[00:00:00] Speaker 05: Case number 19-3086, United States of America versus Derek E. Arrington, a balance. [00:00:06] Speaker 05: Ms. [00:00:07] Speaker 05: Wright for the balance, Mr. Lenners for the appellee. [00:00:12] Speaker 05: Good morning, counsel. [00:00:14] Speaker 05: Good morning. [00:00:15] Speaker 05: May it please the court? [00:00:17] Speaker 05: Lisa Wright representing Mr. Arrington, I'd like to reserve two minutes for rebuttal. [00:00:23] Speaker 05: Mr. Arrington's 2255 motion asserted a right to relief under the new retroactive rule announced by the Supreme Court in Johnson. [00:00:31] Speaker 05: That motion was timely under 2255 F3 because it was filed within one year of the date Johnson was decided. [00:00:40] Speaker 05: The government contends that Arrington's 2255 motion was, in a sense, premature because the Supreme Court has not yet expressly held that the Johnson right applies to the mandatory guidelines context. [00:00:52] Speaker 05: A problem with this theory is that if the Supreme Court were to issue such a ruling, it would not restart the one-year limitations window because it would not qualify as a newly recognized, right? [00:01:02] Speaker 05: It would not be a new rule, but simply an application of the new rule recognized in Johnson to facts that are not meaningfully distinguishable from those in Johnson. [00:01:12] Speaker 05: So the window for people like Mr. Errington opened in Johnson, with Johnson, and if this motion [00:01:18] Speaker 05: timely now and explicit ruling by the Supreme Court later will do him no good. [00:01:24] Speaker 05: But even if pre-Booker defendants like Mr. Arrington could benefit from an explicit ruling by the Supreme Court, under the government's conception of the timeliness requirement, there will never be such a ruling because Booker did away with the mandatory guidelines 16 years ago, meaning there aren't any pre-Booker defendants in a position to pass the timeliness hurdle and get such a ruling on the merits. [00:01:46] Speaker 05: So respectfully, [00:01:48] Speaker 05: The courts that have adopted the government's view have misapplied 2255 F3 for the reasons that the Seventh Circuit explained in Cross. [00:01:56] Speaker 05: They have imported the merits into the Statute of Limitations inquiry. [00:02:01] Speaker 05: The Statute of Limitations runs from the date on which the right asserted was recognized by the Supreme Court, requiring only that Mr. Arrington claim the benefit of a newly recognized right and retroactive right, not that he conclusively establish as part of the timeliness inquiry. [00:02:18] Speaker 05: that the right applies to his particular facts. [00:02:22] Speaker 04: So you would argue that our opinion in Williams sets the model? [00:02:31] Speaker 03: I would have to. [00:02:34] Speaker 04: Well, in Williams, we said that, quote, [00:02:43] Speaker 04: We use this analogy that courts of appeals like district court have the authority to raise a forfeited timeliness defense on their own initiative. [00:02:54] Speaker 04: And so the court went on to address the issue itself. [00:03:02] Speaker 04: I just want to understand how you get around both the district court's view of what was wrong with that approach [00:03:13] Speaker 03: as suggested by one of the other circuits. [00:03:19] Speaker 05: Well, if I'm understanding, we, the district court did reach the issue and we are taking issue with the reasoning of it. [00:03:31] Speaker 05: And I didn't, I'm not seeing a different, I mean, a problem between Williams and Cross, for example. [00:03:42] Speaker 05: Maybe misunderstanding of what the court is asking me. [00:03:45] Speaker 04: But I guess as I read the district court opinion. [00:03:50] Speaker 04: It rejected cross. [00:03:54] Speaker 04: Yes, as. [00:03:57] Speaker 04: Contrary to the text. [00:04:01] Speaker 04: Alright, so. [00:04:05] Speaker 04: I know we would be bound by Williams if it were directly on point. [00:04:12] Speaker 04: But I'm just trying to understand given what the Supreme Court has said about waiting for the Supreme Court to indicate that its ruling applies in circumstances like your clients. [00:04:32] Speaker 05: Well, the Supreme Court has not said that we always have to wait. [00:04:39] Speaker 05: If it would be a new rule, [00:04:42] Speaker 05: then it's not recognized until it's recognized by the Supreme Court. [00:04:46] Speaker 05: But I would give an example of, I think the best example, a very good example is the Stringer v. Black case that's mentioned. [00:04:55] Speaker 05: And in that case is very analogous because there was a string of cases involved whether a death penalty factor was unconstitutionally vague. [00:05:07] Speaker 05: And the court first ruled on the Georgia factor [00:05:10] Speaker 05: And then it applied that same holding to a Oklahoma factor that was similarly