please the court therof send probably no counsel for mr michael mandel though i'd like to reserve two minutes for about oh and i'll keep track of my own time this case calls for nothing more than application of a stablished  court's binding precedence to undisputed facts it is clear on the face of the indictment and the jury instructions alone that mr montalvo was not convicted of a c c that continued until eighty four thousand eight hundred and forty eight b as an ac at sentencing the sentencing judge who presided who did not preside over mr montalvo trial reason that the government did not need to prove that any predicate violation for this you see occurred after the forty eight years an act meant in order for that provision to govern in this court removed any doubt about in the united states versus forrester and as established under the pertinent portion of this court's prior decision in united states versus company now it is well established that the retroactive application of a required a minimum sentence of ten years and the application of a forty eight b to his offense mandated life without the possibility of parole requiring him to die in prison and ex post facto sentence is illegal for then and that is presented here is that his sentence violated the ex post facto cause because it did not continue past and that meant of the forty eight b but three the panel in a one in one paragraph dismissed his claim and i in doing so it assumed away the promise of the challenge the court said that a sense that early defense that begins prior to but continues until after the statute is fair game under the statute and cited to the portion of united states versus kemp and al for that proposition portion of its opinion and where it held that although the statute itself could be rescued from ex post facto invalidity because it required at least one overt act to occur after the effective date of the statute apply that was not the case for the defendants offense and under this court's precedents that is not the law the case does not apply in such instances and in any event the law of the case is a discretionary doctrine especially when as here the pair decision was an unpublished memorandum disposition  is not binding circuit authority by contrast united states versus company now and united states versus forster are both law of the circuit and the court is compelled to follow the law of the circuit so forrester was  facts that were not expressly admitted in a guilty plea or found by a jury of basically facts that were not essential to the government's perfect defense are not part of the offense of conviction but the court went on to distinguish the issue before it from says r is because it says are is the question was an overt act and in that case the court could the sentencing court could find and under a law that was on the books at the time in the court could the sense the court could apply a preponderance standard in that context but for court may not apply the heightened penalty and so in that case it was guidelines but here it's a mandatory statute effective mandatory minimum of life so that actually a more dramatic example because under the guidelines the judge did have still have about what the fact that the law it increases the penalty and applies it to a pre an act meant offense and should not apply in that context at all so it actually goes to the power of the court the power of the government to impose the a substantive difference that is not a procedure now that the argument of judge vs jury can fleet's the trial phase with the sentencing phase the trial phase we look at what the jury was instructed to decide to is very clear on the face of the jury instruction that he was not convicted of an offense that occurred lloyd forty eight he was in a fact so this is there are no procedures in that context at sentencing that the sentencing court could have applied that would have corrected the of my time thank you very much mr marshall or from the government good morning your honor may it please the court matthew morrison represent the united states the claims that presented in this is brought under rule thirty five dollars rule thirty five dollars motions performing narrow function that's the words of this court not the government or the district court below to correct these sentences that are illegal on their face and that's month although seven this case is  wrong to fact finders have looked at this question of whether or not his conduct spanned into the time period of the new statute the st fact finder was the judge at re sentencing and after hearing argument and looking at the trial evidence he concluded that the conduct is spanned into the amended statute at the time under mcmillan b pennsylvania the supreme court said that's perfectly fine for a judge to apply a mandatory minimum based upon judge judge found back at cases but that's where we are to fact finders have found that in fact wintel those involvement spanned into the new the new time period the judge applied that under binding supreme court precedent that was permissible even a forester the elaine undid that and vacated harris the united states but it's never been a problem the sentence was not unconstitutional and it was not based on facts that were inappropriate don't have it if they can he questions from the made that there simply isn't a problem here there is a route out and that route was his abs motion before the two thousand two hundred and fifty five if you want to challenge the facts underlying a sentence or the procedures that have been sentence you file a twenty to fifty five motion he tried his decision and so that also does not he did not waive that claim and i must correct in an incorrect statement by the government that was not addressed on appeal the appeal was exclusively devoted to the robert richards and review united states air that the court found was harmless as to mr montalvo jet basic forty eight conviction the court did not look at the the constitutionality of his eight hundred and forty eight b sentence and the court cited exclusively pre enactment evidence to conclude that  harmless error and to the point of no manifest injustice this woman published seventy four years old he's a model prisoner who served more than three decades in prison and he has no history of violence the government didn't even allege she does and we can't give credence to the st sentence because that was vacated because the court concluded that the sentencing judge had failed to demonstrate sufficient knowledge of the facts of the case and improperly assumed critically that mr montalvo that the jury verdict meant that he was convicted of all thirteen predicate felonies and that was