honor thank you for having me here this morning it is a great honor to be here my name is cow winchester and i have the privilege of representing the appellant in this action mr randy will carry this case is about the proper liberal construction of a pro se motion pursuant to federal rule of civil procedure sixty subsection six which seeks to reopen a twenty to fifty five hey vs corpus litigation concerning primarily but not exclusively a what is alleged to be an improper enhanced sensing unhandsome and under the arm career criminal act the function of rule sixty be as the supreme court has explained it is to reopen or or serve to reopen a final judgment where there is a defect a procedural defect in the integrity of the post convention proceedings and you can ask you maybe just to get sort of to the nub of the issue i think because the government's going to give you the johnson it the issue is the district court abused its discretion when it when it failed to construe mr wilcher repeated pro se references to what we construe what we talk about colloquially as shepard documents in his twenty two fifty five a pleadings as a position that the sentencing that that his sentence was unlawfully enhanced because the district court did not apply the modified categor approach to a divisible statute and when did that when the modified what i'll call the modified categorical approach argument references to the police colloquy and shepherd documents when did that first come up i mean as i look at the the proposed amendment i kind of think it's in there i mean it's there's a reference to the to the plea colloquy when it was that the first time it came up or it it had it been sort of imbedded in the case even before that just for clarification are you asking where in the twenty t fifty five a pleadings that he filed it first comes up yes i'm just curious as to sort of how it first arose and the action well can see that there is no express reference to the modify category of approach in pleadings however the enumer error that he raises in the pro se twenty two fifty five are ineffective assistance and procedural error within the pro se memorandum of law that he filed and incorporated by reference into that document there are multiple references to colloquy step shepherd document and i think the most express reference to it would be in the objections to the report and recommendation where he says this is d c s one forty four page t which was arguing modified categorical approach and it seems that tory raised did and it was rejected and that's decided that stare decisis your honor it is correct that on the direct on direct appeal mr wilcher challenge the improper enhancement bought it the it is difficult issue because the argument is there division for the director field concerns that the improper enhancement but that's specific argument did not concern the procedural defect but isn't really moot anyway because clearly the on direct appeal they looked at they looked at t documents that were appropriate even without looking at the transcript which he had filed and then they cited to it so that that's already resolved i don't see how that can even be open issue respect there the problem was that the the the directive the direct appeal the opinion cited a drop dropped a footnote and reference t wiltshire had reference but the importance of the analysis is the reference to the police colloquy in conjunction with the former georgia code section for which he was convicted the end the district court and important thing about the panel opinion is that the panel opinion held that there was nothing in the disposition that militated against the finding that this was for a possession with intent to distribute conviction that is not correct because the the object that does militate against that finding is the sentence that subsidy punishes simple possession of cocaine not possession intent to distribute and the sentencing range is two years to fifteen years now the government so if you receive a two year sentence it could mean it would have been avoided sentence under georgia law because the  court could not impose a sentence under five years if it was for the indicted offense if it was not reduced now the government's prison position is well when he got revoked after he was arrested subsequently for the second time that he possessed cocaine he he was recent tensed to five years and that five years is consistent with the former o c ga sixteen thirteen thirty d for possession with intent to distribute but the problem with that argument is that it's also consistent with a second time conviction for simple possession of cocaine and this is how the revocation happened the court has to look at what caused the revocation of the ninety nine hundred eighty eight the new possession of cocaine conviction caused to be put to petition to revoke him on the eighty eight indictment that he got first offender treatment for his first offender status was revoked after he pled guilty to a lesser included offense of simple possession and when the fulton county superior court re sentenced him on the first indictment his prior guilty plea had already created a conviction for simple possession so this was in effect a second conviction for simple possession because the first offender status had suspended his adjudication the key is that the first offender treatment that he received in one thousand nine hundred eighty eight is not a deferred sentence adjudication the the government has construed this as that the sentence was always what was his conviction that's the question that if that is the question your honor and our position is that for multiple reasons this could only have been a conviction for simple possession of cocaine and that there were several aspects of this that were not reviewed by the district court sentencing analysis and so state court conviction but to the elements and i think one of the greatest circumstantial factors to show that the elements that with which he pled to was actually simple possession is the fact that under georgia law the factual basis for the plea is insufficient evidence to sustain the intent to distribute element and when you combine that with a sentence that was clearly for simple possession and a read on a sentence on the revocation that was clearly consistent with a second conviction for simple possession what it really shows is that this was a negotiated plea to a lesser included offense and the assistant district attorney failed to check the box on the disposition