good morning your honor is may it please the court just grant for shamar brown defendant appellate counsel mr brown submitted for substantive arguments that we get to this morning only if we get past the threshold question the threshold question being whether he can raise these challenges to a sentence and raise a conflict of interest argument in light of the district courts and by the imposition of a new sentence that reduced one of his counts from life to forty years if so the question becomes which one of these substance arguments all one to three the district court act of entering a new and different sentence and an amended judgment created for mr brown the opportunity to raise these challenges because this was a change to the sentence that was substantive not glossy not a change in a restitution order it was a subset of change correcting unconstitutional sentence to a constitutional one our big source is the mag would case out of the supreme court the government's brief says wise mr brown spending eight pages on about a twenty to fifty four this isn't this isn't even a twenty two fifty five it's a direct appeal but this court's dyad case cited that favorably and the case it cited was out of the six circuit that did took exactly what we're talking about took mad would to this exact circumstance and says look when you have a new sentence that makes a substantive change you are making errors a new and when you're making you're allowed to raise those on appeal what with the substantive change you agree got to show that right correct ok what's the you know substance change to the changing of count six from a life sentence to a forty year s correcting that unconstitutional sentence that was beyond the statutory maximum that was there with the district court's original sentence and then after this court's remained to vacate count seven it was re imposed after the the day ad court says look not every new sentencing order allows you to make every argument there is that makes sense what did the district court mention thirty five eighty two we all know thirty five eighty two years of very limited saying based upon an amendment to the guidelines and whether that amendment changes the guideline range in this case the court also mentioned rule thirty six a pure clerical error that's not what we have here the district court judge here in the second amended order checked rule thirty five and a thirty five day only allows the district court to make a change fourteen days after the original sentence that's but that's not possible that could not have happened here it's more akin to a regular remapped i thought you did correct arithmetic technically another clearer under thirty five at any time it if it were a pure i mean if typographical error means a constitutional error i mean there's got to be a distinction that says other cleary are who says i get your argument about the words before but arithmetic technical or other clear error i guess could but didn't it original sentencing judge at the time of sentencing actually say a term of years the rather then and doesn't our case law rendered that a m clerical error at that point so if the judge says that i impose four hundred eighty months and then you get the sentence saying and that i mean that's what you say it sounds and judge says forty eight then the judgments reduced to writing  oral controls the writing under our precedent that makes that a clerical error and rule thirty five always lousy to fix clerical errors and so you're right it's an unconstitutional sentence your right it's an illegal  that's the case doesn't the whole house of cards collapse if it were the case it would know why isn't it your honor that the cases that talk about clerical errors are talking about what i said to my reading are not talking about when a defendant actually serving out the incorrect sentence if there are so many clerical errors we see in district court judgments that i do not contest judge erickson don't materially change the sentence the the defendants actually serving they might change something judge sad to four hundred in a deep month and then for reasons and you know how this happens a deputy courtroom clerk or a core a law clerk prepares the judgment it's on a stack of four hundred eighty things  judge is supposed to review it carefully the judge looks at the sentence it's life it is life and signs off on it and yes embedded just sort of in the middle of it is this unconstitutional illegal really  transcription error isn't that what it is that happens yeah and why does that you know when why does that give you another bite at the apple decades or years later i would say the big big answer is because the would case the smaller answer is because yeah there are cases where somebody is doing concurrent sentences but in the federal prison system this matters one life sentence is different than two life sentences how they're treated where they're put he wouldn't you know whether in manchester where they are big sandy or whether in florence colorado matters based on how many life sentences you have that's my best argument on how it's material to mr brown don't assume ing we get through this threshold based upon mag would mr brown would love to see a decision from the eighth circuit following dyad to see what is the case law now following mag would because a lot of the cases both sides cite are questionable after maggie where do they apply how does this work we hope this is a case that gets past that threshold to reach that question when it comes to the other arguments i'll just go ahead and say you know the arguments i'm making including the conflict of interest i'd be happy to either answer questions about them look let's be frank it's all about that first argument and i'm not going to waste the court's time talking seven minutes about those other arguments where the court knows where my strong ones are and where my weak ones are including one that i have to go to the supreme court to when i would just sit and reserve ok so let's see if there are questions questions saying no questions thank