but the court is now getting god save the united states and this honorable  chambers this court correctly held that quote it would prefer congress's intends to maintain a career ender designation that it is is wrong to day it was at the time of the original court also correctly said that it was an extreme position for the united states to argue in contrast that a court must perpetuate the guidelines calculation error that was in the air were even at the time of the original sentencing in chambers this court held that it would prefer congress does that tend to recreate a guidelines error that was error at the time of the original sentencing and his error today this court also held that the government's argument to the contrary was an extreme position to force the court to perpetuate the guidelines error that was an error even at the time of the original sentencing and how do you narrow even to the time of the and it is your honor intervening authority but critically just like in chambers it was a case that clarified what the career offender guideline always meant we are not asking this court today to apply any guideline amendments we are not asking this court today to apply any statutory amendments other than the fair sentencing act nor were there any we're not asking this court because it's not before the court today to apply a different guidelines manual it is the exact same statute and guidelines word for word that applied in two thousand and nine the only difference is that we now understand the way we did not in two thousand and nine what those words mean bedroll conspiracy is not a career ender predicate it was never because we now should apply chambers to a non retroactive change in law or do you continue and that the has not been held to be retroactive and that question was not briefed by the parties so we are not here today rely on the idea that norman's retroactive we are relying on the language from chambers and obviously this is the government's response this is all centering around the question of retroactivity and i think it's critical let's look at exactly what chambers said  they're talking about the th circuit case that hedge would were it what the defense on retroactive may not have been a state at the time of the defendant's original sentence so what this court was doing in chambers is saying that because this error was retroactive because in hedge would it wasn't that perhaps the error in hedge would was the not in error at the time but we can cut through all that and we know that the  retroactivity narrows that funnel at the bottom it says for certain errors only get to come back into court on a twenty to fifty five collateral attack in this narrow class of retroactive errors oral for your honor is different because congress has answered the question that retroactivity would otherwise answer congress has set for this very narrow group of individuals all into this time soon having a crack offense where they didn't get they are sentencing act relief they do it to come into court  in chambers this court tonight on bonk rehearing in chambers so i mean that's certainly a huge question but it's a question that this court asked and answered counsel if i could if i could wilkinsons question in your answer i mean i think would you would say that because of language you outside the holding in chambers that we are by own to apply you know other aspects of it to non read it retroactive intervening changes in law and i realize you in brief this but i really  case do we really have to extend chambers or because i mean chambers you may say retroactivity is a red herring but you like you want to allow and chambers to avoid the circuit which question the judge wilkinson just raised but she seemed to not one of the stick to its holding that it's retroactive and i wonder if we really have to extend it based on the way briefing on the question knew we would be very happy to provide that our position is that we do not think it is necessary because the retroactive non retroactive distinction is about finality and section four hundred and four asked and answered by now liddy and to my knowledge every other circuit know what their circuit considers this retroactive or non retroactive distinction to be the lin on which section four hundred and four rises or falls whether you get to pick what about the circuit case which made it explicit point chambers itself as the circuit case  question honestly i do believe it is retroactive isn't a procedural rule or a substantive conduct it changes the punishment so you're out of there you asked a direct question i think it is a procedural rule because it gets to the calculation of the guidelines there are on it again i'm certainly happy to keep talking about it i just a do think it why don't you want t spot of the good morning mr please the court my name is david bragdon and i represent the united states this case does squarely present the issue of whether chambers should be extended to cover non retroactive there and i'll talk about chambers a little bit in a minute also talk about how correcting the error doesn't doesn't really correct the  of most of these cases as well before i get to that i did want to state it is the government strong position that the error here is not roger it's not retroactive because it doesn't change the statutory maximum or minimum at all and so it's just a function of the god wants range it doesn't extend additional punishment beyond the statutory maximum and this court and others have errors deemed retroactive such as the error in this case must be corrected in a st step up through the sentencing and then it goes on as it examines the error in this in it it's case yeah but my point is this i suppose i recognize that but if it was retroactive then that narrows the scope and there was a discussion of heads would in that regard  cited the pepper case from the supreme court and if there's a recent insane required then you apply everything that's been corrected you start over black so to speak of the senate and everything new sentence and it goes ahead and rejects the c two interpretation of the supreme court made which was  question i do not read chamber that broadly i think that that certainly chambers chambers uses the language about the retroactive nature of the or a l discusses recalculation the guy bronson what's going to happen in this regard it's not radically different than what the other courts have held should happen in a sentenc even when they're not correcting non retroactive era for instance i think all of the courts to almost