Serbs and to that extent we're familiar with your cases. I know you're familiar with our lighting system. The green light means you're running free. When the yellow light appears you should begin to bring your argument to a clothe and then when the red light appears should finish your sentence and stop. And a rebuttal is for rebuttal only. All right, we call the first case. You guys see Taurus and we hear first from Mr. Hinchon. May I please the court air a control about Francisco Taurus in this case. Your honors, the issue of this case is whether or not Mr. Taurus failure to update his sex offender registration predated a valid rule by the attorney general as to the retroactivity of Sornin. And if so then Mr
. Taurus conviction violated the exposed fact of his clause and should be vacated. Your honors, I've affectionately called this case that my back to the future case. As you see just by the case number this is a case dating back with this court to 2009. And the facts and circumstances in fact actually go back all the way to 1999 in this case. So I'm going to go over a brief procedural and historical and factual background and what brings us here today. Mr. Taurus initially convicted in 1999 of a sex offense. It was a qualifying offense and he then was released from custody on Christmas day 2004. And five days later on December 30th, 2004, he began his initial registration with the Texas State Sex Offender Registration Unit. It wasn't until nearly a year and a half later that Sornin was actually enacted. July 26th, 2006 Sornin signed into law by President Bush and when it signed as we know now, it concluded a provision as to the retroactivity of Sornin to offenders whose convictions predated that inoculate
. The attorney general on February 28th, 2007 promulgated the first rule. It's been dubbed in term rule as to retroactivity. And in that attempted to declare that the Sornin should be retroactive to individuals whose convictions predated the signing date of Sornin. Mr. Taurus failing to update as alleged in the indictment and as what was in the stipulated facts in this case began literally on the date of Sornin's enactment. July 26th, 2006 is the date in the indictment of when his failing to register begins. So you see it starts before that interim rule comes into play and then it does go after the interim rule. The final failing to update his registration being as late as March 2000 years. A lot happens then at that point at the end of this case, the court. We have a bench trial on stipulated facts as mentioned earlier in the court finds Mr. Taurus guilty and puts him on five years probation which he's actually successfully completed at this point now and is no longer under supervision
. And this case was stayed pending Kepado. It was stayed for the first three judge panel. Then the embank and then ultimately the Supreme Court's decision in this case and came back now and as a live case with the issue remaining here, the only novel unresolved not foreclosed issue in the first circuit which is as to the expos facto violation in this case. And what the argument focuses in here is not asking that this court overrule, abrogate, change anything that it said before specifically in the Johnson case. What Mr. Taurus' argument is is that in fact the conclusions by the Supreme Court in Reynolds as well as Johnson by this court support the contention here that there's an expos facto violation. All right, my question is why doesn't the Hormiss heir rule in Johnson apply to this case just as it did in Johnson? And that's your honor. A very good question which goes back to what Johnson was about. Johnson itself in the opinion states that that Johnson's claim is for procedural injury. His claim is specifically attacking under the APA. At 922 and Johnson, you'll see the language in there that indicates it is a procedural claim
. And what the court does as it's required under the APA is it goes about first determining that there in fact was a violation of the APA. In other words, the attorney general, when it promulgated the in-term rule, violated the law. It did not comport with what the requirements of the APA were. Now that wasn't the end and this goes back to you. Your question, your honor, which is then the court required under the APA. It's five USC section 706 to look at Hormiss heir. And there what the Johnson court decided was that applying Hormiss heir in this context under the APA and some of the preexisting fifth circuit case law on APA administrative Hormiss heir that the burden was on Mr. Johnson to show that he would have involved himself or could have involved himself and it would have changed what the attorney general did in terms of its interim rule and the subsequent final rules. And the court decided, again, under the APA, Hormiss heir standard that there was no error he was not prejudiced your honor. And that's the distinction in this case is we are not. There is no claim in this case to the APA Hormiss heir process
. This is a constitutional claim that violates exposed factor. And what Reynolds has told us, Reynolds says first and foremost there must be, and in fact when it remanded Supreme Court, remanded Reynolds back to the third circuit said it's important to determine if there's a valid rule. That matters is what they said. There has to be a valid rule from the AG and Johnson tells us otherwise. Johnson tells us that in fact the APA, the AG violated the APA and promulgated that interim rule. But you don't violate the APA if it's Hormiss heir. I mean, didn't that be enough? Well, the Hormiss heir looks at whether or not in that case, Johnson was prejudiced because it talked about in there what Johnson should have done or could have done and what he didn't show as far as his Hormiss heir. What's the distinction in your facts from Johnson? And the facts from Johnson, well, one is the type of claim. This is a constitutional like exposed factors claim. But I mean factually the dates and everything of the same. I mean, imprensible
. The facts are the same, but obviously the legal claim is absolutely different. This is not a procedural injury claim as coined by the Johnson Court. This is a constitutional exposed factor claim. The other hardly component of this is Johnson didn't have the benefit of Reynolds by the Supreme Court explained that there needed to be that valid rule. The Johnson Court was looking directly at the APA's stricture and ultimately relied exclusively on the Hormiss heir component of it to show that Johnson failed to show his prejudice. And so that's in short, the great distinction being the type of claim being brought by the individual. Obviously, again, Johnson, APA, in this case, Mr. Torres has exposed fact of claim. I think also in looking at Johnson some of the other reasons to support that there was not a valid rule, is Johnson itself uses the conditional language. In the opinion, Johnson, it talks about if the AG had done this, then it would have been effective at this state. Not it was, not the AG did this, not it comported with the law, not this is the law
