in here actually marmalade said the eight split in the case law really doesn't tell us anything because it could be clarifying an ambiguity so when you say there is an ambiguity i mean if there's an ambiguity here then i would agree with you you know perhaps we have to say it's clarifying but how is this statute how is the amendment how is there an ambiguity that was was present amendment is clarifying and should be retroactive on direct appeal and that takes i did it did it not excuse me did it not an express mens rea requirement where none existed before yes you did your honor but this is just making explicit what other circuits had already found implicit because we don't presume strict liability and more over to say that just because it adds a word or doesn't add a word is kind of the concerned about imposing this an enhancement where someone didn't really understand that it was a concern for the harshness not to resolve a real ambiguity what do you say to that argument well i think the language of robinson makes clear that they were doing an interpretive background there than just considering whether something was was reasonable or unreasonable and and deciding whether a statutory term contains a mens rea element is kind of a regular act of  prejudice and a substantive error can get relief under the advisory guidelines and mister folke couldn't make this argument because is sentence was ten years below the  guideline range and so he had no prejudice he could argue no precious he did not have a cognizable claim but here mister profit does because he was placed into a fundamentally more greater than than that well in that situation you know there was no prejudice i mean even without that incorrect career offender enhancement he was sentenced to ten years below the correct guidelines out that is correct admission inconsistent with the rudimentary demands of fair procedure and joe was an unusual case because it was mandatory so i mean we need to say joe is different to a mandatory career offender and dos said it's very narrow this is extremely narrow so i don't know how you can say the folk isn't isn't controlling here willful didn't ready consider they didn't consider the fundamental the fundamental defect inconsistent that would cause a miscarriage of justice in the procedural mission but it did leave open the question of doe about aggravating circumstances and substantive prejudice and this is where mister doe's holding fell and this is also where mister profits case falls but this was not where mister fox case could even fall because you know there was obviously no precious to him when he was sentenced to ten years below the current guideline range but it makes a statement says because the guidelines are advisory and merely one factor considered within a sentence in courts discretion and incorrect career offender and hansen is not a fundamental defect inherently resulting seems like they're making we made a pretty strong statement yes but it still didn't consider the aggravating circumstances framework and whether a claim for a petition or under that framework where they can present substantive prejudice is cognizable and so that's a question that is left open for this court to decide today and that it it should decide in mister profits favor today that the guy i'd like to do exert control and influence even though they are just a fact of the court considers in most cases they are the forty one what's your best case i believe was our best case because when there is an error that substantively precious's the defendant and puts gives them more time in jail than was proper then in that harms their interest fact that the district court made an error and sentencing him and there's a controlling decision from this court that says that they did make that error would undoubtedly play a role in their considerations for recent unseen purposes that would be only  producing a supervised release term rick yes they could and that's where the holding that immunity no one is retroactive would have an impact because the district judge could take into account that he served more time but he was supposed to that file sharing network constituted distribution and so this was the st time that he's really been able to assert his claim and all that when but when we have posner's decision we have a court saying wait a minute this isn't right there's wrong here there's an ambiguity that cuts against you or your argument that it's that is just clarifying and not a whole substantive change that might not have been anticipated isn't that correct if it's clarifying and there were these court saying wait a minute husband this court kind of adopted the government's reasoning that the guideline was a strict liability guideline i'm going to say it was not there with the issue wasn't there not until later and closer to the time that this court decided husband and i think for a pro se pro se let again you know this clearly presented the st opportunity especially after the court's language and husband did seemed to to make clear that the court would adopt a strict liability hearing of the guideline and so any claim for him to file would have would have come across as as frivolous at that point and so i think this really presented the st opportunity for him to be able to make that kind of argument and  any other type of reasoning really puts petitioners in a catch twenty two because either the minister absent him and they can't take advantage of it or it's clarifying and so they procedurally defaulted and that seems unfair but mentioned no i'm not but in two thousand time we raised this direct appeal every circuit court that i did or this issue said it was a strict liability guideline and then in two thousand and fifteen this court seemed to adopt kind of the strict liability interpretation advocated for by the government and so in two thousand and fifteen around that time before amendment a don't whine when when the circuit ind assert he was incorrectly sentenced in this circuit and then i would like to reserve the rest of my time for rebutt thank you or can you hear me all right yes ok great good morning please the court haley ward and rogers on behalf of the united states your honour's this case is moot for the reasons explained in our reach that issue st and you could as long as you believe there's a lot of controversy then our position as as we stated in our briefs is that amendment one is a clarifying amendment alternatively the some courts felt that that was too harsh and that