worded. [00:05:18] Speaker 05: And then finally, really, [00:05:21] Speaker 05: of interest here, I think, is it then went ahead and applied it to a Mississippi case, which was a little substantively different. [00:05:27] Speaker 05: It wasn't just different wording, but it was the factor in Mississippi was weighed as opposed to just triggering the death penalty possibility. [00:05:34] Speaker 05: And the court had explicitly said in another case, Zant, that that issue was open, the issue of whether to apply to weighing states. [00:05:42] Speaker 05: And when, ultimately, when the court said it did in Mississippi v. Clemens, then in Stringer, it ultimately ruled that Mississippi v. Clemens did not state a new rule, even though in Zandt, the court had said the issue was open. [00:05:56] Speaker 05: So I don't I think it's clear that the court has will say often not only do you not always have to wait to see what the court is going to explicitly say. [00:06:05] Speaker 05: But even if the court has called an issue expressly open, it can still be not a new rule. [00:06:12] Speaker 05: That's. [00:06:14] Speaker 01: Mr. Wright, let me, as I see this, to me, this case boils down to one question. [00:06:22] Speaker 01: And that is, how do we describe the right articulated in Johnson? [00:06:27] Speaker 01: To me, that's what this case is about. [00:06:31] Speaker 01: Now, the Seventh Circuit and you, the two of you and the Seventh Circuit, you describe it as a right not to be sentenced under a rule of law using the residual clauses vague language. [00:06:44] Speaker 01: That's what the right is that you articulate. [00:06:49] Speaker 01: We could describe it more broadly, not to be sentenced under a career, under a vague career offender position, or we could define it much more narrowly the way the government does. [00:07:02] Speaker 01: How do we decide which one you pick is the outcome determinants here? [00:07:10] Speaker 01: Why would we pick yours over the government's? [00:07:13] Speaker 01: What's the principle that would have us do that? [00:07:17] Speaker 05: I think the principle is, is there a meaningful distinction? [00:07:20] Speaker 05: I guess I get that language from [00:07:24] Speaker 05: right the West and since the language itself is identical I don't think there's any way to state the language part of it any more narrowly than I am because language is identical to what the language in Johnson was so it's as narrow as it can be. [00:07:42] Speaker 05: So I think what it comes down to is [00:07:45] Speaker 05: is, does Johnson say that a law cannot fix sentences, or does it say a statute cannot fix sentences? [00:07:53] Speaker 05: And I guess I do not see that as a meaningful distinction, because the guidelines are a law that act like a statute. [00:08:02] Speaker 05: Booker said that they had the force and effect of law and were binding. [00:08:06] Speaker 05: So [00:08:08] Speaker 05: I think that there just isn't a meaningful enough distinction. [00:08:11] Speaker 05: And obviously on some level only the Supreme. [00:08:14] Speaker 01: But the government says, but no, but see the government says the right is a right not to be sentenced under the armed career offender statute clause. [00:08:28] Speaker 01: That's what they say. [00:08:28] Speaker 01: The right is that it's specific to that statute. [00:08:32] Speaker 01: You say the right is specific to a similar provision. [00:08:38] Speaker 01: You say it's a right not to be sentenced under the vague language in the residual clause. [00:08:55] Speaker 01: They say the right is linked to the statute. [00:08:58] Speaker 01: You say it's broader and it's a right not to be sentenced under the language, that kind of vague language. [00:09:06] Speaker 01: My only question is how do we [00:09:08] Speaker 01: You can make an argument for either one of them and your client wins under one and loses under the other. [00:09:15] Speaker 01: So what's the principle that we use to pick one over the other? [00:09:22] Speaker 05: Well, I didn't understand the government to be saying, I thought when they reference to ACCA was a reference that it's the only law that Johnson applies to his ACCA, and we're saying that the law, any law like Beckel's did not involve a law involved a guideline. [00:09:38] Speaker 05: And I thought government is saying that ACCA is the law that is the right thing. [00:09:44] Speaker 01: Even under the government's definition, that is that it only applies to law that covers the guidelines here. [00:09:50] Speaker 01: Is that your point? [00:09:51] Speaker 05: That's what I'm saying. [00:09:52] Speaker 05: And I'm saying ACCA is the holding of Johnson is about ACCA. [00:09:57] Speaker 05: All the Supreme Court is doing in Johnson is taking the right that recognized which is not to be sentenced by [00:10:03] Speaker 05: a vague language in a