whether or not it were awarded would reward sloppy or encourage sloppy lawyer in and i guess i would say based on the state of the law at the time we filed our answer i don't think that it was reasonable to accuse us of sloppiness when the law was still struggling a little bit with what we did in milan in milan we said book or require re sentencing why isn't that clearly established pre crosby so if the supreme court clearly establishes something and then the circuits come around to monkey with it assume i hypo's right aren't we still obligated to follow the clearly established law of the supreme court and then if we've said that's the law why aren't we bound and following that i think that when approached us in a couple of ways i don't think that the the way i read this court's decision in milan is saying that and said you know what do we think is the logical conclusion of book or as we apply it to the facts of this case and i think that's that is different from saying saying this is clear i mean there's no to decide whether it is countries who are on reason well application of clearly established federal law the court the state courts are required to read and understand booker the state courts are not required to read and understand milan they can look at milan they can look at palatino they can look a cross b well they have to look at the book or said this is a problem because these facts weren't submitted to a jury right so we're remey ending for reset it's not we're reminding for the district court to decide if it was plain or harmless but we're reminding for recent it's right and your friend on the other side says look at what they did as we said in milan and what they are doing is they're not saying it's plain or harmless they're saying you have to re sentence in this case right the i think the issue was not raised in booker whether a more limited remained would be appropriate or not and if that issue had been raised again but no supreme court cases that are more limited remained as appropriate have they like it in say it only now they haven't said it since booker so the only thing we've got to go from from with your green court is what the supreme court did in booker right and that's not enough we don't need a case that says we w they need a case that says they win if the supreme court hasn't spoken to the issue then you can't say that the state court's decision was contrary to or unreasonable application of clearly established federal law book or health that a reset and was appropriate in that case it did not hold that the amendment requires a reset and seeing in cases like this because that issue was not pressed or passed upon and booker that was not before the booker court it wasn't before the a link when it could have been before the elaine court because the federal recall correctly elaine was out of the circuit which doesn't adopt crosby so you don't have a supreme court case holding that the th amendment requires this they just have this is the remedy that they imposed in the absence of any argument from the government that a more limited remain would be appropriate sentence which effectively was fixing the question of a scrivener's error he meant to impose a mid mid guidelines range they just calculated it wrong and then he went on to say in all other respects the motion is denied and so mr magna marine was denied the opportunity for resign and seeing in march two thousand and sixteen based on the claim that he's he's pressing here now the nd point that i'd like to make goes to the colloquy the judge the part was just having with with my brother on the other side is that the reason that the supreme court has not had to address crosby is because no other court has ever said that crosby applies to preserved constitutional claims and the reason they haven't said that is because booker prohibits it that's what the court said in milan and that's and that's plain i mean the  is it the last paragraph of a book and the line do you have it in front of you i can get it well can i read it to you sort of where the fact does not mean that we believe every sentence gives rise to a th amendment violation nor do we believe that every appeal will lead to a new sentence here and that is because we expect reviewing courts to apply ordinary prevent crimes determining for example whether the issue was raised below and whether feels the plane or wrote error tested is also because in cases involving a th amendment violation whether recent unsing is warranted or whether it will instead be sufficient to review a sentence for reasonable miss may depend on the application of the harmless error doctrine so why do you mind if i grab my cup because i know i'm my recollection is that it says in when that you're not when there's not a constitution in a nonconstitutional book or but they say ok go ahead and get it kick it is also because in cases not involving a th amendment violation oh in cases not involving so i brought that out ok so what do what do we do with nor do we believe that every appeal will lead to a new sentencing hearing i think you have to read that sentence in light of the two sentences that follow it which is which clearly indicate that for on preserve claims you do plan or review for non constitutional booker claims you don't do harm or you do harmless error view which means f constitutional book or claims you re sent and as long as you preserve the way you read that as long as you preserve it you didn't preserve crosby is ok if you did preserve crosbie is not correct right  the other thing i would say is that as i didn't say this in the opening but you know our position of course is that all of the arguments that are raised now were forfeited because the only argument that the state pressed in the district court was that a lane simply didn't apply at all which robinson has since  my fingertips but they were usually screamingly clear cases for the judge set on what i'm saying that this particular guideline applies but even if it didn't i'd come to the same conclusion so my understanding of the normal harmless error analysis post booker is that what you look to is whether or not there are facts on the record that were found by a jury or admitted by the defendant better enough to satisfy the relevant factors or if the sentence imposed would still qualify under a range that excludes judicially found facts which here neither of neither of those factors are present i think if you look at love and tell me again now when you argued that the sentencing court had relied on traditional fact finding in violation of a lane why you didn't or couldn't go along further say and therefore this court should sentence less because you're not bound well i mean what we were saying is i'm asking yes and i think and you didn't ask you didn't are you there and now you are you at that's what it all boils down to in my view  well what we were asking in that motion was to say we want the opportunity to have a full resend it saying hearing under a constitutionally valid regime which means that you're not required to hew to the vs and you had a full rethink the thing why i mean my cat not not you're not doing that gives you the right now to get that when he knows that it's voluntary now well i think because the request that we were that we had to make was to do every sentencing funny the denial both well i don't know i mean you're saying this now in effect a constitutional right to a hearing with respect to what the judge decided the judge decided to he would do the same thing even though the guideline was voluntary you're saying you decided that without giving us a chance to have a hearing to argue that if we had had a hearing to argue that yes i have complied with all of this law right well i don't think he's i don't think what he was saying exactly was if i were now to do a full sentencing hearing it including every possible argument i would come as inclusion what he's saying is had i not been constrained by michigan's mandatory nature at the time that's different than what he said in the in the black and white want you can ask one and you must answer it narrowly ok ok yes why isn't it your argument that your respective whether he would have done this or not you know like you know book it doesn't matter because you