. It's conditional because right before that language, this court had said the AG failed to do what it was required to do under the APA. Another part of that is, again, back to the procedural injury claim. It's very different from an exposed factor claim. And so in terms of what Johnson was about, it was strictly about that procedural injury under the APA as opposed to the exposed factor. I think the other case that has been raised, in fact, by this court and supplemented on briefing was the the hon case. And I think that case is important. The distinguishing component of that is, in fact, had a exposed factor claim that they dropped. In the reply brief in that case, the defendant dropped the exposed factors. That was because of the evolution car had been issued. And car was putting the hon case squarely into what obviously occurred for it, which was the vacation of the conviction. I think also if you look at the other cases that the government raised, in fact, the government provided a timeline today, which I just wanted to address briefly to the extent the government relies on that today
. There are some errors in it. And the top line, it says that Taurus begins reporting in March 31st, 2005. In fact, the stipulated facts in the excerpt of Rector at 433 show that he began doing that in December 30th, 2004. Additionally, it indicates the 80s in term rules, February 27th, actually, 28th. And I think most importantly, the the bevy of unpublished cases down here and what the import of those are. I don't want to reiterate what was in the early motion work in this case, but I think it's important to note that those cases, by and large, were all unpublished decisions that resolved direct APA challenges in some instances. And other cases, for example, the Southern Lune case that's on this timeline was a non-delegation case, as well as these cases all involved. And this goes back to your question earlier about the facts, Judge Davis. They involved largely failing to registers that post-dated the final rule, which is in July 2008. So I just wanted to point out that those cases are not, normally they're not relevant and they're not published and not presidential, but they're in fact, you know, absolutely distinguishable from the present matter, both in terms of the type of claim, as well as the facts that are raised. And I detailed that in my opposition to the government's motion for summary affirmative in this case
. And without, I'll leave it down with some court-hoursing other questions. Okay, thank you very much. Thank you, George. Okay, Ms. Lat. Good morning, ma'am. Please, the Court and Council, Mara Blad, for the United States' Appalien this matter. The timeline before you is a visual depiction of the course of this litigation against the movement of time, against the movement of time and precedent in this case. And I'd like to go back to what Mr. Tottas stated was his, the issue before this court today in his reply brief, and I'm just going to quote briefly. He says that Tottas argues that his Sornah conviction violates the expos facto clause because a valid rule by the Attorney General making Sornah retroactive did not exist at the time of his alleged failure to register and update
. To be clear, Tottas simply argues that Johnson demonstrates the interim rule is not a valid retroactivity decision as required by Reynolds. There are four reasons and I'm just going to bullet point them and then circle back why they start human fails. First, Mr. Tottas' reliance on Reynolds is misplaced because in fact Reynolds actually affirms Johnson. Secondly, Johnson did not validate the APA, but I'm sorry, did not invalidate the interim rule. In fact, it finds that the Attorney General's action is a harmless procedural defect that can be repaired by extending the period, the notice period, to March 30th, 2007. Third, Johnson and Huang did set the effective date of the interim rule as March 30th, 2007 and Mr. Tottas traveled and failed to register after that date. Finally, this court has consistently applied Johnson and the Supreme Court has consistently denied third in any of the cases that have gone up to it on third petition. Let me return to the first argument, which is that his reliance on Reynolds is misplaced. Reynolds quite explicitly did not rule on the issue of whether the interim rule was properly enacted pursuant to the APA, nor could it have because the third circuit had held that Sornow is self-effectuating and that was the issue before the Reynolds Court. Did Sornow self-effectuate retroactivity or did the Attorney General have to act in some fashion in order to institute retroactivity? Reynolds decides no, the Attorney General is the one who has to create retroactivity and there's no expos facto clause issue in Reynolds either. Stated another way, Reynolds doesn't discuss what constitutes a valid retroactivity decision as Mr. Tottas claims it does. It's about how retroactivity can be determined. And so the only effect upon Reynolds was that it actually affirms what Johnson did in this court. Johnson made the same choice that the Supreme Court did in Reynolds. Johnson said no, Sornow is not self-effectuating. The Attorney General has to act and create the rule. And then Johnson goes on to analyze that rule in light of the APA and finds that even though there was a procedural defect in how the Attorney General did that, in fact, that defect was harmless and affirms Mr. Johnson's conviction. That's why this court has observed on many occasions that Reynolds does not call into question Johnson, no less overrool it
