he's entitled to have his sentence vacated for procedural and reasonableness that occurred during the sentencing proceeding i like to focus on the count three conviction issue st we raised two issues concerning the count three conviction which was for a violation of think you're referring to the sanford case the us against iraqis that that came up in the context of the sentencing guidelines that was a pretty buckles decision but it came up in the context of a challenge to the career offender sentencing guideline which as we know now from the supreme court is a non constitutional issue what we have here and that was also want to application for a nd or successive twenty dollars to fifty five dollars petition this is an issue that goes directly to the subject matter jurisdiction of the sentencing court the count for which mr bieber was sentenced to the seven year term consecutive to one hundred and twenty months on the hobbs act robbery conspiracies does it no longer exist mean i have i have on sanford in front of me and and and that the court does talk about whether he was sentenced under an unconscious approach a provision of the guidelines that is now unconstitutional after after johnson well st let that goes on the whole the he's bound it that so in two thousand and sixteen when sanford has decided that the guidelines are already a matter of the district court's advisory consideration right there no longer mandatory so i think that is a material difference as compared to the one hundred and twenty four dollars c conviction here and there was no decision at the time that sanford was decided that said that the career offender guidelines were unconstitutional by the time that was reviewed by this court it was there it had not been decided as it turns out in two thousand and seventeen the supreme court that the guide that the challenge to the career offender guidelines provision that was at issue in sanford does not rise to a constitutional level in this case we have a conviction the count three conviction which we know now record it if the if the statute was is unconstitutional now it was unconstitutional at the time of the sentencing and that means that it was unconstitutional because it was unduly vague which means that it had no it was essentially had no effect at the time that mr that the time the mr bieber was sentenced if the court is the court's subject matter jurisdiction is premised on i would say it's premised on a sentence so it's it is also in a legal sense i wouldn't say we don't necessarily have to get to the jurisdictional issue and i just wanted to point out that the cases the government relies on in discussing a plea waiver none of them involve a statute that is no longer essentially on the books these are cases that involve the sentencing guidelines understand sanford and yemen tonnage i know judge newman wrote the dissent in that decision that was a question about whether it was an illegal sentence because the judge failed to articulate the reasons for the sentence under statutory speedy trial act had been violated and therefore the plea waiver was no longer effective none of these cases that the government sites and they don't provide any cases at all that say that when you have a quite a statute that is unconstitutional not just that's been violated not just that's been in the legal sense because it wasn't complied with but when the statute itself is no longer constitutional or the plea waiver is still effective and we put in a rule twenty late last week i don't know if the panel had a chance to see that with a decision from the th circuit on this exact issue it involved the arm career criminal act but it had the we had a waiver a provision that was identical to the waiver provision here sorry not the six there but the th circuit and the  court should hold differently in the context of i think ornette was actually a johnson it was it was a johnson with sam for it's up you know again i go back to sanford was sanford talked about johnson but sanford was a guidelines decision not an armed career criminal act decision and sanford at the time that it was decided beccles hadn't come down yet so i think if that doesn't come down differently then it would be more analogous but says it's not a constitutional issue under the guidelines at the time that it was decided by this court deal with the merits on count three because davis says that the residual cause is unconstitutional evade and because there is no question but that mr bieber pleaded only to the conspiracy which this court and barrett and august of this year said could only fall within the residual clause the cause of the count three conviction as it stands must be vacated i know the government has presented an argument and what they framed as a rule twenty j letter that this court sh what looks to me like a plain error standard although we would say that this issue has to be reviewed under harmless error because it was raised and briefed follow up because in their reading of the transcript mr bebo would certainly have pleaded guilty to the  well the intent element may be satisfied that there's nothing regarding the substantial step aliment that he allocated to that could satisfy the government's position that mr bieber is mr bieber's allocution would have been sufficient for purposes of was negotiated and loss thought maybe there's something about that you can't tell me if there is then don't know me but if you can tell me it looks like the st thing that was discussed would have been will be a plea waiver if so long as the sentence is below know so i don't obviously i'm not on the c j panel in the eastern district of new york so i don't think i could speak to what so i could speak to what's normal practice in the southern district but not to a normal practice in the eastern district i will note with respect to the police waiver as well as the allocution or colloquy about the knowing you know going to the knowing and voluntary waiver of his plea and his right to appeal if you look at that exchange with the district court judge while she does the district court judge says i'm sorry it's the government appendix sixteen dollars to seventeen dollars the district court says your ability to challenge a finding of guilt on appeal is going to be severely limited if you decided to go to trial you could appeal both the verdict and the sentence so she says the verdict and the sentence and then she goes on to say by pleading guilty your right to appeal or to collaterally attack all or part of the sentence that i would impose if i would if i were to impose a term of imprisonment of two hundred and nineteen months or less than that is what you're is what you're waving if i were to impose a sentence