we are taking the rd case on this morning calendar on the briefs without oral arguments so we will now move on to case number four james hansen against the united states thank you your honor may i please the court edward mullen for petitioner james hansen the central issue in this case is whether mr hanssen should be classified as a career offender and the government now concedes that he should not none of the government's other procedural arguments should bar mr hansen's relief st this petition is timely the supreme court's opinion in mathis created a new right to change the class of statutes that are predicates if we can finally get to that last point on which there doesn't seem to be any disagreement that may sound awful except that there are interests in our system and sign ality there are  particularly restrictions on one's ability to obtain collateral relief so in masses as the government has pointed out we we certainly i would agree with you that we certainly gain much more insight into the difference between elements and me than we had had before so many of us people toiling here in the fields you know thought that mathis was a very important case   st of all that's a matter of statutory interpretation and secondly the supreme court itself in mathis says on a number of occasions we're just applying the rules that we've applied all along and maybe that was a rhetorical flourish i don't know but that's what they said so how can we say actually you were supreme court you have so fundamentally changed the law here that the one year statute began running again your honor i take the point about the rhetorical flourishes and that is precisely what i would call them at no point in the opinion that i understand the supreme court to have been ruling on the issue that we're talking about now which is whether the opinion created a new right i would point out under the law of the circuit the ashley decision in particular there's a recognition that if a new supreme court case causes overruling of a lot of cases that's a st good indication that it created a new right that is precisely what happened after mathis not just in the circuits that were you know recognized by the supreme court as having you know  n on the wrong side of mathis but by others including this one and we cited in the reply the haney case which was the st time so far as i can tell following mathis where this court reinterpreted earlier versions of an illinois burglary statute and said previously before mathis it was clear that this was something to which we would apply the modified categorical approach and that stands to reason it was quite similar to statutes the supreme court had considered especially in shepherd in asia one as well as the hypothetical discussed in taylor following mathis that interpretation could not stand it was clear that and this is an earlier version of the oh excuse me the illinois burglary statute it was clear that it was a statute composed of multiple means as opposed to multiple elements and under the reasoning and the decision in mathis for that reason the categorical prochoice had to apply so that's the st big point i would say is that there weren't a large number of opinions reversed and this court is not the least of them the nd point is and we argued this extensively i think it's fair to say especially in the reply brief although it's discussed in the opening math lot before mathis as described by the supreme court simply did not distinguish between means and elements for purposes of analyzing the actions surely agree with you on that i mean i read mathis a creating a distinction that we hadn't been thinking of before but oh goodness are just so many reasons why that might not be enough to bring mr hanssen home so to speak st of all that is it does simply relate to the career offender guideline does it's not an echo case now in terms of understanding the language we analyze the to the same but we know from beccles that we come back again with a lot of cases saying well actually the guidelines are a really important you know they're important for ex post facto reasons they're important of for various other things they anchor they do that that  actually also have to show that a statutory interpretation matter will support a certificate of appeal ability or as you've argued maybe we should just disregard that but we did ask for briefing on that  point any one of these things would be enough to defeat mr hansen's claim well your honor let's take them one by one sort of start with the st one that you just mentioned there and it sounds to me like you know we've kind of discussed why math us what have created a new right and that is our position to get to your nd point which is about whether this is a cognize simple claim on collateral review the position that we argued extensively in the briefing is that mis categorization of someone as a career offender creates a miscarriage of justice we think that the reasoning in the supports opinion in our bias demonstrates why that's so i ask so whether the kind of inquiry we should make in a sense at the legal level of the across the board level or is the miscarriage of justice question something that's particular to defend it because if it's i'm going to tell you it's particular to a defendant it seems to me is though had all of this come up at the original sentencing and mr hanson had said i'm not a career offender rd degree kentucky burglary isn't a qualifying crime and the pression district court had recognized that the government had a bunch of other things since back packet that it could have come forward with that i think would have made mr hanson a career center your honor if i may address that point the government says that that is that it has a number of other offenses that it could have used to support the enhancement or other things i don't believe that's true