. Did Sornow self-effectuate retroactivity or did the Attorney General have to act in some fashion in order to institute retroactivity? Reynolds decides no, the Attorney General is the one who has to create retroactivity and there's no expos facto clause issue in Reynolds either. Stated another way, Reynolds doesn't discuss what constitutes a valid retroactivity decision as Mr. Tottas claims it does. It's about how retroactivity can be determined. And so the only effect upon Reynolds was that it actually affirms what Johnson did in this court. Johnson made the same choice that the Supreme Court did in Reynolds. Johnson said no, Sornow is not self-effectuating. The Attorney General has to act and create the rule. And then Johnson goes on to analyze that rule in light of the APA and finds that even though there was a procedural defect in how the Attorney General did that, in fact, that defect was harmless and affirms Mr. Johnson's conviction. That's why this court has observed on many occasions that Reynolds does not call into question Johnson, no less overrool it. And that's why it relies upon the rule of orderliness and says that we don't have an implicit or explicit Supreme Court decision that tells us that we have to reconsider Johnson. And because we don't have that, we are not going to reconsider Johnson. And this is a real problem for Tottas because in his argument, in his opening, he says that his Sornow conviction would violate the expost facto clause because the Attorney General's rule was not valid as to him. But the converse is true because if the interim rule was valid, which is what Johnson says it is, then his expost facto challenge has to fail. Here's another problem with the argument. He continues to try and inflate what was a finding of a harmless procedural defect in Johnson into a ruling that the interim rule is completely invalid. Now he tries to get around that by maintaining in his reply brief, and I'm quoting here, the Johnson court never went so far as to say this interim rule was the effective date of Sornow retroactivity. That's the conditional language to Mr. Hunchy referring in his argument. But even after that conditional language, the court says, the Johnson court says, you know, Johnson traveled. He traveled after March 30, 2007, and he failed to register
. And that's why it relies upon the rule of orderliness and says that we don't have an implicit or explicit Supreme Court decision that tells us that we have to reconsider Johnson. And because we don't have that, we are not going to reconsider Johnson. And this is a real problem for Tottas because in his argument, in his opening, he says that his Sornow conviction would violate the expost facto clause because the Attorney General's rule was not valid as to him. But the converse is true because if the interim rule was valid, which is what Johnson says it is, then his expost facto challenge has to fail. Here's another problem with the argument. He continues to try and inflate what was a finding of a harmless procedural defect in Johnson into a ruling that the interim rule is completely invalid. Now he tries to get around that by maintaining in his reply brief, and I'm quoting here, the Johnson court never went so far as to say this interim rule was the effective date of Sornow retroactivity. That's the conditional language to Mr. Hunchy referring in his argument. But even after that conditional language, the court says, the Johnson court says, you know, Johnson traveled. He traveled after March 30, 2007, and he failed to register. And any error in the rule is not prejudicial as to him. In other words, Tottas is exactly like Johnson. Factually, they both traveled after the date of the interim rule, and they both failed to register after that date. Mostly though, why Tottas's argument doesn't make any sense here is because Johnson's conviction was affirmed. For this court to hold that Johnson would not apply, and that somehow the APA and that Johnson invalidated the interim rule would mean that the Johnson court set up a regime for affirming constitutionally defective convictions. And that is clearly not what Johnson intended. More to the point perhaps, even if Johnson fails to actually define what the outside end of the gap is, it's not the only case that talks about what the end of the gap is. The next case down the line is Huang, which is issued within days of Johnson's publication. And about a month later, while rejecting a petition for Ombonk review, Judge Jolly writes the following. He says, although our opinion failed to cite Johnson, our reasoning and our holding in this case are not inconsistent with it. Well, what was the issue in Huang? It's the same issue as it is in Tottas and as it is in Johnson
. And any error in the rule is not prejudicial as to him. In other words, Tottas is exactly like Johnson. Factually, they both traveled after the date of the interim rule, and they both failed to register after that date. Mostly though, why Tottas's argument doesn't make any sense here is because Johnson's conviction was affirmed. For this court to hold that Johnson would not apply, and that somehow the APA and that Johnson invalidated the interim rule would mean that the Johnson court set up a regime for affirming constitutionally defective convictions. And that is clearly not what Johnson intended. More to the point perhaps, even if Johnson fails to actually define what the outside end of the gap is, it's not the only case that talks about what the end of the gap is. The next case down the line is Huang, which is issued within days of Johnson's publication. And about a month later, while rejecting a petition for Ombonk review, Judge Jolly writes the following. He says, although our opinion failed to cite Johnson, our reasoning and our holding in this case are not inconsistent with it. Well, what was the issue in Huang? It's the same issue as it is in Tottas and as it is in Johnson. The issue is when did Sourna become applicable as to Huang? And whether action by the Attorney General was required as a condition precedent to the enforcement of Sourna against all sex offenders who would travel between the time of Sourna's effectuation in July 2006 and the entry of the Attorney General's entry of the interim rule in July, sorry, in February 2007. And what did the court find in Huang? It finds the same thing that Johnson finds. It finds that the subtext of Sourna authorizes the Attorney General to create regulations for making Sourna retroactive to pre-act sex offenders. And it applies Sourna to Huang. Now Huang is in the opposite position as Tottas and Johnson. Huang traveled before the interim rule came into effect. And so they're like bookend cases because Mr. Huang was therefore not subject to Sourna because he came before the interim rule as opposed to Tottas and Johnson who came after. And it's not just Johnson and Huang that the government or this court for that matter has relied upon as reflected in the timeline all of the decisions that follow Johnson demonstrate its continuing viability. Now Tottas calls this a litany of unpublished cases but this litany aids the government's cause here. The timeline clarifies that this court has not retreated from Johnson nor has the Supreme Court seen fit to question the opinion itself or its result
