Legal Case Summary

This has. May it please the court and Hester representing the Angelo White side. No one disputes that the Angelo White side's 210-month career offender sentence is error. That sentence also amounts to both a dupe assessment and a miscarriage of justice that should be remedied on collateral review. The guts view to the contrary depends on an unsustainable stance that after a booker district court sentencing discretion under the guidelines is unlimited. The Supreme Court's decision in Pue and this court's decisions in the Carter line of cases demonstrate why the government is wrong. Appellate reasonableness review significantly confines the district court sentencing discretion. Perhaps the most powerful limitation on sentencing discretion is the procedural requirement that the district court explained its reasoning and that a variance be supported by a more detailed explanation than a within the guidelines sentence. Simply as a matter of circuit precedent. Have it we said that it's an extraordinary circumstances of challenges to guidelines or not cognizable on collateral review. The court has said that ordinary guidelines errors are not cognizable on collateral review. But this is not an ordinary guidelines error. This is not what an ordinary guideline error. This court has what I'm wondering is what legal standard do we have to separate an ordinary guideline error from an extraordinary guideline error given the fact that under your view of it all guidelines calculations would have some conceivable effect upon the sentence. I mean what's the principle of limitation here. I'm not sure we can simply confine this to collateral attacks on career fender determinations. We have to have some basis in law other than our own feel about well this is significant and this is for demarcating. So what's what's the principle here? Well I think that the 11th circuit case and Spencer and the 7th circuit case in Narvae is provide some helpful guidance about why career offenders are distinct from other guidelines errors. And one reason is because career offender is required by statute to be at or near the statutory maximum. And another reason is because as Pue explains and Spencer follows up on career offender usually increases a defendant's sentence significantly. In fact, in Spencer the court points out statistics that usually career offender designation doubles in individuals

. The question to you is granted the career offender status increases the might increase the sentence significantly. But that's true of any criminal history calculation. I mean there are all kinds of federal sentencing determinations that depend upon prior convictions. And I'm not sure given the fact that they all along with base effect level of effect for guidelines range. Let's suppose somebody gets put in a criminal history for as opposed to a criminal history too. That's going to have an effect. So is that open to challenge on collateral review? I would suggest that it's not because those types of bombs are really incremental bombs and not the significant change that career offender imposes. And in fact, and make a big difference. If you have enough of those errors that can make a big difference, but I haven't seen any. I haven't seen any cases in preparing for this case where. Where an enhancement other than something a recidivist enhancement like career offender or acqua significantly increases a defendant's sentence. And I would I would refer the court to the decision of the United States versus May back where pre-booker. The court recognized a post conviction challenge to career offender status. I mean, I think that there is precedent for distinguishing these recidivist enhancements that significantly increase a defendant's sentence from other. And I think that decision was handed down in the era of mandatory guideline on the seven circuit in its Hawkins case. I think indicated that there's a world of difference between mandatory guideline provisions subject only to very limited departures and advisory guidelines decisions. Which are subject to very upset and when the whole regime is. Is guided by guidelines, but it's a good bit looser. I mean, in terms of allowing greater district court sentencing discretion. Then it was at the time of

. May back case that she was. If you say plus that was an actual in this question. I'm not sure. That's what we have here. Well, I'm not sick. We have an actual in us. I'm not suggesting that May back controls the situation, but I am suggesting that May back provides the court was some guidance about how you can distinguish career offender from other types of guidelines errors. I think that the the seventh circuit Hawkins decision suffers from the same flaw that the government's reasoning here does because it refuses to acknowledge the limitations on sentencing discretion created by the post book or a pellet review for reasonableness really do make a difference in really do limit the district court's discretion. But you don't dispute the fact that the district court. On resensing to impose. So I see the same sense is you know, this is what I think is individual deserve. Actually, I do dispute that your honor because of the requirement that the district court explain its sentence. And in a case like this. And white sides case the courts discretion discretion to descendants below the career offender range, which was 262 to 327 months. First of all was limited to reasons related to the substantial assistance, which is how he got below that range in the first place to 210 months. But also a pellet review for reasonableness would require the court to explain if it were to sentence. Down to the proper range of 140 to 175 months, the court would have to explain the reasons for doing that. So the original sentencing the court doesn't have reasons for going that low. And if it goes that low without explaining in this court has demonstrated its willingness to vacate for substantive unreasonableness when the reasons don't support the sentence granted. But at the same time, if his sentence is vacated and sent back, there would not be reasons to support a sentence as high as 210 months

. The nation is given a great deal of difference and the district court should. Well, say well, I departed downward from the guidelines range. The last time. Because of substantial assistance. And I settled on a particular figure I could have departed much further down. But there was only a 20% downward departure in the initial sentencing. And it was open to the district court to the further. But apparently the district court didn't believe the defendant deserved. That extensive a downward departure. And this is not a situation where someone's convictions have been vacated. And the court would have to be. And the convictions are still very much on the record. Nothing has changed about the underlying facts of. That's true. And for that reason, it would be very difficult on remand for the district court to justify a sentence that is six and a half to eight and a half years longer than the correct guideline range. Based on the same reasons that it gave. At the original sentencing. I think it would be the district court would be hard pressed to justify 210 months sentence. For the defendant provided substantial assistance and the correct guideline range begins at 140 to 175 months. Under hits white side has a liberty interest in being sentenced within the full scope of the district court's discretion

. And the combined effect of the career offender enhancement and appellate reasonableness review prevented the court from exercising its discretion to impose the much lower sentence that white side should have received. Denying white side relief from this deprivation of sentencing discretion based on a conjecture that he might receive the same sentence on remand violates due process underhicks. But even if white sides sentence is not a due process violation, it is. It is the due process violation below repeatedly your honor. I know the government says in its brief that we didn't but we. We repeatedly raise that. Below both in our motion and in our response to the governments are reply to the government's response. This was before the district court. Correct. Now the district court never ruled on that because the district courts ruling related to the appeal waiver and the timeliness issue. What exactly is the nature of the process claim? The nature of the due process claim is underhicks. The the district court was deprived of its discretion to sentence at the appropriate guideline range. It's that deprivation of sentencing discretion from the sentence or that is the due process violation. I'm not sure I understand how can that be limited. How can that be limited? You could just slap a due process. Label on everything. Well, not if the district court sentencing discretion was not. Not if the district court wasn't deprived of discretion to sentence and I think. The eight circuit sunbare decision provides an example of where that would be the case because in that case the defendant's career offender sentence was also within his non career offender guideline range. So there would not be

. How is the district court deprived of its discretion? Because it had to begin with an incorrect guideline range and procedural reasonableness requiring it to state reasons for its sentence. In addition to the substantive reasonableness whether the sentence fits the reasons given prevent it from sentencing at the appropriate guideline range of 140 to 175 months. And the guidelines remain advisory and the goal decision says that under an advisory. The district court's retained discretion and that they're not permitted to presume at the trial level that the guidelines range is correct. They don't afford a presumption of correctness to it. Well, that's true at the same time. Pew recognizes that the procedural measures are intended to make the guidelines a loadstone of sentencing and in fact. Pew sites empirical evidence demonstrating that that works because when a defendant when a guideline range moves up or down offenders sentences move with it. So at some point the district court it discretion is removed to the district court is not free to impose whatever sentence that it feels like imposing it has to impose a sentence that is supported by reasons. That are based on the evidence. Maybe that seems to me to find the face of the thrust of the goal decision which was intended to weaken the grip of the guidelines on district judges to retain for them a place that to retain for them an advisory place. I wonder if I could shift a little bit. Under our pedophilic decision. We look at we would look at something that was a non constitutional error only if there was a manifest injustice and manifest injustice both in the fourth prong of Olano and elsewhere. Then thought to denote a judicial proceeding that was almost so riddled with error that it wasn't even worth the name. Now I do understand that Simmons is the relevant precedent of this court and they're going forward. The question here is was it a manifest injustice at set or the court to pose a sentence that was concededly correct under the law as it existed. At that time, now harp has been overruled but at the time it was remained law. A panel of this court initially affirmed the heart regime. There was a Supreme Court justice on that panel

. It says when in bank but at the time this petitioner, which was before Simmons, at the time this petitioner was sentenced, it was in accordance with law. And one can disagree about Simmons but surely a sentence that's imposed in accordance with the law that exists in that time on an issue that is disabled. So there were these convictions there. They were punishable by more than one year. And I'm just a little bit hard pressed to say how that is a manifest injustice sufficient to open up collateral reviews. What do you say about that? How do we get to a manifest injustice? Well, I think it's incorrect to say that the law at harp and Jones after Simmons, we now know that harp and Jones were incorrect all along. So he never was punishable by more than a year for those prior convictions. And we know that his sentence was imposed before Simmons. Correct. But we now know after Simmons that harp and Jones were incorrect. So while they were binding precedent, they were incorrect binding precedent. So I suggest to the court that that is a manifest injustice to send someone to. I wouldn't go so far to say that I would just say that in this case it's a manifest injustice where a person is sentenced to between six and eight additional years in prison based on law that we now know is incorrect. What further comments would you like to make? I will. I do have rebuttal time. Well, I was going to address I was planning to address the timeliness of the motion under F4 and the equitable stop will issue. Okay. White size motion was timely under F4 because you filed it within a year of the on box Simmons decision. And under Johnson versus United States Simmons in conjunction with its effect on white size prior North Carolina judgments generated a new fact for purposes of F4. Government has offered no compelling reason why the fact in Johnson in order vacating a predicate conviction should be treated differently from the fact here, which is a judicial opinion that fundamentally alters white side's criminal history

. First of all, contrary, yes, first of all, contrary to the government's position, white side is not suggesting a limitations period that depends on any subjective knowledge. And second, the government is not identified a single case projecting application of F4 to a judicial opinion that alters a defendant's criminal history as Simmons does the cases at sites don't address that situation. Where does that be? That's my next point contrary to the government's argument adopting white side's position doesn't render F3 meaningless any more than Johnson does. Is demonstrated by the lack of cases addressing F4 in similar circumstances, Simmons presents an unusual if not unique situation. So white size interpretation of F4 is unlikely to apply to many if any cases other than those recognizing Simmons claims. But even if white side's motion was not timely, equitable tolling applies because white side has been pursuing his rights diligently and extraordinary circumstances in the form of entrenched circuit precedence in his way. The government's argument is basically asking the court to apply a rigid per se rule that a change in the law does not justify equitable tolling. But under Holland versus Florida, equitable tolling principles require flexibility. Mechanical rules are disfavored. Because it doesn't the statute set up a sort of a distinction in the dichotomy in F3 and F4 between matters of law which fall into the channel of Supreme Court decision that the Supreme Court has ruled to be retroactive and matters of fact, which if F3 is not to be rendered superfluous would be something different. From a matter of law or a decisional change, it seems to me that Congress has covered the decisional change in F3 and said okay, when there's a change in the law or a later decision comes to law, this is the circumstance that we want to have the statute of limitations run from. But that has to be a Supreme Court decision which the court is held to be retroactive. That's the only instance in which Congress has addressed decisional change and it seems to limit it to the Supreme Court decision. Well, in Johnson versus United States, the Supreme Court addressed that dichotomy and it pointed out that Congress did not necessarily consider every potential situation and it hadn't considered the situation in Johnson. And I think at one point the Supreme Court described the AEDPA as a sows ear of drafting that it wasn't drafted all that well. But there the decision was vacated, the predicate conviction was vacated. That's correct. But in this case, Simmons fundamentally changes the character of the underlying conviction, making it a misdemeanor instead of a felony. And if a recidivist offense is a different offense than a non recidivist offense, basically that converts it to a different offense. So that situation is nothing like any of the cases that the government sites

