the court i'm erin reston attorney with the federal defender services of eastern tennessee and i'm here on behalf of the appellant in this case miss amber flo this court should abandon its probation on the consideration of the thirty five fifty three a factors in addition to the extent of the defendant substantial assistance when sentencing a defendant below a mandatory minimum under thirty five fifty three this is because this interpretation is probation has always been based on judicial construction of thirty five fifty three it's not explicitly contained in the statute the cases that so do the cases that provide for the limitation are they holding as opposed to the cases that hold the cases that interpret thirty five fifty three  o there are cases where the court does where it's holding is based on a finding that thirty five fifty yes sure that means my perspective i can't speak for my colleagues but you gotta find something it's either statutory or supreme court really that's inconsistent yes your honor of your arguments are policy arguments and some of the briefly there are interesting and thoughtful arguments but some of them don't rise to that level i would once rise to that kind of the law has changed not the law should change or the law might change or the audit changed but the law has changed which of the argument surprised well your honor because this it's intent that the thirty five fifty three factors can be considered in addition to the extent of the defendant substantial assistance of the amendment to the guidelines by the commission by the commission correct your honor however the amendment process that the ultimate authority over what does and does not get amended still resides with congress of a stretch to say that's a statutory change but it does have the else it something else the that a that is the equivalent of a statutory change and b that it actually does what you say it does is that right well your honor with with respect to whether or not this panel can issue a ruling i do agree that it does come down to whether or ten and what one b one point ten is is the commission's guideline that directs how district courts can retroactively applied changes in the guidelines so amendment seven eighty allows for the reduction of a defendant sentence below a mandatory minimum and further directs the district courts to consider thirty five fifty three a in addition to the extent well first of all the statute authorizing statute that gives the commission the authority to set its own rules for retroactive application is eighteen u s c section thirty five eighty two and subsection six two you're talking subsection that subsection specifically states that a sentence may be reduced after considering the factors set forth and thirty five fifty three further your honor applets to title factors for consideration it states that the court shall consider thirty five fifty three a factors that the court shall consider the danger to the public and that the court may consider post sentencing conduct and i would also point out that that's changed no your honor that has always that which in the change was changed what has changed is amendment seventy which addresses substantial assistance reductions below thought it was so you're talking about one b one point ten c cases involving mandatory minimum sentences and substantial assistance and you know i went through this at length yesterday trying to prepare for this case and it's it's hard for me to see where that suggests that thirty five fifty three a factors would be used would it seems to suggest is that there's an exception to the limit in the reduction to sentence within the amended guideline range right there is an across the board there's a general limitation that applies to any defendant here is being sentenced retroactively there's also a below the amended guideline range so that for practical purposes the bottom of the amended guideline range is mandatory it's not discretionary yes you're right there's also booker and all of that where you can go below you can vary and all of that this under this amendment you can only go down to the bottom of the amended guideline range which both address substantial systems and what they do is they say for the purposes of this floor it goes below the floor goes below you're not stuck with that yes or no and it would seem like the purpose for that would be to permit these reductions to have an effect to have the same kind of effect they would have had if that amended guideline had been in place in the first place the it's the stated intent is to allow defendants who had a substantial assistance reduction below mandatory minimum at their initial sentencing be substantial assistance reductions that were based on substantial assistance not based on thirty five fifty three factors and then an equivalent amount of substantial assistance reduction should apply may apply to may apply to the guideline range that has been reduced right nothing in there if i'm reading it that way and i think that's the way it reads both of the both of the examples a and b under the application of say assume that the court previously granted a lessening based on substantial assistance seems like to me what these things are doing is saying you take the guideline range which had this much this percentage reduction you look at the guideline range down here and you can give no more than this percentage reduction right but this percentage reduction here there's nothing that says this percentage reduction below is to be accurate it anywhere differently from the way it was calculated before it's just a percentage of something that's ultimately derived from three five three factors that's a percentage that's based one would assume soley on the basis of what it does your honor i what it does your honor is it grants the district court the authority to issue a sentence that is substantially lower than the original mandatory minimum  will is based on it there's nothing that indicates that that amount of substantial lower gnosis based on three five three factors or guideline factors outside of substantial assistance the percentage  comparable reduction that percentage stays is there so we can look at me and i'm very smooth if that's true that suggests to me that there's nothing in this amendment which counters the idea that reductions or not to be based on three because your honor what it does is while it applies the same percentage to the bottom of the amended guideline range that percentage is potentially greatly increased from the mandatory minimum so it grants the court if we can look at mr resistance below the man below the mandatory minimum so district in if it corresponds at least what they seem to be contemplating here it's only farther down below the mandatory minimum to the extent that to the percentage extent that it was below it's not much further below just it's