case my client was convicted of felon in possession under two k two point one of the guidelines his base level offense was either going to be a twenty or twenty four depending on whether or not he had a qualifying conviction for a crime of violence or a substance offense at the time of the sentencing his criminal possession of a weapon in the second degree which was a new york conviction was not a crime of violence for two reasons one was circuit precedent you had johnson and then you had virtually every circuit court that decided the case that decided whether that applied to the guidelines all concluded and that it it applied to the guidelines and they were   at the time of the sentencing just to give you a brief timeline so the sentencing was on july twenty seventh two thousand and sixteen that came out march of twenty seventeen and then the important dates on this johnson was june twenty sixth of two thousand and fifteen the sentencing commission issued its proposed amendment nearly a year before he was sentenced in fact it was before the verdict the sensing commission issued its proposed amendment on aug seventeenth of two thousand and fifteen six months later the sentencing commission issued its final amendment saying in six months that amendment would become affective on august one of twenty sixteen that was five mention that he did not mention precedent he did not mention the pending guideline amendment there cannot be any strategic reason for not doing that and i don't think the government can tell us deficiency i think there are issues with prejudice  and in terms of deficiency as well there's cases where you have pending whether it's a fair sensing act or other amendments to the guidelines or the law lawyers do it all the time they are assuming that the difference explain the prejudice in terms of the calculation so the prejudiced in terms of the calculation his calculation at the time sensing it was calculated at one hundred twenty one to one hundred fifty one months that was the range which was then reduced to one hundred twenty six out was the statutory max if he had been sentenced at a level twenty six which would have taken into account those guideline amendments his statutory his guideline range would have been seventy eight months to ninety seven so that is almost two years to train a half years difference and the reason that it's prejudicial in this case there would have been no legal basis for the that the defense counsel did not convince the court that anything less than the statutory max of ten years which was in the guidelines range that's a quote and that's page eighty of the appendix think it seemed pretty clear that she was going to give stature a max anyway is that right i don't think so because she said she was gone that it was within the guideline range and not only that if you look at the statement of reasons it's the same statement she said she was giving a guideline sentence she didn't say i'm giving a statutory max regardless of what the guidelines were and judges rely on those guidelines even though they're advisory she specifically said in two different places one of the sentencing itself in the transcript and the other in the statement of reasons which is paragraph four i believe section four in page two in the statement of reasons she specifically said i'm giving a guideline sentence and then he in this case the guidelines if you calculated them at a thirty they came out at  it was a done deal you had well publicized guideline amendments and johnson and the guidelines amendments this wasn't some obscure aspect of the guidelines it was a huge deal in the in the defense bar and criminal bar and as a whole  shortly thereafter but the guidelines had already changed so how the court considered the guidelines to this is not a case like for a while which the government sites where the defendant was seeking a remedy that the law no longer recognize that the law recognizes then and it recognizes now and it hasn't changed at the time of his sentence you had both you had precedent and you had the guideline amendment if we didn't have the guideline amendment i understand because of what well we on appeal we would have an issue but that guideline amendment which was publicized which was due to take effect in five days that that makes a difference w weeks have made a difference i don't know but word five days five days clearly house to and you have other cases you have the case that i submit by letter abney case in the district of columbia circuit which did find that a defense attorney who failed to raise the fact asked for a continuance in that case he wasn't even asking for it wasn't a consideration issue that he did not ask for a continuance knowing that the fair sentencing at was going to be effective within a matter of days and would change the client's sentence or there was a reasonable likelihood it would change the client's sons and in this case you have the same thing you have that amendment everybody and he didn't know about it i guess but there are people who are freddo more federal practitioners still and you're required as a federal practitioner to be familiar with the sentencing guidelines and i know that they're confusing and complex but in this case there was no confusion here you had johnson and you had the court my name is hagen scott and i'm an assistant united states attorney in the southern district of new york i represent the government here and i represented them in the district court very briefly i think for a lot of the reasons judge droney stated that this said that even if i'm wrong about the guidelines calculation here i would give the same sentence something like that and i don't know how is it that clear that she would have done that i think it's