. And I suggest to the court that it's more like Johnson than it is like the cases that the government sites which deal with things like jury instructions. We have a raging circuit conflict over this issue. Well, not yet. I wouldn't call it a raging circuit conflict. I would say that we have a posity of decisions addressing a situation like this one. You can try to say you're a seventh and eight circuit really weren't. But I've read a really special. Well, yes, if you're talking about a nice ability instead of for I was talking about. Okay. I'm not sure. Anything else. Just if the court permit me to make a point about the equitable tolling. Simmons reversal of well established precedent created an unusual and unpredictable circumstance that calls for special treatment. And I would just like to point out to the court the Powell decision the Troy Powell's case really demonstrates how extraordinary these circumstances are preventing someone like quite side from filing earlier. Because under Powell if white side had filed his 2255 before Simmons based on caraturi resindo it would have been dismissed because caraturi is not retroactive. But if he if the court adopts the government is a government's position on timeliness filing after Simmons, which is retroactive makes his claim on timely. So that really puts him in a catch 22 position where there's never a time when he can file his claim that will be considered on its merit. Thank you. Let me ask my co- panelists if they want to have any. Thank you

. Mr. Rhaegu, please to hear from you. Thank you, Your Honor. Amy Ray for the United States. The district court in this case properly denied and dismissed Mr. White's sides section 2255 motion to vacate for three reasons. The first is that Mr. White's side waived his right to even seek this relief in the district court and the district court in this case properly recognized that he had knowingly involuntarily waived his right to seek post conviction relief. The second reason is that his motion is on timely and the third reason is that his motion to vacate does not present a cognizable claim for relief under section 2255. In terms, I would note that this court has not yet issued a certificate of appealability nor has the district court. So we must first consider whether or not a certificate of appealability may appropriately issue in this case. And in order for one deal with the first of your questions when we denied the waiver point on the plea agreement when we denied the motion to dismiss the appeal. No, Your Honor. I don't think so because our argument in the motion to dismiss. If you wouldn't we've dismissed the appeal. Well, I don't think so. Now the court did not provide any reasoning in that it was just simply dismissed. I would note however that the government's argument in the motion to dismiss is distinct from its argument now. So in the motion to dismiss it was about an appeal right. It was this appeal should be dismissed because the defendant waived his right to appeal

. And the defendant argued that no in the plea agreement it says he may appeal the career finder designation. Now the issue is did the district court properly hold that the waiver precluded him from seeking this relief in the district court. So it's a little bit of a distinct right. One is an appellate one is a post conviction right. We did argue in that context that the post conviction right waiver precluded his appeal but it is distinct and this court could still hold. And I think should hold because the plain terms of the plea agreement say. I'm sorry Miss Ray. Yes. Is the question on the COA. One of whether the district court properly. Or is it rather whether it's debatable. Whether the district court properly judge Davis you're absolutely in terms of COA. It's whether it was debatable and I was hearing judge Wilkinson's question as one going to the merits as well. In terms of the but the government would argue that either way. No reasonable jurist would read this plea agreement and not conclude that this defendant had voluntarily and knowingly waived. And he doesn't challenge the knowing involuntary part. And the plea agreement discusses these rights distinctly. They cite it sites different provisions. One is post conviction. It's a different procedure. Different time and one is a pellet makes some sort of implication. I mean when we take plea agreements you're the one that. Often has a drafting role in this and we call the government to a strict standard and. You shouldn't force the court. To get it your position by a little bit of implication, which it seems. Which it seemed to me we were if you want to have a waiver. Should you spell it out. It is spelled out judge Wilkinson and we it is spelled out quite clearly. It's spelled out to the extent that there's a difference. That there are different paragraphs about direct appeal and collateral review, but it's not. You read me the language that indicates in your view that the waiver has been. Any collateral. Challenge to the sentence has been weighed. He says that he waives his right to challenge his sentence or his conviction under section 2255 or similar authorities. So you're reading verbatim. Essentially I mean it's memory but yes it's it's on page. See here. Okay. Some page one 15 of the joint appendix. And he uses and it uses the language or similar authorities, but he specifically says with the exception the two exceptions

. Different time and one is a pellet makes some sort of implication. I mean when we take plea agreements you're the one that. Often has a drafting role in this and we call the government to a strict standard and. You shouldn't force the court. To get it your position by a little bit of implication, which it seems. Which it seemed to me we were if you want to have a waiver. Should you spell it out. It is spelled out judge Wilkinson and we it is spelled out quite clearly. It's spelled out to the extent that there's a difference. That there are different paragraphs about direct appeal and collateral review, but it's not. You read me the language that indicates in your view that the waiver has been. Any collateral. Challenge to the sentence has been weighed. He says that he waives his right to challenge his sentence or his conviction under section 2255 or similar authorities. So you're reading verbatim. Essentially I mean it's memory but yes it's it's on page. See here. Okay. Some page one 15 of the joint appendix. And he uses and it uses the language or similar authorities, but he specifically says with the exception the two exceptions. In effect of assistance to counsel and prosecutorial misconduct neither of which is here. He waives his right to contest his sentence under and it has in the previous paragraph referenced both post conviction rights and appellate rights. And it says under section 2255 or similar authorities. If the district if this court holds that he hasn't waived his right fair enough, but I do note that the DOS in DOS in this court recognize that the government should get the benefit of the bargain for sure. If this court determines that it's ambiguous, the ambiguity has to be resolved in the defendant's favor. But the government's position and and my own reading of this plea agreement is that it's not ambiguous. It preserves a right to appeal the career offender designation and that language is different from the post conviction which is included in plainly way. Starting to the next issue of whether or not the defendant's pardon me the petitioners motion of vacate is timely. Even if this court holds that the petitioner did not knowingly and voluntarily waive his right to present his relief in the district court, the district court still properly dismissed his motion of vacate as untimely. With respect to 2255 F4, the petitioner argues that Simmons had some effect on his North Carolina judgments. Absolutely not true. Those North Carolina judgments remain in effect and in full force the same way that they did before Simmons the only. I thought your argument was there that an intervening change in the law is not a quote back. It is and that's that's exactly right. And so the Simmons did not it is a legal decision that may have had some legal effect that is to say that his prior convictions must be viewed in a different legal light. But it had absolutely no effect on those North Carolina judgments as opposed to Johnson in Johnson. The petitioners prior convictions were wholly vacated and that's the difference. It was the fact of the vacating of those prior convictions that triggered F4 in Johnson. This case falls within the heart of F3 to legal decision. Simmons was a decision of law that changed the legal nature perhaps but not the factual nature of those prior convictions

. In effect of assistance to counsel and prosecutorial misconduct neither of which is here. He waives his right to contest his sentence under and it has in the previous paragraph referenced both post conviction rights and appellate rights. And it says under section 2255 or similar authorities. If the district if this court holds that he hasn't waived his right fair enough, but I do note that the DOS in DOS in this court recognize that the government should get the benefit of the bargain for sure. If this court determines that it's ambiguous, the ambiguity has to be resolved in the defendant's favor. But the government's position and and my own reading of this plea agreement is that it's not ambiguous. It preserves a right to appeal the career offender designation and that language is different from the post conviction which is included in plainly way. Starting to the next issue of whether or not the defendant's pardon me the petitioners motion of vacate is timely. Even if this court holds that the petitioner did not knowingly and voluntarily waive his right to present his relief in the district court, the district court still properly dismissed his motion of vacate as untimely. With respect to 2255 F4, the petitioner argues that Simmons had some effect on his North Carolina judgments. Absolutely not true. Those North Carolina judgments remain in effect and in full force the same way that they did before Simmons the only. I thought your argument was there that an intervening change in the law is not a quote back. It is and that's that's exactly right. And so the Simmons did not it is a legal decision that may have had some legal effect that is to say that his prior convictions must be viewed in a different legal light. But it had absolutely no effect on those North Carolina judgments as opposed to Johnson in Johnson. The petitioners prior convictions were wholly vacated and that's the difference. It was the fact of the vacating of those prior convictions that triggered F4 in Johnson. This case falls within the heart of F3 to legal decision. Simmons was a decision of law that changed the legal nature perhaps but not the factual nature of those prior convictions. And therefore it is untimely under F4 petitioners motion to vacate. And there's no decision that petitioner sites in which there is a legal decision in the nature of Simmons that has been held to trigger a fact for purposes of F4. Is a is a district judges determination. At sentencing as to the nature and character of a prior conviction. IE whether it's a misdemeanor or a felony. Is that a determination of fact. It's a determination of law as applied to the facts. But it's certainly a determination of law. I mean whether or not something qualifies as a felony or I mean that is what Simmons was right. It looked at the term punishable by more than one year in prison and held that that term that language had to be narrowed based you know as opposed to the decisions in harp and Jones that this court was interpreting that language as a matter of law. But I'm moving past Simmons and I'm a district judge sitting there at sentencing. And the government wants to enhance sentence. Isn't it the government's burden to prove as a matter of fact that the defendant over here has a qualifying conviction. Yes. And you prove that matter of fact or a certified record and so on. But is it a matter of fact at the time of the sentence. Yes. It's a matter of fact in terms of the government must prove that the defendant has in fact been convicted of a prior conviction that was absolutely. However, whether or not something is qualifying is a question of law. And Simmons in Simmons had the effect of changing whether or not prior convictions qualified as felonies

