to please the court alison guernsey on behalf of ricky christian following the supreme court's decision in johnson versus the united states it's mr christian's position that he's no longer an armed career criminal and  serving an unconstitutional sentence in two thousand and two mr christian received a two hundred and sixty two month sentence at the time of his sentencing he was proceeding with counsel but more or less pro se as the government characterizes it in its brief and at that time the pre sentence investigation report had come back in qualified mr christian as an armed criminal and as the basis for that determination t r listed numerous convictions there were five burglary type convictions as well as ten counts of a violation of the wanton endangerment statute out of kentucky but they were all grouped as one conviction at that sentencing mr christian nor his attorney submitted objections to the aca designation and the government didn't much argue as to the basis for why mr christian was unarmed career criminal instead as indicated in the sentencing transcript that was submitted to this court there was a brief dialogue between the district judge and the government as to whether the burglaries were residential or not let me ask you if it were determined that in light of johnson that there is a problem because of the unconstitutional they'd miss on the residual clause i know that i think this is his is petition as am i right this would be it he filed to hades corpus petitions in a rule sixty b petition that the court construed so yes this would be number four so my question would be this his prior convictions i would say no and that's it because first of all the government has raised no suppress usual defense and of course that is an affirmative defense that the government must raise and they have actually explicitly indicated that were this to be a johnson claim they were raising no procedural bars to any of its claims i did surely the only corpus petition that was actually adjudicated on the merits and not dismissed for failing to secure permission to file successive petition was his first one and in that petition he challenge to his aca status under requiring that it be proved to a jury beyond a reasonable doubt he didn't raise a challenge to the specific pr example i think that raises two separate inquiries the first the harmless error analysis that we're advocating here is where there is a silent record and or an ambiguous record then the error is in fact harmless and that's pulled from the brecht harmless standard that says when there is grave doubt as to whether or not the residual clause was selected by the judge was it it's harmful not harmless exactly so so if there is doubt as to whether the residual clause played a role in sentencing then it necessarily is harmful error the second facet of the harmless harmful error analysis and one that the government i think advocates is that we look to whether or not after johnson mr christian still remains an armed criminal and so with that aspect we would also argue that any error is not harmless because if one were to analyze his convictions for the first time because they've never truly been analyzed one would see that they are not generic burglaries and the only clause in which they could fall would be the residual clause which as this court knows is now invalid so so if if they fail under the numerated then it would be harmless error but here we don't know well if you go back and analyze and wonder that it could be harmless error but your position it's not because of the nature of those prayer convictions or at least most of them we believe that there is error there is constitutional error on the fact that the residual class existed at the time that mr christian was sentenced and there was case law applying the residual clause to his specific convictions we believe that that's sufficient to gran writ then the analysis becomes honoree sentencing is he now still an armed criminal disregarding the residual clause and it would be our position that if one were to analyze mr christian's convictions now a new he would not that we should remain to the district court or that we should figure it out to know here as to the nature of those in the court granted the certificate of appeal ability as to all issues raised by mr christian mr christian raised every  raised a challenge to the current status of this predicates as our incur criminal predicates and the government has already said that the conviction documents so we believe based on our briefing that this court can do the analysis now grant the writ and find that he's no longer an arm or criminal and he would ask the court to do so if that's the case as he serves the non johnson man mandatory since he has your honor he's been in for fifteen years so i think also in our rest for the united states first in answer in response to a couple of comments by counsel united states did not raise a procedural error in terms of the johnson claim the defendant has arguably has one conviction that can want and endangerment that would arguably fall under the residual clause the government's position is that while there may be a johnson claim in terms of this court certifying a subsequent success of trying to fifty five as well as the district court looking into the merits of that claim that just because there's a claim that doesn't mean that the defendant is to the relief that he seeks i think that most of the relief that the defendant could have sought or could obtain through this claim is the elimination of the wanton and dangerm conviction the difficult yes counsel following up on something that judge just covered with opposing counsel this is a transition case this is one of those cases where judge didn't have the whole legal bill you of the ninth circuit in front of them because this whole area johnson is still kind of roiling around right to me of the days when the guidelines were bouncing around and counsel your suggests that if we were to find that the record is not clear enough and that it it what is your view on is it necessary to remand i mean if we agree with her i would say yes your honor i in this term in this condition in this circumstance at least to that question the district court never went into the actual challenge crimes of violence the burglaries now as i noted in the brief the california burglary this court has already determined that that's the same one that was into scamps it is very likely that the other as  written will be too broad and it may very well be a very quick hearing but that hearing has not occurred but what if why wouldn't you need a hearing if it's a legal question we've already answered with respect to the california statute and if she's correct every day that he doesn't get a decision he's sitting in jail or in prison i think you are because here's the bigger problem and how we see how we see it as the court noted mr christian has filed multiple twenty two fifty five motions this is the fourth one when there are successive where an initial twenty two fifty