charged gregory and may please the court the residual clause in the career for under mandatory guideline is void for vagueness because it sets the defendant's legally permissible guideline range sentencing ran with the force and with the effect of law the issue today is the merits issue it's not an issue of timeliness it's not an issue of procedural versus substantive issue the minus your it's you can't you let's start with my question how does johnson absolutely apply because presumably johnson has to apply first to get to back to stay with me on johnson how does johnson absolutely apply to mr brown johnson's the rule of johnson is that the residual cost in aca is unconstitutionally vague is that not correct that is correct your do my best to stay with me on johnson first yes your honor what johnson does is it makes the residual cost of aca void for vagueness correct and the reason it's void for vagueness is because it requires the court to do a very strange thing that thing is you have to imagine this imaginary you would marry case then you have to assign to that imaginary ordinary case some sort of estimated risk how much risk is enough risk to make something a crime of violence the language of the residual clause and aca is exactly the same as the language in the residual clause of the mandatory career offender guideline but in order to get to that you have to tell me which i'm still not quite getting how johnson applies to brown you're asking you see what you're asking us to do you are asking us to assume from back that johnson which was  independently a perhaps the problem is that this is where we are we're going to disagree which is that if you can tell me if you can show me how johnson applies to brown there now shut up with the rest of your argument apply you told on its face did not apply to brown would you accept that i would accept that john wouldn't specifically deals with aca and brown specifically deals with the guidelines yes there's no way for me to that's really the only you have to sort of read by neg you have to read two cases print court cases neither of which apply to brown act actually in my negative implication that they left something they are yes yes or i think you can do that and that tells us where to go the course tells us where this line is drawn to see why don't we have to wait for the supreme court to get there is the other problem i have we get cautioned doll the time about getting ahead of the supreme court it has to be clear and the only clarity it seems to me is that neither johnson nor beccles actually apply how can that be clearly a step you see my problem and you are asking us to lovely i i think i understand where you go and i'm not trying to cut you off i'm really not and i think i understand your conundrum because it echoes mine yes ma'am and the way to read the book are in line with johnson in line with beccles is that the law in the court is the next article i understand that but there's a point about it has to be a right and usually we wait for the supreme court to tell us that there is a right in the spring court has never told us that here we would argue that the supreme court and johnson because that's my negative implication sure that the supreme court and johnson has said you have the right not to be not have your sentence at a higher sentence not to be under this career offender class of conduct class of prior convictions under this residual cause that requires this bizarre ordinary case imagined risk is probably just not in the it would look like but there's no the supreme court hasn't clearly established the problem that i'm having is understanding where the supreme court has clearly established the right guidelines are at play in hubbard as well so hubbard is still binding it is still the rule that we're relying on to say that the right of johnson is this right not to be deemed a curse under under the david language harbored and we have we have the author here so i'll be corrected if i'm wrong that the court in harvard actually talk talk about this distinction between the mandatory guidelines and the advisory guidelines the current coverage not talk about i think it very briefly for members correctly says that there are due process concerns  and this is all over backwards which is that the text to buckle specifically refers to and the holding on page eight ninety says we hold the advisory sentencing guidelines are not subject to vagueness challenges and then the rest of beccles goes on to explain why they have made that decision and they've made that decision not because that is a guideline aca is a statute they say it's because there is a difference between the advisory guidelines or difference between that and the mandatory guidelines could you rephrase that question please sure i'm trying to i'm trying to start out with the right with the clearly the right and what i'm trying to figure out is we don't really sit and who establishes it so are you saying that the clearly established the right is clearly established in hopper it's not it's not a trick question i think the right is clearly established and you know it's the right yes your honor it's a right not to be subject to this increase time told you go to the statute to find a definition of career offender that's that's the only difference ok but i think i just you have answered my question i appreciate it and i'm sorry to have taken up so much of your time i have done my best here and thank you and i see that i'm getting close to my four minute cut off but let me ask you this before you do get to the end of your argument here i don't recall that you addressed the government's contention and they had a number of defenses to this claim but one of them was that the pretrial agreement in this case actively waived  of your client to pursue the claim that you're pursuing here in court today i don't recall that you said anything about that in your reply brief you know i think i read that part to discuss just the miniature