therefore they added mens rea or that didn't exist previously to the distribution enhancement and in fact that's what the commission  ultimately did in the adoption of amendment eight a one by looking at what was perceived to be too harsh a result with the advent of peer to peer technology and decided that in light of  that distribution enhancement should be applied more narrowly the distribution enhancement notably unlike in marmalade host the language of the guideline itself which changed not just the as your honor knows was it was and is broadly defined for purposes of the guidelines more broadly than the offense of distribution the new version of the distribution enhancement after amendment a to one focuses on the defendant to rather than the  it says the defendant knowingly engaged and distribution and gender of dollars you pointed out marmalade host tells us that whether an amendment is clarifying or substantive turns on the language and here we see that the language change not just the words but the meaning it's changing the focus from the offense to the defendant and also adding a substantive one of our points to is that to the extent an amendment a to one really did clarify a preexisting ambiguity it should have been anticipated that argument could have been brought both in the district court and in direct appeal and if a change in the law were not for equitable tolling in this court has said it's not so at the end of the day regardless of whether it's substantive and non retroactive or if clarifying five for federal prisoners whose convictions were invalid under a new interpretation of law in other words where they were convicted of a non offense actual and legal innocen offense can't stand because the courts can't decide what conduct is criminal likewise through suggested the door single might extend to a situation where a prisoner is serving a term of imprisonment that exceeds the statutory authorized sentence here we have the mere possibility of prejudice the possibility that if a plenary re sentencing were to happen he might be found to not have known about the file sharing properties of the software he was using for ten months to download hundreds of files and even if the district court were to find that he didn't possess that  knowledge it wouldn't be obligated to reduce the term of imprisonment and it wouldn't be obligated certainly would be obligated to reduce the term of supervised release which is in no way connected to the guideline range and indeed the supervision the term  supervision imposed here of fifteen years is less than the the guideline recommended amount of life for this type of offense wou supervision and therefore our position is that because his challenge is slowly to the guideline term of imprisonment he has to show collateral consequences now his challenge is to is to get supervised release to our position is that he's never challenged the term of supervision he's only challenge the guideline range and requested that his term of sentence his sentence of imprisonment be reduced and as a result he is entitled to arguably an equitable exercise of the discrete district courts discretion to reduce the term receiver vision he's never challenged his term of supervision as being excessive or unreasonable in any of his in his appeal  allocute does necessarily affect the entire sentence as opposed to here where it's a guideline error that affects only the term of supervision but it could affect that they are two separate two separate pieces the guidelines themselves don't attach the term of supervision or to the guideline range they are calculated separately and the judge imposes supervision ethical supreme court noted in johnson for reasons that are independent and different from the terms the term of imprisonment here too it's important to note that profit even even if the court said in jackson the burden is on the petitioner to prove a collateral consequences it's traceable to the challenged portion of the sentence and the challenge portion language comes from a juvenile male a two thousand and eleven case here the term of supervised release of the no way link to the guideline range the challenge guideline range and it's justified by different concerns as we noted in our brief and appears on the in the appendix at page thirty one dollars thirty four cents also i think notable is that the supervised release term begins upon the actual date of release as the supreme court noted in the johnson matter it's not upon the end of the hypothetically correct term of imprisonment to might be in a different situation if we were dealing with consecutive sentences where a finding by this court that he served too long in prison would necessarily result in a shorter overall consecutive sentence as shorter term overall here or on the other hand he's only intitled at most to a discretionary determination by the district court and he can obtain that through three thousand five hundred and eighty three it's also notable that in johnson's the case where in that case it was clear that the defendant had over served a term of imprisonment here it's not clear for the reasons we stated  but even if even if that were the case in johnson the supreme court didn't suggest that the appropriate remedy was the plenary re sentencing the court emphasized that he would have an two knitty to seek a discretionary reduction of supervised release under thirty five  our position is that the same result should obtain here he has already served the entire term of imprisonment which he challenged his only challenges to the is to the guideline range which affects the term of imprisonment and ultimately his only form of relief here is not through collateral review but through the three thousand five hundred and eighty three dollars mechanism our understanding is that he has already served a year of i know you've got you've got alter you've got alternatives stacked upon alternative some pressuring you to give us your view as to what the ockham's razor is from at least from the government's perspective substantive that the only way his claim could survive on collateral review is if they can meet the dorson built standard of basically a miscarriage of justice the actual innocence and a two point guideline error simply isn't the not our position is that you can decide the case either way you can say this is a substantive amendment and therefore not retroactive and that would resolve the case basically reaching the merits or that i mean that's what he wants is a finding