. And therefore it is untimely under F4 petitioners motion to vacate. And there's no decision that petitioner sites in which there is a legal decision in the nature of Simmons that has been held to trigger a fact for purposes of F4. Is a is a district judges determination. At sentencing as to the nature and character of a prior conviction. IE whether it's a misdemeanor or a felony. Is that a determination of fact. It's a determination of law as applied to the facts. But it's certainly a determination of law. I mean whether or not something qualifies as a felony or I mean that is what Simmons was right. It looked at the term punishable by more than one year in prison and held that that term that language had to be narrowed based you know as opposed to the decisions in harp and Jones that this court was interpreting that language as a matter of law. But I'm moving past Simmons and I'm a district judge sitting there at sentencing. And the government wants to enhance sentence. Isn't it the government's burden to prove as a matter of fact that the defendant over here has a qualifying conviction. Yes. And you prove that matter of fact or a certified record and so on. But is it a matter of fact at the time of the sentence. Yes. It's a matter of fact in terms of the government must prove that the defendant has in fact been convicted of a prior conviction that was absolutely. However, whether or not something is qualifying is a question of law. And Simmons in Simmons had the effect of changing whether or not prior convictions qualified as felonies. And that is a decision of law and not one of fact. So the government's position and and and we believe it's a strong incorrect position in this case is that Simmons decision is balls right in with 2255 F3 and if this court were to hold otherwise it would undermine if not completely render redundant 2555 F3. Turning to petitioners argument that he is entitled to equitable tolling. The government's position is not that it is absolutely impossible or inconceivable that a decision of law could be a reason to trigger equitable tolling. The government's position in this case is that this it's not appropriate for this defendant because so many in part because there was no extraordinary circumstance that stopped Mr. White side from making the argument that many other defendants had made before this court's decision in Simmons. This is that is to say the on bond court's decision in Simmons. The on bond decision Simmons was pressaged by a number of other decisions and along the way I can tell you as someone who litigated these cases in the district court on opposed conviction matters that we were we were seeing these arguments made regularly. So Mr. White side could have made the same argument that Jason Simmons made the Troy Palmaid and that many other defendants made. But the government's submission is that after heart every lawyer appealing a sentence to this court after heart notwithstanding the heart precedent should have included in the brief. Should have made it the district court and should have included in the brief to this court an objection to heart asking this court to overrule heart. Your honor. I don't want to say that because that's how else how else that's what we to interpret the argument that everybody should have challenged heart and there's no excuse for not challenging a wrongly decided decision by a panel of this court. With all due respect it's not a question of what a lawyer should have done that's not the standard it's not an ineffective assistance of council question right now what the issue is is under Holland versus Florida do we told the equal to the statute of limitations. Because of a decision that this court rendered that followed many others it's it's a question of equitable tolling not what someone should have done but whether there was an extraordinary circumstance that prevented him from doing it. And the extraordinary circumstance perhaps is the iron of the judges of this court surely to be visited on a continuous string of defense lawyers from North Carolina and elsewhere saying please overrule heart. I don't think a pellet panels appreciate that kind of behavior so I appreciate your argument I do and you're right to challenge equitable tolling I'm just looking for the alternative. Well I think the alternative I mean in this case you're not talking about challenging it from harp on but once Rodriguez came out prueck came out caratry Rosendo came out I mean we had a string of decisions that put defendants on notice and their council that this was a viable issue. And Jason Simmons raised this issue in April of 2008 even before Rodriguez so and again it's it's not really a question of whether someone should have done it it's whether under Holland versus Florida there were extraordinary circumstances that prevented him from doing it and there were five

. And that is a decision of law and not one of fact. So the government's position and and and we believe it's a strong incorrect position in this case is that Simmons decision is balls right in with 2255 F3 and if this court were to hold otherwise it would undermine if not completely render redundant 2555 F3. Turning to petitioners argument that he is entitled to equitable tolling. The government's position is not that it is absolutely impossible or inconceivable that a decision of law could be a reason to trigger equitable tolling. The government's position in this case is that this it's not appropriate for this defendant because so many in part because there was no extraordinary circumstance that stopped Mr. White side from making the argument that many other defendants had made before this court's decision in Simmons. This is that is to say the on bond court's decision in Simmons. The on bond decision Simmons was pressaged by a number of other decisions and along the way I can tell you as someone who litigated these cases in the district court on opposed conviction matters that we were we were seeing these arguments made regularly. So Mr. White side could have made the same argument that Jason Simmons made the Troy Palmaid and that many other defendants made. But the government's submission is that after heart every lawyer appealing a sentence to this court after heart notwithstanding the heart precedent should have included in the brief. Should have made it the district court and should have included in the brief to this court an objection to heart asking this court to overrule heart. Your honor. I don't want to say that because that's how else how else that's what we to interpret the argument that everybody should have challenged heart and there's no excuse for not challenging a wrongly decided decision by a panel of this court. With all due respect it's not a question of what a lawyer should have done that's not the standard it's not an ineffective assistance of council question right now what the issue is is under Holland versus Florida do we told the equal to the statute of limitations. Because of a decision that this court rendered that followed many others it's it's a question of equitable tolling not what someone should have done but whether there was an extraordinary circumstance that prevented him from doing it. And the extraordinary circumstance perhaps is the iron of the judges of this court surely to be visited on a continuous string of defense lawyers from North Carolina and elsewhere saying please overrule heart. I don't think a pellet panels appreciate that kind of behavior so I appreciate your argument I do and you're right to challenge equitable tolling I'm just looking for the alternative. Well I think the alternative I mean in this case you're not talking about challenging it from harp on but once Rodriguez came out prueck came out caratry Rosendo came out I mean we had a string of decisions that put defendants on notice and their council that this was a viable issue. And Jason Simmons raised this issue in April of 2008 even before Rodriguez so and again it's it's not really a question of whether someone should have done it it's whether under Holland versus Florida there were extraordinary circumstances that prevented him from doing it and there were five. Simmons I should know that I should surely know that I do know I believe it was five and it might have been eight to five. But maybe it was seven to five in any event it's just Floyd and judge stacker didn't participate understood and back they might have been six to five. It was in six to five but in any event whether that was a close decision or not by the time we got there many other defendants had met this bar which is to show and to prove that there were no extraordinary circumstances that prevented Mister White site from making this argument within a year of the final judgment of the court. So there was no extraordinary circumstances and there's no case that petitioner can cite with a similar circumstance where there's a string of decisions other petitioners are making these arguments and Mister White site isn't so his claim is time barred and the district court properly held it so accordingly no certificate of a probability should issue and the court shouldn't really do it. So I think it's a good idea to reach the merits of the question now at some point are the merits of this issue of career fender and harm and Simmons should it be reached by this court will it be perhaps this simply isn't the case because there are procedural problems with it. There's an awful lot of China that has to be knocked over to get to where the defendant wants to go you got to know you got the the agreement problem and then you've got the certificate of a pealability question and then you've got three and four and how they interrelate and you've got equitable tolling even if you get through all of those knock over all that China. Then you have the basic question right which goes king it said I'll present them for close correct and the question really is is this an appropriate vehicle to just move down all these obstacles and all these different questions to get to a position that is conflict with two other circuits. Yes Your Honor and I just were not playing from a position of strength here if we do that. I would agree with your honor and I think it's important to note that Congress set those barriers up but I don't want to fail to at least address the merits of the issue. No I think you must because you're able council on the other side address them and you need to respond. Thank you Your Honor and so turning to the merits first of all I would note that there is no reason why the district court in this case can't oppose a 210 month sentence on remand I would note that this petitioner has seven prior convictions for assault with a deadly weapon on a government official to drug trafficking convictions. It's quite possible that the district court on remand would or could the district court have those that record before absolutely your honor it did. It would be hard to do so without a sort of a blatant appearance of sort of like paying each of you know the joke when I was practicing all you know you don't complete guilty. You know you pay rent on the courtroom. You don't want your sentence. So this rent for appealing. Well I winning on appeal in the fourth circuit. You think you could just blatantly say oh I'm going to go up to 210. Well absolutely because your honor the legal landscape has completely changed I mean on remand the district court looks at it and says okay your guideline range is lower now I have a new question before me I have to decide whether or not based on your criminal history and all the facts of this offense. Whether or not an upward variance is warranted in light turns out that he had actually saved the life of a bureau prison employee last year