. The issue is when did Sourna become applicable as to Huang? And whether action by the Attorney General was required as a condition precedent to the enforcement of Sourna against all sex offenders who would travel between the time of Sourna's effectuation in July 2006 and the entry of the Attorney General's entry of the interim rule in July, sorry, in February 2007. And what did the court find in Huang? It finds the same thing that Johnson finds. It finds that the subtext of Sourna authorizes the Attorney General to create regulations for making Sourna retroactive to pre-act sex offenders. And it applies Sourna to Huang. Now Huang is in the opposite position as Tottas and Johnson. Huang traveled before the interim rule came into effect. And so they're like bookend cases because Mr. Huang was therefore not subject to Sourna because he came before the interim rule as opposed to Tottas and Johnson who came after. And it's not just Johnson and Huang that the government or this court for that matter has relied upon as reflected in the timeline all of the decisions that follow Johnson demonstrate its continuing viability. Now Tottas calls this a litany of unpublished cases but this litany aids the government's cause here. The timeline clarifies that this court has not retreated from Johnson nor has the Supreme Court seen fit to question the opinion itself or its result. Fully 17 judges of this court have affirmed the vitality of Johnson. I've added in the two judges from Bird, the Clement and Judge Haynes which I've put in a 28J letter. 18 if you count Judge Haynes and Batham who actually wrote Johnson. 10 have explicitly agreed that Reynolds did not overrule or otherwise bring Johnson into question. And again here this rule of orderliness applies which is the court I mean Johnson has a preclusive effect in the absence of any explicit or implicit Supreme Court precedent to the contrary. And as I've briefly seen discussed Reynolds actually affirms the holding of part of the holding of Johnson. Now I agree that there are probably no cases that are exactly on point with the facts of this case but Bird and Carvelle come pretty close. Bird who like Todd as traveled and failed to register after March 30th. Bird is a 2011 case. And the court in that case relied upon Johnson and rejected his APA challenge. And again you know if the interim rule is right under the APA Mr
. Fully 17 judges of this court have affirmed the vitality of Johnson. I've added in the two judges from Bird, the Clement and Judge Haynes which I've put in a 28J letter. 18 if you count Judge Haynes and Batham who actually wrote Johnson. 10 have explicitly agreed that Reynolds did not overrule or otherwise bring Johnson into question. And again here this rule of orderliness applies which is the court I mean Johnson has a preclusive effect in the absence of any explicit or implicit Supreme Court precedent to the contrary. And as I've briefly seen discussed Reynolds actually affirms the holding of part of the holding of Johnson. Now I agree that there are probably no cases that are exactly on point with the facts of this case but Bird and Carvelle come pretty close. Bird who like Todd as traveled and failed to register after March 30th. Bird is a 2011 case. And the court in that case relied upon Johnson and rejected his APA challenge. And again you know if the interim rule is right under the APA Mr. Todd as exposed facto clause claim has to fail. Also Bird was served denied by the Supreme Court. It was served denied before Reynolds but when you look at what happens in Reynolds you realize that that's completely consistent because again as in Johnson and Bird Reynolds says only issue before us is whether or not Sornet is self-effectuating or the attorney general has to make it retroactive. I mean could all these judges be wrong? The answer is no because even after Huang the Supreme Court denies Sir in every single one of the cases that rely upon Johnson. Admittedly some of them are not on point with the facts of this case but it's the reliance upon Johnson that the court that the government is propounding as dispositive in this case. The Supreme Court also denies Sir in all of the post-Renon cases in those circuits that agree with the Fifth Circuit that take the view that the interim rule was accurate. I'm sorry was ultimately correctly instituted. That's the 4th 7th 11th. It also denies Sir in all of the post-Renon cases in that minority of circuits that hold that the interim rule doesn't apply which is 36 and 9. And it's interesting that the first second and eighth circuits have already moved past this issue by affirming the convictions of defendancy traveled after the final rule is instituted in 2008. So one way to interpret all of the diversity of all of these certain aisles is to observe that this appears to be an issue of diminishing practical importance
. Todd as exposed facto clause claim has to fail. Also Bird was served denied by the Supreme Court. It was served denied before Reynolds but when you look at what happens in Reynolds you realize that that's completely consistent because again as in Johnson and Bird Reynolds says only issue before us is whether or not Sornet is self-effectuating or the attorney general has to make it retroactive. I mean could all these judges be wrong? The answer is no because even after Huang the Supreme Court denies Sir in every single one of the cases that rely upon Johnson. Admittedly some of them are not on point with the facts of this case but it's the reliance upon Johnson that the court that the government is propounding as dispositive in this case. The Supreme Court also denies Sir in all of the post-Renon cases in those circuits that agree with the Fifth Circuit that take the view that the interim rule was accurate. I'm sorry was ultimately correctly instituted. That's the 4th 7th 11th. It also denies Sir in all of the post-Renon cases in that minority of circuits that hold that the interim rule doesn't apply which is 36 and 9. And it's interesting that the first second and eighth circuits have already moved past this issue by affirming the convictions of defendancy traveled after the final rule is instituted in 2008. So one way to interpret all of the diversity of all of these certain aisles is to observe that this appears to be an issue of diminishing practical importance. And in this regard it's significant that this case is before the court today after the long stay waiting for the Kepido decision to come down. Ultimately this case affords the court and opportunity to put in place the final small piece of its sornagerous prudence because as taught as concedes and as the judge who denied the motion for summary affirmance in this case noted all other avenues of constitutional challenge have been foreclosed to him by this court's precedence. If this court has any issues or any questions about anything in the case I'm happy to take them now. Okay thank you very much. If not we request a firmance thank you. Okay Mr. Henshell back to you. Thank you Your Honor. Briefly in rebuttal Your Honor. Reynolds does not affirm Johnson. Reynolds did not discuss or deal with the issue in Johnson about the APH challenge
