asking this court to reverse the senate's that was imposed by the district court and to remand the case for recent weeks on the basis of this request is that two of the three predicate offices used to enhance him as an  not in fact violent felonies and cannot be used as predicates there are two of them up to two crimes that we utilize one is shooting into a dwelling and under this court's precedent sheeting into a dwelling it's a crime against conceded by the happily in their brief so i will not go further let's let's argue a second off involves burglary of a non quelling in this case in church there are two subsections to the mississippi statute the second one involves burglary of a church and we can see that that satisfies the generic definition of burglary the generic the definition of burglary is the on the law for underprivileged entry into a building or other structure with the intent to commit a crime a generic definition is a list is limited to a burglary or other structure the mississippi statute it issued contains subsection one and we submit that that is what mr kelly was prosecuted under and there are two clear reasons why the first that two thousand and three indictment mirrors subsection one it uses exact language from subsection one that does not exist in subsection two that includes the intent to steal that includes the intent to steal goods wares merchandise mr kelly it accepted ineffective assistance of counsel and prosecutorial misconduct we submit that the waiver is not valid because there was ineffective assistance of counsel that's why should we take up that stric issue at this time it's rare for the court to address those issues on direct appeal as your honor is aware however case law in the case that if the court has sufficient information to resolve the issue under the goalie decision indicates that if it can evaluate fairly the merits of the claim then it can be handled on direct appeal we submitted the can be done in this case because this is strictly a matter of law there is no need for additional factual development either the correct statute was utilized or it was not just simple as that so we submit that mr kelly does not have the predicate often says to allow him to be prosecuted as a career criminal separate responsibility for being a felon in possession of a firearm and could certainly be prosecuted for that and we there's absolutely no basis for him to incorrectly advise mr kelley of these penalties because for one there's no reason not to challenge these convictions number two while he admitted to being a felon in possession of a fire career criminal that greatly increases his sentence it carries a statutory maximum sentence of fifteen years a high end of the statutory rape being a life in prison also carries a two hundred fifty thousand dollars fine penalty is statutory maximum is twenty years and it carries a maximum twenty five thousand dollars as compared to the not less than fifteen or more that life for the ark are criminal and a two hundred fifty thousand dollars fine which is ten years greater there's no logical castro delgado case with two thousand and seventy and castro go up dog out of the court decided that if a defendant pleads to something that exceeds the statutory maximum in a waiver is ineffective and in this case we submit th proper statutory maximum was death for felony possession under eighteen u s c nine hundred twenty two g carries a ten year maximum as compared to the fifteen year minimum under the our group criminal act so those are i would submit are the two strongest cases that max with much greater and much greater guideline radius so therefore we think that prejudice is satisfied the third factor is whether my counsel form itself alone objective standard of reasonable means in two thousand and fourteen the u s supreme court decided the case was decided three months prior to sentencing in this case this was a landmark decision that was well publicized in the federal criminal community and though virtually everyone a council in this case was not a member of the c j and although he was appointed to the case  recognized at the sentencing hearing and announced to the court he was not a member of the panel and was unfamiliar with some of the rules and procedures in fact he filed a sentencing memorandum late in the court declined to consider it but if  recognized that excuse me that if the our group criminal statute would not apply to mr kelly then he would have taken certain other reasonable steps in other words he could have filed a motion to continue the sentencing hearing he could have either to know or harmless error state of the fourth factor under strickland is whether or not but for these errors the out there's a reasonable probability that the outcome would have been different in two thousand and seventeen this court decided there r the court also found that there was a disparity being that the high end of the applicable godwine range was twenty months lower than the guideline range utilized the court found player and reversed and also found ineffective assistance in mr kelly's case the difference between the low end of his applicable guideline range which we calculated forty seven to forty six to fifty seven months is one hundred twenty three months below the guideline range that was there was an error that's clear and obvious that affected is substantial rights and that it seriously affects the fairness integrity and public reputation of judicial proceedings we think that there was clearly error in this case and it was in fact prejudicial to mr kelly we submit that that's not correct for the following reasons the mississippi statute dish as listed today as i discussed as to subsections second when dealing with burglaries of a church before prior burglaries involving churches occurred in one nine hundred eighty seven hundred eighty seven there was no subsection two in other words a burglary of a church back then was prosecuted under what is now subsection one the identical language the statute was revised in one nine hundred ninety seven to include subsection t so that we can see that subsection two would meet the definition of generic burglary it didn't exist when those four prior officers were committed and therefore cannot be used as violent felonies for purposes of the  your honor mr kelly is respectfully requesting that the courts remain court remand the case for reason that we believe that the facts are sufficient where the court can determine ineffective assistance or direct appeal with think that ineffective assistance has been show the government concedes that mr kelly has a legitimate argument to challenge a sentence