law that's where a loss fixes sentences and applied that to the academic context and the holding of Johnson, but the right recognized in Johnson is just, it's not much broader. [00:10:16] Speaker 05: What we're not asking for something much broader, just a little broader, just recognizing that mandatory guidelines aren't even really guidelines. [00:10:24] Speaker 05: I mean, they're really like an oxymoron and mandatory guidelines. [00:10:28] Speaker 05: And it kind of, it's kind of dawned on me finally why it was always so hard to explain to clients [00:10:34] Speaker 05: how the mandatory guidelines, how they worked with the statute, when of course to a lay person, they're not guidelines at all. [00:10:41] Speaker 05: And the range that they are being told by the statute has actually been replaced. [00:10:48] Speaker 05: Congress didn't want judges to have their discretion guided by the mandatory guidelines. [00:10:53] Speaker 05: They were trying to take away a large chunk of the discretion here. [00:10:56] Speaker 00: Not replaced, narrowed, correct? [00:11:02] Speaker 05: to the point that, for example, here, zero to 210 was simply not available. [00:11:08] Speaker 05: So in a sense, 210 did become the new mandatory minimum. [00:11:13] Speaker 05: So I don't know if the word. [00:11:15] Speaker 00: What was the statutory range here? [00:11:17] Speaker 05: It was still technically zero to 240, but it had no effect up to 210. [00:11:23] Speaker 05: And that's an important issue of notice to a defendant. [00:11:29] Speaker 00: What do you make of the government's argument that [00:11:32] Speaker 00: If zero to 240 with no guidance was not unconstitutionally vague, narrowing the judge's discretion with this residual clause, which though vague is not as vague as nothing, cannot be unconstitutionally vague. [00:11:55] Speaker 05: Well, I think it comes down to what we were just talking about because the government sees it as the zero to 240 is still the range and the mandatory guideline is just guidance. [00:12:08] Speaker 05: And what I'm saying is that the mandatory guideline range is really the range. [00:12:13] Speaker 05: And what's on the statute books is essentially been trumped or overridden. [00:12:20] Speaker 05: So the court, and yes, [00:12:25] Speaker 05: exercise discretion within the range, but nobody knows which range applies. [00:12:29] Speaker 05: Is it 168 to 210, or is it 210 to 240? [00:12:33] Speaker 05: And zero to 240 is really no longer effective under the mandatory regime. [00:12:38] Speaker 05: And that was the part of the problem. [00:12:40] Speaker 05: That's why Booker had to get rid of it. [00:12:43] Speaker 00: Let me briefly, if I can go back to Judge Tatel's question. [00:12:49] Speaker 00: We know that the rule that came out of Johnson was a rule [00:12:56] Speaker 00: broad enough to help Johnson. [00:12:59] Speaker 00: And maybe it was broader, maybe it wasn't. [00:13:05] Speaker 00: Isn't the answer to the question of whether or not it was broader, we don't yet know. [00:13:15] Speaker 05: Well, I think, but we have to decide today whether he's asserting a newly recognized right. [00:13:22] Speaker 05: And so in some sense, it's necessary to predict whether [00:13:26] Speaker 05: if such a rule were announced, if it would be a newly recognized right or if it would be just an extension as the Supreme Court frequently finds, for example, if like, you know, conclusive presumption case, then they have a rebuttable presumption case and they ultimately find that the second case wasn't a new rule because it's not a meaningful distinction. [00:13:49] Speaker 05: And so we do think this court can decide if obviously it's a prediction as all court of appeals [00:13:56] Speaker 05: decisions are what the Supreme Court would think. [00:13:59] Speaker 00: Has the Supreme Court told lower courts that in the EDPA context, we're really not supposed to guess? [00:14:10] Speaker 05: To guess whether something would be new, you mean? [00:14:12] Speaker 00: Well, to guess whether a Supreme Court precedent will apply in a novel context. [00:14:22] Speaker 05: Well, again, [00:14:25] Speaker 05: I don't, I think that I'm not aware of anything that suggests that the ordinary teak rule wouldn't apply as it does in other cases. [00:14:34] Speaker 05: And applying that teak rule, this is not the kind of meaningful distinction that would set up the right where the holding that we want to be considered a new rule as opposed to just- I thought, I'm sorry, I thought your point was, and I thought your answer to Judge Walker would have been, [00:14:54] Speaker 01: Yes, we don't yet know whether the right articulated in Johnson would apply to Arrington's situation, but that's the right he's asserted. [00:15:06] Speaker 01: Isn't that your view? [00:15:09] Speaker 01: Your view is the same as the Seventh