minimum which is two hundred forty months in this case i didn't read that assertion of an appeal waiver did to him was it changes his range from two forty to life to two hundred sixty two to three hundred twenty seven and because his guidelines were mandatory the judge that time could not give him anything outside of that unless they can't with the new specific fact finding or in case there is some lawyers louis maybe you could start with answering the question that i had about those this waiver as you're suggesting that mr brown has waived this claim i think the waiver issue he didn't waive the claim as to the career offender there is no certain appell waiver in the plea agreement i do think that the waiver goes to one of the tenets that's discussed in the back was opinion about whether we're looking at whether void for vagueness challenge is appropriate in a mandatory god nonsense and that's notice and if you look at the first issue of notice beccles discussing whether the mandatory guidelines implicated concern for notice that plea agreement is indicative of the fact that mr brown was well aware from day one in this case that he would be facing a sentence between three hundred months  life and i get there because we have a b one a violation with a prior a fifty one which is going to set him a twenty year mandatory minimum with a maximum of life and then he also pled guilty to the nine twenty four c would be consecutive sixty months so mr brown would have been aware from those statutes before he did these crimes that if you commit these crimes you're looking at mandatory minimum of three hundred months but tension a life he received a sentence of three hundred twenty two months now this is a key distinction that is not raised for one and hubbard or in the other cases cited by the defendant for example in the ninth circuit is what beccles does is examines a threshold question and that threshold question has not been addressed before beccles and that does the mandatory guidelines or  guideline implicate those twin concerns ok first is the notice and beckles expressly states that the statutory mandatory minimums and maximums provide ample notice as was the case in this case to mr brown with a forty one b one  and the nine twenty four see also indicative of that is there are other instances in our no procedure where defendants made aware of the potential penalties and provided notice for example of mr brown's arraignment he is required by the rules of criminal procedure to be informed of the actual penalties in my face those are the statutory penalties that is what setting the fixed permissible range of sentencings in his rule eleven colloquy is required by the rules to be presented with the potential penalties that again statutory penalties mandatory guidelines just like the advisory god lives they don't implicate a notice concern so the only other concern they could justify a void for vagueness challenge would be whether the mandatory guidelines implicate at the concern for arbitrary enforcement and before i get to that i do want to dress judge duncan's questions at the outset you mentioned whether johnson applied to the guidelines it does now that wasn't requested my question was just whether i'm looking from a right i want to write here that's what we have to have a clearly established right and i don't see how you can get a johnson thousand apply hubbard johnson is the window because of its holding which applied retroactively which is that the residual clause is vague and what harper does is say you don't have to be absolutely right is the quick  look it is plausible and the plausibility is connected by the fact that there is a residual clause that which the basis of his sentencing that's to differ now beccles comes along and that's not judge douglas correct you matter aspects of the guidelines falls out but that is still the foundational change this retroactive the finding is still to hospitals brown to apply and he would say yes but here would take almost an act of congress to write memos and say where was that so that's the difference it's not hubbard that's not hubbard cannot it's just a fourth circuit case but johnson is and it's the holding holding of residual clauses pay that is the finding that residual cause is vague and it's still applicable to brown's case and beckles makes tells us where that line is misspend say it is it's in the mandatory realm and he said i'm like that because i'm pretty sure that's the it does caution extending johnson into a guideline context i mean that's what beccles told us that we can't just take the johnson ruling and apply it to the advisory god so that's the first the second is that hubbard was a preliminary view as you said and now we're dealing with the merits based argument and hubbard never addressed the threshold question that justice thomas addresses and beckles with whether a void for vagueness challenge is appropriate and that's whether it implicates either the twin concerns of notice or arbitrary enforcement and i've already addressed notices i implicated by mandatory guidelines so we need to look at as you said whether the mandatory guidelines are going to be the equivalent of like aca a statutory penalty whether they're both fixing the permissible range of sentences the distal of missed so let me stop you there so that you're suggesting at least understand  response of judge records question that we do get to the merits of the claim but it fails because of these one concerns that i'm missing something now your honor i don't think that hubbard would give you the merits the claim in light of twenty to fifty five f three i don't think that there right in johnson hope or or backwards which you read you have to read the three of them together to create i'm trying the clearly established guideline situation and a statutory situation is to compare the two differences when we look at mr brown's case force someone who is facing a johnson issue and i think it distinguishes why