and so this is just judge nuisance question was where was this claim first functionally raised i think it's the reply brief in the twenty fifty five because within his discussion of the ineffectiveness assistance of counsel he says it's my understanding you raised the johnson claim on your direct appeal in your initial brief but you didn't address johnson in your reply brief so i don't know if you're still pursuing johnson or not but i want to make sure that there is no potential jonson claim out there on direct appeal that are said that they were serious drug offenses the other two offenses not the one that is an issue where serious drug offenses but in looking back  i see that actually one of the one of the qualifying offenses was the voluntary manslaughter aggravated assault and looking at the sentencing transcript before judge goldberg that's what he relied upon  that's not a residual clause offense that's an element to offend something pretty clearly been in you're not maintaining otherwise are you your honor first the johnson claim was not raised in the direct appeal it was first raised the pro say amendment twenty two fifty five the mr wells or raise the johnson claim as a pro se challenge to the enhancement that he got and when you had it in your initial brief yes your honor because under clisby that was a claim that was before the court when the district court construed the twenty to fifty five as a success a petition so that was a that was a viable claim that received no ruling that was not successive because that was the it was the first time it was raised and liberally construed the sixty b motion as the government concedes could literally be construed to challenge the failure of the district court to rule on that the johnson claim which was still before the court we i'm not sure are you saying yes your johnson claim you're still pursuing it or not yes your honor on what basis as i answer a question  concede i'm not aware of any precedent were johnson has been applied to serious drug offenses however the case law has been that where there is a viable claim that hasn't been ruled on the court doesn't reach the merits it remands to please a court opposing counsel members of the panel my name is brought brockington i am here today on behalf of the abilene in this case the united states of america how this is one of the rare cases where the parties do actually agree but only to an extent judge newsom highlighted before the government does concede that the route sixty six should be remanded in the limited aspect of going back to review the twenty two fifty five amendment that mr wiltshire filed in this court coincidentally on the same day that judge the rash of adopted judge walker's are in are in that are in are denied mr walters twenty two fifty five because that was because that amendment was granted and never ruled on then we do concede that there should be remained to determine whether or not or to address the johnson claim that was filed by mr twenty two fifty five so can i ask you can i ask you this this just sort of gets to that nub of the same question that i asked your adversary so what's the difference between the john what i'll call the johnson claim and what i'll call the modified categorical approach claim it is it simply that the twenty to fifty five amendment  actually cites or uses the word johnson and modified categorical approach you say sort of isn't in there properly because it's just a reference to the plea colloquy and sort of not good enough or is there something sort of deeper than that because it was raised on direct appeal you think it's hard for some of the recent what's the difference between what you're willing to give and what you're not willing to give the good fundamentally i believe that these are two separate the relief sought may be the same but the past to get there are very different the heart of mr wilcher his argument has been that the district court failed to apply the modified categorical approach now this is in two thousand and eleven four years before johnson he has even come as even been  you came out that particular argument which is the crux of his argument is fatally flawed for two reasons the first reason is that the court did apply the modified categorical approach but necessarily by name if you read the transcript the words modified categor approach don't come up however when determining whether or not the nine hundred eighty eight drug conviction was a serious drug offense the court looked at the shepherd approved documents namely the indictment the final disposition and at and that then you can see that there's a defect in the proceedings so it meets the sixty basic standards question we just send this back and that district court flushed all that out first and if it needs to come back to the court of appeals that will consider it what we're asking for is for there to go back to the district court only to address johnson not the modified category let me let me ask you mr brock and it actually the motion to amend was filed on the day that the order adopting are in our amend specifically says it's related back and it if the order was entered on the same day that it was filed you know we get an awful lot of these on the district court and i'm speaking from experience you can simply assume that that motion was related back as it was asked for by mr winter and anybody who understands the johnson claim knows that it's not applicable so the order that was entered effectively ruled on whatever was pending before the court including the no proton order allowing the  motion to amend which then incorporated into the original so it's already resolved talk can't you say it that way affectively i mean effectively i believe that it's been resolved in terms of the fact that johnson i believe  nonstarter when it comes to first as cations it's a frivolous motion because there's no application we've already gotten that resolved ok and it's not even necessary for most people to understand what johnson is about to even mention it i would agree one hundred percent with the court i don't believe that there is really any application for johnson to apply to a serious drug offense however that question of that is not properly before this court because there's been no fine order for appellate that's that's the only reason we're here  to simply dispense with all of this litigation by by determining that johnson doesn't apply to serious drug offense which there's no indication that it does that would effectively end mr