already served more than ten years for his crime of being a felon in possession of a firearm that exceeds the statutory maximum that applies unless he qualifies for the armed career criminal act and hits the district court got it right when it granted mr brumley is twenty to fifty five petition in december of two thousand and eighteen holding that quote because rumley no longer has three predicate offenses following johnson he has a stablish that he was improperly sentenced as an armed career criminal therefore entitled to really the problem came when the district court then instead of sentencing him between zero and ten years allow the government to swap in a substitute previously identified and on proved conviction but the reason that the concerns underlying hotch mean more than just notices the government would happen you know the government suggests that well notice just means an opportunity to respond but mr hodge in his case had an opportunity to respond sentencing and work looked at it and said ok yes there is an error we have to remain on three sentencing but you know the government had the burden to prove the last that original sentencing based on the evidence on that record you can't prove it things on a new right that you're titled to look at you know performance in prison and you know you don't have to do it from the time of the original silencing you get include information present disciplinary recor all of the information that is pertinent and why would that include a newly found conviction just like it would include you know any mitigation evidence that your client wanted to be on i think you're referencing the here only ordered and did not work for a full denote the sentencing and you get that because the district court civically found that he was not an arm career criminal and then said that he should get relief and we know that in twenty to fifty five proceedings that discretion we have this time and we don't want to run into the teeth so we're going to start over from the beginning to give everybody a fair opportunity to argue for the appropriate sentence so we'll get a heart had relied on the fact that the defendant had not been been given notice such notice we observe because the p s are not in hand we have that notice here seems to me that your reliance on just doesn't over and above which is you have to put your ace in the hodge basket and how much says the government failed to provide  district were to consider all of that information three thousand five hundred and fifty three factors and knew what the court can do according to the parker decision that the government try to reprove up and enhance and this is no small unhandsome it that the court can just disregard it's the fifteen year mandatory minimum  stakes are currying especially when it's raised by the defendant here the defendant challenge to based on intervening in supreme court decisions and so we're given a new trial in sentencing so to speak and the notion that the government only gets one right that's a good notion it applies not only in civil context or race judicata but it's double jeopardy in the criminal context and here hard says you only give them one by but that doesn't mean morning jean hudson for the united states i'll turn very quickly to the hodge argument but very quickly before i do that i wanted to note that if the court agrees with the government's arguments regarding virginia unlawful wounding and virginia robbery post outplaying it would actually be unnecessary to reach the hodge argument or any question of proof regarding the nine hundred and seventy nine conviction because romney would still remain an armed criminal based on his uncontested malicious one that is understand that's basically saying we should do f it was discussed the government had filed a post stoke lying well st of all going back further the district court ruled according to wednesday which was the law of the circuit at the time that the robbery conviction did not count then stockland came out the government filed a motion to reconsider after stoke playing and shortly before the st three sentencing date the district court found that it was an untimely motion and declined to reconsider so that that's what happened to the robbery and for the district court i mean was arguably still bound by winston given that you know we had not overturned winston and at that time dinkins and not come out which maybe concerns that underlie the decision in hodge are simply not present under the circumstances in this case probably prevailed in his hevia subpoena and he got the appropriate remedy which was to stand before the district court for reconsideration  on his arm criminal status without the court using any residual clause of it and that's what he got and the court as as has already been discussed by having a full pre sentence report and a full re saying he was able to address that conviction and in fact as i pointed out in the government's brief this case makes that point very well where he did litigate it and where the government may or may not have met its standard of proof regarding that conviction given the circumstances that we've reached on that point from we should not have a windfall in this case he was appropriately back before the court after johnson that he should not and again entitle to be reconsidered without the e i mean rumley is that i think in winbush the court was dealing with a situation where if things had been done correctly in the st place the outcome would have been different and the same thing with parker in a case on direct appeal when the when the defendant is challenging the government sufficiency of evidence regarding that enhancement gets on direct appeal then the government says well wait if we go back we have more there if things have been done differently in the st place the outcome would have been different for the defendant and i think that's what the court found in when bush and the court in when bush fashioned a remedy to address that but with mr romney's situation even had the government identified additional predicate offenses in the pre sentence report the result wouldn't have been any different at the original sente still would have been in our career criminal he still would have had a two thousand and fifty five after johnson and would have been back to for the court regardless so our position is that the remedy in this case are sorry that it would it i don't think so i think we're saying that we have a right to bring this argument up because we're asking the court to affirm the district court on an alternative ground we may have waived our right to challenge the district courts grant of the twenty  case again addresses this very idea and says that will not allow the government to change its position now that one identify predicates can't do a job that the government could have asked sense in court at the original sentencing to recognize additional qualifying actions but it didn't and then we're going to essentially allow the government to go back and leave its burden that it had a theory tional sentencing but i do think it's important now that my colleague has brought up the virginia robbery issue that rejecting your virginia robbery argument for the same reasons i just rejected in granting the twenty to fifty five and actually filed across you look where they decided to businesses i think that the thing that's what i do know but i think it's a good point i think that's a twist which makes a little more interested in this that familiar with the opinion but there's a footnote at the end that says we recognize that north carolina robbery by intimidation is an alternative means of committing this offense it wasn't raised or briefed by the parties in dick and i agree with respect to robbery by force and i'm just going to point out as i have in reply brief the two ways that virginia robbery by intimidation is different your honor and that's because the reaching a supreme court has said intimidation virginia does not require a threat of any kind and secondly because we can tell someone is intimidated based on the subjective experience of fear a person has there is no ordinary reasonable person standard in each of the cases this court's considered recently about offenses committed minute by intimidation that's the mcneil case that the doctor case about south carolina robbery the drum in case the south carolina domestic violence in each of those cases there was a clear law that intimidation in those contexts had to mean a friend of violence and secondly that it was judge based on a reasonable person standard here not the reaching a supreme court in the sutton case clearly saying that those things do not apply for virginia robbery by intimidation so i don't think that the winston case expressly preserved that issue didn't reach robbery by intimidation and it's not addressed by th case either because that was