the argument this morning is bufkin against the united states mr heller morning or honors may please the court in light of davis using a firearm to kidnap someone has never violated eighteen u s c section one hundred and twenty four c so the defendant's guilty pleas to that charge lacked a factual basis but davis cautioned the defendants whose nine hundred and twenty four dollars c convictions are overturned quote will not even necessarily receive lighter sentences the defendant's position however is that they are entitled not to lighter sentences but you know  at all the victim in the public at large and why we are here i understand why the initial appeal was to take but i don't understand why we're here now you're asking us to tell the district court to do something when as far as i can see it is not dismissed the indictment it's simply vacated the plague the prosecution appears to be still pending are you asking for an advisory opinion about what the district court should do next are not asking for that your honor the i think that the question your honor is that the district court judgments are very that the motion to vacate was granted and the nine hundred and twenty four c convictions were vacated yes and that leaves the prosecution pending a mostly district court enters a judgment of acquittal so this case is pending in the district court you're asking us to tell the district court to get on with the next step perhaps that maybe your are to these extent that the question is was this decision final was this a de facto judgment of acquittal i think we felt it was better to run the risk of of this court concluding that than to dismiss our appeal and have the court later conclude otherwise ha let me ask you a related question is the when when the plea was taken here ok just isn't just as a factual matter will figure of argument stuff out later when the plea was taken where the kidnapping charges dismissed not at the time of the player  no by the plea agreement the terms of the plea agreement require them to be dismissed right yes sure so the kidnapping charges are still technically kind of life if you will at the time of the plea they are at the time of the judgment is entered the the the court dismissed the as part of the plea agreement as as part of the creep lederman that's when the the ok and so there's just as we sit as we're talking today that the kidnapping charges are dismissed as we stand here today  are we believe that yes the the chicken have been charges are dismissed and that's why you have pending in the district court as we're talking today and unresolved in fact a stayed thirty two hundred and ninety six dollars motion right yes your honor yeah and and that's whatever happens in the th circuit happens in them will take the reinstatement up at least as it's the table is set right now later i be i think that's correct your honor the question the question i guess that we faced was what exactly had the district court done we received an order on a friday that said the order be amended judge when the civil case that's appendix pages five dollars and six dollars of the of the of the context and we went on monday to figure out we didn't actually get the order until monday anyway to figure out what was going on and we were told by b o b will know we received a call from this of course chambers and these defendants are out we were told to release them and so we assume that the court may have it in a judgment of acquittal we don't know what the court was going to do we filed within a week a motion to reinstate this report and act on it we filed a motion to detain the district court didn't act on it there was nothing else for us to do at that point other than to try to figure out what to do and as if you if the problem is that there are things the district judge needs to do and simply isn't doing the petition for mandamus use the word well your honor you don't ask for an advisory opinion in connection with an action of the district court that you are no longer count to his vacated and remand for further proceedings in addition work and that's what the court should do at that point if that's the court's view the government was concerned that the court just reports seem to view this is acquittal seem to be taking no action seem to think that it was done with the case and so the government proceeded as it did so that's why we're here before this court on the merits of the remedy your honor we do believe that the correct remedy is to amend the civil judgment to instead simply reflect the judgment of conviction on the kidnapping count the applied to alternatively i do agree judge easterbrook that certainly it would be within the rights for this court to instead remand on the merits of the reinstatement issue we don't believe that simple acquittal is appropriate we do believe for the reasons stated in b in green in padi in boulder that the correct remedy should the court find that the correct remedy is not to simply impose a judgment of conviction on kidnapping and move on would be unwinding the plea entirely to the beginning of proceedings in this case and to proceed forward with a trial on the kidnapping count that the defendant's kids can say you had a lot of chance of the government had a lot of chances though realizing johnson and were johnson could be headed in the future to leave the kidnapping charges is dismissed and taken out of the case entirely ethical on the government's choosing i mean this all occurred in two thousand and thirteen your honor two years before johnson i don't think it was on anybody's horizon that kidnapping was no longer going to be considered a crime of violence at that point and really part of kidnapping not being a crime of violence also ties into matheson the divisibility issues so i don't think that it was on anybody's horizon in this case back at the time of the ple years before johnson that there would be no possibility of reinstatement i just think it's hard to envision that the government should be able to envision all these things furthermore i think this case is in m that the defendant was improperly informed of the charges and as the th circuit explained in bonn or is this court explained in andersen the remedy is to unwind all the way to the police stage and let everybody start over the remedy isn't for the government to have to bear its burns but for the defendant to get to get out of his or her burdens in the case i am into my rebuttal time to reserve it certainly mr mr osborne i'm want to ask you roughly the same question is what do you think is before us i think from your paper and your answer is going to