please the court my name is jennifer so while i represent douglas jackson mr jackson raises three issues for appeal today first whether or not the residual clause of nine twenty four ceased survives the supreme court decision and johnson b remains in effect after johnson garners this court has already decided that issue and b of us asia a decision was handed down less than eleven months ago there this court construed the identical categorical method as applied to the residual clause specifically the johnson court rejected the notion that the ordinary case approach and the risk assessment method could result in anything in any construction of a statute that wasn't  vague in welsh just a couple of months ago the supreme court reiterated that the johnson decision depended in large part on its decision or its construction of the or original ordinary case approach and the risk assessment  this court struck sixteen be based on the fact that the residual clause relied on the ordinary case approach and the receipt susman method there this court rejected every single argument that the government raises here a court rejected the argument that the absence of a numerated offenses in sixteen being made a shred of difference to the analysis that he was a court rejected the argument that the fact that there wasn't the same weight of disagreement among the lower courts made undermine yes sorry i think that's fair to say if the court reverses that to my opinion our argument loses much of its credibility however i don't believe that the court will reverse its reverse and i think that was the evidence of that in welsh in welsh when discussing the johnson opinion the supreme court reiterated that the johnson opinion was dependent upon the ordinary case approach and the risk assessment method no were there to the in fact in shooty the sixth circuit case which follows the reasoning in the us asia the sixth circuit noted that its case in taylor finding that nine twenty four c three b survives johnson was possibly in error because that court did not have the solution a black hole of confusion and uncertainty that frustrates any effort to import import some sense of order and direction that language that description a place with equal weight to nine twenty six twenty four  distinction between the two step it's that any court has ever recognized the one exception would be the sixth circuit in shooty but a close reading of that opinion suggests that that board is attempting to peddle back away from the decision and tailor again the shooting court notes that taylor was decided without the benefit of welch and without the benefit of welch's analysis and johnson which emphasizes that the reason that the residual clause was found to be unconstitutionally big was because of the ordinary case approach and risk assessment method not because of any of the sort of ancillary reasons articulated by the government or for that reason we've asked this court to reject the opinions of hill taylor in private and to be quite frank this court may not reject cases it did not none of those courts made any attempt to distinguish the stage up based on the fact that it was a sixteen day decision none of those courts nor could they they all and that knowledge these courts conclusions and just simply came out a different way into the circuits that the government is concerned about is one that has already been created but created by those courts explicitly rejecting the findings here i don't know that the rules of this court prevent it from rejecting give us a shout out of hand it would not reject its own president so casually without some intervening change in law or events nothing has happened in this case that would that would require as such the government didn't like the uk and now it doesn't like the outcome and didn't like the outcome then and it's asking this court to reverse its precedent for no other reason there are no further questions from the quite i see that my time is  reason i should be honest this court may want to simply hold this case pending to maya to the extent the court does want to go ahead and act now though and reach the merits it should not create a circuit split for the first time on the nine twenty four c three b question and should instead join the second the sixth in the eight circuits in holding that that statute is constitutional it should therefore affirm jackson's conviction and remand for re sentencing now i want to be clear this is not the only case of scott decision i'm sorry roger this is not the only case it has this issue we have other earlier cases that are in the pipeline there are there are other cases in the pipeline your honor this is the only case that i'm aware of in this circuit that cleanly raises this issue all of the other cases the court would first have to consider the elements clause question is does hobbs act robbery qualified does some other federal statute federal bank robbery it set or qualify this is the only case i'm aware of that is in the pipeline that deals with the question of whether nine twenty it and let us know which i think that's certainly what one way that the corporate perceive the court has a lot of other issues it faces and it could make that decision if the court decides no we we want to go ahead and reach this issue and i and i'm certainly not suggesting that the court should hold all of its nine twenty four c cases because there are many cases like the one just before and the one just after the deal with the hobbs act robbery question if the court thinks hobbs act robbery falls under the elements clause then that that should be decided if the court disagrees with that it does present the same issues so i can't tell you exactly how broadly it's going to apply but judge roemer is correct if this court simply were to say we