that this is a retroactive amendment if it's not a retroactive amendment the substance of his argument is wrong and that's our position then then he can obtain relief regardless of whether this claim i know i do i certainly would appreciate a decision that this is a substantive and non retroactive men it's also important to note that in general a guidelines or or a two point guideline impact and would clarify the scope of collateral review in our circuit and reduce the burden on the district judges and of course the court as well and i think this that's interesting because i  e rationale were to extend to any number of errors then that would if this or a congress is intent and enacting and limiting the situations in which a collateral attack could be launched what chanels desire to do to say the fall really doesn't control here yes so we disagree for two reasons st of all profit has not preserved an aggravating circumstances argument and his opening brief or in the district court he has always argued that this was a miscarriage of justice under the fundamental defect prong of davis and hill as well as the discussion that this court made in full also we would our our position is that possible presidents the possibility of a reduced sentence is never going to be sufficient to satisfy the fundamental defect standard that's the reasoning of folk and we think that aggravating circumstances where there's a requirement at least of proving actual prejudice would possible in an advisory guideline setting now the aggravating circumstances argument to the extent the court reaches that it's never been decided as a standalone rd basis read it self suggests that aggravating circumstances ringback requires preservation as well as actual prejudice and he did not preserve it and then finally even if that were a even if it could be distinguished on that basis non criminal conduct and are so regardless of whether folk might be distinguishable and we don't think it is this case is not cognize people on collateral review advisory only district judges are not ham strung it imposing upward or downward variances and because of that a guidelines miscalculation alone is not sufficient to render and challenges cognized is that your overarching point yes under the above that's our position under the advisory guidelines a collateral attack is not available for an advisory guidelines error now of course we know from marlina martinez and other cases that a guideline error regardless of an affirmative showing a prejudice can be the subject of a direct  appeal but as this court has recognized a supreme court has recognized collateral attack is not a substitute for direct appeal and so while the court will presume prejudice in the context of a direct appeal on a collateral attack a guideline is simply not the kind of fundamental defect that justifies on doing a final judgment agreements argument that he didn't that the error is not tied that his claim is not tied to an error that has to do with supervised release and is not challenged reasonable supervised release what do you say to that argument that they're making so the dogor and when it is important the reasoning of the r b s court from the th circuit explained that when there is an error in the sentencing that colors the entire process particularly when it's the kind of arab which places the defendant in fundamentally more culpable category offenders and the offender convicted of distribution as opposed to mere possession or seat of contraband is in a fundamentally more culpable category of offenders and for that reason this case is extremely close to  the only difference is with regard to whether this was the reason he didn't do so which explicitly recognised in aggravating circumstances basis for collateral relief is available under the advisory and that only the mandatory guidelines guidelines range and was required to rationalize and reason for ringback for deviating from the guidelines range if that's true this is the fan that never had one clear shot at challenging   he challenged the two point bump for distribution in the district court him he argued that there was no that he did not distribute and that and that and they did and the district court specifically did not make any court so he knew it was a live issue he knew that was consequential and the district court's thinking whether or not he was using lime wire was consequential to the district court sentence wasn't yes  than him and he mentioned that he had no idea that there was a file sharing capability to do his duty his use of of y y or more importantly in the district court the district judge listened to that took it into consideration and imposed the sentence because the reason to be able to challenge that is because it would be a due process filey should be convicted of a crime where the elements were proven but here he wasn't convicted of the crime of distribution it's just  retains plenary power to impose any sentence within statutory range that could be below the guidelines range and this is precisely what i think  he was sentenced under the right guidelines range at the time you're relying on eighty one which comes by many years later so the district court make no mistake at the time of sentencing in terms of calculating the guidelines range right correct we need to well all right so then and the reason the reason we police procedural on reasonless so carefully on direct appeal is that we want to make sure the trial judges accurately counted the guidelines so here we've got a case where the trial judge didn't accurately calculate the guidelines at the time and now you're claiming many years later things have changed and you want to attack the sentence collaterally which is a much higher that this is a clarifying amendment they then go on to say we adopt the reasoning of the nd circuit and the reason for the nd circuit was that they were clarifying the the guidelines and therefore it's it would it would be substantive or procedural shortcoming indorse until this court held that it was substantive errors would would invoke the savings clause in a later case the district courts were holding that procedural errors would never be able to access t clause and this court in affirming the district court decision to dismiss the hideous claim specifically held that procedural errors are grounds for the savings clause according cradle said so in the court has continuously was really exceptional well done on both sides i agree yes absolutely they're helpful thank you