of two hundred and nineteen months or a sentence below that then you would not be able to challenge that sentence in the class case which the government tries to distinguish the the two thousand eight hundred assertion by the supreme court in the class case by saying that there is a general and broader waiver in this case there is a broad waiver that waiver does not specifically speak to challenging the constitutionality of any of the counts and when you take that in combination with the at the time of the allocution i do believe that it is reasonable for mr bieber to have understood that he might be able to challenge the constitutionality of certain counts and i would just point out that as this court has said before agreements are to be strictly construed and there to be strictly construed against the government in this case there is no question but that davis rendered that residual clause unconstitutional there is no question but that mr beaver's count one count for convictions were premised on robbery conspiracies which this court has said are not categorically crimes of violence he is serving two hundred and four months seven years of that seventeen year sentence is for an unconstitutional conviction the ple waiver did not expressly waive his right to challenge the constitutionality of the convictions the allocution was arguably confusing under this court's binding precedent of considering the plea agreement waivers against the government mr bemis should be allowed to challenge the the defendant waived his right to appeal both the conviction and a sentence by pleading guilty and when he received a sentence below of the p l o ever which was two hundred and nineteen months the defendant received retroactively that the defendant can never challenge that sentence then because of the appeal waiver the government's position i don't think that's not necessarily the government's position because in this case the is not sufficient under the elements clause what he what he pled to carol three which was face which was linked to both the attempted robbery as well as the robbery conspiracy and he in his allocution he admitted that a gun was used in connection with let's put that aside for it is the government's position if a sentence is illegal that and pled retroactively that you cannot and i don't think that we were not asking your honor to find out in this particular case because it's our position that there is a legal sentence here given that the the hobbs act attempted robbery and i'm not saying that we would take that position if there was not a secondary basis to find the convicted guy the government agrees that to the extent with respect to conspiracy that it's a knowledge so you were lying on attempt if we were to hold that there isn't a sufficient allocution to attempt then why are you still arguing that we should  rm because of the plea waiver or or do we get to the nats no we would choose not to enforce the waiver in that particular instance but we do think that in this case the count to convict him of attempt yes because he even abetted the attempted robbery by agreeing to be present for a service they got away driver we're just sensually arguing that if there's a completed crime that conspiracy become  certainly don't mean to suggest that in this particular case where the facts are that the defendant agreed to service a getaway driver was present serving as the getaway driver would not be linked to the attempted robbery so yes it's true that the attempt offense we agreed to dismiss it but there was nothing in the plea agreement that limited and twenty four see offense to the conspiracy at the time of his guilty plea the case was very different and to this court had not decided at the supreme court had not decided davis and so certainly under you know in hindsight it would have been a lot easier if he had actually allocute and the government had asked him to allocate to the specifics of the attempt but given  of a gun in the brandishing of a gun in connection with the robbery conspiracy and in so doing that attempted robbery because of was all part of one act in fact the entire evidence was based of the himself carried in brandished a gun but i heard you say that no no no i'm sorry he did not carry our brandished a gun in respect to the staten island has he acknowledged that he knew a gun was carried  even of the attempt that's correct judge i just want to use the so the government's cements that the defendant did waive his rights to challenge his conviction and his sentence and that the attempted robbery the fact that attempted robbery still remains viable under davis and it's progeny is a valid basis for the having heard the government's position i don't believe that supplemental briefing is necessary here there were two attempts charges that have now been dismissed an attempt is not a lesser included offense of a conspiracy charge there are separate offenses with separate elements mr  it to agreeing with others to be involved in a robbery that was count one on staten island and agreeing with others to be involved in a robbery in connecticut that was count two as judge bianco pointed out there was never any  substantial step which is a necessary element of an attempt a conviction that apparently there was no identification of them anything as a substantial step but if he admitted that what he what he did and if what he did is a get there in a couple of different ways one would be if the plea were involuntary another would be the question as judge and or judge bianco raised it if this isn't a legal sentence which is and i understand that there's the stanford issue out there although i think bieber agreed to be the getaway driver which is critical for the conspiracy conviction and also critical for the not that he was the driver so what i heard ms got to say was that mr bieber agreed to be the getaway driver that is enough for the conspiracy and it's not enough for the attempt was he asked during the elocution were you the grover he was asked what he agreed to do and i know that must get us has said that the that davis had to come they would have done things differently at the time the fact is this issue was briefed before the court was pending it was going up and down to the circuit into the supreme court there was no reason for the government couldn't have anticipated this would have been a problem they could have had him they could have demanded that he plead guilty to the substantive hobbs act robberies they chose for whatever reasons to include the conspiracy counts it was the government that unilaterally drafted the plea agreement it was the government that had all of the power in this situation it is the government that's responsible now for the