it is that clear but for slightly different reason it's not just the wording of what the judge said your i imagine that this case was remanded imagine that the petitioner got to believe they seek the district court judge would apply the same guidelines on remand under eighteen us c thirty seven forty two it's clear as day that the same guidelines apply and the district judge correctly calculate the guidelines now there's a missing step because the time the district court judge could have gone with johnson and they wouldn't back holes and that's exactly what happened in jones your honor which is which is actually the same case that the appellant relies on in jones jones himself didn't get the benefit of jones because in the end battles came along and this court said well the guidelines in effect at the time of your sentencing the twenty fifteen guidelines contain the residual clause under beccles the original residual clause is good law and so the district court correctly applied the guidelines the same thing happened here if you gave the thing that you wouldn't apply level twenty because this amendment was not retroactive is not one that's correct your honor twenty five days still but as your honor said you have to draw the line somewhere and that's at the date is when we counsel says the district court could have considered the amendment i don't think she could be saying the district court could have given effect ineffective for not asking for a brief continuance knowing the amendment was coming in five days so i think your honor my opponent has said both either that it could have been considered at the time i think your honor is right that would have been more of a secondarily i think that is very much the kind of claim that this court routinely says should be brought to twenty to fifty five because what the district court of given an adjournment could counsel got into german all these things are facts specific and not to get into the fact argument but just to give the court an idea why that's so factual among other things the defendant's counsel had already sought for adjournments prior to this date those are documentaries sixty two sixty four sixty five and sixty eight and w at the last german judge abrams specifically said no further germans will be granted so it is by no means clear that the defendant's attorney could have come before a judge avery said you know i want a fifth adjournment so that i can get better guidelines that are not in effect now but that would benefit me in the future and there's a particularly good reason to think that would have been persuasive given the guidelines changed here unlike all the cases my opponents cite was not aimed at reducing penalties that anybody thought were too harsh my opponent relies on cases concerning mostly crack cocaine and also one money laundering case where the guidelines were changed because people thought that offenses read punished too harshly no one thinks and certainly judge did not think that shooting at people with an illegally possessed weapon was being punished too harshly rather the guidelines were changing essentially because they were difficult to apply the too big in other circumstances so it's entirely unclear why a district court would have granted a fifth  nment to give the defendant the benefit of guidelines that didn't really have any purpose driving at his offense and i do think at the end of all that because the sensing was on the fifteen and twenty fifteen before those guidelines there simply you have a government agrees that's a collateral i do think that's a collateral tack it's the kind of thing this court says and and we often tell this court should not be considered direct appeal because the district court in the first instance should be able to look at the facts wasn't going to give me a fifth a german since you quite directly told me you were not going to grant any further germans and given that the argument was at sensing really about what is the justice you're not one of the guidelines as your honor indicated even if disproportionately proper to consider the guidelines this court also said the statutory maximum sentence was necessary i don't i think a reasonable counsel might we don't know because there's no fact at all and yet the might have said you know i'm not going to ask for a fifth the german want to been told i'm not go one rather i'm going to make the best arguments i can't inside clearly trying the district judges patience with seeking these germans it would have been on the record i'm aware that there's a new guideline member that goes in effect in five days i think it's in my considered judgment better to proceed today and nobody nobody recognizes include the government right i think that's right no one did recognize this but given that in the end the guidelines were correctly calculated even if this court were to think there's a possibility of performance the certainly isn't prejudice but if he says i i was well then the inquiry is i think entirely at the prejudiced stage and i think he's well he's not an effective your honor because in effect in this has two prongs he's performed efficiently but there wouldn't be prejudice because it is unclear at best that simply telling the district court there's going to be a change to the guidelines for reasons that have nothing to seek to do with suggesting my client is being punished  harshly but i'd like to be i'd like to court to be aware of that this court said in may of the henderson council doesn't have to raise every non frivolous argument they only have to raise clearly and obviously strong ones to avoid an ineffectiveness finding here it's not at all clear that saying that would have any effect on the sentence and again because we're arguing based