when you ready your morning your honors and may it please the court my name is elizabeth daley i'm here representing michael allen the petitioner in this case and with the court's permission i'll reserve two minutes of my time for rebuttal so this case lets me just jump right to it of let me see how you've announced this exactly i don't want to get it wrong but it seems to be problematic for you and so my question is if we were to say that  doesn't allow for you to claim actual innocence on this is there a remedy for your client in terms of if he got a second and successive c o way you know your honor type of error and in fact it favorably cited second circuit law and poindexter versus nash that would have distinguished the type of error we're raising but it seems like as if as much as i can ascertain that at the time that this happened your client had those priors he's the one that had them and so he was a career offender but then the law changed and so now he's arguing that they wouldn't that he wouldn't be a career offender so he's not actually in the center of those priors it's a legal matter of whether those priors can qualify under the law as it's changed right now i disagree with that characterization because a legal change can happen outside of the real world it can happen only in the law books that's what happened and alan malo i think the distinction that you're so i now malo was the case where the definition of importation of drugs changed in the law books nothing about what the petitioner and now i'm all over had done changed but the new legal standard was not something that the facts satisfied and that is what we have here that's why it's a claim of factual in i think that the two sort of analytical hurdles that we're dealing with are a distinction between facts that go to the offense conduct as opposed to sentencing and i think the geos this tells us that that distinction is not enough to say this is not a claim of actual innocence geos this tells us that facts related to sentencing are facts that have to be found by the sentencing court and that really they should be treated the same as facts going to be offensive conviction that corresponds with the post tomorrow precedent in the supreme court's alene decision where they talked about facts that increase both of the sentencing spectrum are relevant to the legality of the sentence other analytical i think difficult i'm sorry your honor please go ahead of analytical sort of difficulty we haven't got the sentencing factors versus offense conduct distinction but also the fact that it's not anything changing in the real world and johnson the supreme court case from two thousand and five there was a prior career offender conviction that actually had been vacated and the lower courts now that was not an innocence issue because it was vacated for legal reasons but where there had been that outside change the supreme court said this is a miscarriage of justice that's consistent at this court's precedent and rainer rodriguez that it's not merely a procedural problem when you have a substantive change i get people out there that are getting twenty to fifty five relief way after i had this been raised in the first twenty five fifty five motion then it would have been cognizable the timing of the supreme court precedent precluded back and that i think is why we meet the unobstructed procedural shot test are the other people out there to follow up and to callahan's question that have done this not have a two two five five vailable to them and come back in two two four one under the circumstances not in the circuit in the fourth circuit the sixth circuit and the seven circuit this type of sentencing innocence claim has been successfully heard i knew just referring to the cases that you've already cited there's nothing new or different ok no the only change i resubmitted in my twenty a j was that the wheeler circle tension was denied but let me make sure i understand your argument it is that he's got these two priors he doesn't challenge the fact of those convictions are valid conviction yes but what he says under dick him because he pled and because the offense of wood she was convicted  designation the question is does he have a qualifying conviction and the offense conduct is irrelevant he's innocent if it's a conviction doesn't qualify but it's and that's where i think it gets to be sort of three dimensional chess because it's not as though mathis or de camp we've been told repeatedly it didn't tell us anything new that those cases yet you can look at a whole lot of case all that tells you that's not how the circuits were playing and in fact in this case you would know that there had he had to actually raise this challenge this overly broad and indivisible sort of challenge would not have been successful we not  years later that one of these partners was deemed qualifying in analysis that didn't even mention divisibility i'm sorry what are you i'm just agreeing with you i find that very troubling that we're supposed to engage in this wh find to be something of a historical fiction when i look at what was there really a clear shot when we look at this place and see maybe it was being done incorrectly but it was sure being done consistently writes ok i know that seems to me to be very problematic for us because those cases didn't million now to change so there's a key new rule analysis that has been held but they can't and matters did not announce new rules and particularly new rules of constitutional law that is different from the between the circuit precedent at the time that these claims could have been procedurally raised in a direct appeal or a first twenty to fifty five motion and what happened with the intervening precedent and so the intervening president even though it derives from taylor have i but was it consistent or is there other published precedent where the second circuit was doing it differently that's why i'm asking you not that's been cited by the government and not that i have been able to find in my review of second  then i'm all of these that we don't want to do this this derives from the text of the savings clause which just doesn't say no prior procedural opportunity at all it's not a could have or should have it's was there a change in the prior sentence he could have gotten the judge found no legal availability of departures ok but he got the law and could you if let's just say if if you get a shot at this  he could get less of a sort of a sentence yesterday and not only would the guideline be the guidelines then would have been twenty seven months lower the guidelines today would be decades lower because of the changes to crack cocaine guidelines that congress and the commission intended to apply to people like mr allen but he was unable to get the