. And in this regard it's significant that this case is before the court today after the long stay waiting for the Kepido decision to come down. Ultimately this case affords the court and opportunity to put in place the final small piece of its sornagerous prudence because as taught as concedes and as the judge who denied the motion for summary affirmance in this case noted all other avenues of constitutional challenge have been foreclosed to him by this court's precedence. If this court has any issues or any questions about anything in the case I'm happy to take them now. Okay thank you very much. If not we request a firmance thank you. Okay Mr. Henshell back to you. Thank you Your Honor. Briefly in rebuttal Your Honor. Reynolds does not affirm Johnson. Reynolds did not discuss or deal with the issue in Johnson about the APH challenge. In fact in Reynolds the court stated when it was framing the issue that the moment when the attorney general promulgated a valid rule specifying the registration requires applicability namely February 28th 2007 or a later date if the February 28th specification was invalid. That in no way affirms Johnson. In fact actually that frames the issue that's in front of this court today is whether or not there was a valid rule. Then the government argues about hung again hung to be clear dropped the exposed facto claim. That's fact. They also hung wasn't challenging the interim rule. There wasn't a challenge to the interim rule in hung. In fact it was a statutory construction case and hung because his facts were different than the facts in this case namely that his travel and failing to register occurred prior to the interim rule wasn't mounting what tourists bringing forward here which is an exposed facto claim as it relates to whether there's a valid rule and whether or not that February 28th is in fact valid. And lastly all address. Bird. Bird was actually my case about three years ago I stood right here and actually Judge Clement was right where you are your honor and she told me as I started arguing about the APA that I should probably not waste my time and move on to the other issues in the case and I found out later and pronounced to me she had been on the Johnson panel that had gone previous to me but the opinion haven't been issued and so bird
. In fact in Reynolds the court stated when it was framing the issue that the moment when the attorney general promulgated a valid rule specifying the registration requires applicability namely February 28th 2007 or a later date if the February 28th specification was invalid. That in no way affirms Johnson. In fact actually that frames the issue that's in front of this court today is whether or not there was a valid rule. Then the government argues about hung again hung to be clear dropped the exposed facto claim. That's fact. They also hung wasn't challenging the interim rule. There wasn't a challenge to the interim rule in hung. In fact it was a statutory construction case and hung because his facts were different than the facts in this case namely that his travel and failing to register occurred prior to the interim rule wasn't mounting what tourists bringing forward here which is an exposed facto claim as it relates to whether there's a valid rule and whether or not that February 28th is in fact valid. And lastly all address. Bird. Bird was actually my case about three years ago I stood right here and actually Judge Clement was right where you are your honor and she told me as I started arguing about the APA that I should probably not waste my time and move on to the other issues in the case and I found out later and pronounced to me she had been on the Johnson panel that had gone previous to me but the opinion haven't been issued and so bird. Yes bird was a similar APA challenge as Johnson. I can tell this court I wrote it and argued it but it was not the exposed facto's challenge. You might have changed your mind. It was not the exposed facto's challenge and I can tell the court as well I worked up the cert petition that the government mentioned being denied and that cert petition focused namely on the harmless air use of harmless air analysis from the fifth circuit in Johnson and challenging that we're not challenging that today. This is the exposed facto there's clearly not a valid rule in place at the time that Mr. Torres failed to register and as a result his conviction violated exposed facto and should be vacated. Thank you very much. Thank you council we have you
Serbs and to that extent we're familiar with your cases. I know you're familiar with our lighting system. The green light means you're running free. When the yellow light appears you should begin to bring your argument to a clothe and then when the red light appears should finish your sentence and stop. And a rebuttal is for rebuttal only. All right, we call the first case. You guys see Taurus and we hear first from Mr. Hinchon. May I please the court air a control about Francisco Taurus in this case. Your honors, the issue of this case is whether or not Mr. Taurus failure to update his sex offender registration predated a valid rule by the attorney general as to the retroactivity of Sornin. And if so then Mr. Taurus conviction violated the exposed fact of his clause and should be vacated. Your honors, I've affectionately called this case that my back to the future case. As you see just by the case number this is a case dating back with this court to 2009. And the facts and circumstances in fact actually go back all the way to 1999 in this case. So I'm going to go over a brief procedural and historical and factual background and what brings us here today. Mr. Taurus initially convicted in 1999 of a sex offense. It was a qualifying offense and he then was released from custody on Christmas day 2004. And five days later on December 30th, 2004, he began his initial registration with the Texas State Sex Offender Registration Unit. It wasn't until nearly a year and a half later that Sornin was actually enacted. July 26th, 2006 Sornin signed into law by President Bush and when it signed as we know now, it concluded a provision as to the retroactivity of Sornin to offenders whose convictions predated that inoculate. The attorney general on February 28th, 2007 promulgated the first rule. It's been dubbed in term rule as to retroactivity. And in that