essentially on the defendant's reply brief and a presentation or argument at the very least i think this is better considered in the district court the first instance and i think there are others feel i think simply saying the fact that something occurred under this court's cases is not sufficient to raise an argument that the arguments that i've tried to present to this court now are simply a response to things we raised in reply and even  argument it is not clear to me why it was not clear to me until this morning what the defendant's argument was that there was going to be prejudice from failure to raise this argument that counsel simply says in our opening brief we're to hard and fast and if the court says that's developed argumentation then i suppose it is but to my mind simply saying the district court could have considered it and not saying and if it had done so you know it likely would have given liberal lower sentence because of x or if would have applied the guidelines there five years in the future because there's just explaining why the district court would have actually taken some account does not develop an argument i think your honor is quoted that comes closest to preserving the argument thank you couple things first well when there's a pending amendment or change in the law there's different ways of dealing with it at the sentencing you have a request for a variance not that the guidelines are advisory so it could have been done in that way i don't think the could have he should have raised both issues is that look this is the current law there's a pending amendment i went under both the calculate the guidelines were not calculated correctly as at that point in time for both of those reasons and whether and if we went back to court now the prosecutor is correct that the same version of the guidelines would apply however the court can consider the variance that it never considered before today it would be called a variance if it went back and under united state under pepper the government was conceding all over the country that the guidelines were void for vagueness for the same reasons that the arm career criminal act was void for vagueness that had the same reasonable clause the government took that position in fact in battles which is why the supreme court had will anything to those cases that got decided then and in this case you still had the guideline amendment under the advisement god lines the court could have said yes you know what i am going to consider the appending amendment the current state of the law and this is the calculation that i'm going to come up with whether you call it a variance or whatever and courts have done that my cited that in my brief i just cited a few examples i can certainly cite many more so to say that it wouldn't have mattered and it would go back ineffectiveness on under direct appeal but in this case every single fact relevant to this is on the record there is no strategic reason for not raising this at the time defense counsel is arguing the government at the time had argued for a level thirty two defense counsel is arguing for a level twenty two he was successful on one issue about risk of flight and danger which reduced it by two levels but to get to that the other eight levels down he asked it substance of responsibility after trial after the defendant testified not allowed he asked for he challenge the fact that the judge is making findings by preponderance of the evidence at sentencing the judge is allowed to do that why raise you do not have the fat but there is no you need a strategic reason the prosecutor has not raised one i can't think of one i can't think of a single strategic reason for not raising us and the court didn't i think as reason has to be ignorance because i can't think of a strategic reason and in these cases i've had an effect of necessity issues come up before and i understand that there may be things outside the record there may be a reason there strategic reason for not raising an absolute one or of an argument there it the judge could have just said you know what i understand what the law was these i'm calculating the guidelines and she still could have given whatever son she was going to give which in this case i believe would have been lower than one twenty because she said she was relying on the guidelines and she gave a guideline sentence if you give a guideline sentence and you say you're giving a guideline sentence and the guidelines should have been lower there is a reason i don't have to prove definitively there continuance she could have just considered the fact of the state of the law and the pending amendment without a continuance that would not have that that would have been fine and courts have done the courts in cases that have come before this court and i've done in the courts i've done it before these things this is this is commonplace which may be why i couldn't find any other cases that were in the situation because i think everyone was raising this issue either for consideration at the sentencing before the pending a moment kamath active or asking for continuances there's there is absolutely a reasonable probability that she would have given a different sentence had the guidelines been not just a few months lower but barely two years to three and a half years lower might she have given here unless it's certainly possible she could have sentenced him at the high end of the guideline range and it still would have been lower than one twenty if the guidelines were calculated properly at seventy eight to ninety seven that's still thirteen it's twenty three months lower than one hundred twenty so she still could have sentenced him at the higher range and i think that shows a reasonable probability and i