benefit of them because of this error and i just want to briefly say that it was lawful under circuit lot of the time but now that we know how taylor should have been construed it was an unlawful sentence at that time because the precedent is retroactive if that makes sense and if the court's permission i'll reserve my time now to hear from the other side and then you do have some time good morning may it please the court amy potter on behalf of the united states this circuit has held that in order to establish a twenty two forty one you need to establish actual innocence and then an obstructed procedural sho so if you say that given that the supreme court issued its decision and matheson decamp after allan's opportunity for a twenty to fifty five review past how can you support your argument that he had an  the claim i think the answer is to look at the case law and when you look at both beardsley and baker the second circuit cases that are cited in the brief and then in the twenty eight j in baker they beardsley as actually being correct and being affirmed by discounts and then in the beardsley there is a footnote footnote number twelve which talks about how you shouldn't look at the conduct underlying the case now that footnote seems inconsistent i agree with some of the other second circuit cases and and i want to be very clear i've never practiced in the second circuit it's not my area back to small years where you would have to have another circuit analyze our case law this was a very confusing area i don't mean any any disrespect but where but i am struggling with what would really have happened if this argument had been made at the time it seems to me it would have been pretty futile what would his twenty to fifty i can't disagree  fifty five have to be in the second circuit his twenty to fifty five would have to be in the second circuit and it is my understanding based on all the case law that he would not get permission to file a second or successive h only way to avoid the bar procedural bars of the twenty to fifty five is to file the twenty to forty one which he has now done because at the time he filed he was sheridan the institution sheridan and that's part of the problem here which is why twenty to forty one's have been so limited because as troubling as it can be and i understand i know this court has reviewed the record i understand that you know mr allen has done incredibly well and he served a very long sentence one that and i've seen this happen right there's a lot of defendants out there that have a ton a records and they've done they've been doing life on the installment plan so there could be someone that could say ok yes i have those prior and then later it turns out that he had met a prior that really wasn't him and now we know that it's really not him now would you concede that he would be factually innocent if that were the case if he could show that say hey that wasn't really me i a prior that and it's not me would that be factual innocence under twenty to forty one yes he would be factually innocent of the underlying conviction and that's the issue here he is the fact of the conviction remains what has changed is the legal analysis of the impact of that conviction on the guidelines it's tough to say somebody doesn't have an unobstructed procedural shot if he if he admits to a prior that doesn't really qualify it seems to be to be a different there we have in this case i looked around to see about same thing so again no no disparagement intended but it's i don't think there's any way this qualified if we just take that as a hypothetical even just as a given for purposes of discussion and what do we how do we say he hadn't unobstruct shot well your honor i would go back to he could have raised it but i think the better argument is that he's not actually innocent under this court's test in stevens versus herrera this court said we adopt the excuse me if i pronounce on incorrectly bazley test which is could a jury of convicted you have the crimes and both his prior convictions and the count of conviction the federal case he's still guilty of those crimes it's a legal analysis there would you concede that even let's just say if if we said he could go if you could get through the twenty to forty one and you're if you are do they qualify is he obviously not a career offender now your honor that is not part of the certified question and i would prefer to be able to consult with connecticut i understand that given the limited amount of time mr allen has left to serve if he were to get through the gate i think it would be resolved in oregon the typically they would then be sent back to the district and it would be up to the connecticut district court to determine if he qualified at that point i think i can certainly acknowledge to the court that there's a lot of debate right now in the second circuit and i believe there are district court cases where the u s attorney's office in connecticut has certainly lost this argument but i don't understand that at this point they're conceding this argument and i apologize i can't be more specific but it was so and so in the second circuit they would never they would never grant a second successive s here no it would not qualify as it because it's not a constitutional error it wouldn't fit under the rules for a second or successive and he also couldn't get a twenty two forty one in the second circuit because the second circuit adopts the same test let me run this past you with respect unobstructed shot but rather innocence if someone is innocent of the prior conviction is that innocence under twenty to i believe and that your honor i'm having trouble but there is a case in the supreme court when someone vacated a prior conviction he was found to be eligible to be reset inst but i apologize at this moment that i cannot but he would be actually innocent he would be actually innocent of the underlying conviction yes but i'm saying i'm saying he's innocent not of the can crime a conviction but he's innocent of one of the priors and so he's innocent of the sentencing not innocent of the sensing for her offender i believe certainly this court left that possibility open in morocco and i believe there are many courts have recognized if it is vacated so that he's no longer i want for i want to start out with only she's clearly u but we learn later when we do a day camp analysis that the crime a conviction to which he pled is overly broad and some of the conduct for which he might or might not have been guilty would qualify under the career  some of it would not in other words it's overly broad and under to camp we cannot know that he pled to something that would qualify for a career offender and something or something that would not qualify is that innocence he still guilty of the