it's not really it's a virtual format but the code is real so we're glad to have you here your judged your panel today judge taylor's judge quote obama and myself judge when so this time i will we will hear from the appellant in this case thank you your honor let me just say briefly fortunately the way i'm looking at the screen i cannot see judge  so can you hear me yes ma'am yes your honor just because you raise your hand i maybe i will be able to see your ok thank you judge harris and may it please the court ruling harrell i'm here today on for individuals like mr young who were sentenced on of the mandatory goblins the government has not or viewed that burrage itself is not retroactively vailable as it is for  cases but rather their position is that it's not been retroactively held retroactively available for guidelines cases and in this case under this district court's decisions  before we get to the wheeler argument there's a footnote in your brief about something i was having trouble understanding the way that enhancement seems to be written in categorical terms so that it only applies if the offense of conviction right that the i can't find it the way that's written is is that the offense of conviction itself needs to include the death results in a language right and there is some dispute among the circuits about whether that offense of conviction is language which is broader than  to your waiver argument is this the argument that the district court thought was waived the idea that this had to be charged in the indictment well my position would be it would not be my my way were argument but narrow like that like the offense of conviction had to include that language so that would appear to be what that pertains to that the same holding of burrage with up to the guidelines i mean the language is the same if not similar if not the same so i get that argument but to my knowledge i was not away or that the supreme court or this court had held that the burrage decision applies in the context of the guidelines s done but how has that already been done by the time the district court is presented with this case well your honor under the wheeler and a lesser test it does not have to already  done it it says it's settled sucked into law it changed as and was deemed to apply under this court's thomas decision the the district court as well as the circuit court can make a decision about ritual activity and so it does not have to already have been done it just has to have been deemed to be done at the time the court considers it so are our  sorry or what let me just follow up on that and i get i think i get the argument that a district court could make a retroactive the determination i've read that i think i understand that but is is but don't you still for the law to have been changed doesn't some court have to say that burrage applies not just to the statute statutory provision but also to the guideline provision doesn't that have to be done before the law changed are you saying that's not necessary i'm saying that this court can mimic that as you say some court this court can make that decision and we say that now and that this may be some antics but if we were to say that in this case you know the you know let me back up if this court is the one that is doing it now on the peel does that mean the district court was right in what she said at the time because the district court can't change the law all of this circuit or the supreme court and again up maybe we do do it now and make it all clear but it seems like at the time the district court acted i don't understand how the law had changed i think the district court had the authority to make this decision he did not exercise that thought already because she believed she didn't have that authority and therefore i think this court can make the determination find that he opened a savings clause and the case can then go back to the district court  and i also believe obviously he would mean the th element of the test the only element of the test that the government has argued that he does not need is the nd element of the test and i think we've just discuss understand the district courts but the district court was talking about but is there something do you do you have a citation in the senate seem transcript where that supports the notion that all that was being way is the argument that the elements needed to be set hilti plea and sentencing transcript audience than i am and it is not clear to me in the sentencing transcript what was actually what the district judge westend him as to what was being waived i do believe it's clear from the guilty plea transcript what he was waving when they got to senate saying there was a lot of the use of this and that and are you is that what you're waving and it's not clear to me  candor on that i thought it was more clear from the it the the better argument was from the guilty plea transcript as well right which brings me to two more questions and i'll try to be quiet but that number one owned the waiver is she what is our standard of review on  appreciated that it couldn't prove it the death was caused either by crack or heroin and that that might present some sort of a problem either that they couldn't charge it or whatever and your client however also knew that the indictment or that the government could go back and get of indictment for both drugs and the risk of that outweighed making whatever objections existed based on this proof situation has the relief that you're seeking the benefit of whatever objections your client had back at the time without the risk of getting indicted for the offenses that would lead to a life sentence apply the sentencing and handsome and they had to go back and get this superseding indictment which charged you there are both offenses or the death results  if we're going to say it's not clear from the sentencing transcript you know either one of those indictments and my  position is is that what he waived was not the argument that is now present in the burrage error but rather that the government had to obtain that appeals can decide on the retroactivity issue the change in the law has to come from the circuit or from the supreme court i feel like that would have been a good argument before lester but it's not really consistent with lester because i leicester to find the change in law we pointed to th and th circuit case that is on crimes of violence but they didn't arise under the same guidelines provision one was under a statute and one was under a different i'd lines provision and we've just said close enough like we're going to drop it down into this guideline provision so that scenes i'm not really consistent with the argument you're making and more like the argument the defendant is making well in both d lester and in just as importantly the court did look to find where the th circuit in for service depending on which one applied had actually taken the chambers decision and applied it both you know below and in that way we don't have in anything like that in this case it would be a weird instance to say that the different who are erred in failing to find the law and change only because the poor circuit might now decide to change the law or apply  the time could we not do it now and then send it back for folk for proceedings consistent with that i would never tell you that you don't have the power to do that you certainly do have the ability to rule on that issue if you determine that it was within the scope of the issues raised if you did if you were concerned about whether you should decide that burrage applies to the interpreted the supreme court made that pretty clear sort of the end of justice alito as opinion he talks about the fact that this but for causation makes sense and it really is necessary in the context of a  criminal case a case where it's a criminal statutory and handsome and because a lower standard would create a certain level of uncertainty he thought that did not square with the reasonable doubt requirement of obviously