Circuit, right? [00:15:12] Speaker 01: To ask that question whether or not the Johnson right would apply [00:15:17] Speaker 01: to Arrington is the merits question. [00:15:21] Speaker 01: The only question here is, has he asserted the right? [00:15:23] Speaker 01: Which is why I asked you the question I did. [00:15:26] Speaker 01: What is the right declared in Johnson? [00:15:28] Speaker 01: Isn't that the way to think about it? [00:15:29] Speaker 05: Yes, and that is our primary argument. [00:15:32] Speaker 05: The Teague discussion, I kind of jumped ahead. [00:15:36] Speaker 05: I'm sorry, but what? [00:15:38] Speaker 05: That is our prime argument, the cross argument. [00:15:41] Speaker 05: I sort of jumped ahead to the Teague argument, which is, I think, our fallback argument. [00:15:45] Speaker 01: Well, we don't have to get to the Teague argument if we agree with you on cross, right? [00:15:49] Speaker 05: That's correct, because it's only if merits have to be reached that we then have to figure out the substance of it. [00:15:57] Speaker 01: Yeah, right. [00:15:59] Speaker 01: Okay, thanks. [00:15:59] Speaker 01: Yeah, I get you. [00:16:00] Speaker 05: I'm sorry, I got off track on it. [00:16:02] Speaker 05: But yes, that is the point. [00:16:04] Speaker 05: And I agree that it comes down to how you define the right that's asserted. [00:16:09] Speaker 05: But again, to me, the right, it's identical really, unless we think that the only law the Supreme Court met when it said a law can't fix permissible sentence range is ACCA itself. [00:16:24] Speaker 05: And that's just not how Supreme Court [00:16:26] Speaker 05: precedent works, you look not just to the holding, but to the logical, it's obviously within when we're talking about another law that is just as much of a law as was the ACCA law. [00:16:40] Speaker 05: ACCA itself, for example, was subject to, it had like escape hatches from it as well. [00:16:48] Speaker 05: So there really isn't any difference with that and the departure possibility here, which of course we recall was very rare. [00:16:57] Speaker 05: So it's our position that under both cross, the cross is actually the correct way to look at it, that the merits can be reached. [00:17:04] Speaker 05: And that's what two district judges in the circuit, Judge Huvel and Judge Howell have both come to that conclusion and followed cross. [00:17:13] Speaker 05: And we would ask the court to do the same, that alternatively to recognize that under Teague, this would not break new ground in the language of the Supreme Court. [00:17:25] Speaker 05: I can address the government's alternative [00:17:28] Speaker 05: of the court is interested. [00:17:30] Speaker 05: Otherwise, I would ask the court to reverse and remand for re-sentencing on his 25th petition. [00:17:42] Speaker 04: Thank you. [00:17:42] Speaker 04: Thank you. [00:17:44] Speaker 04: We'll reserve some time for rebuttal. [00:17:47] Speaker 04: All right, counsel for Hapley. [00:17:50] Speaker 02: Thank you, Your Honor. [00:17:51] Speaker 02: Good morning and may it please the court, Dan Lenners, United States. [00:17:55] Speaker 02: Under 18 USC 2255 F3, the right asserted by a defendant must have been newly recognized by the Supreme Court. [00:18:06] Speaker 02: The overwhelming majority of circuits have recognized that for a right to be recognized, the Supreme Court must have formally acknowledged it in a definite way, or it must be dictated by precedent. [00:18:20] Speaker 02: Johnson neither dictates the rule that Arrington seeks to apply here, which is the inability to apply the mandatory guidelines residual clause to determine a defendant's sentence. [00:18:37] Speaker 02: The Supreme Court did not formally acknowledge that right in a definite way. [00:18:41] Speaker 04: So what I was trying to understand is, hasn't this court [00:18:50] Speaker 04: already adopted the approach that appellant is arguing. [00:18:54] Speaker 04: The case is different, but we can look at the right being asserted. [00:19:02] Speaker 04: And that is enough on this procedural threshold issue without reaching the merits. [00:19:14] Speaker 02: No, Your Honor. [00:19:15] Speaker 02: I don't understand. [00:19:16] Speaker 02: Arrington has not argued that this court has adopted a specific approach under 2255-3. [00:19:25] Speaker 04: No, I agree. [00:19:26] Speaker 04: All right. [00:19:26] Speaker 04: And I acknowledge that it was a different circumstance. [00:19:29] Speaker 04: But that seems to be the approach, if we have to choose between the circuits and in response to Judge Tatel's underlying question, why wouldn't we [00:19:44] Speaker 04: take that as some guidance. [00:19:46] Speaker 04: Now, your answer may be, well, the Supreme Court has moved on and made clear that it wants the lower courts to wait for it. [00:19:55] Speaker 04: And until it says specifically, there