underlying crime the fact that the analysis is changed as to whether it in fact qualifies or not but we but we don't but now we don't know what he did and some of the things he might have done and for which he might have been convicted would not qualify under the he he wasn't really guilty you know for any reason that would be faction that would be in a sense but this is a legal question yes so my distinction would be he and let's just say it's connecticut drug distribution he's pled guilty to can at a connecticut drug distribution he remains convicted of connecticut drug distribution but now today we look at it and say connecticut drug distribution covers were you just on a range of things that aren't under the sea controlled substances that he remains convicted so he's back to that conviction remains what has changed is the legal analysis of how we evaluate that for purposes of career offender and my position is that that does not constitute actual qualifying are the exceptions of mario is that he wasn't guilty of the underlying conviction the other is that he received this sentence that he's not statutory we don't know whether he was guilty of something that would qualify  petition to be actually innocent of assent saying enhanced if he was factually innocent of the crime that served as the predicate conviction for the enhancement and you're reading them very narrowly but going back to judge and is that your best have you given us the best that's the answer i can which is that he remains convicted of a connecticut drug distribution charge and i want to say legally innocence is factually innocent without a tallis eyes and that's why i'm concerned about this overly broad we're going to come to the second exception in the middle but i you know given the best answer but that i that i'm this bothers me a lot i'm not so sure correct you're right i should read legally it's a legal question does the kinetic conviction he pled guilty to qualify as a career offender to me that is a legal question and that's how it's been treated in the past with the exception of the sixth seventh and four circuits and as a result he remains a career or he remains in eligible for twenty to forty one because he cannot establish  i'm nothing ordinary forgive me so you want me to just even though that says factually innocent and it's a tell size and i'm i should what not give credit to that or not you think i'm reading too much into that i think the reading the government's position the reading is that factual innocence goes to is a conviction of the crime or not was the crime they cater to or not ok and i as so you're reading it as practical a backdrop and set obviously i have to consider whether you know what why if we're writing on a clean slate or what morocco says and which this court could if i felt that i was bound by morocco we could on bonk say otherwise inconsistent with the other circuits or the supreme court could tell could could tell us what the answer is but it sounds like at this point whatever what happened with him isn't kind of i mean not to say that any day doesn't make a difference you know we would all rather not be out any day but  there's no argument that it would be moot i don't think it would be for precisely that reason people would this affect potentially you know i don't i have all the current stats i will say in the gilbert case which is the eleventh circuit case they said between one nine hundred ninety one and two thousand and four sixteen thousand people were convicted of being career offenders now that doesn't mean they're all wrong and i and you know we could do the math of how many of them are still in custody i would say and some have twenty to fifty five's available there are of that number none of them would have twenty to fifty five's not at this point they well know they would not have twenty to fifty five's for this issue there's not a circuit  no knowledge of the number of that i can happily find out of court with like well and i will try to find it i talked about this argument i am talking about matheson de camp and not a constitutional issue so it's not going to be they're not going to be able right now they're not going  think i you know it certainly i think both misto and i would have preferred that they grant certain wheeler and simply resolve this issue one way or the other because there are there are plenty of these cases percolating in the district court where the green money is model one off so even with respect to the defendant here the petitioner here even though for him it's only six months there are a lot of other people out there in the pipeline yes and i would assume a fair number of them are in the ninth circuit given the number of prisons and frankly the security level of the prisons i think that's true this is not either way this court decides it's likely not to resolve this issue overall there were these cases will continue to rise thank you i'm way over my time thank you very much thank he's many times mentioned to me that he doesn't like that he was qualified as a cleric or under classified as a career offender and that stigma attached to that this issue won't go away even though this particular case is a mandatory guidelines similar sentencing innocence claims arise under drug quantity findings prior felony drug offenses for mandatory minimum increases in their armed criminal act i want to talk about how i view marrows definition of actual innocence and that case the e error was that the commission had passed a non retroactive amendment about how prior convictions are counted that convictions were concededly controlled substance offenses there was concededly more than one but they said as a legal matter they shouldn't count as more than one and they said that that's a purely legal claim and not one of factual innocence the reason i'm raising this is because the same argument was denied in poindexter versus nash the second circuit case that the government has cited and poindexter versus nash they said this isn't a claim of actual innocence because among other reasons he's not saying that his priors weren't controlled substance offenses so i think we can read morrow as saying the exception in poindexter versus now is also exceptions are actually dicta they're not well but being a full time now is that your best response to them because like i was going to go through one by one i've gone through you you both so well prepared and i really want to say that i appreciate this is this is a very serious issue so thank you for both sentence that he was not statutorily eligible for the reasons that we started on our briefing about booker versus united states which said that the guidelines cannot be construed as merely recommending sentences that require its sentences ok thanks and it is constitutional or under