and let me say why i don't think so in the district court it was heavily disputed on grounds not related to this appeal whether mr hanson what we should be classified as a career offender this was whether it was all one continue exacts of conduct that's exactly right if the government were correct that it had all these other offenses that simply could have been taken out of its back pocket as he said to support the career offender enhanced meant it is deeply confusing why they would then have relied on the one that was problematic and gone into court to argue that further i think there's a lot of reason based on reviewing the p s r as well as the relevant statutes so think that the prior convictions that the government is talking a ones that could have substituted for basically supporting the career offender unhandsome and what have been problematic for example and one of them the record in the p s r simply says there's nothing available about this we don't have any information about the conviction is once again just to wrap up this point about are these other offenses ones that can actually support either the career offender and hanson or the enhancement you're discussing which i believe uses the same language writing the p s r did not rely on any of those other offenses to say the career offender and housman supported and i think that that demonstrates that there may well been problems with them as to whether this proceeding is a is itself a breach of the plea agreement i'm unaware of any case where this court has said the mere filing of an appeal has reached a plea agreement and i'm not sure that i would read it that way well  itself provides that in the end of a breach the government will not be bound and could go back and specifically include the filing of additional charges or sentencing enhanced noses if you win here is there a prospect that the case goes back to the district court the notices is twenty five years several years more than the sentence that he's challenging now i don't know whether the government would do that well i don't see a bar to do particularly when they have lost the benefit of the bargain or much of your honor and i'm not i'm not entirely certain that i would agree that that if this court does what we're asking it to which is that it just there's an exception to the plea agreement that applies for miscarriages of justice i would think that the rest of the police agreement would still remain in force which would preclude the government from going back and filing additional charges certainly that is what we would argue we have not been has spittal to that approach i have to say we have said that plea agreements stand or fall as a whole because each piece contributes each other so i know you've added i recall that you asked for that in your brief but there are a lot of cases this court's decided that i can recall where we've said you can't just be excused from one part of the plea agreement if you don't like can have the rest stand your i think especially in the context of the miscarriage of justice exception that we talked about in the brief and i would just emphasize that the government did not respond in any way to that argument in their briefing there was no  discussion in their brief or pushback about whether this fits within the miscarriage of justice exception where collateral attack or appellate waivers have been waived i would point to the white house case where this court adopted the miscarriage of justice exception what happened there was that there was an appeal the court permitted the appeal only as to the amount of the fine are think it was arrested to show an order for the defendant and it kept everything else and in place and it sent the case back to the district court for a new decision just on that point so i would say that in the line of cases that we are citing about them it's the mortgage fraud case that's correct your honor where in essence we had willing victims alternative basis for finding that this defend it was career fender and i think there's a misunderstanding on counsel's part about the differences between the a fifty one enhanced meant that could take this defendant to a mandatory life sentence and  i don't think there's any doubt when you look at the record in fact the gaar the government argued or noted at sentencing that in return for the defendants pleaded specifically not filed on those additional drug drug convictions that would have made this mandatory life case so i think the court was correct that this saying that this case on these particular facts is a miscarriage of justice is a little bit difficult where the defendant received a sentence of twenty two months above the mandatory minimum of twenty two flawed that rd degree kentucky burglary had was not correctly understood now that we've been invited by nasa whether it's a new rule whether it's an old rule or any other kind of rule and the government luck you're just going to have to spend the extra twenty two years in prison because nobody handled your case properly where you're on i don't know that i would characterize as no one handled the case  properly well in hindsight we know that you've you've admitted everybody but there's all kinds of there's all kinds of errors that become clear in hindsight that don't allow for collateral review that that's certainly not a new position on the government or a new position for this court this court has held time and time and time again the standards for a direct appeal are different from what is cognizable on a collateral attack q with that thought in mind the the back up back up i think that the judge has discretion of course within the confines of the statutory maximum and minimum what about that thought well if this were a direct appeal case and the issue is whether the air was harmless perhaps that would be an appropriate thing to do