. Simmons I should know that I should surely know that I do know I believe it was five and it might have been eight to five. But maybe it was seven to five in any event it's just Floyd and judge stacker didn't participate understood and back they might have been six to five. It was in six to five but in any event whether that was a close decision or not by the time we got there many other defendants had met this bar which is to show and to prove that there were no extraordinary circumstances that prevented Mister White site from making this argument within a year of the final judgment of the court. So there was no extraordinary circumstances and there's no case that petitioner can cite with a similar circumstance where there's a string of decisions other petitioners are making these arguments and Mister White site isn't so his claim is time barred and the district court properly held it so accordingly no certificate of a probability should issue and the court shouldn't really do it. So I think it's a good idea to reach the merits of the question now at some point are the merits of this issue of career fender and harm and Simmons should it be reached by this court will it be perhaps this simply isn't the case because there are procedural problems with it. There's an awful lot of China that has to be knocked over to get to where the defendant wants to go you got to know you got the the agreement problem and then you've got the certificate of a pealability question and then you've got three and four and how they interrelate and you've got equitable tolling even if you get through all of those knock over all that China. Then you have the basic question right which goes king it said I'll present them for close correct and the question really is is this an appropriate vehicle to just move down all these obstacles and all these different questions to get to a position that is conflict with two other circuits. Yes Your Honor and I just were not playing from a position of strength here if we do that. I would agree with your honor and I think it's important to note that Congress set those barriers up but I don't want to fail to at least address the merits of the issue. No I think you must because you're able council on the other side address them and you need to respond. Thank you Your Honor and so turning to the merits first of all I would note that there is no reason why the district court in this case can't oppose a 210 month sentence on remand I would note that this petitioner has seven prior convictions for assault with a deadly weapon on a government official to drug trafficking convictions. It's quite possible that the district court on remand would or could the district court have those that record before absolutely your honor it did. It would be hard to do so without a sort of a blatant appearance of sort of like paying each of you know the joke when I was practicing all you know you don't complete guilty. You know you pay rent on the courtroom. You don't want your sentence. So this rent for appealing. Well I winning on appeal in the fourth circuit. You think you could just blatantly say oh I'm going to go up to 210. Well absolutely because your honor the legal landscape has completely changed I mean on remand the district court looks at it and says okay your guideline range is lower now I have a new question before me I have to decide whether or not based on your criminal history and all the facts of this offense. Whether or not an upward variance is warranted in light turns out that he had actually saved the life of a bureau prison employee last year. With the district court. Could the district court ignore that. I mean it I think all of those those questions would be before the court let me make clear just in terms of legal standard I wanted to I wanted to assert because I think it's important to assert that this sentence was lawful then and it would be lawful now. And that is why it does not meet this courts requirement that it have been a press an error that rendered the entire proceeding irregular that entire proceeding while a mistake may have been made was not rendered irregular or unlawful or invalid simply because a mistake of the guidelines no matter how large there are other guideline errors that would constitute this dramatic a change there are 16 12 level enhancements 16 level enhancements there are enhancements that could create the kind of disparate result that an errors in the as the career of fender does you think he'd be able to sometimes we have limited remands and sometimes we have all in the terms of the remand sometimes we have broad remand you suggest that this would almost necessarily because if we ever get to that point that it was even cognizable it would have to be a broad remand and the district court under the I said you know the coach is no limitations shall be placed on this information the district court can consult during sentencing and the no limited to place that limitation here to try to render a blind sentence when somebody if somebody has seven different convictions these are the four a one point three any formal criminal history would probably significantly understate the record that's right your honor and that in and the government would agree that if this case is remanded it would be remanded for for a new sentencing a denovo recentencing proceeding he would get the benefit of the question is whether we even get to the point of holding that this is cognizable under our president judge king was very infadet in saying in the Powell decision that no there are president this is not that's right and because there unless I have an extraordinary circumstances and I don't think this court has ever seen such an extraordinary circumstance guideline errors are not cognizable couple of points that I want to make in response to his hester's argument first of all with respect to May back this court and pedifer quite plainly held and and that may back was limited to a situation and first of all that was a procedural bar question not cognizability but second it was limited to a situation in which the prior convictions the defendant didn't commit them that those offenses and pedifer limited may back to that and and recognize limitation second I note that the decisions with the exception of 11 circuits decision in in spencer in which a petition for re hearing on bomb by the government remains pending the other decisions Hawkins involved advisory guidelines but Narvaez in of the seventh circuit involved a career fender error when during the main mandatory guidelines system time when the game and the guidelines were mandatory as did sun bear and and this case involved an error that was committed during the advisory guidelines when the guidelines were advisory and I think that's a critical distinction in the reasoning either way this court's precedent holds that guidelines errors are not cognizable this is not a guideline error this is not an error if I may answer your question Judge Gregory I see that my time is up we have recognized the government recognizes that now in light of Simmons we understand that the crew application of the career fender enhancement to Mr. Whiteside was erroneous but certainly at the time it was made everyone understood that it was a lawful sentence that's what I'm saying is a distinction and it wasn't an error that it makes it extraordinary and perhaps a manifest injustice because it was we're not talking about an error in terms of calculations and got a point wrong something that part of that is because you had at least an opportunity to correct those mistakes when the district court made those doing sentence normally but here no error the law changed and it's sort of draconian these sentences are already in my view rather draconian is across the board and that's why Congress is trying to chip away at 706 750 all these things is buried treatment for a person to remain in jail for a year for years longer that we now to know the law to be it's like someone convicted in certain states where marijuana was 20 years sentence and then we came to a different state and make it illegal it's that what you remain because at the time 20 years was the guidelines for that kind of rather draconian what is that a manifest injustice you know your honor at least that Congress enacted the anti terrorism and effective death penalty act and Congress struck the balance between finality and an error free proceeding and the way that that balance has been stricken is that if the law changes unless it is a law that changes and it satisfies f3 and it is it creates a cognizable claim for relief it it simply isn't an error that is to be corrected in Congress struck that balance now this court can view the balance fair or unfair but it is the balance the Congress struck and this court precedent has recognized that and and and for good reason because Congress made the determination that only limited claims could be connected at this stage of the game guidelines errors don't fall within that no matter how significant and although I recognize that it was a court decision and at the time it wouldn't be considered an error it's not a manifest injustice where the law changes and we now understand that a defendant would not today be sentenced to the same sentence why that it's it's just not one that under these terms it has to be a constitutional error or it has to be one where the sentence was unlawful in some way and it wasn't it wasn't then and it isn't now because the district court could impose the very same sentence on remand by definition if a district court could impose the same sentence on remand and has the discretion to do so it is not a manifest injustice under the anti terrorism and effective death penalty act no matter how much anyone in this courtroom may wish it were so it is not so not under this court's precedent and judge king did recognize that and the government respectfully requested this court apply that precedent as it is if the court has no further questions hold on for this second we have no further questions thank you your honors as has to we'd be happy to hear from you on rebuttal i'd like to begin where the government left off and talking about the finality interest in its relationship to manifest injustice because i think it's important here when the court is considering the finality interest to understand how easy it is for the district court to determine whether there is a Simmons error in somebody's sentencing basically the court has to look at one document which is the north carolina judgment in order to determine whether there is a is a Simmons error or not um and it is very easy to process these cases we know this because we have 120 of them pending in the western district and where the government agrees to relief we have been able to move through those quite quickly it is not something that requires any evidentiary hearing at all so for that reason the finality interest in these cases is diminished because it does not require a great deal of effort on the part of the district court to make a decision on post conviction about a Simmons mistake and I sure finality is simply a function of how a court of appeals gauges it may or may not be how difficult it may or may not be for district court um part of that may involve an evidentiary hearing but um another part of it involves the sheer volume of claims that are coming through seems to me every time I turn around I'm seeing a new Simmons claim in one form or another um and a part of it is the is the volume of the claims that reach the district court and in this case they're going to be quite a few but that is about to end because it's a finite pool of people who will have these post conviction Simmons claims because for now on they'll be caught at sentencing so this is not something that will go on every time but I think you know the finality interest is not simply the Simmons interest the finality interest is in having the camel's nose in the tent and opening up guidelines provision to collateral challenges um taking a question of law um and calling it a fact um and having um guidelines calculations I mean every dramatic expansion and habeas corporate is begun with a step just like this um and uh that's part of the finality question is what do you set in most of the time? I understand that I just believe that part of that consideration should be the type of claim that this is I wouldn't like to address the government's assertion that Mr. Whiteside has seven prior assaults because while that is technically correct all seven of those are related to a single incident where he was driving a car toward police officers who were directing traffic and he was unapparently under the influence of drugs or alcohol at the time and that's an ongoing theme throughout his criminal history is his alcohol and drug addiction um was that taken into account in the initial sentence at all? I don't know um to be perfectly honest with the court. Only only from the perspective that they were consolidated with one of the drug convictions that was used as a career at vendor enhancement. This has to it seems like the argument of this ray and ably argued obviously and eloquently done so but it seemed like the argument has shift a little bit to not a question of whether we should do it but they're saying this court this panel doesn't have the power to grant relief that you suggested. You need to respond to that they said we don't have the power so just address that actually that's because that's what the argument really is that we don't have the power to do so can you address that? I don't understand where um where that comes from to be perfectly honest that this court doesn't have the power to grant relief um I'm not sure if she said that in the context. What the whole context was that we were citing to power and you heard judge kings opinion and power and and somehow that somehow closed us and COA questions those type things that's well hurdle you need to at least address if it is a hurdle first of all with respect to the certificate of appeal ability this court does need to issue a certificate of appeal ability. The ability um this issue actually came up in the Miller case where the government acknowledged that the reasons for the significant is certificate of appeal ability or not jurisdictional. Right. I only take one judge to do that. Right and all we have to make is a debatable showing of constitutional error and we've done that. All right. Um and other issues can come along for the ride after that once you have a constitutional error. So um the other thing to consider is that the certificate of appeal ability requirement is an attempt by Congress to streamline the appellate process and here we are at move on from that. I think we'll understand that. Okay. That that that gateway

