the opening brief the h two issue which i find fascinating but maybe you don't then we have the f three issue which i guess is part of this case even though the  so that's where we're at i can tell you procedurally this case is sort of an age to case and not an f three case because we had an f three case award which we had before here and that was supposed to be the vehicle in this case was just supposed to go away and if i can see many wants to direct me to whether they want to talk about twenty thirty five h two well or not well ok let's start with the first issue means i mean murphy answers the first question against you actually i think murphy answers the question for us because murphy says that with the discord did in murphy was used this to second gave falls under twenty to fifty four before it not twenty fifty five h two so i think we're technically right you still think we're right that a district court can't revisit a twenty to fifty five h two determination now this is really all semantics because if murphy is binding precedent that means the disk or the second gate is twenty two forty four before going as i don't follow anything ok i'm sorry i know this issue way too well so our position is that as a statutory matter once this court grants authorization under twenty five h two that's that's all twenty fifty five h two does and we know that because twenty eight she was addressed to the court of appeals that's it and to the extent it incorporates a provision from twenty to forty four b we know that that's b three and we know that because this court has said that and we also know that because twenty two forty four b three is the only provision within twenty two forty four b that talks about certification from this court so our position is that when the district court in this case used twenty twenty five h two as the reason to dismiss the motion that was wrong because only this court considers twenty two fifty five h two and i think what murphy says is that we're right and that what the district court is supposed to do is to use twenty to forty four before which answer the question in your favor well it's in it's not i thought it was i mean it's in our favor but not really right when we're saying that there's that we've never said that the district court can't  the retroactivity analysis we've never said that our what we really think is that it happens under twenty to fifty five three ok so but in your brief you argued that the district court once certs granted i mean granted by the circuit court the district court has no power to re evaluate that and can't make a determination about whether sir or whether should have been granted i think that's absolutely correct yes but then you've got you've got an obligation in the district or to actually correct that your time yes and we don't dispute that ok so murphy with respect to murphy i don't know that i don't know that i can say it any different to be honest with you but i guess what i'm saying so we've always said that we've always said two things we said we think this  forty four for case because that's what the district court used to revisit this court's twenty two fifty five h two thing and we said in our merits if that if this court this case back twenty to forty four before would be an issue for the district court potentially now so i think here's here's how i would summon up as far as big picture what all of this means as we as i stand here today i can't win as long as you know as long as greer remains good law i can't win because that answers the question and on the procedural thing about h two and before i don't really it is what first i honestly think murphy is wrong but i will concede that it's binding precedent and that because i think twenty two forty four before is a state prisoner petition it only applies in the state prison or context and it shouldn't so so we need help so you need to convince us that i understand it that there is supreme court authority that dictates a result with respect to the mandatory guidelines can we agree that we've got intervening authority that releases us from greer to prevail you still have to show us that there's a supreme court case that dictates a result with respect to the mandatory guidelines well i think we have to show that the rule the retroactive right announced and johnson applies to the mandatory guidelines that it dictates a result i don't know where that language comes from i wouldn't use that language i don't know what that line one can you point to what establishes is that that can't be right because demise is very clear that there are there is i think from shape eight to twelve fifteen to twelve twenty three of the decision it is just to a different provision and when that be their prerogative when they're sitting on direct appeal to take they've decided a case in johnson and then they apply it on direct appeal that's a little different than follow it now right but i think if you look at supreme court precedent there's no precedent for it and i think if you look at the due process vagueness cases they're great for us i mean you have this line of precedents that we cite in our brief where you have statute here does that matter so i think what do you do with backhauls i mean you know you want to first of all you're claiming that it's the rule announced in johnson but that we look at the my help it's figure out what that rule is but scripts but i think so two things about ackles one nobody's ever really said or acknowledge that back almost twenty to fifty five that was did not dismissed on these procedural grounds the united states supreme court took back decided on the merits so if this sort of tackle should have been an f three case why didn't anybody say anything but does that pretty clearly i mean in order for us you know if this were on direct appeal which of course because it's the very guidelines we're never going to get one into that right we would be able to do all of the analysis that you're talking about looking at the law and making our best prediction of what the supreme court's