is nothing to address. [00:20:04] Speaker 02: If your honest question is, why should the court not adopt the approach taken by Cross? [00:20:10] Speaker 02: the government's view is that for the same reasons that five other circuits have since rejected that approach. [00:20:17] Speaker 01: That's not a specially helpful response. [00:20:21] Speaker 01: I mean, we face situations where different circuits reach different conclusions all the time. [00:20:30] Speaker 01: And so, let me ask you this. [00:20:37] Speaker 01: Why, [00:20:39] Speaker 01: I want to ask you a question similar to the one I asked Councilor Arrington, but also a response to what you said. [00:20:50] Speaker 01: So doesn't the question turn on how you define the right articulated in Johnson? [00:20:58] Speaker 01: And why isn't Arrington and the Seventh Circuit correct here? [00:21:04] Speaker 01: That the right is a right not to be sentenced [00:21:09] Speaker 01: under a rule of law that uses the vague language in the residual clause. [00:21:14] Speaker 01: Why isn't that the right? [00:21:16] Speaker 01: It's the same language. [00:21:18] Speaker 01: What makes it, under your view, limited to the language of the statute? [00:21:28] Speaker 01: So, and let me just ask you a second question to that and then you can answer them both. [00:21:34] Speaker 01: And well, no, go ahead. [00:21:36] Speaker 01: Sorry, you go ahead. [00:21:37] Speaker 02: I think I have three reasons, Your Honor. [00:21:40] Speaker 02: The first is that Beckles expressly recognized that a defendant may be sentenced under this language when the language is advisory. [00:21:50] Speaker 01: And so that's not our case. [00:21:53] Speaker 02: That's not our case, but it's not our case. [00:21:54] Speaker 01: So what are your other two reasons? [00:21:57] Speaker 02: So if I might finish on it, it renders unclear the scope of the right in Johnson to the degree that it applies to mandatory guidelines, given that it doesn't apply to advisory guidelines and thus courts may rely. [00:22:10] Speaker 01: OK. [00:22:12] Speaker 02: My second answer, Your Honor, is that Beckel's separately [00:22:19] Speaker 02: held that there is a limited scope of the void for vagueness doctrine in the sentencing context, given the long history of discretionary sentencing. [00:22:28] Speaker 02: So that also counsels against reading the rule in Johnson more broadly in the sentencing context. [00:22:35] Speaker 01: This is pre-booker. [00:22:37] Speaker 02: I understand that, Your Honor, but the point is that it's the sentencing context. [00:22:44] Speaker 01: But it's pre-book, but it's pre-booker. [00:22:46] Speaker 01: So what's your third reason? [00:22:47] Speaker 02: And my third reason, Your Honor, is that the Supreme Court has routinely counseled against reading its precedents at a high level of generality in the HIPAA context. [00:22:56] Speaker 02: That in HIPAA, the Supreme Court has recognized that Congress meant to narrow the availability of PBS both substantively and with larger timing. [00:23:08] Speaker 02: And that has repeatedly reversed the ninth circuit. [00:23:12] Speaker 01: What do you think about the Seventh Circuit's point that the position you're taking here essentially reads the word asserted out of the statute, out of F3? [00:23:29] Speaker 02: I disagree, Your Honor. [00:23:32] Speaker 01: I understand that, but tell me why. [00:23:34] Speaker 02: because you have to figure out what right the defendant is asserting in order to figure out whether it's the right person. [00:23:41] Speaker 01: Exactly, and I still haven't heard from you why. [00:23:44] Speaker 01: I understand the way you've articulated the right in Johnson. [00:23:49] Speaker 01: I get that, that's a defensible argument. [00:23:53] Speaker 01: But so is the plaintiffs and the cross view of the right. [00:23:59] Speaker 01: And I'm searching for principle that would help me decide which is the correct way to articulate that right. [00:24:10] Speaker 02: I think that answer lies in Beckel's, your honor, which is a counsel against reading the right more broadly into the sentencing context. [00:24:19] Speaker 02: Given the fact that it is fine to use this type of vague language in advisory guidelines, given the long history of discretionary sentencing, [00:24:28] Speaker 02: and given the narrowness with which Supreme Court is supposed to be read in the context, I think all three of those separately counsel against reading the Johnson right so broadly. [00:24:42] Speaker 02: And I think the process simply wrongly decided, as I said, five circuits have said that crossing properly reads the right recognized out of the statute [00:24:54] Speaker 02: So the cross view is not faithful to the statutory language. [00:24:58] Speaker 02: It's also not faithful to Congress's intent in enacting EDPA. [00:25:03] Speaker 02: Because it allows, it undermines congressional intent by just allowing a petitioner to employ EDPA's clear time limits by invoking a right newly recognized by the Supreme Court. [00:25:15] Speaker 02: Lying on Johnson, it undermines congressional intent in those strict time limits in EDPA. [00:25:23] Speaker 02: I mean, I understand that this court doesn't feel compelled to follow the herd, but I think the five cases, the five circuits that have rejected this argument present telling logic in explaining why Cross was wrongly designed. [00:25:40] Speaker 01: Let me ask you this. [00:25:41] Speaker 01: Suppose, this is a hypothetical. [00:25:46] Speaker 01: Suppose I agree with Arrington here. [00:25:50] Speaker 01: in the way he articulates the right set forth in Johnson as broader than just the language under that particular statute. [00:26:03] Speaker 01: Would you agree then that he's not time barred? [00:26:10] Speaker 02: No, Your Honor. [00:26:12] Speaker 02: To be clear, it's not the government's position that [00:26:18] Speaker 02: the right articulating Johnson is limited to the ACCA. [00:26:22] Speaker 02: It is broader than that. [00:26:24] Speaker 02: It would apply to say other statutes with identical length. [00:26:27] Speaker 01: Okay, good point. [00:26:30] Speaker 01: I understand that. [00:26:30] Speaker 04: Wait, I couldn't hear the government's response. [00:26:33] Speaker 01: Sorry. [00:26:33] Speaker 04: Would you finish your response? [00:26:38] Speaker 02: It's not so narrow that it only applies to the ACCA. [00:26:41] Speaker 02: We're not taking that narrower view of 2255 back. [00:26:44] Speaker 02: It obviously applies [00:26:46] Speaker 02: beyond the ACCA. [00:26:48] Speaker 02: The question is how far it expands and whether it expands to the mandatory guidelines. [00:26:55] Speaker 02: And in our view, that goals create significant uncertainty as to whether the Johnson right would expand into the mandatory guidelines because of its invocation of the lengthy history of discretionary sentencing, the fact that said all the notice provided is provided by the statute itself. [00:27:15] Speaker 02: the fact that it said that you already have, excuse me, arbitrary sentencing under a purely discretionary scheme. [00:27:29] Speaker 02: And so even a vague guideline narrows a judge's discretion more so than completely discretionary sentencing. [00:27:36] Speaker 01: Okay, so let me restate my question properly because you're absolutely right, the government's argument is broader than the way I articulate it and I understand that point, but but nonetheless let's assume that I agree with the. [00:27:52] Speaker 01: with Arrington that it's broader than just statutory. [00:27:58] Speaker 01: And it's a right not to be sentenced under that kind of vague language. [00:28:04] Speaker 01: Let's just say this hypothetical, just assume that that's what I think. [00:28:09] Speaker 01: Do you agree then that he can proceed that he's not barred here? [00:28:22] Speaker 02: I don't think so, Your Honor. [00:28:23] Speaker 02: I think that you would have to find that that right is dictated by Supreme Court precedent. [00:28:28] Speaker 01: Oh, but no, but see, I think, but he is, if I define the right the way Arrington does, he is, quote, asserting that right. [00:28:40] Speaker 01: Now he may in the end be wrong, right? [00:28:42] Speaker 01: But he's asserting the right. [00:28:44] Speaker 01: And if your answer is, well, the right doesn't apply in this situation, that's the merits, isn't it? [00:28:51] Speaker 02: He's asserting the right, but you have to look at whether that right has been recognized by the Supreme Court. [00:28:56] Speaker 02: So you would have to look. [00:28:57] Speaker 01: Well, the right he's asserting is a right not to be sentenced under this kind of vague language. [00:29:02] Speaker 01: That's why my hypothetical rests on the accepting his definition of the right articulated in Errington, in Johnson. [00:29:13] Speaker 02: I feel like we're talking in circles, Your Honor. [00:29:14] Speaker 02: I apologize if I'm not answering your question, but the Supreme Court, the statute not only [00:29:20] Speaker 02: requires the right to be asserted, it also has to be recognized by the Supreme Court. [00:29:25] Speaker 02: And so you need analysis of both. [00:29:28] Speaker 01: But only one. [00:29:29] Speaker 01: You're right. [00:29:30] Speaker 01: We're going in circles. [00:29:32] Speaker 00: Can I ask one question? [00:29:34] Speaker 00: What's your best precedent for a principle that you asserted earlier, or proposition rather, that the Supreme Court has repeatedly cautioned lower courts in the EDPA context about reading previously recognized rights brought [00:29:52] Speaker 02: So that's what the Ninth Circuit discussed in Blackstone. [00:29:56] Speaker 02: And the case that was cited