. With the district court. Could the district court ignore that. I mean it I think all of those those questions would be before the court let me make clear just in terms of legal standard I wanted to I wanted to assert because I think it's important to assert that this sentence was lawful then and it would be lawful now. And that is why it does not meet this courts requirement that it have been a press an error that rendered the entire proceeding irregular that entire proceeding while a mistake may have been made was not rendered irregular or unlawful or invalid simply because a mistake of the guidelines no matter how large there are other guideline errors that would constitute this dramatic a change there are 16 12 level enhancements 16 level enhancements there are enhancements that could create the kind of disparate result that an errors in the as the career of fender does you think he'd be able to sometimes we have limited remands and sometimes we have all in the terms of the remand sometimes we have broad remand you suggest that this would almost necessarily because if we ever get to that point that it was even cognizable it would have to be a broad remand and the district court under the I said you know the coach is no limitations shall be placed on this information the district court can consult during sentencing and the no limited to place that limitation here to try to render a blind sentence when somebody if somebody has seven different convictions these are the four a one point three any formal criminal history would probably significantly understate the record that's right your honor and that in and the government would agree that if this case is remanded it would be remanded for for a new sentencing a denovo recentencing proceeding he would get the benefit of the question is whether we even get to the point of holding that this is cognizable under our president judge king was very infadet in saying in the Powell decision that no there are president this is not that's right and because there unless I have an extraordinary circumstances and I don't think this court has ever seen such an extraordinary circumstance guideline errors are not cognizable couple of points that I want to make in response to his hester's argument first of all with respect to May back this court and pedifer quite plainly held and and that may back was limited to a situation and first of all that was a procedural bar question not cognizability but second it was limited to a situation in which the prior convictions the defendant didn't commit them that those offenses and pedifer limited may back to that and and recognize limitation second I note that the decisions with the exception of 11 circuits decision in in spencer in which a petition for re hearing on bomb by the government remains pending the other decisions Hawkins involved advisory guidelines but Narvaez in of the seventh circuit involved a career fender error when during the main mandatory guidelines system time when the game and the guidelines were mandatory as did sun bear and and this case involved an error that was committed during the advisory guidelines when the guidelines were advisory and I think that's a critical distinction in the reasoning either way this court's precedent holds that guidelines errors are not cognizable this is not a guideline error this is not an error if I may answer your question Judge Gregory I see that my time is up we have recognized the government recognizes that now in light of Simmons we understand that the crew application of the career fender enhancement to Mr. Whiteside was erroneous but certainly at the time it was made everyone understood that it was a lawful sentence that's what I'm saying is a distinction and it wasn't an error that it makes it extraordinary and perhaps a manifest injustice because it was we're not talking about an error in terms of calculations and got a point wrong something that part of that is because you had at least an opportunity to correct those mistakes when the district court made those doing sentence normally but here no error the law changed and it's sort of draconian these sentences are already in my view rather draconian is across the board and that's why Congress is trying to chip away at 706 750 all these things is buried treatment for a person to remain in jail for a year for years longer that we now to know the law to be it's like someone convicted in certain states where marijuana was 20 years sentence and then we came to a different state and make it illegal it's that what you remain because at the time 20 years was the guidelines for that kind of rather draconian what is that a manifest injustice you know your honor at least that Congress enacted the anti terrorism and effective death penalty act and Congress struck the balance between finality and an error free proceeding and the way that that balance has been stricken is that if the law changes unless it is a law that changes and it satisfies f3 and it is it creates a cognizable claim for relief it it simply isn't an error that is to be corrected in Congress struck that balance now this court can view the balance fair or unfair but it is the balance the Congress struck and this court precedent has recognized that and and and for good reason because Congress made the determination that only limited claims could be connected at this stage of the game guidelines errors don't fall within that no matter how significant and although I recognize that it was a court decision and at the time it wouldn't be considered an error it's not a manifest injustice where the law changes and we now understand that a defendant would not today be sentenced to the same sentence why that it's it's just not one that under these terms it has to be a constitutional error or it has to be one where the sentence was unlawful in some way and it wasn't it wasn't then and it isn't now because the district court could impose the very same sentence on remand by definition if a district court could impose the same sentence on remand and has the discretion to do so it is not a manifest injustice under the anti terrorism and effective death penalty act no matter how much anyone in this courtroom may wish it were so it is not so not under this court's precedent and judge king did recognize that and the government respectfully requested this court apply that precedent as it is if the court has no further questions hold on for this second we have no further questions thank you your honors as has to we'd be happy to hear from you on rebuttal i'd like to begin where the government left off and talking about the finality interest in its relationship to manifest injustice because i think it's important here when the court is considering the finality interest to understand how easy it is for the district court to determine whether there is a Simmons error in somebody's sentencing basically the court has to look at one document which is the north carolina judgment in order to determine whether there is a is a Simmons error or not um and it is very easy to process these cases we know this because we have 120 of them pending in the western district and where the government agrees to relief we have been able to move through those quite quickly it is not something that requires any evidentiary hearing at all so for that reason the finality interest in these cases is diminished because it does not require a great deal of effort on the part of the district court to make a decision on post conviction about a Simmons mistake and I sure finality is simply a function of how a court of appeals gauges it may or may not be how difficult it may or may not be for district court um part of that may involve an evidentiary hearing but um another part of it involves the sheer volume of claims that are coming through seems to me every time I turn around I'm seeing a new Simmons claim in one form or another um and a part of it is the is the volume of the claims that reach the district court and in this case they're going to be quite a few but that is about to end because it's a finite pool of people who will have these post conviction Simmons claims because for now on they'll be caught at sentencing so this is not something that will go on every time but I think you know the finality interest is not simply the Simmons interest the finality interest is in having the camel's nose in the tent and opening up guidelines provision to collateral challenges um taking a question of law um and calling it a fact um and having um guidelines calculations I mean every dramatic expansion and habeas corporate is begun with a step just like this um and uh that's part of the finality question is what do you set in most of the time? I understand that I just believe that part of that consideration should be the type of claim that this is I wouldn't like to address the government's assertion that Mr. Whiteside has seven prior assaults because while that is technically correct all seven of those are related to a single incident where he was driving a car toward police officers who were directing traffic and he was unapparently under the influence of drugs or alcohol at the time and that's an ongoing theme throughout his criminal history is his alcohol and drug addiction um was that taken into account in the initial sentence at all? I don't know um to be perfectly honest with the court. Only only from the perspective that they were consolidated with one of the drug convictions that was used as a career at vendor enhancement. This has to it seems like the argument of this ray and ably argued obviously and eloquently done so but it seemed like the argument has shift a little bit to not a question of whether we should do it but they're saying this court this panel doesn't have the power to grant relief that you suggested. You need to respond to that they said we don't have the power so just address that actually that's because that's what the argument really is that we don't have the power to do so can you address that? I don't understand where um where that comes from to be perfectly honest that this court doesn't have the power to grant relief um I'm not sure if she said that in the context. What the whole context was that we were citing to power and you heard judge kings opinion and power and and somehow that somehow closed us and COA questions those type things that's well hurdle you need to at least address if it is a hurdle first of all with respect to the certificate of appeal ability this court does need to issue a certificate of appeal ability. The ability um this issue actually came up in the Miller case where the government acknowledged that the reasons for the significant is certificate of appeal ability or not jurisdictional. Right. I only take one judge to do that. Right and all we have to make is a debatable showing of constitutional error and we've done that. All right. Um and other issues can come along for the ride after that once you have a constitutional error. So um the other thing to consider is that the certificate of appeal ability requirement is an attempt by Congress to streamline the appellate process and here we are at move on from that. I think we'll understand that. Okay. That that that gateway. What about the four closure arguments on B3 and four that's nothing in that prohibit prohibits. It's Mr. Ray said it prohibits what you're asking with the F3 and the F4. Um again I'd point out to the court that the government it says that but there's no precedent saying that a situation an unusual situation like this cannot. What is the language that gives the flexibility that you say that we have some determination to do so because the argument is that we cannot by the very strict to the language. What is the language? The language is the fact language in F4 combined with the Supreme Court's interpretation of that in Johnson. Where the court says that this you know basically the court said this isn't pretty. Uh, Congress didn't think about this situation when it drafted these provisions. That's not unusual. Correct. But we have to find a way to figure out how to fit this different situation into this framework and we're going to do it by saying that this court determination is actually a fact. And I submit to the court that this determination the Simmons determination has a similar effect to Johnson. Because a recidivist offense is a different offense than an honor-sidivist offense. I mean basically when you're talking about the fact of a prior conviction which is what which is what the court talks about. And in Johnson you're talking about a determination of what offense the defendant actually committed. And. The fact there was the fact there was a vaker chair of the of the predicate conviction. Um, you mean your position that a change in the legal status of a predicate conviction is a fact almost makes any intervening. It comes very close to making any any any intervening change in law a fact. And the question I have is in F3 it seems to me that Congress did

. What about the four closure arguments on B3 and four that's nothing in that prohibit prohibits. It's Mr. Ray said it prohibits what you're asking with the F3 and the F4. Um again I'd point out to the court that the government it says that but there's no precedent saying that a situation an unusual situation like this cannot. What is the language that gives the flexibility that you say that we have some determination to do so because the argument is that we cannot by the very strict to the language. What is the language? The language is the fact language in F4 combined with the Supreme Court's interpretation of that in Johnson. Where the court says that this you know basically the court said this isn't pretty. Uh, Congress didn't think about this situation when it drafted these provisions. That's not unusual. Correct. But we have to find a way to figure out how to fit this different situation into this framework and we're going to do it by saying that this court determination is actually a fact. And I submit to the court that this determination the Simmons determination has a similar effect to Johnson. Because a recidivist offense is a different offense than an honor-sidivist offense. I mean basically when you're talking about the fact of a prior conviction which is what which is what the court talks about. And in Johnson you're talking about a determination of what offense the defendant actually committed. And. The fact there was the fact there was a vaker chair of the of the predicate conviction. Um, you mean your position that a change in the legal status of a predicate conviction is a fact almost makes any intervening. It comes very close to making any any any intervening change in law a fact. And the question I have is in F3 it seems to me that Congress did. Consider very concretely. What. How I want to deal with. Decisional changes as they impacted on the statute of limitations. And it limited that in F3 the situations where the Supreme Court had rendered a particular. Of decision after trial and direct appeal and what have you. Um, and where it had ruled it retroactive and it says only in that limited circumstance. Do we want to unwind the one year statute of limitations now as Miss Ray points out it's a trade off between what you're advocating and the value of. Importance of finality that Miss Ray is advocating and and the statute of limitations. Does express an interest in formality and the particular exception addresses exactly what you're talking about which is decision or changing. And it says it's limited. Not to a circuit court decision which someone was it's limited to Supreme Court decisions and not just limited to Supreme Court decisions. But to Supreme Court decisions that the Supreme Court itself has decided to give retroactive a factor. And you know what we we start doing this or go in the route of equitable tolling and everything we're unwinding what Congress is done. The only question I have is an ultimate matter is given what your ultimate position is. You've got to go through so much to get there in terms of circuit precedent in terms of F3 and F4 and timeliness in terms of the. Expression in the certificate of a fealability section that constitutional claims would be the focus of a habeas of that. The question I have is given a China you have to knock over. Is this really an appropriate vehicle to make the kind of declaration and pronouncement that you have the court make because that's a lot of times questions are very interesting. But they're not procedurally set up in the right way they don't have the right procedural glide plane

. Consider very concretely. What. How I want to deal with. Decisional changes as they impacted on the statute of limitations. And it limited that in F3 the situations where the Supreme Court had rendered a particular. Of decision after trial and direct appeal and what have you. Um, and where it had ruled it retroactive and it says only in that limited circumstance. Do we want to unwind the one year statute of limitations now as Miss Ray points out it's a trade off between what you're advocating and the value of. Importance of finality that Miss Ray is advocating and and the statute of limitations. Does express an interest in formality and the particular exception addresses exactly what you're talking about which is decision or changing. And it says it's limited. Not to a circuit court decision which someone was it's limited to Supreme Court decisions and not just limited to Supreme Court decisions. But to Supreme Court decisions that the Supreme Court itself has decided to give retroactive a factor. And you know what we we start doing this or go in the route of equitable tolling and everything we're unwinding what Congress is done. The only question I have is an ultimate matter is given what your ultimate position is. You've got to go through so much to get there in terms of circuit precedent in terms of F3 and F4 and timeliness in terms of the. Expression in the certificate of a fealability section that constitutional claims would be the focus of a habeas of that. The question I have is given a China you have to knock over. Is this really an appropriate vehicle to make the kind of declaration and pronouncement that you have the court make because that's a lot of times questions are very interesting. But they're not procedurally set up in the right way they don't have the right procedural glide plane. And that's the problem. It's one of the problems that I'm that I'm having here but it I think a serious one I'd like to give you a chance to respond to that. Well, there's no denying that there are issue hurdles that we have to. Overcome in order to get to the cognizability issue. But as I've argued to the court I believe that we get past those hurdles and get to the cognizability issue and cognizability is relevant also to the equitable tolling issue. So that's part of the analysis the court needs to consider when trying to decide whether equitable tolling excuses him from not complying with the statute of limitations if the court concludes that that is the case. So well I can imagine better cases to set up the cognizability issue these other issues are important as well. Did you think further you'd like that? No, Your Honor. Thank you. I thought this case was exceptionally well argued on both sides and I want to say that. And thank you. Thank you both and we'd like to come down and greet you and then move into our next case. That okay if we move okay to move into the next case.