that's not this case this case is about a conviction that was suffered in two thousand and nine and the twenty to fifty five petition i was dismissed as untimely so i don't believe that that is an appropriate relief i don't  four here we have a situation where certainly mass this was a major event and people didn't expect it and so that would be a way of getting beyond the timing problem that that you've identified the way to get beyond the certificate repeal ability problem and just say as we often have this is a gateway consideration we've all invested a huge amount of time in this case maybe we  st this court i think has made clear time and time again that this is not the kind of situation that equitable tolling applies to the court has said clarifications or changes and supposition of law did not constitute an extraordinary circumstance just fin so i think the premise of the court's question would be inconsistent with a long standing circuit precedent i don't i see the government certainly hasn't challenge the court's determination that certificate  obviously other circuits have disagreed the government considered that but there is really no there's really nothing new in the government's view since the court had decided that to raise that issue but what we don't have here is you posited the case is this said well we've invest a lot of time that's in cases where the certificate of a pill billet he was granted by the court not recognizing that it was granting one on the basis of a statutory claim or the constitutional claim and then the government missed the opportunity to ask the court to vacate here we have something totally different where the court the way that i read judge brennan's order knew full well that it was granting on a statutory question it would be extraordinary indeed is for the court to say we're aware that we are granting on a statutory question we're going to order briefing on that and on the substance claims and then reaching substance claims under the theory that oh well we've already briefed at that's a very different situation than the case before and i think  when you get when you look at rimu know and i think it's owns and some of those cases the situation we have here is more candid that with the government has time listed on its right and where there's jurisdictional and i would almost i would almost say it's a and in reading some of the removed on some of the other cases it's akin to claims processing rule if the government or the opposing party which in these case as it will always be the government stands on its right in a timely manner then the court i think has an obligation to enforce that it's clear that's what congress is will was certainly the government under this course president can waive that but where it doesn't i think the court has an obligation to enforce it in addition we've touched around it but we there are so the district court isn't supposed to scour the record and look at all the things and everything seems very wasteful for the government be able to sit on its rights and then once an appeal is filed say and opened the way waiver well your honor if that were the rule lateral review waivers case himself i'm sorry if that were the rule the government would certainly follow that rule but that's not the rule i would point the court to the petition in this case actually document one an attachment one to that is a letter that the district court sent to the government which in that letter the district court advised the government no answer other response of pleading is required unless the court orders otherwise that's certainly maybe the government just doesn't see much merit in the petition but this is a what you're saying is a fundamental jurisdictional flaw in the petition itself in that there is flat out waiver of the ability to bring the twenty to fifty five dollars and there's nothing to be done but for the court to say oh this happens to be a twenty to fifty five waiver case out the door it goes i don't have to do anything else and so it seems to me the government  might do everybody a big favor by raising that at the district court level instead of sitting on it until the appeal is file well you're our guess st saying that something would be a favor to someone is different than saying that  that it's required and certainly if the court wants to introduce that as a requirement it can but when you read the rules together the overriding i think theme of those rules is reducing the burden on everyone involved and th government's handled this well your honor i'm not sure that i would agree with that because rule for also requires the district court to do a preliminary review which the court in this case did but it did it with one hand tied behind its back because the government didn't call the collateral review waiver to its attention your honor it didn't because it has never been required to in the past this court cases or the district courts cases in the southern district don't require the government to do that i can only i certainly haven't done a survey in the southern district but i'm not saying that in the cases that i handle i think there are still good reasons why defendants would do that but again we're getting i think away from the issue that the government handled this case just as it is handled every other case and in the manner that it was prescribed by the rules there i don't think there's any basis at all for this court to find that there was a waiver of the right to i certainly understand where the court's coming from mathis is created not just work for the court it's created work for the government but you certainly had to take the court of court of its face value and supreme court of its word face value it said it wasn't doing anything new in the probability that but for the air the outcome of the ripper seating would have been different