morning morning your honour's per cent just like to thank the court for for allowing for moving the calendar because of my tardiness and i apologize very sincerely for that i'm very sorry thank you very much do you wish to reserve any of your time for  do i'd like to reserve three minutes please run it all right now when you can proceed your honor my name is done out there and i represent igor katzman on this appeal in this case mr katzman provided substantial assistance to the government ultimately allowing the government to obtain convictions in the largest no fraud insurance in the largest no fault insurance fraud prosecution in history in exchange for his cooperation which came a significant cost himself and his family in the end he was saddled with additional convictions that otherwise never would have existed that the government was never pursuing as the government itself acknowledged and he obtained no benefit whatsoever so the decision that ultimately led to this result which is an anomalous result based on the case law incredibly anomalous because really there is no second circuit case or other circuit court cases for that matter where substantial assistance is found and no reduction at all is granted so it is truly a and i know that we've all looked at extensively at all the cases out there there does not seem to be a an appellate circuit court decision are addressing such a situation or their case and talk about what the extent of requires a district judge to reduce no the law requires if the first threshold showing of substantial reduction is made then the law requires the judge to grant the motion then the reason or at least i would say that an error of law infected that analysis as well the reason that an error of law infected that second portion of the analysis to accepting that he ultimately said denied and assuming that that's not what  here when you look at the decision and specifically i'm looking at page five of that decision the court actually specifically said that it had a duty to consider the thirty five fifty three factors on the motion in other words it that this is tantamount to a sentencing and it must consider those factors the case law is absolutely contrary to that proposition there is no circuit court that has ever held over the choice no your honor not on that point in fact just last week on some courts so you can some courts say you can't actually no court says you must and in fact this court recognized that proposition just last week in the united states versus doria which is a case that was just decided last week i nine three three two nine it's united states versus doria it's seventeen nine zero one c r decided september tenth two thousand and eighteen by this court and and what the court held in doria actually i'll quote you directly from it the decision says no circuit has held however that a district court must consider the thirty five fifty three a factors in the decision so the court operated under an error of law in that part of the analysis as well because he specifically and he had a duty to consider the factors i don't know what would have happened had he said i don't have to consider these factors maybe i should consider these factors it never took that into consideration so f is required here for two distinct reasons number one the court's holding which was very clear both in its summary holding without decision and then subsequently in its holding when it issued a decision the court said i find substantial assistance i deny the motion that's just wrong it's not it's not legally correct the second reason that agreement is required in this case is because the court found and specifically stated that it had a duty quote to consider these factors which is contrary to this court statement and contrary to the precedent of every court to look at it but the third part if congress found that the thirty forty fifty three a factors were important to  saw give you additional reasons as well the reason they should not be considered is because congress specifically said there are three ways to modify a sentence you can do it under thirty five eighty two c want to say consider the factors you can do it under thirty five eighty two see to consider the factors and you can do in under thirty five p nothing about consider the factors additionally what i would point out and this is this is you know looking at the statutory scheme of this it's actually incorrect to  this is in essence really an appropriate way to the factors or appropriate to be considered because when you look at thirty five fifty three itself it says factors to be considered in imposing sentence however rule forty three a three specifically says that when you impose sentence the initial sentencing which is what happens when you have a five k motion which is what happens in these other contacts at that point the defendant must be present when the sentences and what's wrong with with with allowing that what's right i notice my time is that i can answer your question my there are several things that are wrong with it both from a policy standpoint and from a statutory standpoint from a statutory standpoint we always start with the plain language of the and the plain language of the statute thirty five b has no discussion of sentencing factors it says upon a government the government's motion the court maybe reduce the sentence if the defendant provided substantial and main implies discretion but again it does your honor and the discretion russian law is looking at different factors well your honor the first thing on that point is that actually it's very well settled both by the supreme court and by this court that there are many contexts where we may means must in other words rule thirty five situation does the court have a duty to impose a sentence that is sufficient but not greater than necessary to serve the purposes of sentencing yes your honor but how can a court do that without looking at the thirty five fifty four the thirty five fifty three factors have already been considered so the sixth circuit in united states versus graham for instance said look this is a context where i don't like the five have an opportunity to object to the order no your honor that word or was issued actually the way that it that it came about was the court initially held a hearing on it and then seven months went by before the court ultimately issued a decision the decision that the court issued was simply did not which goes back to my first point as to why this is a denial so he didn't grant the motion as is required under park and doria and this court's precedent he denied it then what happened is or i don't believe that well there was no other hearing that was held and there was no other opportunity while anything in objection well we couldn't because we did not that we filed a brief because the posher of it was this court ordered when it rematch did it reminded for the purpose of the court to explain its decision once we got that explanation the government then said ok second circuit here's the explanation this is exactly and so there really was no opportunity for us to do that and there was no opportunity for us to argue for the defendant to argue that the factor should not have been weighed in in the first place and certainly that the court erred in finding that they must be considered there was never an opportunity for that but i know your  your honor the judge is supposed to consider those imposing sentence the problem is that unlike the five k context which leads to the analogy from which that reasoning flows where those factors are considered along with substantial assistance in the first instance in imposing sentence here there is a statutory difference that congress has written in not including the consideration of these factors which is different because you'll know david in the five k context under thirty five fifty three it's pacifically talks about consideration of the guidelines not here and the reason that makes sense here is because in imposing the original sentence all of those factors have already been weighed in this defend sentence was enhanced for all the reasons the district court said the government knew about all of those things when it submitted the thirty five b motion in you about that it knew that he had lied it knew that he had cash at cigna you that he was overwhelming authority states that you cannot consider those factors in for purposes