wheelchair's collateral review of his sentence predicate he has exhausted all of his efforts to try to unburden himself by looking at the by trying to have this court apply a modified categorical approach to the one nine hundred eighty eight conviction and have it be treated as a simple possession offense we did that at sentencing you don't direct procedurally when i asked earlier the difference between sort of the government's attitude toward the johnson claim procedurally where you say it's fine with us if you send it back and you know there's a procedural defect is just wilson said without respect to the underlying merits that the judgments and was exploring with you right now procedurally there's a defect so the government says we'll send it back as to modified categorical and the reason you say is because yeah look fairly read this pro se twenty two fifty five amendment cites johnson it was before the district i'll call it is i read in the sort of the poor pro se twenty two fifty five amendment i feel like i can sort of tease out of that document a modified categorical approach argument you read sixty motion he's clearly saying the district court ignored that one as well so is the difference that it was raised on direct appeal and is thus barred is that it sort of meritless on twenty two fifty five and so like don't proceedings judge thrashed and at the government's urging judge the rest treated the entire sixty six as a second it's excessive twenty two fifty five motion that was incorrect because of the great to be amendment it should go back and while that may be a fait accompli it should go back and order for the district court to rule on the johnson amendment to the twenty to fifty thought it over government has not understand you correctly you're not abandoning your position that it's got to go back because the district court failed to rule on his and twenty to fifty five claim certainly not in this court ruled early this court ruled in two thousand and fifteen that it could not address the johnson claim because there was no final order for appellate review so procedurally it seems as though it must go back for the court to address whether or not johnson applies to a serious drug offense i think we all know what about it what about what we just what i what i just mentioned with mr winchester and his opening brief he argued johnson in this appeal now he didn't continue that in his reply but johnson has been opened as an issue in this court why can't we just put an end to all of this litigation because we know there's there's absolutely no merit for it there's no reason to send it back to get fresh we've got it here why can't any reason supported by the record we can make the decision and resolve it why do we have to send it back to judge  what we all acknowledge is a frivolous claim your honor i don't believe it's already been brought before us right it has the only reason why i would say that it would have to go back to just our actions because in two thousand test because this claim remains pending before the district court there is not currently a final order for public review i would be perfectly happy with dispensing with all of this right now at this level but based on that language from this very court perhaps we need to go  back and so as part of your response as well and i may just be sort of catching up here that includes be procedural posture is roughly the same right and we basically said we have no other alternative but to send this at the district court never considered this sort of without respect to our own view of the merits we really have no other alternative but just procedurally to send it back even if it is as you say sort of a fait accompli and i also don't see an obvious application of johnson to the serious drug offense definition but i guess  it's well it's an offside it principle that the court of appeals can affirm for any reason supported by the record even if the district court didn't take it up i would i would agree with that and i would say that this court has the ability today to resolve all of these issues in its order your i think the government should be held to the position it took in the briefs with the specific comments about why the johnson issue was not raised on the reply the reason it was raised on the plate reply was that it was conceded by the government's opening so the if there's no dispute issue there was nothing for the for the defense to reply to so i think under clear as be the case has should be remanded this precedent in carver cited by the government's brief that the court does not look through the  merits on the claim it was not ruled through ruled on in this posture and so i think remand is the proper vehicle on that the government was initially correct in its concession have you been in the meantime brainstorming what you might say on remand about johnson's application claim let me the government says the court did apply the sheppard documents and they did i disagree on and that's not correct and the reason is not correct is that the government at sentencing urged the district court not to look at the sheppard documents that were offered by the defense that was their position is that there was no ambiguity and then the eleventh circuit on direct appeal finds that the disposition is ambiguous but defers to the documents that were relied upon by the district court and in our position is that this is where the extraordinary circumstances requirement is discussed in gonzales versus crosby comes in in a case with this with the it with  prior conviction like this this enhanced it was the difference in eleven and a half years in prison he was fit without this the enhancement he was facing four years of a performance approximately as opposed to fifteen years the prior conviction is that he was found with a bag of cocaine that contains less than a grand there's no evidence of renumeration is no evidence of scales bags this is clearly in layman's terms a simple simple possession of the sixty be motions didn't deal with the the one of them that was resolved on the r and r and that's that's not even really before us your honor i think the questions before the court is whether the six the the modified category approach arguments that he raises in the pro s sixty be could be fairly construed to have referenced something that he raised in the twenty two fifty five that was functionally raised as raw printing under ten a bomb and i and when this court construes these repeat references to documents that were