This has. May it please the court and Hester representing the Angelo White side. No one disputes that the Angelo White side's 210-month career offender sentence is error. That sentence also amounts to both a dupe assessment and a miscarriage of justice that should be remedied on collateral review. The guts view to the contrary depends on an unsustainable stance that after a booker district court sentencing discretion under the guidelines is unlimited. The Supreme Court's decision in Pue and this court's decisions in the Carter line of cases demonstrate why the government is wrong. Appellate reasonableness review significantly confines the district court sentencing discretion. Perhaps the most powerful limitation on sentencing discretion is the procedural requirement that the district court explained its reasoning and that a variance be supported by a more detailed explanation than a within the guidelines sentence. Simply as a matter of circuit precedent. Have it we said that it's an extraordinary circumstances of challenges to guidelines or not cognizable on collateral review. The court has said that ordinary guidelines errors are not cognizable on collateral review. But this is not an ordinary guidelines error. This is not what an ordinary guideline error. This court has what I'm wondering is what legal standard do we have to separate an ordinary guideline error from an extraordinary guideline error given the fact that under your view of it all guidelines calculations would have some conceivable effect upon the sentence. I mean what's the principle of limitation here. I'm not sure we can simply confine this to collateral attacks on career fender determinations. We have to have some basis in law other than our own feel about well this is significant and this is for demarcating. So what's what's the principle here? Well I think that the 11th circuit case and Spencer and the 7th circuit case in Narvae is provide some helpful guidance about why career offenders are distinct from other guidelines errors. And one reason is because career offender is required by statute to be at or near the statutory maximum. And another reason is because as Pue explains and Spencer follows up on career offender usually increases a defendant's sentence significantly. In fact, in Spencer the court points out statistics that usually career offender designation doubles in individuals. The question to you is granted the career offender status increases the might increase the sentence significantly. But that's true of any criminal history calculation. I mean there are all kinds of federal sentencing determinations that depend upon prior convictions. And I'm not sure given the fact that they all along with base effect level of effect for guidelines range. Let's suppose somebody gets put in a criminal history for as opposed to a criminal history too. That's going to have an effect. So is that open to challenge on collateral review? I would suggest that it's not because those types of bombs are really incremental bombs and not the significant change that career offender imposes. And in fact, and make a big difference. If you have enough of those errors that can make a big difference, but I haven't seen any. I haven't seen any cases in preparing for this case where. Where an enhancement other than something a recidivist enhancement like career offender or acqua significantly increases a defendant's sentence. And I would I would refer the court to the decision of the United States versus May back where pre-booker. The court recognized a post conviction challenge to career offender status. I mean, I think that there is precedent for distinguishing these recidivist enhancements that significantly increase a defendant's sentence from other. And I think that decision was handed down in the era of mandatory guideline on the seven circuit in its Hawkins case. I think indicated that there's a world of difference between mandatory guideline provisions subject only to very limited departures and advisory guidelines decisions. Which are subject to very upset and when the whole regime is. Is guided by guidelines, but it's a good bit looser. I mean, in terms of allowing greater district court sentencing discretion. Then it was at the time of. May back case that she was. If you say plus that was an actual in this question. I'm not sure. That's what we have here. Well, I'm not sick. We have an actual in us. I'm not suggesting that May back controls the situation, but I am suggesting that May back provides the court was some guidance about how you can distinguish career offender from other types of guidelines errors. I think that the the seventh circuit Hawkins decision suffers from the same flaw that the government's reasoning here does because it refuses to acknowledge the limitations on sentencing discretion created by the post book or a pellet review for reasonableness really do make a difference in really do limit the district court's discretion. But you don't dispute the fact that the district court. On resensing to impose. So I see the same sense is you know, this is what I think is individual deserve. Actually, I do dispute that your honor because of the requirement that the district court explain its sentence. And in a case like this. And white sides case the courts discretion discretion to descendants below the career offender range, which was 262 to 327 months. First of all was limited to reasons related to the substantial assistance, which is how he got below that range in the first place to 210 months. But also a pellet review for reasonableness would require the court to explain if it were to sentence. Down to the proper range of 140 to 175 months, the court would have to explain the reasons for doing that. So the original sentencing the court doesn't have reasons for going that low. And if it goes that low without explaining in this court has demonstrated its willingness to vacate for substantive unreasonableness when the reasons don't support the sentence granted. But at the same time, if his sentence is vacated and sent back, there would not be reasons to support a sentence as high as 210 months. The nation is given a great deal of difference and the district court should. Well, say well, I departed downward from the guidelines range. The last time. Because of substantial assistance. And I settled on a particular figure I could have departed much further down. But there was only a 20% downward departure in the initial sentencing. And it was open to the district court to the further. But apparently the district court didn't believe the defendant deserved. That extensive a downward departure. And this is not a situation where someone's convictions have been vacated. And the court would have to be. And the convictions are still very much on the record. Nothing has changed about the underlying facts of. That's true. And for that reason, it would be very difficult on remand for the district court to justify a sentence that is six and a half to eight and a half years longer than the correct guideline range. Based on the same reasons that it gave. At the original sentencing. I think it would be the district court would be hard pressed to justify 210 months sentence. For the defendant provided substantial assistance and the correct guideline range begins at 140 to 175 months. Under hits white side has a liberty interest in being sentenced within the full scope of the district court's discretion. And the combined effect of the career offender enhancement and appellate reasonableness review prevented the court from exercising its discretion to impose the much lower sentence that white side should have received. Denying white side relief from this deprivation of sentencing discretion based on a conjecture that he might receive the same sentence on remand violates due process underhicks. But even if white sides sentence is not a due process violation, it is. It is the due process violation below repeatedly your honor. I know the government says in its brief that we didn't but we. We repeatedly raise that. Below both in our motion and in our response to the governments are reply to the government's response. This was before the district court. Correct. Now the district court never ruled on that because the district courts ruling related to the appeal waiver and the timeliness issue. What exactly is the nature of the process claim? The nature of the due process claim is underhicks. The the district court was deprived of its discretion to sentence at the appropriate guideline range. It's that deprivation of sentencing discretion from the sentence or that is the due process violation. I'm not sure I understand how can that be limited. How can that be limited? You could just slap a due process. Label on everything. Well, not if the district court sentencing discretion was not. Not if the district court wasn't deprived of discretion to sentence and I think. The eight circuit sunbare decision provides an example of where that would be the case because in that case the defendant's career offender sentence was also within his non career offender guideline range. So there would not be. How is the district court deprived of its discretion? Because it had to begin with an incorrect guideline range and procedural reasonableness requiring it to state reasons for its sentence. In addition to the substantive reasonableness whether the sentence fits the reasons given prevent it from sentencing at the appropriate guideline range of 140 to 175 months. And the guidelines remain advisory and the goal decision says that under an advisory. The district court's retained discretion and that they're not permitted to presume at the trial level that the guidelines range is correct. They don't afford a presumption of correctness to it. Well, that's true at the same time. Pew recognizes that the procedural measures are intended to make the guidelines a loadstone of sentencing and in fact. Pew sites empirical evidence demonstrating that that works because when a defendant when a guideline range moves up or down offenders sentences move with it. So at some point the district court it discretion is removed to the district court is not free to impose whatever sentence that it feels like imposing it has to impose a sentence that is supported by reasons. That are based on the evidence. Maybe that seems to me to find the face of the thrust of the goal decision which was intended to weaken the grip of the guidelines on district judges to retain for them a place that to retain for them an advisory place. I wonder if I could shift a little bit. Under our pedophilic decision. We look at we would look at something that was a non constitutional error only if there was a manifest injustice and manifest injustice both in the fourth prong of Olano and elsewhere. Then thought to denote a judicial proceeding that was almost so riddled with error that it wasn't even worth the name. Now I do understand that Simmons is the relevant precedent of this court and they're going forward. The question here is was it a manifest injustice at set or the court to pose a sentence that was concededly correct under the law as it existed. At that time, now harp has been overruled but at the time it was remained law. A panel of this court initially affirmed the heart regime. There was a Supreme Court justice on that panel. It says when in bank but at the time this petitioner, which was before Simmons, at the time this petitioner was sentenced, it was in accordance with law. And one can disagree about Simmons but surely a sentence that's imposed in accordance with the law that exists in that time on an issue that is disabled. So there were these convictions there. They were punishable by more than one year. And I'm just a little bit hard pressed to say how that is a manifest injustice sufficient to open up collateral reviews. What do you say about that? How do we get to a manifest injustice? Well, I think it's incorrect to say that the law at harp and Jones after Simmons, we now know that harp and Jones were incorrect all along. So he never was punishable by more than a year for those prior convictions. And we know that his sentence was imposed before Simmons. Correct. But we now know after Simmons that harp and Jones were incorrect. So while they were binding precedent, they were incorrect binding precedent. So I suggest to the court that that is a manifest injustice to send someone to. I wouldn't go so far to say that I would just say that in this case it's a manifest injustice where a person is sentenced to between six and eight additional years in prison based on law that we now know is incorrect. What further comments would you like to make? I will. I do have rebuttal time. Well, I was going to address I was planning to address the timeliness of the motion under F4 and the equitable stop will issue. Okay. White size motion was timely under F4 because you filed it within a year of the on box Simmons decision. And under Johnson versus United States Simmons in conjunction with its effect on white size prior North Carolina judgments generated a new fact for purposes of F4. Government has offered no compelling reason why the fact in Johnson in order vacating a predicate conviction should be treated differently from the fact here, which is a judicial opinion that fundamentally alters white side's criminal history. First of all, contrary, yes, first of all, contrary to the government's position, white side is not suggesting a limitations period that depends on any subjective knowledge. And second, the government is not identified a single case projecting application of F4 to a judicial opinion that alters a defendant's criminal history as Simmons does the cases at sites don't address that situation. Where does that be? That's my next point contrary to the government's argument adopting white side's position doesn't render F3 meaningless any more than Johnson does. Is demonstrated by the lack of cases addressing F4 in similar circumstances, Simmons presents an unusual if not unique situation. So white size interpretation of F4 is unlikely to apply to many if any cases other than those recognizing Simmons claims. But even if white side's motion was not timely, equitable tolling applies because white side has been pursuing his rights diligently and extraordinary circumstances in the form of entrenched circuit precedence in his way. The government's argument is basically asking the court to apply a rigid per se rule that a change in the law does not justify equitable tolling. But under Holland versus Florida, equitable tolling principles require flexibility. Mechanical rules are disfavored. Because it doesn't the statute set up a sort of a distinction in the dichotomy in F3 and F4 between matters of law which fall into the channel of Supreme Court decision that the Supreme Court has ruled to be retroactive and matters of fact, which if F3 is not to be rendered superfluous would be something different. From a matter of law or a decisional change, it seems to me that Congress has covered the decisional change in F3 and said okay, when there's a change in the law or a later decision comes to law, this is the circumstance that we want to have the statute of limitations run from. But that has to be a Supreme Court decision which the court is held to be retroactive. That's the only instance in which Congress has addressed decisional change and it seems to limit it to the Supreme Court decision. Well, in Johnson versus United States, the Supreme Court addressed that dichotomy and it pointed out that Congress did not necessarily consider every potential situation and it hadn't considered the situation in Johnson. And I think at one point the Supreme Court described the AEDPA as a sows ear of drafting that it wasn't drafted all that well. But there the decision was vacated, the predicate conviction was vacated. That's correct. But in this case, Simmons fundamentally changes the character of the underlying conviction, making it a misdemeanor instead of a felony. And if a recidivist offense is a different