of finding that a greater reduction is appropriate so it absolutely should go both ways in this case really this is  problem with the judiciary infringing upon the executive the government as this court recognized in the united states versus karpen the supreme court has recognized repeatedly has a great interest in being able to make cooperation agreements if the government's authority to do that here in the us if the government says they're correct while the government's while their positions a little bit different here than it was throughout these proceedings i'll note but if the government's authority to do that is undermined by a judge saying you gave substantial assistance in fact in a manner that is really unbelievable that is really unprecedented in this case what this guy did in the government acknowledge that in their own motion the judiciary can then step in and say you did that you did everything you said you would give substantial assistance but their promise to you means nothing then nobody will ever come forward again to provide this kind of assistance and particularly when you're dealing with the russian with the russian mafia in this case with these types of charges you have a situation oh i'm sorry i'm sorry your honor i got a little a little excited one it's a one for one and the government explained that the defendant they had no evidence on the defendant in the southern district cases he voluntarily admitted his guilt resulting in his conviction of multiple charges that he otherwise never would have face n morning your honors i'm a please the court my name is michael warren i'm in a system united states attorney in the eastern district of new york and i'm here representing the appellee the united states just to comment on one point raised by counsel and i suspect this will be a rare moment for this court when the government essentially states that it does not have the unlimited discretion to determine whether a defendant sentences reduced in fact in virtually every case in which i have had a five k situational rule thirty five situation i have made it clear to the defendant that in fact this is not within the government's discretion it is within the court's discretion whether or not to grant a sentence reduction so having now conceded that the gov that the government does not automatically by making a five k or rule thirty five application require that the defendant sentence be reduced i will say this your honor there's one thing is clear is one thing is clear from my review of the case law the court has fairly broad discretion in its determination on whether or not to grant a rule thirty five or a five k one point one so long as the court's decision is rational and is not based on an permissible grounds one of the reason one of the bases of the court should use in making that determination of the rule thirty eight hundred thirty five fifty three standards and the fact as some of your honor's questions seem to suggest and what became clear to me  preparing for my argument last night it seems to me it's virtually impossible to evaluate a defendant's cooperation and the value there of without reviewing the thirty five fifty three standards in this case i agree  doesn't make sense to me but i think that the main argument is the plain text argument that if you look at rule thirty five and then you look at the other rules thirty five doesn't have doesn't refer to thirty five fifty three in the way that the other provisions do well i agree it doesn't that's it doesn't refer to it by the statute but again just as a matter of common sense i don't understand how the court can make that determination for example the nature of the defendant is very important i could see in court deciding based on the heinousness of the defendant's initial crimes that his benefit should be minimal based on on whatever his cooperation was here judge johnson rationally drew the conclusion that the defendant had received a benefit in in the southern district because he did receive essentially a bath for any cases out  but he's getting a break from things he told the government about that they're going to know about but the the government did not know about it but i think judge johnson's view was nonetheless the defendant was given full exoneration for it just because he doesn't know it at the time doesn't mean it why come up at some later date but i can see we did at that point we did not have and the government did not have the information which  well and that was because most most of those crimes some of those crimes had been committed while the defendant was on release in the eastern district and he and the court was misled during  prior hearings with respect to whether or not to defend it committed crimes i can see geraud is that the court could have ruled could have decided differently and we obviously made the application but the court has the discretion to do that and did it rationally and for that basis the the court's decision should remain and unless the court has any additional questions for me i'll rest of this point first thing i'd like to do is to address the court's concern that it doesn't seem to make sense that you can't consider these factors at this stage even even though the statutory framework does seem to suggest that so what i'd like to address is why it does make sense that you cannot consider them the reason the congress has cut out this is a very very clear difference between thirty five b motions and reductions under thirty five b and everything else is that in this unique context this is there are two things going on one is that in this unique context the court has already considered all of the thirty five fifty three factors and the only thing that the court is now looking at is whether there was substantial assistance that would warrant a downward departure so everything else was factored into the original sentence in this case it was factored in many times in this case the original deal that this defendant had had arranged with the government was to get a sentence of fifty seven months was the lowest range to seventy i think fifty maybe fifty seven to seventy one something like that at that point the defended wound up in violating in that he started passing additional checks which is what the usa was just referring to now well the court knew that and so when they came back at the court and probation knowing that this had happened found that he actually should be sentenced eighty four months and he was his sentence was increased then he violated again because he wound up posting a facebook post that was inappropriate the call to cooperate or rat and then knowing that knowing that he lied knowing that his conduct was bad the court again increased his sentence to one hundred twenty months releasing the government from any obligation that it had with respect to the initial cooperation agreement so when the government filed this motion in this case and in all cases the government has before it all of the thirty five fifty three factors that the court has already considered and the only new evidence the only new fact is the substantial assistance are there any circumstances under which a under your two step process looking at everything as a fall and rise the riddle i haven't found one your honor can you think of one can i think of a situation that that should be i would argue that that should never be i would argue just to go back to judge chin's original question what work does the word may do and thirty five well so what i was saying before what i had started saying is that there are many circumstances where the supreme court has actually found that may means must and this court has found that as well and the way that you look at that is your position is may means must means well my position yes in a sense my position is that when you're looking at the question of how to interpret the word may first the dictionary definition merriam webster argue that his failing health warrant a larger amount option that would be precluded under your position that maybe your honor because that would be actually covered by another provision potentially it would be covered there is a specific provision that allows a person who is seventy years old past thirty years and has failing health and is no longer a danger but yes your honor i think that it does cut both ways and i'm willing to stand by that but i but your honor if i may address just one