there is not a right in the guidelines context when we have the nine twenty two g nine twenty four isa to ation whether that enhancement applies you go from zero to ten to fifteen to life is this court's aware nothing the district court can do can get you back into that sentencing range because the fixed sentence is the permissible range of sentences is set by the statute not the god it's what rather woman mr brown situation whether or not the career offender designation wise we're looking at three hundred to life if we take away the career offender designation for m brown he could still get to the three hundred twenty two months he's sentenced by even under a mandatory god situation and that would be through a departure one that would probably be applicable in this scenario would be the defacto career offender which this court's recognised supreme court regime we don't know clearly what the knot of three book or situation would make it different that's it's a good granted that's not been decided yet but that's why he can still avail himself i think of a new a new she expressed he notes that that question is left open so we have an open question that would need to be answered by the supreme court for mr brown to survive twenty two fifty five f three and i'm glad that you asked about booker because even if this court  were to find for example that the mandatory guidelines are subject to a void for vagueness challenge that's a new rule it's and hasn't been ruled on by beccles it's left open so then it would be barred on collateral if you like mr brown by the t v lane bar and what's interesting about booker all right is that if we take the defendants argument and we say that mandatory got to fix the permissible range of sentencing essentially setting what's the equivalent of a statutory minimum and a statutory maximum booker removed that range there's no argument that the advisory got they were made advisory by booker that decision was held to be procedural this court has held and united states v morris that that booker decision does not entitle someone for collateral attack or a collateral attack based on the book or right so how could now under defendant's argument where we're taking a career ender range which they're contending is the  a minimum and it goes down how is that creating a substantive right it's not a book or doesn't create a substantive right then the removal by the removal of all of the mandatory nature of the god lines than changing a mandatory guideline situation in this case  removing one provision of one residual clause and one guideline certainly couldn't be substantive  one one other point that they mention in beccles is that while the defendant has argued that there is no discretion to mandatory guidelines to two ation there is discretion even in the mandatory gotten on situation u because booker and other case of the supreme court have recognized that a departure decision is based on the discretion of the court and in fact before the protect act of two thousand and three this court would have reviewed a mandatory guideline situation for departure under situation there is a presence of discretion and that is the key distinguishing fact it's not booker that's the key distinguishing fact as the appellant raises it's the presence of discretion and what is setting those permissible  retroactive or right under which they can attack the collateral view so it's and it's certainly not recognized by the supreme court the appellate open with this case is not about timeliness and there's no procedural arguments that's exactly what this case is about there is no right that has been recognized by the express language in beccles that johnson applies to the mandatory guidelines and based upon that this claim is barred under twenty two fifty five f three and additionally under the  recognize a new right under twenty to fifty five f three and that's essentially what you're going to have to do to apply johnson to the mandatory guidelines and now we have another hurdle om with beccles which is saying that the you don't reach the mandatory  god i mean if you look at it from a ten thousand foot view it shows the procedural gymnastics the opponent has to go through we've got to ask a decision which has been held not to apply to the mandatory guidelines that the right of the defendant is trying to strap on to the mandatory guidelines based on a say i think judge gregory articulated it beautifully johnson leaves the question open that's why we held all those cases after johnson under the guidelines precisely because johnson left that question open for four we held them open to see whether or not they want to apply to the guidelines for that question and then the answer in buckles was no but the answer was because of the mandatory aspect of it and what here there's yet another reason to hold this will open in the sense of brown is because the question is is he like the mandatory yes that's the difference right there is yet is just another tear there was a hole there but everybody else was just god last you fall along the way but he goes to the next realm of holding pattern because his is like the same reason that they're huge closely to just being an actor avocation that that's the that's the right if that's exactly what it is that he is not knocked out of the box yet because he's not just god lies he is mandatory like and i think it's a lose to the good job of describing that in that well well argued but i think that's the question i think that's still in play know i think i think brown is the case go forward and say that it applies you know because you're not going to if you're waiting for brown it can't be clearly established i can see waiting for brian but i don't know what i'm looking for i'm sorry commissioned to finish the answers the question i think this is the case this is the next logical key but it can't go backwards is all i'm saying no you don't and we don't need to we have we have a case saying the residual cla