number seven for this morning is haynes against the united states little worried about militaristic and because the district court ruled in your client's favor on some theories and against your client on some theory said that recently singh has to be held and that hasn't happened yet went to didn't appeal it at all left the sixty days for filing the notice of appeal lapse wait for the resets and seeing where under the order of the district judge entered on that twenty two fifty five only allowed  counts because the judges prior order was the final judgment that ruled on the validity of those sentences and you did not appeal that work and so you have missed time perhaps the solution is the district court has to rescind this on all counts when every sentence is on any and that's something we say district judges have to do they have to reconstruct the sentencing packet and you know you you may or may not be aware that at least three other circuits have held that in circumstances a dedication to yours there is no appealable judgment in that the basic underlying doctrine is that you have to be final on the indictment the fact that there is a final decision on some counts and not on some others doesn't allow an appeal except by the prosecutor under the criminal appeals act and that's not how we're here and whatever's going on here it's not that's that's the basic pro the problem that i see with waiting and that i saw with waiting to a file a notice of appeal from the judge's final order entering a final order on the twenty to fifty five judgment that's the judgment that we are appealing from is the judge's ruling on mr hand his motion under twenty eight u s c section twenty two fifty five it is not an appeal of the final judgment of his sentence it is the appeal from the twenty to fifty five in in a criminal case the sentence is the judgment that is correct but in the twenty two fifty five is a separate even though it's docket in the criminal case it is a separate civil argument you're now making was one that was made in garner against the united states and rejected by this court tell you straight up no i am not familiar with garner we i put a jurisdictional statement still a problem well and i understand that this court has to independently ensure that it has jurisdiction and if the court wants supplemental briefing on the jurisdictional issue  obviously you can order us to file it in we will file that and if i have made a mistake in appealing too early i apologize but i would rather make that mistake then appealing too late and having mr hayne stuck with one hundred five years of of appeals can choose which is the right one and a void of any redundancy because in the other appeal i mean in the other case you may be appealing separately anyway if you disagree with the sentence imposed yes it him a day on the hobbs act robberies in the travel counts he's got one hundred five years of sentance and if that's when we have to come back that's when we will come back the i did have some discussions with the prosecutor about the case we viewed it differently than what your honor is proposing here and that we would didn't seem to make much sense to have the sentence first without getting the one twenty four see resolved and if we erred on that i apologize to the court and we will do the resentencing and appeal at that period of time if the court determines that there is appellate jurisdiction in this case never support a nine twenty four c conviction that the offense does not have as an as an element the use of force it applies to any crime of violence the intent to commit a crime of violence and then an attempt to commit a crime of violence and that definition of crime and violence involved offenses that pretty serious potential risk of physical injury to another which does not require the use of force and therefore categor can never support a nine twenty four c conviction and so that the counts the nine twenty four seat counts based on the travel the native record sharing underlying offenses would have to be i regret it and if the court would like briefing on that i'm more than happy i think it would be a good idea to receive jurisdictional briefs and i will give the party seven days to  and you should look at the supreme court's opinion in andrews against the united states three seventy three us three three four and the most recent of the appellate decisions that i know of is united states against him five sixty four fed third six twenty eight in the third circuit and i think it collects some other cases that are pertinent to this i would also i think want to look at garner against the united states which is eight zero eight fed third seven sixteen mr any other questions will do that and if you want to address the merits this is your chance on the merits  honor i do believe that prior to johnson crimes fit through the crime of violence funnel that have either elements the elements clause or the residual clause that funnel was narrowed by johnson but this case still fits through the elements clause final because the government was required to prove that he committed a robbery as defined by one nine hundred fifty one to support the  fifty two convictions which inturn support of the ninth twenty four c convictions so we do think this case does meet the elements cause portion of a crime of violence is your honor the the government's insistence on trying to look at the factual proof in this case to try and say that the actual offense the way in which mr haynes committed the underlying travellin native racketeering offense has just been repeatedly rejected by the supreme court and mathis justice kagan went so far that they've rejected that it's become downright tedious to repeat that you don't look at the factual way in which the offense was committed you look at the elements of the offense and section one thousand fifty two says that you have to travel in interstate commerce with the intent to commit a crime of violence and there are after attempt to commit or commit the crime of violence the use the umbrella element crime of violence the particular crime of violence is just a factual means of proving the crime of violence element that makes the statute overbroad the same way that the california burglary statute was overbroad indic amps the same way the iowa burglary status was or why hasn't this argument been forfeited it's omission from the direct appeal it is procedurally defaulted because it was not raised in the district court and it was not raised in the on the direct appeal i do believe that the actual innocence exception set forth and a kidnapping offense was plain error because legally kidnapping can never ever support a nine twenty four c conviction it is not possible to be guilty of a nine twenty four c offense in furtherance of a kidnapping the same applies here and in addition as we explained in the brief mr haynes is often also actually innocent of the one nine hundred fifty two offense because they didn't charge a actual line fifty two