going to do with in fact that would be our job ok i do that  when we're looking at it on collateral when we have it before us on collateral and act we don't have the same flexibility and we're we're we have to wait until the supreme court tells us what it's going to do with the guidelines the mandatory guidelines at this point all we know is the supreme court has left the issue open we know the vagueness doesn't not apply to this question ari guidelines and we know they didn't decide yet whether vagueness wise mandatory life how can we say that there are some recognized right with respect to the mandatory guidelines well two responses the first you can say that because a guideline as mandatory was a statute it operated as a statute and we know that based on parker that's what booker set us and we also know that based on united states v r l c we're not where the court said the same thing but rooted its analysis in the fact that the guidelines are eight are come from statute right twenty eight u s c one ninety four crates the guidelines so they are in effect a statute when they operated when they were mandatory they operated as statutes that's what book says but on beckles in this idea of an open question it comes from just a sort of my or concurrence two things on that one if justice sotomayor really thought it was an open question that means it has to be answered and under greer and brown and reagan and all of this stuff it will never be answered it's not an open question because there is no vehicle in which to get the question in front of a court so if it really is an open question there has to be a vehicle to get it in front of the court and well there is a vehicle because we have three the you know the courts of appeals were wrong to address the merits and the only reason the court of appeals the spring court could do that is to say that f three f three apply which is something this court can do there's no rule that says only the united states what she meant but maybe it was an open issue because nobody we were talking about mandatory guidelines is just that simple i mean i don't understand why and i don't either i don't understand why that statement is now the answer to our question and i mean i think when me what's important about the maya is what they said about straightforward application and i recognize one of the circuit cases that we've been cited to said gee it wasn't straightforward for them because four justices disagreed but the point is the bottom line holding up was hey we said what we said in johnson and this is a straightforward application of it to a statute that's not nearly as close to what we have in the mandatory guidelines so is your position that that straightforward application that they said in johnson would be just as easy and maybe easier at least the way i read your brief us to apply absolutely and to the mandatory guidelines yes it's absolutely right and i'm out of town thank you thank you that district court certainly has the ability under h two to address the merits of any retroactivity issue murphy obviously sanctions that and i think murphy falls more in line with what the seventh circuit s with respect to the dual gate process and i think that's fairly clear and it at the end of the day gives more respect to the fact that it this level when the court is looking at the facia side of this it's not engaging in a really robust analysis of retroactivity principles it doesn't even get to hear from the government it's simply looks at whether or not on its face it appears that there may be a retroactivity issue and we have a  there's yeah you're bound to a very short period of time to review it in the course in in the course of one year the course court must get hundreds of these and particularly post johnson so in the context of the district courts ability to visit a more methodical approach to the retroactivity principle that seems fairly clear and murphy appears to finally sanction that in this circuit and again that's more in line with what the other circuits are  with what the other courts are of a follow up with bennett in the second circuit's decision and we think that that's the proper procedure so this case rises and falls on that very question so if you look at it just procedurally i think the only course this court has if if if it has a remedy here is what does it do under the circumstances it could stay the opinion based upon what the court now knows is the sort of complex field that exists as judge mchugh as you rightfully kno w we may know within the next twenty four hours of greer's been granted both filo brown's case and jason greer's case we're on the court's docket on monday we were hoping they were going to announce it before we came here today in this argument would last about fifteen seconds rather than fifteen minutes unfortunately that isn't the case we're hoping within the next twenty four hours we'll know and i think under those circumstances both of counsel and i would move to stay this matter well assuming we have to decide  what's your position what's the rule from jot what we think we're controls and so i'm left assuming for the moment that that we have the ability to reconsider who we are because the my when you  has not at any point indicated that there is a real susceptible challenge to vagueness grounds to the guidelines we know in beccles they said no the question then and i think the question judge mchugh that you sort of point out is that beccles if you use the formalistic approach that that the defendant wants you to use here then bekele should have been decided in their favor it wasn't and quite frankly i think it's a much harder apply that bekele should come out in their favor as well because johnson says this than it applies both to guidelines and statutes our position is no it does not apply to the guidelines the court hasn't impact of how we interpret new rules in terms of it's it's a fact on add and prisoners who might have claim one of the things that seems to me is rather than having an unclear rule where people who got in