attempted to declare that the Sornin should be retroactive to individuals whose convictions predated the signing date of Sornin. Mr. Taurus failing to update as alleged in the indictment and as what was in the stipulated facts in this case began literally on the date of Sornin's enactment. July 26th, 2006 is the date in the indictment of when his failing to register begins. So you see it starts before that interim rule comes into play and then it does go after the interim rule. The final failing to update his registration being as late as March 2000 years. A lot happens then at that point at the end of this case, the court. We have a bench trial on stipulated facts as mentioned earlier in the court finds Mr. Taurus guilty and puts him on five years probation which he's actually successfully completed at this point now and is no longer under supervision. And this case was stayed pending Kepado. It was stayed for the first three judge panel. Then the embank and then ultimately the Supreme Court's decision in this case and came back now and as a live case with the issue remaining here, the only novel unresolved not foreclosed issue in the first circuit which is as to the expos facto violation in this case. And what the argument focuses in here is not asking that this court overrule, abrogate, change anything that it said before specifically in the Johnson case. What Mr. Taurus' argument is is that in fact the conclusions by the Supreme Court in Reynolds as well as Johnson by this court support the contention here that there's an expos facto violation. All right, my question is why doesn't the Hormiss heir rule in Johnson apply to this case just as it did in Johnson? And that's your honor. A very good question which goes back to what Johnson was about. Johnson itself in the opinion states that that Johnson's claim is for procedural injury. His claim is specifically attacking under the APA. At 922 and Johnson, you'll see the language in there that indicates it is a procedural claim. And what the court does as it's required under the APA is it goes about first determining that there in fact was a violation of the APA. In other words, the attorney general, when it promulgated the in-term rule, violated the law. It did not comport with what the requirements of the APA were. Now that wasn't the end and this goes back to you. Your question, your honor, which is then the court required under the APA. It's five USC section 706 to look at Hormiss heir. And there what the Johnson court decided was that applying Hormiss heir in this context under the APA and some of the preexisting fifth circuit case law on APA administrative Hormiss heir that the burden was on Mr. Johnson to show that he would have involved himself or could have involved himself and it would have changed what the attorney general did in terms of its interim rule and the subsequent final rules. And the court decided, again, under the APA, Hormiss heir standard that there was no error he was not prejudiced your honor. And that's the distinction in this case is we are not. There is no claim in this case to the APA Hormiss heir process. This is a constitutional claim that violates exposed factor. And what Reynolds has told us, Reynolds says first and foremost there must be, and in fact when it remanded Supreme Court, remanded Reynolds back to the third circuit said it's important to determine if there's a valid rule. That matters is what they said. There has to be a valid rule from the AG and Johnson tells us otherwise. Johnson tells us that in fact the APA, the AG violated the APA and promulgated that interim rule. But you don't violate the APA if it's Hormiss heir. I mean, didn't that be enough? Well, the Hormiss heir looks at whether or not in that case, Johnson was prejudiced because it talked about in there what Johnson should have done or could have done and what he didn't show as far as his Hormiss heir. What's the distinction in your facts from Johnson? And the facts from Johnson, well, one is the type of claim. This is a constitutional like exposed factors claim. But I mean factually the dates and everything of the same. I mean, imprensible. The facts are the same, but obviously the legal claim is absolutely different. This is not a procedural injury claim as coined by the Johnson Court. This is a constitutional exposed factor claim. The other hardly component of this is Johnson didn't have the benefit of Reynolds by the Supreme Court explained that there needed to be that valid rule. The Johnson Court was looking directly at the APA's stricture and ultimately relied exclusively on the Hormiss heir component of it to show that Johnson failed to show his prejudice. And so that's in short, the great distinction being the type of claim being brought by the individual. Obviously, again, Johnson, APA, in this case, Mr. Torres has exposed fact of claim. I think also in looking at Johnson some of the other reasons to support that there was not a valid rule, is Johnson itself uses the conditional language. In the opinion, Johnson, it talks about if the AG had done this, then it would have been effective at this state. Not it was, not the AG did this, not it comported with the law, not this is the law. It's conditional because right before that language, this court had said the AG failed to do what it was required to do under the APA. Another part of that is, again, back to the procedural injury claim. It's very different from an exposed factor claim. And so in terms of what Johnson was about, it was strictly about that procedural injury under the APA as opposed to the exposed factor. I think the other case that has been raised, in fact, by this court and supplemented on briefing was the the hon case. And I think that case is important. The distinguishing component of that is, in fact, had a exposed factor claim that they dropped. In the reply brief in that case, the defendant dropped the exposed factors. That was because of the evolution car had been issued. And car was putting the hon case squarely into what obviously occurred for it, which was the vacation of the conviction. I think also if you look at the other cases that the government raised, in fact, the government provided a timeline today, which I just wanted to address briefly to the extent the government relies on that today. There are some errors in it. And the top line, it says that Taurus begins reporting in March 31st, 2005. In fact, the stipulated facts in the excerpt of Rector at 433 show that he began doing that in December 30th, 2004. Additionally, it indicates the 80s in term rules, February 27th, actually, 28th. And I think most importantly, the the bevy of unpublished cases down here and what the import