offense than a non recidivist offense, basically that converts it to a different offense. So that situation is nothing like any of the cases that the government sites. And I suggest to the court that it's more like Johnson than it is like the cases that the government sites which deal with things like jury instructions. We have a raging circuit conflict over this issue. Well, not yet. I wouldn't call it a raging circuit conflict. I would say that we have a posity of decisions addressing a situation like this one. You can try to say you're a seventh and eight circuit really weren't. But I've read a really special. Well, yes, if you're talking about a nice ability instead of for I was talking about. Okay. I'm not sure. Anything else. Just if the court permit me to make a point about the equitable tolling. Simmons reversal of well established precedent created an unusual and unpredictable circumstance that calls for special treatment. And I would just like to point out to the court the Powell decision the Troy Powell's case really demonstrates how extraordinary these circumstances are preventing someone like quite side from filing earlier. Because under Powell if white side had filed his 2255 before Simmons based on caraturi resindo it would have been dismissed because caraturi is not retroactive. But if he if the court adopts the government is a government's position on timeliness filing after Simmons, which is retroactive makes his claim on timely. So that really puts him in a catch 22 position where there's never a time when he can file his claim that will be considered on its merit. Thank you. Let me ask my co- panelists if they want to have any. Thank you. Mr. Rhaegu, please to hear from you. Thank you, Your Honor. Amy Ray for the United States. The district court in this case properly denied and dismissed Mr. White's sides section 2255 motion to vacate for three reasons. The first is that Mr. White's side waived his right to even seek this relief in the district court and the district court in this case properly recognized that he had knowingly involuntarily waived his right to seek post conviction relief. The second reason is that his motion is on timely and the third reason is that his motion to vacate does not present a cognizable claim for relief under section 2255. In terms, I would note that this court has not yet issued a certificate of appealability nor has the district court. So we must first consider whether or not a certificate of appealability may appropriately issue in this case. And in order for one deal with the first of your questions when we denied the waiver point on the plea agreement when we denied the motion to dismiss the appeal. No, Your Honor. I don't think so because our argument in the motion to dismiss. If you wouldn't we've dismissed the appeal. Well, I don't think so. Now the court did not provide any reasoning in that it was just simply dismissed. I would note however that the government's argument in the motion to dismiss is distinct from its argument now. So in the motion to dismiss it was about an appeal right. It was this appeal should be dismissed because the defendant waived his right to appeal. And the defendant argued that no in the plea agreement it says he may appeal the career finder designation. Now the issue is did the district court properly hold that the waiver precluded him from seeking this relief in the district court. So it's a little bit of a distinct right. One is an appellate one is a post conviction right. We did argue in that context that the post conviction right waiver precluded his appeal but it is distinct and this court could still hold. And I think should hold because the plain terms of the plea agreement say. I'm sorry Miss Ray. Yes. Is the question on the COA. One of whether the district court properly. Or is it rather whether it's debatable. Whether the district court properly judge Davis you're absolutely in terms of COA. It's whether it was debatable and I was hearing judge Wilkinson's question as one going to the merits as well. In terms of the but the government would argue that either way. No reasonable jurist would read this plea agreement and not conclude that this defendant had voluntarily and knowingly waived. And he doesn't challenge the knowing involuntary part. And the plea agreement discusses these rights distinctly. They cite it sites different provisions. One is post conviction. It's a different procedure. Different time and one is a pellet makes some sort of implication. I mean when we take plea agreements you're the one that. Often has a drafting role in this and we call the government to a strict standard and. You shouldn't force the court. To get it your position by a little bit of implication, which it seems. Which it seemed to me we were if you want to have a waiver. Should you spell it out. It is spelled out judge Wilkinson and we it is spelled out quite clearly. It's spelled out to the extent that there's a difference. That there are different paragraphs about direct appeal and collateral review, but it's not. You read me the language that indicates in your view that the waiver has been. Any collateral. Challenge to the sentence has been weighed. He says that he waives his right to challenge his sentence or his conviction under section 2255 or similar authorities. So you're reading verbatim. Essentially I mean it's memory but yes it's it's on page. See here. Okay. Some page one 15 of the joint appendix. And he uses and it uses the language or similar authorities, but he specifically says with the exception the two exceptions. In effect of assistance to counsel and prosecutorial misconduct neither of which is here. He waives his right to contest his sentence under and it has in the previous paragraph referenced both post conviction rights and appellate rights. And it says under section 2255 or similar authorities. If the district if this court holds that he hasn't waived his right fair enough, but I do note that the DOS in DOS in this court recognize that the government should get the benefit of the bargain for sure. If this court determines that it's ambiguous, the ambiguity has to be resolved in the defendant's favor. But the government's position and and my own reading of this plea agreement is that it's not ambiguous. It preserves a right to appeal the career offender designation and that language is different from the post conviction which is included in plainly way. Starting to the next issue of whether or not the defendant's pardon me the petitioners motion of vacate is timely. Even if this court holds that the petitioner did not knowingly and voluntarily waive his right to present his relief in the district court, the district court still properly dismissed his motion of vacate as untimely. With respect to 2255 F4, the petitioner argues that Simmons had some effect on his North Carolina judgments. Absolutely not true. Those North Carolina judgments remain in effect and in full force the same way that they did before Simmons the only. I thought your argument was there that an intervening change in the law is not a quote back. It is and that's that's exactly right. And so the Simmons did not it is a legal decision that may have had some legal effect that is to say that his prior convictions must be viewed in a different legal light. But it had absolutely no effect on those North Carolina judgments as opposed to Johnson in Johnson. The petitioners prior convictions were wholly vacated and that's the difference. It was the fact of the vacating of those prior convictions that triggered F4 in Johnson. This case falls within the heart of F3 to legal decision. Simmons was a decision of law that changed the legal nature perhaps but not the factual nature of those prior convictions. And therefore it is untimely under F4 petitioners motion to vacate. And there's no decision that petitioner sites in which there is a legal decision in the nature of Simmons that has been held to trigger a fact for purposes of F4. Is a is a district judges determination. At sentencing as to the nature and character of a prior conviction. IE whether it's a misdemeanor or a felony. Is that a determination of fact. It's a determination of law as applied to the facts. But it's certainly a determination of law. I mean whether or not something qualifies as a felony or I mean that is what Simmons was right. It looked at the term punishable by more than one year in prison and held that that term that language had to be narrowed based you know as opposed to the decisions in harp and Jones that this court was interpreting that language as a matter of law. But I'm moving past Simmons and I'm a district judge sitting there at sentencing. And the government wants to enhance sentence. Isn't it the government's burden to prove as a matter of fact that the defendant over here has a qualifying conviction. Yes. And you prove that matter of fact or a certified record and so on. But is it a matter of fact at the time of the sentence. Yes. It's a matter of fact in terms of the government must prove that the defendant has in fact been convicted of a prior conviction that was absolutely. However, whether or not something is qualifying is a question of law. And Simmons in Simmons had the effect of changing whether or not prior convictions qualified as felonies. And that is a decision of law and not one of fact. So the government's position and and and we believe it's a strong incorrect position in this case is that Simmons decision is balls right in with 2255 F3 and if this court were to hold otherwise it would undermine if not completely render redundant 2555 F3. Turning to petitioners argument that he is entitled to equitable tolling. The government's position is not that it is absolutely impossible or inconceivable that a decision of law could be a reason to trigger equitable tolling. The government's position in this case is that this it's not appropriate for this defendant because so many in part because there was no extraordinary circumstance that stopped Mr. White side from making the argument that many other defendants had made before this court's decision in Simmons. This is that is to say the on bond court's decision in Simmons. The on bond decision Simmons was pressaged by a number of other decisions and along the way I can tell you as someone who litigated these cases in the district court on opposed conviction matters that we were we were seeing these arguments made regularly. So Mr. White side could have made the same argument that Jason Simmons made the Troy Palmaid and that many other defendants made. But the government's submission is that after heart every lawyer appealing a sentence to this court after heart notwithstanding the heart precedent should have included in the brief. Should have made it the district court and should have included in the brief to this court an objection to heart asking this court to overrule heart. Your honor. I don't want to say that because that's how else how else that's what we to interpret the argument that everybody should have challenged heart and there's no excuse for not challenging a wrongly decided decision by a panel of this court. With all due respect it's not a question of what a lawyer should have done that's not the standard it's not an ineffective assistance of council question right now what the issue is is under Holland versus Florida do we told the equal to the statute of limitations. Because of a decision that this court rendered that followed many others it's it's a question of equitable tolling not what someone should have done but whether there was an extraordinary circumstance that prevented him from doing it. And the extraordinary circumstance perhaps is the iron of the judges of this court surely to be visited on a continuous string of defense lawyers from North Carolina and elsewhere saying please overrule heart. I don't think a pellet panels appreciate that kind of behavior so I appreciate your argument I do and you're right to challenge equitable tolling I'm just looking for the alternative. Well I think the alternative I mean in this case you're not talking about challenging it from harp on but once Rodriguez came out prueck came out caratry Rosendo came out I mean we had a string of decisions that put defendants on notice and their council that this was a viable issue. And Jason Simmons raised this issue in April of 2008 even before Rodriguez so and again it's it's not really a question of whether someone should have done it it's whether under Holland versus Florida there were extraordinary circumstances that prevented him from doing it and there were five. Simmons I should know that I should surely know that I do know I believe it was five and it might have been eight to five. But maybe it was seven to five in any event it's just Floyd and judge stacker didn't participate understood and back they might have been six to five. It was in six to five but in any event whether that was a close decision or not by the time we got there many other defendants had met this bar which is to show and to prove that there were no extraordinary circumstances that prevented Mister White site from making this argument within a year of the final judgment of the court. So there was no extraordinary circumstances and there's no case that petitioner can cite with a similar circumstance where there's a string of decisions other petitioners are making these arguments and Mister White site isn't so his claim is time barred and the district court properly held it so accordingly no certificate of a probability should issue and the court shouldn't really do it. So I think it's a good idea to reach the merits of the question now at some point are the merits of this issue of career fender and harm and Simmons should it be reached by this court will it be perhaps this simply isn't the case because there are procedural problems with it. There's an awful lot of China that has to be knocked over to get to where the defendant wants to go you got to know you got the the agreement problem and then you've got the certificate of a pealability question and then you've got three and four and how they interrelate and you've got equitable tolling even if you get through all of those knock over all that China. Then you have the basic question right which goes king it said I'll present them for close correct and the question really is is this an appropriate vehicle to just move down all these obstacles and all these different questions to get to a position that is conflict with two other circuits. Yes Your Honor and I just were not playing from a position of strength here if we do that. I would agree with your honor and I think it's important to note that Congress set those barriers up but I don't want to fail to at least address the merits of the issue. No I think you must because you're able council on the other side address them and you need to respond. Thank you Your Honor and so turning to the merits first of all I would note that there is no reason why the district court in this case can't oppose a 210 month sentence on remand I would note that this petitioner has seven prior convictions for assault with a deadly weapon on a government official to drug trafficking convictions. It's quite possible that the district court on remand would or could the district court have those that record before absolutely your honor it did. It would be hard to do so without a sort of a blatant appearance of sort of like paying each of you know the joke when I was practicing all you know you don't complete guilty. You know you pay rent on the courtroom. You don't want your sentence. So this rent for appealing. Well I winning on appeal in the fourth circuit. You think you could just blatantly say oh I'm going to go up to 210. Well absolutely because your honor the legal landscape has completely changed I mean on remand the district court looks at it and says okay your guideline range is lower now I have a new question before me I have to decide whether or not based on your criminal history and all the facts of this