but the government believes the proper forum for challenging his sentence is in the district court where the court can evaluate the merits of his ineffective assistance of counsel claim which mr park shows us that really all the facts are sufficiently in the record and that counsels error was obvious enough by implication he says it's a lot would be a lot more efficient those are my words not his to go ahead and decide it now because it's all before us yes your honor and understand his argument and understand that pleading guilty to a crime with the statutory max clear for this court is exactly why mr kelly pled guilty back in two thousand and sixteen and the circumstances surrounding his plea of guilty as the court is aware mr kelly was a member of the area brotherhood he was the treasure aaron brotherhood was prosecuted by our office in two thousand and sixteen the trial was an april two thousand and sixteen mr kelly testified at the trial mr kelly admitted to his involvement with arion brotherhood in an interview in january of two thousand and sixteen the government had sufficient evidence to charge mr kelly with rico violations if it wanted to and that the government's representation is not that it would have but there was a lot going on at that time between the regardless of the background of what the other potential risks were of other charges how would that impact i understand your point but i just don't see how it's particularly relevant to the calculation we're faced with here in his decision he had eighteen prior felonies burglary of a charge convictions he was involved in a they could have potentially been charged in a rico a conspiracy where many of the rico conspirators received sentences over one hundred month minimum because of the five k and get one hundred much which is a good maybe a good sentence for him it is very possible that mr killen got the best deal that he could have gotten under the circumstances i guess i'm considering it as two separate issues and you're telling me that two separate issues one being the sentencing calculation and the second being the strickland issue and what you're saying is that this that it's all baked into the same consideration and ultimately we wind up with his decision to plead guilty based on all of those factors to to get a sentence that's obviously better than what he otherwise would fit that's correct but based on the basis of the waiver and the waiver the right to appeal the governor's position is the only way around that is there in effect of systems so everything has to be viewed through the lens of the ineffective assistance of counsel and that requires the court to look at what was going on at the time to determine why he pled guilty to these charges in the governor's not conceding that he's not a criminal but what the government is saying is this is not the proper forum to be evaluating whether he is our current career criminal particularly since there are other charges out there in the government does not whether mr kelly's counsel was ineffective and the court can look at the other leave the church convictions i mean mr park just argued that back in one thousand nine hundred eighty five the statute was different that's another reason to allow the district judge consider in the first place what arguments to government and mr kelly has as to where the birth of the church conviction is about a felony under the law judge smith you asked mr park what is best case was to get around the waiver and the government would submit that there are only a few instances where the court has considered ineffective assistance of counsel claims on direct appeal he has conceded that that's correct but there are the instances are rare and i have found three cases that are not side in our brief for the court did consider ineffective assistance of counsel claims on direct appeal and i can cite those for the court if necessary but in each of those cases the court considered ineffective assistance of counsel claim because the defendant raised the issue before the trial court and the trial court had the opportunity to evaluate ineffective assistance of counsel claim before appeal so those are the rare instances seventy three the other thing that mr parker mentioned that i would dispute is that the court can allow mr kelly to get around a waiver because it's an illegal senates or exceeds the statutory max defendant has waived her right to appeal cannot appeal these errors and i would just reiterate to the court that the government is not saying that mr kelly cannot raise the challenges to his a c c i enhancement that he has raised e i think the defendant is footnoted or even maybe in his briefings for poverty for question that relief if the court dismisses on the best the labor and the government's position is that is exactly what should happen here is the court should dismiss on the basis of the waiver should say disparity when it was not clear whether the fan that was charged with such action want to subsection to that statute it looked to the elements over well there was no penalty in that case but look to the elements first to determine what subsection other considerations for guarding interpretation statute to determine whether it was divisible back in one thousand and five there could be another target of a church conviction out there that does not look like the one that's before the court that may also qualify there's most ineffective assistance of counsel claims involve evidence here issues motion practice or calling witnesses this is strictly a matter of law was the right statute applied or not even dealing with whether or not subsection t was not considered in the district court no your honor i believe in the two cases that we discussed earlier the gully case indicating that the question is whether or not the court can about your weight fairly the merits of the claim  exceeded the statutory maximum mr levy argued that mr kelly received a one hundred month sentence which is below this stash toward a maximum but the only reason he received that is because the motion for down departure allowed the district court to go below the mandatory minimum of one hundred eighty months and we believe that that consideration should not have started from one hundred eighty months but from the properly calculated guideline range of forty six to fifty seven supreme court cases of reading all say that that's where all sentencing begins it with a properly calculated god on rage we don't have that here we're getting some of that this is not part of some trial strategy in terms of the rico claim of already explained out that that statute carries less severe penalt