next case for argument today is quite against the united states mr brander thank you your honor may it please the court my name is david greene going to represent mr white you before the court your date is whether or not mr white is properly defined as an armed career criminal under current case law and whether or not mr white procedurally defaulted on those arguments previously  you factor the ruth case into the reed cross a determination as to what whether or not it's an example of a new rule and sure your honor i would current case law when dealing with sort of johnson claims the thing about ruth is it's entirely novel nature  for a long period of time i think the types of convictions at issue in this case the cocaine distribution convictions were widely viewed as qualifying offenses in this court  so i think in the government's if i understand the court's question correctly the government's brief a sort of points to your question which is that a categorical mismatch argument isn't to necessarily novel  and that's true but the way that ruth does it is novel this idea that the definition of a cocaine isomer would make a conviction not count  prevent white from arguing on direct appeal all the points that later succeeded in room your honor i think the short answer is no on on  direct appeal i think he could have argued those i would say though your honor then that raises a problem for you i think to the supreme court in union boos only which says that arguments that can be made must be made in order to be preserved for review on collateral attack groener i guess i won't but before i mean i'm sure that the court is quoting that case correctly what i what i was about to qualify my statement or my answer to your question i do think that on appeal mr white would have had some problems presenting the johnson argument because it had been rejected  to prevent you even though nobody had thought about this problem with the illinois statute not quite matching up with the federal statute at the time of your direct appeal but that this really in some sense gets down to the rule that's going to be followed for substituting predicate offenses for aca you can't leverage johnson all the way over into ruth johnson being a supreme court decision and a constitutional decision ruth being a court of appeals decision fundamentally a statutory decision there are not the same now there may be some notice issue and we've seen a wide range of approaches in the circuits to the way district courts are allowed to respond when one of the underlying convictions gets knocked out as happened here correctly under johnson but there was a list of other possibilities and the court used it so i don't know i'm just uncomfortable with the way you're patching these all together unless you were to be arguing for just a rigid rule that says in this circumstance somehow the government wasn't entitled to add in a new offense your honor i think thank you for the question i i don't know that i intend to argue for a rigid rule i do think that in this instance your honor at least the way i had planned to present court maybe the court disagrees i mean fundamentally the authorities with this court and i'm just making arguments but the government should not have been allowed to add in a conviction when the court considered johnson for the issue again and i would say the reason for that is is several number one initially when mr white was initially it in the early proceedings for file the document claiming i believe that that conviction should have been included but i don't believe the government objected to the d s r and at that point  think there is some case law to suggest that that narrows the field of what could be considered by the court at that point as potentially aka fences counsel if you would use real words rather than what you're saying is that the rule should be that for purposes of the armed career criminal act the government has one shot and it can put you know five hundred and sixty seven whatever number of qualifying offenses it wants in there that you shouldn't put the burden on defendants to think that anything in their entire rap sheet may emerge as another possible predicate offense now that's not the rule in some circles that there would be and it's really not even the rule that dotson adopted although dotson took a incremental approach to this dots and said snuff here because it's clear that was notice there might be other cases where there was no notice but the problem is you've got the one cocaine offense already t that from the very start the roof line of objection was arguably available to mr white but i i also would you asking us to disregard the holding and muesli was brutally said that doesn't do it unless there was a proviso in the court's opinion unless the point was so novel that no lawyer could have understood the possibility of such reports are you saying that ruth was so left field that no warrior put have imagined the point of course a lawyer made that argument in about to proceed to was that i do think there is an initial catch all for mr white in the twenty to fifty five provision that allows this court to consider cases that would that would  be a fundamental miscarriage of justice were they to continue and in this case i don't believe it is a a contested idea that under current case law mr white would not qualify as an armed career criminal and as a result his sentence is twenty years longer i believe in what he could be sentenced to presently and i still think he is allowed to proceed under peter read for the united states so mr right can i can i start you out right where mr engel ended there are all sorts of arguments in this case that are floating around back and forth some of which may have been waived others of which have come in and in strange ways but at the end of the day here's mr white with a three hundred and sixty month sentence twenty years longer than he could have than he would have gotten if he were tried today because it's now clear that these predicate offenses cannot be used for purposes of the army career criminal act he would have had a ten year statutory maximum of one hundred and twenty months and there's something profoundly disturbing that seems if if that's not a miscarriage of justice what is your honor i think as as frequently or comes up in these trenches fifty five to forty one chases this is a balance of finality versus later changes in the law well why don't you just wave finale be around i mean the fact is an extra twenty years of a person's life that's his life basically right and there are valves if you will in the system i have to recommend that he use twenty to forty one because we have lengthy discussions the sling that's available or not but the fact that a person outside the scope of the statute as we know understand it needs to serve so much extra time it seems to me like i do extraordinarily harsh result under the statutes and if the government just feels like oh well tough you know you got to break some eggs or something i guess that's the government's position but it's very troubling to me your honor i don't think that's the government's position i think there are two problems with the miscarriage of justice argument raised in their reply appeal the st one is preservation it was not raised in the district court below and it was not raised in the opening priest on appeal so for the nd drill nicety we're going to keep a guy in prison for an extra twenty years so we're on think that it raises miscarriage of justice question although they can amend it they can be sure and part of the problem here is that under ruth bruce left open an evidentiary question  and and part of the practical problem with the lack of preservation and this case says that the united states never had an opportunity to address that question below think about this and terms of other kinds of claims that this court sees all the time in the twenty to fifty five contacts like ineffective assistance of counsel claims and ineffective assistance of counsel claim raised in the district court does not preserve all ineffective assistance of counsel claims on appeal and for the same reason the johnson argument raise below does not preserve every argument as to a c c a predicates for appeal and the reason is simple you need to have an opportunity to respond to those arguments in the district court and as in the ineffective assistance of counsel contacts there may be evidence in the re other states colombia puerto rico this is an issue that presumably is not going away i'm asking you what is the legal position of the department of justice about the root problem my understanding your honor is that the united states would defend the th circuit speculation that when it comes to making these kind of categorical her comparisons you must it there must be a reasonable chance that the state would after the state of texas which has a similar law so stepping out for a minute i think there are two problems that we have here the st is a preservation problem the general rules of preservation should apply in the twenty to fifty whether the legal basis for an argument was available on direct appeal so there's no doubt wouldn't the plane air doctrine for twenty to fifty five follow the same pattern that it does in civil cases that is to say not the same as the plain near doctrine in criminal cases and much more narrow but we've never said there is no such thing in civil cases and you have us being one of those it's sort of not criminal not civil but it's more  cases should apply and again this is pretty clear from korea prior cases in this context to her about the decision being one example it's not a preservation decision but it does show that raising one no the same is true here for a different reason and her about it was because it was a nd or successive petition here it's free because of preservation reasons but the the quite the holding as to the scope of the claim is the same in both cases the scope of the claim