all the courts to my knowledge agree that the four thousand five hundred and fifty three doctors should be considered i think that they agree that think we should be extending chambers and i don't i'm only expressing my own initial reactions now to the argument but it seems to me how do we not open up all the says that's so fundamental that courts have upheld it should be applied retroactively this this tool this tool the fix crock pot or disparities can also be be used to correct those retroactive errors but i don't think that chambers i don't think chambers would have used the word retroactive so often in its case and at such key moments in describing its folding if it was already ruling on what to do with non retroactive air and so why would why would there be the need if we were to read chambers as authoriz that chambers was and incorporated in the principle teague the lane of retroactivity into the st step back to the as a way of viewing because it is it is another the court and chambers incorporated this this mechanism to determine whether or not there should be should be correctable but i do think i did want to say just stick a couple words on  the effect of this i mean i think there's a lot of talk about correcting the error from the government's perspective there is no way to correct an error in a case like th even if the court wanted to because the parties relied on the law as it existed at the time in this particular case the government proposed a plea to the defendant that allowed him to plead guilty to time the government almost certainly would have insisted on a plea to count three and the defendant would still be a career offender in this case and so if if we allow non retroactive errors to to be quote unquote fixed if we allow them to the church to be changed what we create as is arbitrary results not what would if i understand if i understand the argument that the the intervening change in law required and we sentence thing not just a modification or reduction required are we sentencing and i for me is you know what we obviously zero respect to circuit president that's perfectly clear and then the question comes down to well what the circuit where they explicitly use the term retroactive we justified in and sort of following that phraseology quite literally or  president extend beyond that just to follow more general statements that are offered  support or explanation of that narrow holding and sometimes the more general statements that are offered in support of a narrow holding are broader than any expression of the narrow holding itself and so what i ask you is what what is respect what is respect for circuit president just limiting just strictly going by the literal language of that st page with that word retroactive in it or do we required to follow certain more general statements that may indicate a broader holding is holding and as it's distinguishing other cases and so i think the the way i read chambers is it it did not reach this issue what it what it did is it said this kind of error what we have here retroactive error we want that corrected but i don't think the the logic or the language suggests that the court also should correct all other errors and i think in doing this the the court this court charted a middle between what is now a circus where you have circuits who said we're r in other words you have to all the absolute positions in one is that you are not required to do anything other than apply the fair sentencing act of two thousand and ten and then you have the other situation that you are required to once you get into full for being here in europe we are required to conduct a plenary sentencing and then and then you're saying that well chambers but not the non retroactive arrows and what i'm asking you is is there another middle ground are there essentially two middle grounds and is there another middle ground that would say  with respect to non retroactive arrows that district court retains a large degree of discretion over sentencing and thoroughly considered that issue but i don't know that it would be a good middle ground to draw certainly the district court has an abundance of discretion in deciding whether or not to  think that's the middle ground between the circuits yes your honor can i ask you one question and if the we were to say that a district court could not correct on retroactive errors how would we explain the two aspects of chambers a one the co recalculating the guidelines that is something that commonly house to be done in these cases because many times when the statutory range changes their career offender guideline range changes as well very often there is a right recalculation of guidelines and regardless of the circuit you're in the court house to house to look at even crack even the crack how to distinction may change the guidelines and so really what this court would be saying is of course you recalculate the guidelines and in doing that you change anything related to the fact that the fair sentence in act affect it and then you also change retroactive errors but but you do not change every other error because this is a limited remedy regarding the the nd question which relates to the scope of the sentence and i think what court may reduce a sentence and then it then it says that nothing in the act requires to do so so there's certainly a lot of discretion built and when chambers reference what's going to occur it simply specified what the court center and exercise briggs thank you your honor i want to make one sort of big point and sort of get into i think some of the issues judge and he may or raise to make sure our position is clarify and i guess they would just say you know obviously if the court thinks that it is compelled to really huge things on this t v lean retroactive distinction it is going to create a lot of litigation if every  time comes up in the district court and certainly on appeal today we're going to have to be doing a full analysis that maybe with the court holds but it is going to create a lot of work and i'm not sure that's what to apply a norman error or not the answer is no it couldn't court agrees with the government here it is telling district court keling the defendant that telling their family members and telling everyone that you have someone sentenced one point in time maybe at a different point in time courts interpret something in a different way so i mean the point you just made a general argument in favor retroactivity which i think opens up a large number of philosophical questions but why don't you