you for your candor thank you  painter morning your honour's may please the court i submit this case can be resolved by the very questions you ask in defense counsel whether or not your order to the district court  collect that to correct the error that was pronounced in the sentencing order i submit to this court that there was no substantial change to the defendant's sentence judge on the record during sentencing pronounced a sense of four hundred  eighty months on count seven which the defended i'm sorry count six which to defend it was found guilty of somewhere along the line the order was issued and it's a life sentence which again was going to run concurrent to another life sentence on count one as the court already pointed out this did not substantially change the time that the defendant was looking he was still going to do a life sentence here regardless of what the sentence was on count six therefore i assume that the situation is more analogous to a clerical error which rule thirty six of the federal rules of criminal procedure permits the court to correct at any time that's what the district court did after this court issued your order furthermore even if you were to assume that the really that there was every man and and that the defendant did have the opportunity to be  he can't bring up new arguments during that recency i submit that it wasn't referencing but for the sake of argument if you were to find it was a recent saying he can't bring up issues that previously had not been litigated as at his pill almost all of the arguments that he raises today he previously or could have been previously raised at the initial appeal with the exception of the conflict of interest and i submit that there is no conflict of interest in the argument raised by the defendant based on the fact that the attorney involved did at one time represent a material witness who was a witness against the defendant however the record shows that her representation of that client was terminated prior to her being appointed to represent the defendant that appointment was at the request of mr brown's attorney at the time relevant to the to a subsequent prosecution and that's here the case right i mean this is a representative material witness who had knowledge of information that was relevant to this particular case that's that's all to right i was far as we can tell correct from the record i was a party to the original trial that's a conflict and that conflict exists unless or until waived and your subsequent lawyer can't waive the conflict for you right because a conflict of interest is personal to the client right the client may waive it not the lawyer gray and so you can't seriously be standing here telling me except for the conflict there's no conflict can you i mean and if so what's the how does that logically fit together in that issue is not before the court today because the defendant has i'm not the bar to demonstrate that he's allowed to be litigate that exactly i get that part but i didn't get was when you got to the end when he said there is no conflict here because the representation it terminated mere terminations representation is not the task the test is in fact knowledge of facts and circumstances that may be used adversely to your client at some point either way right and you've got and this particular conflict would had been waived both by the witness and by the defend it with full knowledge right five motion but that would be the proper vehicle to bring the defendants currents are the arguments but as the courts well aware of the history in this case defendant has previously filed for twenty to fifty five motions all of them were denied by this court for various reasons i submit the defendant is attempting to really litigate many of those issues by stating just the fact that a second a minute judgment was issue gives him that right to relive again all these issues the case law is clear it does not mad or decision as well as a dire decision those all those both of those cases dealt with what is considered a consecutive twenty two fifty five motion and what is allowable to be filed after a successful twenty two five fifty five motion this is not the case but if there's an intervening judgment you understand that could revive things for twenty to fifty five motion correct for sure  would be gracious call that a limited remand the judge was told you one thing correct the son's that's what she did does not allow the defendant to open up old arguments or bring new arguments to this court and finally i would just the words by judge by issued in a civil case where he was only author but the words jumped out at me for over one hundred years our court has read pete at least barred parties from litigat issues in a second a pill following re ma'am that could have been presented in the first appeal those words were issued in the civil case mochy a transport company versus philadelphia identity insurance company honour's government counsel talked about rule thirty six but if we look to the first page of the agenda in my opening brief the district court didn't use rule thirty six it ruled they used rule thirty five act i would say that there is a conflict this is a conflict of interest where the attorney represented someone that testified against mr brown who is her new client she's listed as a defendant she's listed as a codefendant and a material witness there is a conflict a lot of the case law that the government relies upon and talks about and even quote precedes mag would  and we're looking for this court's direction on what things mean after mag would whether these are viable and finally it objectively these were not we can call on for twenty to fifty five motions there was a twenty two fifty five motion with counsel something that looked like a reconsideration sixty be a pro se who knows what that was that was a label twenty two fifty five just objective lay there's been to twenty to fifty five motions here thank you your honors thank you for the argument case seventeen dash thirty six forty five is submitted for decision