of those are. I don't want to reiterate what was in the early motion work in this case, but I think it's important to note that those cases, by and large, were all unpublished decisions that resolved direct APA challenges in some instances. And other cases, for example, the Southern Lune case that's on this timeline was a non-delegation case, as well as these cases all involved. And this goes back to your question earlier about the facts, Judge Davis. They involved largely failing to registers that post-dated the final rule, which is in July 2008. So I just wanted to point out that those cases are not, normally they're not relevant and they're not published and not presidential, but they're in fact, you know, absolutely distinguishable from the present matter, both in terms of the type of claim, as well as the facts that are raised. And I detailed that in my opposition to the government's motion for summary affirmative in this case. And without, I'll leave it down with some court-hoursing other questions. Okay, thank you very much. Thank you, George. Okay, Ms. Lat. Good morning, ma'am. Please, the Court and Council, Mara Blad, for the United States' Appalien this matter. The timeline before you is a visual depiction of the course of this litigation against the movement of time, against the movement of time and precedent in this case. And I'd like to go back to what Mr. Tottas stated was his, the issue before this court today in his reply brief, and I'm just going to quote briefly. He says that Tottas argues that his Sornah conviction violates the expos facto clause because a valid rule by the Attorney General making Sornah retroactive did not exist at the time of his alleged failure to register and update. To be clear, Tottas simply argues that Johnson demonstrates the interim rule is not a valid retroactivity decision as required by Reynolds. There are four reasons and I'm just going to bullet point them and then circle back why they start human fails. First, Mr. Tottas' reliance on Reynolds is misplaced because in fact Reynolds actually affirms Johnson. Secondly, Johnson did not validate the APA, but I'm sorry, did not invalidate the interim rule. In fact, it finds that the Attorney General's action is a harmless procedural defect that can be repaired by extending the period, the notice period, to March 30th, 2007. Third, Johnson and Huang did set the effective date of the interim rule as March 30th, 2007 and Mr. Tottas traveled and failed to register after that date. Finally, this court has consistently applied Johnson and the Supreme Court has consistently denied third in any of the cases that have gone up to it on third petition. Let me return to the first argument, which is that his reliance on Reynolds is misplaced. Reynolds quite explicitly did not rule on the issue of whether the interim rule was properly enacted pursuant to the APA, nor could it have because the third circuit had held that Sornow is self-effectuating and that was the issue before the Reynolds Court. Did Sornow self-effectuate retroactivity or did the Attorney General have to act in some fashion in order to institute retroactivity? Reynolds decides no, the Attorney General is the one who has to create retroactivity and there's no expos facto clause issue in Reynolds either. Stated another way, Reynolds doesn't discuss what constitutes a valid retroactivity decision as Mr. Tottas claims it does. It's about how retroactivity can be determined. And so the only effect upon Reynolds was that it actually affirms what Johnson did in this court. Johnson made the same choice that the Supreme Court did in Reynolds. Johnson said no, Sornow is not self-effectuating. The Attorney General has to act and create the rule. And then Johnson goes on to analyze that rule in light of the APA and finds that even though there was a procedural defect in how the Attorney General did that, in fact, that defect was harmless and affirms Mr. Johnson's conviction. That's why this court has observed on many occasions that Reynolds does not call into question Johnson, no less overrool it. And that's why it relies upon the rule of orderliness and says that we don't have an implicit or explicit Supreme Court decision that tells us that we have to reconsider Johnson. And because we don't have that, we are not going to reconsider Johnson. And this is a real problem for Tottas because in his argument, in his opening, he says that his Sornow conviction would violate the expost facto clause because the Attorney General's rule was not valid as to him. But the converse is true because if the interim rule was valid, which is what Johnson says it is, then his expost facto challenge has to fail. Here's another problem with the argument. He continues to try and inflate what was a finding of a harmless procedural defect in Johnson into a ruling that the interim rule is completely invalid. Now he tries to get around that by maintaining in his reply brief, and I'm quoting here, the Johnson court never went so far as to say this interim rule was the effective date of Sornow retroactivity. That's the conditional language to Mr. Hunchy referring in his argument. But even after that conditional language, the court says, the Johnson court says, you know, Johnson traveled. He traveled after March 30, 2007, and he failed to register. And any error in the rule is not prejudicial as to him. In other words, Tottas is exactly like Johnson. Factually, they both traveled after the date of the interim rule, and they both failed to register after that date. Mostly though, why Tottas's argument doesn't make any sense here is because Johnson's conviction was affirmed. For this court to hold that Johnson would not apply, and that somehow the APA and that Johnson invalidated the interim rule would mean that the Johnson court set up a regime for affirming constitutionally defective convictions. And that is clearly not what Johnson intended. More to the point perhaps, even if Johnson fails to actually define what the outside end of the gap is, it's not the only case that talks about what the end of the gap is. The next case down the line is Huang, which is issued within days of Johnson's publication. And about a month later, while rejecting a petition for Ombonk review, Judge Jolly writes the following. He says, although our opinion failed to cite Johnson, our reasoning and our holding in this case are not inconsistent with it. Well, what was the issue in Huang? It's the same issue as it is in Tottas and as it is in Johnson. The issue is when did Sourna become applicable as to Huang? And whether action by the Attorney General was required as a condition precedent to the enforcement of Sourna against all sex offenders