five motion there are a lot of  areas or a lot of different reasons that it defendant can file those those are found in subsection a but when it comes to successive subsection age there is a limitation and the limitation that is in subsection eight is that in order to get relief to twenty to fifty five the defendant has to be presenting has to be basically challenging the new applies to one of the multiple convictions the problem remains however is that while under an initial twenty two fifty five under section eight allows a constitutional or statutory law to challenge the statutory law this court has determined already that it is scamps through as a whole is a statutory law not a constitutional law therefore while there's been some confusion in the way the district court issued its order and possibly the way the united states presented the brief it is not this camp is not retroactive in this circumstance where the defendant is is filing successive twenty to fifty five's whereas it would be if it was an initial one i wanted to clear that up if it's not a new role then it was how it should have been interpreted all along correct i mean in other words you don't have any new rule you just have clarification ne conviction and then that leaves us with that's five you can kick out california right not and not and there's a no because under the way it was analyzed previously it would qualify but now if you really take and fight the camps when if the defendant was sentenced in new to day i cannot say that that conviction would count it would it would not count however under the state of the law and the state of twenty two fifty five and this court's decision and as all twenty two fifty five age to is not a mechanism to go back and review diskin or now mathis type argument let me just i'm trying to get this unpack is it true that you can't tell from the record whether the district corps was invoking the residual clause or page page thirty one that is the hearing that we had on this motion with the district court the district court specifically said i know what i was doing when the issue came up of whether or not the court decided on enumerated cause or the residual clause and that if you look at the record and finally pages fifty three to fifty five which is cited in the government's brief it says that this issue has been before the court on a prior occasion it seems to me that there was a series of requests by mr christian that i responded to and throughout those there was never an issue about the residual clause if you look at the chronology of the cases that is the filings by mr christian pro se and a lot of what he actually said in his prior filings and what he said the court continued to say i entered an order  denying his motion a vacate under twenty two fifty five and i analyzed the case based on what occurred at that time and i don't see anything in there indicating that there was any reference to the residual clause at all but the government did argue the  i i disagree or honor because i said perhaps perhaps put it this way what we're not seeing in a person can be a c c if they have drug trafficking offenses and crimes of violence if a person had three drug trafficking a closet offense certainly they could make a claim eliminating the residual clause at this point but that wouldn't change their a c c status and by analogy this is the same circumstance because this is not the method to be able to go back in time as it's been for close to zero of a curious situation isn't it the if you apply johnson and johnson applies to this petition motion under twenty two fifty five then the conclusion is that he was given an unconstitutional sentence that the government is arguing that when it goes back the judge could again rely upon the wanton endanger court could assess the want endangerment in a different manner and could assess it as elements clause in this case we didn't really go into that below because the burglaries at that point sufficiently there was enough sufficient burglaries to continue to be a c c qualification and then i think and i would say that's why the court found that really the attack was against those numerated offenses did not and i understand you to say that if it were to go back to the district court in you were to look at this in terms of the elements that there then would not be enough convictions for the aca designation  maybe i just to clarify correct me if i'm wrong if the defendant were to be sentenced today and those burglaries were to be assessed by the district court it is very possible that he would not have enough to qualify as a c c but they government's position is that if this case were to go back then we never get to those burglaries because that is a different issue that is not covered by johnson and johnson specifically did not disrupt or numerated clauses or elemental clauses  that's my time thank you just very briefly the government appears to advocate that were the court to remain on the case to the district court that the district court would then be entitled to ignore all intervening case law and would be required to create the law as it existed at the time mr christian was originally sentenced in two thousand and two and i don't think he i don't think he said that i think what he said is that's what the that's what the ninth circuit said basically that that you look at them differently on a misstating your argument here to counsel yes that's his argument but even assuming that the government's argument is correct this court has the conviction records that were submitted that at the time of mr christian sentencing if you go through those records and you conduct willy nilly modified category analysis where you look at everything and you consider everything the government still cannot prove that mr christian was convicted of the generic offense and i'll highlight just a couple of examples if one looks at the indian issue is not so much currently under decamp i think the issue that we've now focused on is whether procedurally we can look at those part of it convictions and news and error then it's a saying that mr christian could have been sentenced on the basis of the residual clause and so now in order to analyze whether or not he still acco we have to look at the case law as it exists now applaud it can't be harmless group that is correct but even we're even if we were to ignore the camp it's still not harmless error because those convictions don't qualify either even under a pretty decamp analysis and so that's our position so you're saying that if there's an unconstitutional sentencing under johnson he's and we were every man as opposed to determining it it's a new it's a new sentencing and sentencing a new on the complete record that is correct all right unless the court has any questions thank you both for your argument as judge as  johnson related claims are intertwined with they come from moving both through the district courts and the circuit court right now so i thank you both for your briefing and argument and the case just argued is submit