think the c s says are controls the government just go sixteen b doesn't control now once again what the supreme court says in the miami wealth impact how how how plausible that argument mine yes but that is the argument that we're making and we're not making it to be clear we're not making it on the grounds  sentencing statute and it is server is not a sentencing statute and it is serving a different function in the context of sixteen be in the context of the guidelines in the context of the arm for criminal act it is there is simply a finding this is a sorry you are already rejected the aren't human that you know to distinguish our approach on that basis you know i am sorry your honor i'm not referring to the arguments  referring to this the fact that all of those other cases including give us a job are sentencing statutes and this is a crime of conviction that's not something that was dealt with in beavis a job because it wasn't dealing with a crime of conviction here in the that sixteen b is the sentencing statute and i'm twenty four c is not well we've already rejected the arguments to distinguish our approach on that basis is far as i can tell well if that's the way the court feels i don't know that i can dissuade you but i do think that there are distinctions and i can assure you that the court did not do this to gus any of those things and gave us a job because vivus a job was not dealing with the statute of conviction and none of the arguments like we've raised and does it apply differently when you're dealing with a sentencing statute where once one says yes this is a crime of violence it is it does or does not apply or is it simply serving a screening function after which the jury then must make a finding that in fact it is in function so we do believe that that is an argument that can be raised i mean most of the other most of the arguments i agree are honored were dealt with those particular ones were not there is of course also the threshold question of whether in this particular instance this the particular defendant who can raise this challenge the supreme court has long said that outside of the first amendment context a facial challenge cannot be mounted it can only be mounted as an in as applied statute in an setting and we do not believe that anything in johnson changes that rule in johnson the defendant himself said look this statute as applied to me is unconstitutional because i can't figure out whether a sawed off shotgun is or is not a violent felony and oh by the way there's no court of the statute and so you should just hold it unconstitutional across the board the defendant isn't raising that kind of an argument here the defendant isn't contending that that we can't figure out under the well established tests that have long been in place under nine twenty four c three b we can't figure it out the defendant is instead saying ignore all that and go back to go back and just raise a facial challenge that's not the way that the courts have normally applied now what does that mean that doesn't mean that it that something which are defendant might be able to raise this claim and accept the arguments that you're making or might instead except the arguments that i'm making but this if you were defendant cannot raise that question and would essentially have to wait in line and tell trafficking crime and the additional conviction for possessing a firearm even now i guess your honor the i was it well the way the guidelines operate with nine twenty four see your honor in most instances and i believe this particular case is simply that nine twenty four c as you know imposes a five year mandatory minimum consecutive sentence the guideline for nine twenty four c i believe is two case two point four there are certain instances where a defendant is a career offender or where there are firearm unhandsome and in already written into the guideline where the effects can be different but here  ially the only difference was that there was a requirement that an extra sixteen months be imposed so and the guidelines here of course are are going to be different anyway because we've conceded the that the guidelines go down and i'm not sure i have the exact guideline recalculation in front of me i believe he drops to like two to and to something and then the sixty would be on top of that so that's all the impact of this essentially is is is is there going to be anything  as far as the guidelines are concerned weighed in for the firearm the underlying guidelines themselves did not include a firearm and handsome and so that would be something the judge would have to consider perhaps in deciding where in the guideline to sentence mr jackson if the one twenty four c is not considered valid and i see that my time is up we have conceded that the organizer later was imposed in error and we believe that the obstruction hanson was properly imposed if the court has no further questions on any of no standard of conduct at all when it so baby can't intelligibly discern what the statute for had its here at the supreme court is held in identical functionally identical statutes to be a judicial morass a black hole with no discernible or systemic system  application mr jackson need not make an ass of challenge in order to advance the facial challenge that the supreme court has already accepted in johnson and that this court has already accepted and be the sage of the supreme court it already held that the reason to a clause is unconstitutionally vague in all applications that decision binds this court with regard to the government's argument that there is some difference between a sentencing statute and a crime of conviction there is no difference at all that the government can articulate as to how that method is applied the jury is not asked to make a finding that