of a trial and then if you look at the concurrence of justice ginsburg you'll also see that she says things can mean different things in different contexts but in a criminal case where it's a criminal statute where the rule of liberty would apply we think that when there's a close question it's going to need to err you have to err on the side of a ruling in the defendant favor and so what's really we're a little bit in there tonight about it but under lester where we said that the pre book are guidelines we're going to treat like statutes effectively because there is no discretion why would that make a and i can see why it made might make a difference postpones car but why does it make a difference pre book or because you didn't have to prove that enhancement to a jury beyond a reasonable doubt you just had to substantial or contributing factor test or the proximate cause test might be enough obviously that that hasn't been briefed here but that was what was being discussed in burrage in the context of a criminal statutory hansen which clearly is different as justice scalia talked about in a in in the it can't be that a district court has to predict into the future how decisions might be applied in other contacts as it is obviously all of you all  that the court has continued to say that you're supposed to construe twenty to forty one's airily you're not supposed to just open up the floodgates and so that would be consistent with not deciding that we're going to go ahead and say anywhere where we might apply burrage we're going to go ahead pull the dish or course you should've applied that back before we actually said it was  i don't know that it would make a whole lot of difference when he could either say the judge was right but we now find berish applies to the guidelines taking a hypothetical and they affirm her but i would assume that  i think are are simply to the statute that the drug statute i don't i don't it's not specifically to the death results because otherwise it be duplicated that's the that's the sort of strange say the reality is i think in most instances now federal prosecutors are just charging the death results as a statutory matter so that's why i think there's a repeated reference to a forty one because those are that's that's that's the drug statute that all these drug cases get processed gets prosecuted under if you have any further questions on the nd paul issue i think that's the one you can  decide this case on i'm happy to answer those but otherwise for just a couple of minutes to the waiver argument i think it's pretty straightforward hope before we go in this might actually be sort of a transition over to waiver just on the th prong  if we were just assuming for a minute that the rest of wheeler was satisfied you agree that this would be a fundamental defect under lester and wheeler because he was sentenced pre book or above what should have been the maximum luster but it's a clear yes ok so if it's a fundamental defect under lester why would it be waive a ball under our you know our cases involving appeal waivers agreements isn't what we're talking about there very much like what we're talking about under the th problem of wheeler you know you're being sentenced outside the statutory maximum so why would this be something that's w because he was sentenced outside of what we treat as a statutory maximum so i'm just thinking about all of our cases on things that can't be waived even in a plea agreement and i'm wondering why this wouldn't fall within that well how is their space waiver we don't win the waiver argument in that instance but this is back in the day when this all happened and i am certain that the prosecutor knowing what he knew would have gone back when there's no there's no dispute so are you saying that i thought that your waiver argument was an independent argument that even if you lost under wheeler you still won because he waved it but you're saying no no if he satisfies wheeler but you don't have to get a waiver i don't understand your argument you're not arguing that the wheeler thing is something that can be waived if he if he wins it all raj applies to the guidelines really can hold that barrage applies to the guidelines in this posture it's a fundamental defect under wheeler are you still i think the a fundamental defect is not identical to the requirement of a of a  it's still not in this context a it wouldn't be a something that couldn't be waived because of the context in which it arose to start with particularly where it's clear and there's no dispute that mr young sold the drugs it's just that we didn't indict him for it but that's true that's true in any plea agreement the defendant gets something in exchange for the agreement but we still say it can't be enforced on the back end if it would result in a sentence that's outside a statutory maximum because you're just not allowed to waive your right not to be sentenced without statutory authority guesser so in so this instance when you look at what was waived if you look at pages one hundred and eighty seven through one hundred and ninety of the joint appendix you actually see that it's more of a causation argument it's not every experience judge like this who makes decisions about a waiver and then you read what's going on here there's a lot of back and forth going on here and i understand it may even been some attorney strategy in terms of what's going or the language that might best you know support judge curry use you know interpretation of the waiver and yeah i don't know if you have a response to that but that have a little of the same failings judge when has i kind of read this and thought it was more of a calls ation yet to be frank black yet just on paper but that given her finding i was looking to see what would do that  yeah so that that language if you look at it it is then followed up by a whole discussion about a causation issue and it's talking about the sentencing guideline and there's nowhere where there's a discussion that the death results language needs to be included in an indictment do you think i look at the can we look at the  is that relevant for consideration in all candor i think that it would not be appropriate for you to read in the only the sentencing transcript i think it cannot be read in isolation in your do novo review you should look at both the  transcript and the sentencing transcript because i think that's one way to get a whole picture if so for the for those reasons i think the waiver should apply but more importantly i think you should in the st distance do what the district court judge did and say that the settled law of this circuit on the th circuit didn't in any way state that mirage applied to any sentencing guidelines low in this one and therefore should not in the browse well case that this court decided that you know waivers are not enforced if they result in a miscarriage of justice or an illegal senate involving fundamental issues and i would certainly agree with judge harris that you would not be able to waive a fundamental issue a fundamental defect and that disagree with mr daly about the de novo review of the waiver and simply had not prepared that particular for that particular question and  it obviously would make a tremendous difference in the calculation of mr young sentence that that the guidelines be correctly calculated at the time of his offense at the time of his conviction the statutory senate has ten years to life and the guideline range was calculated to be under that one hundred and twenty months which would have been the mandatory minimum so that would have raised his guidelines that are still one hundred and twenty months it's only because of the application of this burrage plain language this death results language that his guideline statutory penalty it would be significantly lower and of course that of the just for court  could then recalculated a sentence if this if the burrage language was taken out i have one more thing to say  until you have an opportunity for it with us again