that's the i think this court in every court has looked at it is a far different standard than a miscarriage of justice it doesn't a miscarriage of justice assumes that the that the perce of the mandatory sentencing guidelines was that it had the effect of a statute in that the court was bound to do that those are the cases in which we see a miscarriage of justice or where later developments means the defendant is actually innocent of the offense of which he was convicted we hav different situation with guidelines where by definition the defendant is sentenced within the statutory maximum of the offense that he's done and really if you think about it the logical consequences of what the defendant or the petitioners acts in this court to do what's the standard does it apply just to career offenders if there is an errant occur fenner range does that apply to a two level adjustment under under you know to be one dollar where and certainly everyone thinks that are so much different from the range that would have applied had they not been a core offender that's certainly not the case in this case there are certainly fraud cases where the amount of loss you know can jump someone up twelve levels under the guidelines so the rule essentially that the defendant is asking the court to do adopt would mean that all guideline errors if they're in retrospect if there was a guideline are made that those are now cognized will i don't think the court wants to go down that road and i certainly don't think there's any i would emphasize in particular for the court the gomez and the met a union decisions that we cited in the briefs and i think what that demonstrates is if the government's position is correct that only constitutional mistakes can be grounds for a certificate of appeal bil it is going to cut off not just review of statutory claims but also treaty based claims and in some cases that would create a very serious problem as i think it did in those but you know the problem particularly in today's world ha that were constitutional appears in the statute and it's really a big lift to ask us to say even though the congress said constitutional somehow they didn't mean it well your honor i think that based on the structure and the statute read as a whole that it can be interpreted and if we were making the fact that around the time webster was decided i think you would have had some mileage but it's a tough one but anyway why don't you go on to your other points ok very briefly as far as the waiver and the government's lack of response in the district court i think that the government says it responded in the manner prescribed by the rules i did not at all exactly as your honor said the rules say that the government need not respond it doesn't say that the government doesn't have to respond what i would further point out is that this type of case i think you'll need to use me the government isn't what i would also emphasizes that this type of case where the district court does not require a response from the government and then the court of appeals because abuse the petition is being wholly meritless and then the court of appeals says actually there's quite a lot here that needs to be discussed it's a very rare kind of case and we would emphasize that in in those types of cases saying that the appeal is just going to go forward because it's the most economical at that point would be a very reasonable rule indeed if if we undermine the waiver your honor our argument at this stage is not that we have particular facts that we're presenting to say that the waiver that the plea agreement should be disregarded or the collateral attack portion at this point we're saying we would be prejudiced by having to go back and do a factual hearing given the passage of time in this case it's been i don't recall exactly but i gotta say having the petitioner complain about the passage of time here is a little bit of a little ironic i understand that your honor but our point is that the government chose not to respond in the district court it had the option to do so that would have been the appropriate time for those points could be raised again thank you could i ask you to address the point that the government was making near the end of his presentation about in essence just how broad a rule you were arguing for with respect to the cognize ability guideline errors on collateral challenges in particular i mean we're familiar with the sequence of as hawkins coleman and where we are i think i understand your argument based on more recent supreme court decisions but it would be helpful for me to understand how broad a rule you think you're arguing for happy to address that  the only thing that we are asking the court to hold today is that a misapplication of the career offender enhanced meant well how is ok career offender i get it that's that's a big job but yes government points out there are a lot of big jobs and i focus on the reasoning of our bias which was not at all as i read it to be about the size of the jump as an absolute it's about the fact that this is a guideline that changes the kind of the systemic conditions of  itself to the court that somebody should be viewed in his entirety as a different type of defendant than somebody else who commits the same crime now the government can talk about you know it's two point enhanced mynheer or or something that maybe is a big jump as far  as something else i think that the distinctiveness of the career offender guideline was in the words of them are biased court it branded the petitioner as a malefactor serving a far greater punishment because he belongs in a special category of repeat violent offenders and that is that is a distinction in kind i would say from other types of enhancements so we so to get back to your original question we were simply asking the court to say because of the