within a year johnson get relief but all the people out there they had no reason to believe the guidelines were covered get no relief i mean does it make some sense to have they have to announce a clear rule the year starts another year starts another years arts i think it's a valid point but the court which is going on and somehow argue that those people don't get a new year well i think the government the government's position is that the distinct difference between both statutes and the guidelines because the guidelines don't fix periods of incarceration clearly they said that in beccles whether or not the court believes that it that the mandatory guidelines don't fix sentences is i think a question that is outstanding and i think that's the core question that the court will have to answer in the context of whether or not they want to grant cert in these cases whether or not the mandatory guidelines are so distinctly different than the manager than that than the advisory guidelines that it effectively acts as a statute and i guess in backhoes they they look at two issues with regard to vagueness which are the typical ones one is notice and pretty clearly sad you can't rely on notice because it isn't the guidelines that sets the statutory sentencing range it's the statute but what they did talk about is cabin ing the so that you don't have arbitrary implementation of that and i guess that's the open question with whether if they're mandatory is it different is the analysis there different between discretionary use of the guidelines and mandatory use of the guidelines and is that something we can decide in the first instance why is he as straightforward application of johnson respect to that second leg missing concern that we can in this setting on collateral review make a determination that johnson dictates a result with regard to the mandatory guidelines that that question makes no it makes sense but i think mike might put in that my answer may not settle well with the court i think the core would have to remand it to the district court to have make that decision because we're here on h two and i think it's the district court's determination not th court's at this point if the court wishes to remand it and say until judge robinson that she needs to revisit this in light of the miot remember her opinion was pretty demise and that if she wishes to revisit it now under the circumstances because this court's going to have to say that it is the mr pollin met the timeliness factor that the lower court was wrong and then get to the substantive side of it i think that does a disservice to the lower court i think the court i think you need to give the parties an opportunity and judge robinson another opportunity to revisit that issue if the court wishes to in this case revisit greer posta maya and we would ask that that be the only result in this case that this court not take up the opportunity to do it so a spontaneity under the circumstances that we get an opportunity to rebury the issue before the lower court and i think that would also give an opportunity or the other courts to weigh in i think very it's very clear to everybody that the split that now exists between the seventh circuit in the remaining circuits while lopsided is now defined it wasn't as defined three weeks ago when cross was still on on walk review but now it's well defined the question well what were others me about those well defined cases knows most of them aren't talking about to my employer they are pretty simple me is the only thing that changes the landscape again and i don't know how you can how i don't know how you can not talk about me when the court said this is a straightforward application of johnson and essentially if you've got a statute that's identical or something we can treat as a statute it's identical it's even closer here and then  now between prisoners we know that right no matter how right no matter how you played that out that's a nuff to at least hope against hope that the court will grant cert in one of these we don't know if general francisco has decided whether or not he wishes to appeal cross on a search edition we know our position in most of these circuit titian's thus far in re bond which has been tonight is that the split really is shallow if there was really no split at all by the time reagan was denied cert but now we know the defined split occurred and we hope within twenty four hours we're going to know i think if they deny both browning greer that complicates things significantly and i would go back to my original  mchugh that if the court wishes to revisit this that you give us an opportunity to remand this back to judge robinson we can we can thoroughly review this and i think that there's going to be more case law generated with this a d one of the problems i mean greer may have become at this point moot because of circumstances i'm not sure what they'll do with greer but they have another one so i guess we will find out when they have multiple this isn't the only one and at the same and i think it's worth saying worth noting here that this court is going to be faced with multiple panel decisions word is certainly out there bregman is out there polling is course this case and that's just kansas i can only imagine from the other states you're going to be faced with multiple families and maybe this is a situation both in the f three and the h two context that really deserves an on bank review and we hope you know that this just fits into line this is one that will certainly argue as such but i think at some point with the number of opinions that are now stacking up before this court that the court a nation of all of these issues is sort of certainly deserving of a much larger look and i vehicles because of the underlying priors as well so i don't know that a certain grant or denial is going to tell us what ultimately is going to happen i think the court will take the case but as far as this i think the suggestion that this case go back to the district court with that thank you thank you all right