offense. Whether or not an upward variance is warranted in light turns out that he had actually saved the life of a bureau prison employee last year. With the district court. Could the district court ignore that. I mean it I think all of those those questions would be before the court let me make clear just in terms of legal standard I wanted to I wanted to assert because I think it's important to assert that this sentence was lawful then and it would be lawful now. And that is why it does not meet this courts requirement that it have been a press an error that rendered the entire proceeding irregular that entire proceeding while a mistake may have been made was not rendered irregular or unlawful or invalid simply because a mistake of the guidelines no matter how large there are other guideline errors that would constitute this dramatic a change there are 16 12 level enhancements 16 level enhancements there are enhancements that could create the kind of disparate result that an errors in the as the career of fender does you think he'd be able to sometimes we have limited remands and sometimes we have all in the terms of the remand sometimes we have broad remand you suggest that this would almost necessarily because if we ever get to that point that it was even cognizable it would have to be a broad remand and the district court under the I said you know the coach is no limitations shall be placed on this information the district court can consult during sentencing and the no limited to place that limitation here to try to render a blind sentence when somebody if somebody has seven different convictions these are the four a one point three any formal criminal history would probably significantly understate the record that's right your honor and that in and the government would agree that if this case is remanded it would be remanded for for a new sentencing a denovo recentencing proceeding he would get the benefit of the question is whether we even get to the point of holding that this is cognizable under our president judge king was very infadet in saying in the Powell decision that no there are president this is not that's right and because there unless I have an extraordinary circumstances and I don't think this court has ever seen such an extraordinary circumstance guideline errors are not cognizable couple of points that I want to make in response to his hester's argument first of all with respect to May back this court and pedifer quite plainly held and and that may back was limited to a situation and first of all that was a procedural bar question not cognizability but second it was limited to a situation in which the prior convictions the defendant didn't commit them that those offenses and pedifer limited may back to that and and recognize limitation second I note that the decisions with the exception of 11 circuits decision in in spencer in which a petition for re hearing on bomb by the government remains pending the other decisions Hawkins involved advisory guidelines but Narvaez in of the seventh circuit involved a career fender error when during the main mandatory guidelines system time when the game and the guidelines were mandatory as did sun bear and and this case involved an error that was committed during the advisory guidelines when the guidelines were advisory and I think that's a critical distinction in the reasoning either way this court's precedent holds that guidelines errors are not cognizable this is not a guideline error this is not an error if I may answer your question Judge Gregory I see that my time is up we have recognized the government recognizes that now in light of Simmons we understand that the crew application of the career fender enhancement to Mr. Whiteside was erroneous but certainly at the time it was made everyone understood that it was a lawful sentence that's what I'm saying is a distinction and it wasn't an error that it makes it extraordinary and perhaps a manifest injustice because it was we're not talking about an error in terms of calculations and got a point wrong something that part of that is because you had at least an opportunity to correct those mistakes when the district court made those doing sentence normally but here no error the law changed and it's sort of draconian these sentences are already in my view rather draconian is across the board and that's why Congress is trying to chip away at 706 750 all these things is buried treatment for a person to remain in jail for a year for years longer that we now to know the law to be it's like someone convicted in certain states where marijuana was 20 years sentence and then we came to a different state and make it illegal it's that what you remain because at the time 20 years was the guidelines for that kind of rather draconian what is that a manifest injustice you know your honor at least that Congress enacted the anti terrorism and effective death penalty act and Congress struck the balance between finality and an error free proceeding and the way that that balance has been stricken is that if the law changes unless it is a law that changes and it satisfies f3 and it is it creates a cognizable claim for relief it it simply isn't an error that is to be corrected in Congress struck that balance now this court can view the balance fair or unfair but it is the balance the Congress struck and this court precedent has recognized that and and and for good reason because Congress made the determination that only limited claims could be connected at this stage of the game guidelines errors don't fall within that no matter how significant and although I recognize that it was a court decision and at the time it wouldn't be considered an error it's not a manifest injustice where the law changes and we now understand that a defendant would not today be sentenced to the same sentence why that it's it's just not one that under these terms it has to be a constitutional error or it has to be one where the sentence was unlawful in some way and it wasn't it wasn't then and it isn't now because the district court could impose the very same sentence on remand by definition if a district court could impose the same sentence on remand and has the discretion to do so it is not a manifest injustice under the anti terrorism and effective death penalty act no matter how much anyone in this courtroom may wish it were so it is not so not under this court's precedent and judge king did recognize that and the government respectfully requested this court apply that precedent as it is if the court has no further questions hold on for this second we have no further questions thank you your honors as has to we'd be happy to hear from you on rebuttal i'd like to begin where the government left off and talking about the finality interest in its relationship to manifest injustice because i think it's important here when the court is considering the finality interest to understand how easy it is for the district court to determine whether there is a Simmons error in somebody's sentencing basically the court has to look at one document which is the north carolina judgment in order to determine whether there is a is a Simmons error or not um and it is very easy to process these cases we know this because we have 120 of them pending in the western district and where the government agrees to relief we have been able to move through those quite quickly it is not something that requires any evidentiary hearing at all so for that reason the finality interest in these cases is diminished because it does not require a great deal of effort on the part of the district court to make a decision on post conviction about a Simmons mistake and I sure finality is simply a function of how a court of appeals gauges it may or may not be how difficult it may or may not be for district court um part of that may involve an evidentiary hearing but um another part of it involves the sheer volume of claims that are coming through seems to me every time I turn around I'm seeing a new Simmons claim in one form or another um and a part of it is the is the volume of the claims that reach the district court and in this case they're going to be quite a few but that is about to end because it's a finite pool of people who will have these post conviction Simmons claims because for now on they'll be caught at sentencing so this is not something that will go on every time but I think you know the finality interest is not simply the Simmons interest the finality interest is in having the camel's nose in the tent and opening up guidelines provision to collateral challenges um taking a question of law um and calling it a fact um and having um guidelines calculations I mean every dramatic expansion and habeas corporate is begun with a step just like this um and uh that's part of the finality question is what do you set in most of the time? I understand that I just believe that part of that consideration should be the type of claim that this is I wouldn't like to address the government's assertion that Mr. Whiteside has seven prior assaults because while that is technically correct all seven of those are related to a single incident where he was driving a car toward police officers who were directing traffic and he was unapparently under the influence of drugs or alcohol at the time and that's an ongoing theme throughout his criminal history is his alcohol and drug addiction um was that taken into account in the initial sentence at all? I don't know um to be perfectly honest with the court. Only only from the perspective that they were consolidated with one of the drug convictions that was used as a career at vendor enhancement. This has to it seems like the argument of this ray and ably argued obviously and eloquently done so but it seemed like the argument has shift a little bit to not a question of whether we should do it but they're saying this court this panel doesn't have the power to grant relief that you suggested. You need to respond to that they said we don't have the power so just address that actually that's because that's what the argument really is that we don't have the power to do so can you address that? I don't understand where um where that comes from to be perfectly honest that this court doesn't have the power to grant relief um I'm not sure if she said that in the context. What the whole context was that we were citing to power and you heard judge kings opinion and power and and somehow that somehow closed us and COA questions those type things that's well hurdle you need to at least address if it is a hurdle first of all with respect to the certificate of appeal ability this court does need to issue a certificate of appeal ability. The ability um this issue actually came up in the Miller case where the government acknowledged that the reasons for the significant is certificate of appeal ability or not jurisdictional. Right. I only take one judge to do that. Right and all we have to make is a debatable showing of constitutional error and we've done that. All right. Um and other issues can come along for the ride after that once you have a constitutional error. So um the other thing to consider is that the certificate of appeal ability requirement is an attempt by Congress to streamline the appellate process and here we are at move on from that. I think we'll understand that. Okay. That that that gateway. What about the four closure arguments on B3 and four that's nothing in that prohibit prohibits. It's Mr. Ray said it prohibits what you're asking with the F3 and the F4. Um again I'd point out to the court that the government it says that but there's no precedent saying that a situation an unusual situation like this cannot. What is the language that gives the flexibility that you say that we have some determination to do so because the argument is that we cannot by the very strict to the language. What is the language? The language is the fact language in F4 combined with the Supreme Court's interpretation of that in Johnson. Where the court says that this you know basically the court said this isn't pretty. Uh, Congress didn't think about this situation when it drafted these provisions. That's not unusual. Correct. But we have to find a way to figure out how to fit this different situation into this framework and we're going to do it by saying that this court determination is actually a fact. And I submit to the court that this determination the Simmons determination has a similar effect to Johnson. Because a recidivist offense is a different offense than an honor-sidivist offense. I mean basically when you're talking about the fact of a prior conviction which is what which is what the court talks about. And in Johnson you're talking about a determination of what offense the defendant actually committed. And. The fact there was the fact there was a vaker chair of the of the predicate conviction. Um, you mean your position that a change in the legal status of a predicate conviction is a fact almost makes any intervening. It comes very close to making any any any intervening change in law a fact. And the question I have is in F3 it seems to me that Congress did. Consider very concretely. What. How I want to deal with. Decisional changes as they impacted on the statute of limitations. And it limited that in F3 the situations where the Supreme Court had rendered a particular. Of decision after trial and direct appeal and what have you. Um, and where it had ruled it retroactive and it says only in that limited circumstance. Do we want to unwind the one year statute of limitations now as Miss Ray points out it's a trade off between what you're advocating and the value of. Importance of finality that Miss Ray is advocating and and the statute of limitations. Does express an interest in formality and the particular exception addresses exactly what you're talking about which is decision or changing. And it says it's limited. Not to a circuit court decision which someone was it's limited to Supreme Court decisions and not just limited to Supreme Court decisions. But to Supreme Court decisions that the Supreme Court itself has decided to give retroactive a factor. And you know what we we start doing this or go in the route of equitable tolling and everything we're unwinding what Congress is done. The only question I have is an ultimate matter is given what your ultimate position is. You've got to go through so much to get there in terms of circuit precedent in terms of F3 and F4 and timeliness in terms of the. Expression in the certificate of a fealability section that constitutional claims would be the focus of a habeas of that. The question I have is given a China you have to knock over. Is this really an appropriate vehicle to make the kind of declaration and pronouncement that you have the court make because that's a lot of times questions are very interesting. But they're not procedurally set up in the right way they don't have the right procedural glide plane. And that's the problem. It's one of the problems that I'm that I'm having here but it I think a serious one I'd like to give you a chance to respond to that. Well, there's no denying that there are issue hurdles that we have to. Overcome in order to get to the cognizability issue. But as I've argued to the court I believe that we get past those hurdles and get to the cognizability issue and cognizability is relevant also to the equitable tolling issue. So that's part of the analysis the court needs to consider when trying to decide whether equitable tolling excuses him from not complying with the statute of limitations if the court concludes that that is the case. So well I can imagine better cases to set up the cognizability issue these other issues are important as well. Did you think further you'd like that? No, Your Honor. Thank you. I thought this case was exceptionally well argued on both sides and I want to say that. And thank you. Thank you both and we'd like to come down and greet you and then move into our next case. That okay if we move okay to move into the next case