be nothing that's correct your honor may please the court the judge  arguments of the government now makes are also without merit so i think on the recent no no i'm i'm asking about what you think their status is that the government obviously wants these other charges reinstated and wants to proceed the district judge has not entered a judgment of acquittal or anything like that it's just vacated the plea right so the prosecutor says we want to take advantage of the normal rule that when a plead remit is set aside and play grammont with it when they play with a plea agreement they set aside everything on winds back to where the world was when there was a plea of not guilty ringback and that thing had some pending kidnapping charge question asking is is that before us now is it before the district court what is its status so it's not before you now it is before the district court with how long has it been before the district court since ten days following the district's judgment in this case so in other words years it's been before the district court right years without action that's correct mr osborne let me ask the question  think to a near certainty your client will appeal if the thirty to ninety six motion is denied my sense is that the government will appeal so i almost feel it is inevitable that we're we're facing two appeals here the one we're talking about today and then another one i guess part of that could depend upon you know what we hold today or what we do should that concern us at all well your honor i think that you could rule that the thirty to ninety six motion is improper because the charges actually are dismissed with prejudice they're not actually pending in the district court so our clients when they  that's truly advisory right on our part and that's pure a pure advisory opinion well your honor i don't think that it would be an advisory opinion in the sense that it's the form of relief that the moment's asking for and i think it's  have complied with all the parts they want to and not the parts they don't want to know well your honor the agreement doesn't express leeway of their right to challenge the constitutionality of their statute of conviction and class there was similar language in a  challenge where the defendant in class was told that he was waiving his rights to his conviction and the defendant agreed the supreme court ruled in class that that was not sufficient but that did not constitute a waiver of a right to challenge the constitutionality of such a conviction so they did not breach their plea agreement here where there is no express provision that they didn't challenge the constitutionality of the statute of convention and i think further the government's decisions litigation decisions in this case show that it didn't think that they breached the agreement either in the district court it was put on notice in the district court's order that dad failure to rely on the waiver provision waived reliance on that provision which is consistent with this court's precedent it may well be that they're not properly before our very section three thousand two hundred and ninety six a four says that the u s has to move for reinstatement within sixty days and i gather you're conceding that that was three is actually the proper position to show that that statute doesn't apply here the play was subsequently vacated on the motion of the defendant that's what three says right here and that's exactly what happened it was vacated on the motion of the defendant that's not right your hon guilty plea that was the whole point of class that's challenging the strategy right now she completely out of it statutes are vacated three says the guilty plea was subsequently vacated on the motion of the defendant and that happened a petitioner challenges the statute of conviction underlying their guilty plea that does not challenge the guilty plea itself nothing in the petition says that petitioners did not engage in the conduct that they admitted to engaging in is not vacated when the statute underlying a conviction in that plea is determined unconstitutional so i think that this court's case and inferred is instructive which we point to in our brief in that case a petitioner was convicted of two counts they challenge one count of conviction that did not in any way challenge the guilty plea the plea remained in effect and the court sent back for recent in sync on the remaining valid count of convictions but of course here there is no remaining ballot counting conviction as judge roberts question pointed out on the top side and so that's one of the reasons why the government's resentencing arguments are without precedent in this trip it would be wrong of course are our clients never seated guilty to the kidnapping charge so they never knowingly or voluntarily pleaded guilty so i see my the grain of the manager in this case is somehow allows them to walk justly free in society acquitted innocent of kidnapping is not what the government has ever argued in the view of the government based on the district court's actions be modified to reflect a conviction not on the one hundred and twenty four c count but on the kidnapping count to the extent that the and that's the motion you have pending right now right in the district court in the district court the motion that we filed in the district court is a motion to reinstate count accordingly and that's why we're presents court the court disagrees with our st remedy and and believes as some members of this panel seem of expressed that the nd remedy is the correct remedy not our st remedy and not the defendant's proposed remedy that perhaps the court should say that the  government's argument is wrong and so there is more left to do in the district court and remand for that purpose one of the difficulties is that i mean it's there's some there's some questions along the way to get to your ideal world here right i mean you have to concluded kidnapping is a lesser included i mean there are some hoops you've got to jump through and i maybe maybe you can jump through them in a way did is is exactly as the government is urging but i you know i don't know and we have no coming on this is in supplemental briefs district court hasn't really considered any of it i think the question of the appropriate remedy is a legal one i think it's one that can be decided by the district court i think it's also one that can be decided on this court we are asking mr osborne the court krishi apes your willingness and that of a legal aid clinic to accept the appointment in this case and your assistance to the court as well based taken under