was Nevada versus Jackson, which is a 2013 Supreme Court precedent. [00:30:02] Speaker 02: And there was a second relatively recent Supreme Court precedent. [00:30:09] Speaker 02: But the Ninth Circuit discussed both of them in Blackstone and found that this was one of the factors counseling against reading the Johnson right to apply to the Ninth Circuit. [00:30:19] Speaker 00: All right, that's helpful. [00:30:20] Speaker 00: That's all my questions. [00:30:22] Speaker 04: All right, thank you. [00:30:25] Speaker 04: Council for Appellant, give you a couple of minutes. [00:30:30] Speaker 05: I think the main thing I wanted to address was the government gave the three reasons that it holds view. [00:30:41] Speaker 05: And one was that, you know, Beckels makes it unclear. [00:30:46] Speaker 05: But I mean, I answer that as obvious that Beckels was advisory. [00:30:51] Speaker 05: about advisory guidelines and this is a whole different world. [00:30:53] Speaker 05: What the government said about the high level of generality, that's our point. [00:31:00] Speaker 05: I mean, we're not stating this rule at a high level of generality at all because the language we're [00:31:09] Speaker 05: saying can't be used is the identical language. [00:31:13] Speaker 05: And the only, the only, there is no leap here because the only difference between the holding and the statute in Johnson and the situation here is that the statute there was the Armed Career Criminal Act and here the statute is the mandatory guidelines that Congress put in place and said these are going to determine your [00:31:37] Speaker 05: minimum and maximum sentences in the ordinary case. [00:31:40] Speaker 05: And it's a law and Booker overruled, got rid of the mandatory guidelines because they were binding law. [00:31:48] Speaker 05: And there is no distance practically at all between the ACCA law and the mandatory guidelines law. [00:31:55] Speaker 05: They're both laws. [00:31:56] Speaker 05: And Beckles referred to the word law when it described. [00:32:01] Speaker 05: Beckles itself used the word law in describing the Johnson right that was recognized. [00:32:07] Speaker 05: So we don't think we are at a high level of generality. [00:32:11] Speaker 00: So you feel you're expressing and understandably a high degree of certainty that the question of whether Johnson's holding, Johnson's rule covers this situation is not an open question. [00:32:29] Speaker 00: And there was just as much certainty, if not more certainty, [00:32:35] Speaker 00: that Johnson covered the Beckles situation. [00:32:38] Speaker 00: So much certainty that the Solicitor General himself, if I recall, cited with the 2255, or cited with Beckles, I should say. [00:32:51] Speaker 00: Isn't one of the lessons of Beckles that we should doubt a little bit of our certainty when it comes to thinking that there are, you know, [00:33:02] Speaker 00: not that there is not an open question, particularly in the Johnson context. [00:33:09] Speaker 05: Well, that was a I understand what your honor is saying there was some assumptions that were made that turned out not to be correct there. [00:33:18] Speaker 05: But the what the difference between advisory guidelines and mandatory guidelines I mean that was that was [00:33:25] Speaker 05: big leap, parties may not have understood the significance of Supreme Court was going to see in it, but you could see that it was a very different context. [00:33:33] Speaker 05: Here, there isn't really a different context, so I can't imagine in the same legal context how there could be a different answer. [00:33:40] Speaker 05: That's, I guess, what we're saying. [00:33:41] Speaker 05: This is just so close. [00:33:43] Speaker 01: And I did want to just- But don't you, to me, you're moving over into the merits too, in the way you answered Judge Walker's question. [00:33:56] Speaker 01: You are asserting the right, articulated in Johnson as you define it, but you must concede that when a court finally gets around to looking at it, it might conclude you're wrong, right? [00:34:08] Speaker 01: That that right doesn't protect Harrington, correct? [00:34:12] Speaker 05: I don't actually need this argument, but in fact, I do think it's unreasonable. [00:34:17] Speaker 01: No, but for you to prevail, do you acknowledge that the right you're asserting on behalf of your client might turn out not to apply to his situation, correct? [00:34:36] Speaker 05: I would agree that we would still win even if that turned out to be the, we'd still win. [00:34:41] Speaker 01: You mean you could still win here? [00:34:42] Speaker 05: Yes. [00:34:44] Speaker 00: Ms. [00:34:45] Speaker 00: Wright, imagine, imagine if your client were asserting the right, the Supreme court recently recognized in Louisiana, the Ramos, the right not to be sentenced when there's not a, you know, unanimous