who would travel between the time of Sourna's effectuation in July 2006 and the entry of the Attorney General's entry of the interim rule in July, sorry, in February 2007. And what did the court find in Huang? It finds the same thing that Johnson finds. It finds that the subtext of Sourna authorizes the Attorney General to create regulations for making Sourna retroactive to pre-act sex offenders. And it applies Sourna to Huang. Now Huang is in the opposite position as Tottas and Johnson. Huang traveled before the interim rule came into effect. And so they're like bookend cases because Mr. Huang was therefore not subject to Sourna because he came before the interim rule as opposed to Tottas and Johnson who came after. And it's not just Johnson and Huang that the government or this court for that matter has relied upon as reflected in the timeline all of the decisions that follow Johnson demonstrate its continuing viability. Now Tottas calls this a litany of unpublished cases but this litany aids the government's cause here. The timeline clarifies that this court has not retreated from Johnson nor has the Supreme Court seen fit to question the opinion itself or its result. Fully 17 judges of this court have affirmed the vitality of Johnson. I've added in the two judges from Bird, the Clement and Judge Haynes which I've put in a 28J letter. 18 if you count Judge Haynes and Batham who actually wrote Johnson. 10 have explicitly agreed that Reynolds did not overrule or otherwise bring Johnson into question. And again here this rule of orderliness applies which is the court I mean Johnson has a preclusive effect in the absence of any explicit or implicit Supreme Court precedent to the contrary. And as I've briefly seen discussed Reynolds actually affirms the holding of part of the holding of Johnson. Now I agree that there are probably no cases that are exactly on point with the facts of this case but Bird and Carvelle come pretty close. Bird who like Todd as traveled and failed to register after March 30th. Bird is a 2011 case. And the court in that case relied upon Johnson and rejected his APA challenge. And again you know if the interim rule is right under the APA Mr. Todd as exposed facto clause claim has to fail. Also Bird was served denied by the Supreme Court. It was served denied before Reynolds but when you look at what happens in Reynolds you realize that that's completely consistent because again as in Johnson and Bird Reynolds says only issue before us is whether or not Sornet is self-effectuating or the attorney general has to make it retroactive. I mean could all these judges be wrong? The answer is no because even after Huang the Supreme Court denies Sir in every single one of the cases that rely upon Johnson. Admittedly some of them are not on point with the facts of this case but it's the reliance upon Johnson that the court that the government is propounding as dispositive in this case. The Supreme Court also denies Sir in all of the post-Renon cases in those circuits that agree with the Fifth Circuit that take the view that the interim rule was accurate. I'm sorry was ultimately correctly instituted. That's the 4th 7th 11th. It also denies Sir in all of the post-Renon cases in that minority of circuits that hold that the interim rule doesn't apply which is 36 and 9. And it's interesting that the first second and eighth circuits have already moved past this issue by affirming the convictions of defendancy traveled after the final rule is instituted in 2008. So one way to interpret all of the diversity of all of these certain aisles is to observe that this appears to be an issue of diminishing practical importance. And in this regard it's significant that this case is before the court today after the long stay waiting for the Kepido decision to come down. Ultimately this case affords the court and opportunity to put in place the final small piece of its sornagerous prudence because as taught as concedes and as the judge who denied the motion for summary affirmance in this case noted all other avenues of constitutional challenge have been foreclosed to him by this court's precedence. If this court has any issues or any questions about anything in the case I'm happy to take them now. Okay thank you very much. If not we request a firmance thank you. Okay Mr. Henshell back to you. Thank you Your Honor. Briefly in rebuttal Your Honor. Reynolds does not affirm Johnson. Reynolds did not discuss or deal with the issue in Johnson about the APH challenge. In fact in Reynolds the court stated when it was framing the issue that the moment when the attorney general promulgated a valid rule specifying the registration requires applicability namely February 28th 2007 or a later date if the February 28th specification was invalid. That in no way affirms Johnson. In fact actually that frames the issue that's in front of this court today is whether or not there was a valid rule. Then the government argues about hung again hung to be clear dropped the exposed facto claim. That's fact. They also hung wasn't challenging the interim rule. There wasn't a challenge to the interim rule in hung. In fact it was a statutory construction case and hung because his facts were different than the facts in this case namely that his travel and failing to register occurred prior to the interim rule wasn't mounting what tourists bringing forward here which is an exposed facto claim as it relates to whether there's a valid rule and whether or not that February 28th is in fact valid. And lastly all address. Bird. Bird was actually my case about three years ago I stood right here and actually Judge Clement was right where you are your honor and she told me as I started arguing about the APA that I should probably not waste my time and move on to the other issues in the case and I found out later and pronounced to me she had been on the Johnson panel that had gone previous to me but the opinion haven't been issued and so bird. Yes bird was a similar APA challenge as Johnson. I can tell this court I wrote it and argued it but it was not the exposed facto's challenge. You might have changed your mind. It was not the exposed facto's challenge and I can tell the court as well I worked up the cert petition that the government mentioned being denied and that cert petition focused namely on the harmless air use of harmless air analysis from the fifth circuit in Johnson and challenging that we're not challenging that today. This is the exposed facto there's clearly not a valid rule in place at the time that Mr. Torres failed to register and as a result his conviction violated exposed facto and should be vacated. Thank you very much. Thank you council we have yo