jury. [00:34:59] Speaker 00: Um, and, uh, and of course in this case he was convicted by unanimous jury. [00:35:05] Speaker 00: But you say, well, I get past the timeliness because I'm asserting a recently recognized right. [00:35:11] Speaker 00: Now, we'll debate the merits another time, but I've cleared the timeliness hurdle. [00:35:16] Speaker 00: Would that argument work? [00:35:18] Speaker 05: Well, I agree that that theoretical possibility exists. [00:35:22] Speaker 05: And I think the district courts, Judge Udall and Judge Powell, I think, recognize that, you know, [00:35:28] Speaker 05: Yes, we are potentially letting through a case to be decided on the merits that is, you know, perhaps, you know, obviously incorrect. [00:35:36] Speaker 05: But if it's obviously incorrect, it's just as easy to get rid of it as it was to get rid of it at the timeliness stage. [00:35:43] Speaker 05: So I don't just don't think that's what Congress intended. [00:35:46] Speaker 01: But you're not, I'm sorry to keep going back in this, but I don't see this as a predictive question. [00:35:54] Speaker 01: This isn't, [00:35:56] Speaker 01: a predictive question. [00:35:57] Speaker 01: The only question is, you are asserting a right as you define it, correct? [00:36:03] Speaker 01: Yes. [00:36:04] Speaker 01: Okay. [00:36:05] Speaker 01: If that's the right articulated in Johnson, then you can proceed and then we get to decide the merits. [00:36:11] Speaker ?: Correct. [00:36:12] Speaker 01: But we're not predicting what the result will be. [00:36:16] Speaker 01: Do you agree with that? [00:36:18] Speaker 05: I agree with that. [00:36:20] Speaker 05: And that's what Cross said. [00:36:21] Speaker 05: We are also arguing as backup argument that if the court disagrees with that approach. [00:36:28] Speaker 01: I understand. [00:36:28] Speaker 05: So I am flipping back and forth between those two arguments. [00:36:33] Speaker 01: And what's your response to the government's argument answer to my question? [00:36:38] Speaker 01: The same one I asked you, which is, well, [00:36:45] Speaker 01: Whatever right Johnson articulated is a right that's limited to statutes, and it has no applicability at all. [00:36:56] Speaker 01: You can't broaden it to the completely different situation of sentencing. [00:37:02] Speaker 01: I think that's the government's. [00:37:03] Speaker 01: I hope I'm articulating it correctly. [00:37:07] Speaker 01: What's your answer to that? [00:37:09] Speaker 05: Well, sentencing in general, I would say mandatory guidelines were not a traditional sentencing because in this case- Your answer is Booker. [00:37:18] Speaker 01: Your answer is Booker. [00:37:20] Speaker 01: This is pre-Booker, right? [00:37:21] Speaker 01: Right. [00:37:22] Speaker 05: And we don't know what our range is at all until we know whether the residual clause applies. [00:37:29] Speaker 05: And since it's vague, we can't figure it out. [00:37:30] Speaker 05: So we don't have any notice of what our range is. [00:37:32] Speaker 05: And judges don't have any way to decide it non-arbitrarily. [00:37:37] Speaker 05: So that's the problem. [00:37:38] Speaker 05: It's not a traditional sentencing regime as it is today and as Beckels found it to be. [00:37:45] Speaker 05: And I guess one thing I didn't get to mention is just that I don't know if the court was concerned about the Justice Sotomayor note about saying that the issue was open. [00:37:56] Speaker 05: I know this does not go to the cross issue, although it goes more to the [00:38:02] Speaker 05: fatigue issue of whether the issue is open or not. [00:38:04] Speaker 05: But I just want to say it seems obvious that what Justice Sotomayor was saying was just the obvious and probably, frankly, for the benefit of any pre-booker lay prisoners that were reading Beckels to just understand that this issue is not being decided. [00:38:20] Speaker 05: It's obvious to you and I, but it might not be obvious to people with pre-booker Johnson claims. [00:38:27] Speaker 05: And that [00:38:30] Speaker 05: And that again, I point to Stringer v. Black that even if Justice Sotomayor and even the whole court has said it's open, that doesn't put a close. [00:38:40] Speaker 05: But again, that doesn't go to the cross argument. [00:38:43] Speaker 05: The cross argument was very simple and I think very clear because we are asserting the Johnson right. [00:38:49] Speaker 05: Johnson was newly recognized on June 26, 2015 and we filed our claim within one year of that. [00:38:56] Speaker 05: So that gets us over the timeliness [00:38:59] Speaker 05: and then we reach the merits when we do. [00:39:02] Speaker 05: And for those reasons, you would ask the court to reverse and remand for resentencing without the residual clause. [00:39:13] Speaker 05: All right, we'll take the case under advisement. [00:39:15] Speaker 05: Thank you.