not it's not the same percentage below the mandatory minimum that was originally applied if that were the case they wouldn't be eligible for reduction at all because the mandatory minimum hasn't changed what it does is it applies the percentage take takes away the mandatory minimum for that limited purpose purpose for the purpose of calculating the extent of the reduction that were the i guess my question boils down to this if the range had been the range at the time of the original sentencing and we had the rule  those departures could only be based on substantial assistance and could be based on a further three five three factors them what the sentencing judge would have done back then would have been what this amendment but no your honor because what because this amendment allows in some instances where a defendant has a mandatory minimum of say two hundred and forty months of twenty years but there are guidelines range was substantially lower so seventy to eighty seven months what this amendment does is it grants the district court authority to take whatever percentage he originally got from his two hundred forty might mean a touring minimum amended guideline range so his amended guideline range is two levels lower then we're looking at a thing about that what you just described which suggests that congress or the sentencing commission wants that amount to be based on three five three factors if there is your honor because the guy lying itself one b one point ten directs that when determining the extent of the defendants reduction in all cases the district court shout is required to consider the thirty five fifty three eight factors what are the extent their political to the specific defendant whatever the factors of that case by removing the mandatory minimum congress which had the final authority to disapprove of the s amendment in which has disapproved of amendments in the past allowed the the court to grant reductions in defendants cases further below the mandatory minimum without regard to the mandatory minimum and in the context of a guideline which again congress when it was originally passed had final approval and authority over it the guideline itself requires the district court consider the thirty five fifty three factors when setting the the extent of  may please the court michael porter on behalf of the united states the district court did not err in this instance when it declined to consider factors unrelated to the value of the defendant substantial assistance when departing downward pursuant to a government sponsored motion motion in this case was pursuant to section thirty five fifty three and section five k one of the guidelines the defendant was initially subject to a one hundred twenty one mandatory minimum what the court did is it heard arguments from from both add after that counsel argued that it was it that the defendant was entitled to an additional variance under section thirty five fifty three on top of the thirty five fifty three eve ariens united states presented  law indicating that that was the wrong result of this to court ultimately agreed in so doing the district court followed decades of precedent from this circuit that to publish cases that come to mind are united states feel and united states people are united states v williams was a published two thousand and twelve case united states people or was a published two thousand and four case both of those cases the united states admits state in no uncertain terms that when departing downward under a government sponsored motion from a mandatory minimum under section thirty five fifty three e the court is the court is limited to factors related to the value of the defendant's substantial systems the district court simply did not err in this instance with respect to the arguments regarding section one v one point ten of the guidelines they put this particular defendant in no different position than she would have been if she had not received if she had been sentence before the drugs drug minus to admit went into effect this particular defendant was sentenced in november of two thousand and fourteen after the drug minus two amendment went into effect even if she had not been sentenced before that she would still be in the exact same position and here's why the language of this particular guideline one be one point ten what it does when a defendant comes back for re sentencing under thirty five eighty two after they have already received a substantial systems reduction pursuant to a government sponsored motion for mandatory minimum what this god line makes clear is when the defendant comes back and gets the benefit of of that drug minus two reduction is limited to the value it must be comparable to the substantial assistance reduction that was given in the first instance one b one point ten in no way gives the port the authority to engage plenary sentencing sentencing factors under thirty five fifty three yet now there is some language and thirty five eighty two there is some language that i believe miss russ talked about regarding thirty five fifty three a day when a  political what the united states emits is that the import of that language is the court does have the discretion when determining whether to give the defendant the defendant the full benefit of the two level reduction the court can look to the thirty five fifty three a factors  and decide not to give the defendant the full benefit down to the comparable range the court can do that and in instances where that happens is where a particular defendant has trouble while they incarcerated they commit new crimes while they are incarcerated for whatever reason they still present a danger to the public in the court is allowed to consider those factors when determining whether it should give the defendant the full benefit of the reduction but section one b one section one b one point ten six circuit case law thirty five eighty two in no way grants district courts the authority to use the plenary sentencing factors und thirty five fifty three a to give a reduction more than what is comparable to the substantial assistance reduction that the defendant initially received at her first sentencing as far as the defendant's arguments regarding the subset of reasonableness of the sentence what we have here is a mandatory minimum sentence the united states emits that by definition mandatory minimum sentences are subsequently reasonable we've cited case law  in our brief to that effect i would i would note that united states v marshall as one of the six circuit decisions that stand for that proposition the defend it also raises arguments under the eighth amendment under the due process clause the united states would submit that those particular arguments are subject to plain error review they were not raised below but even if we do get into the substance of those arguments i would submit in this instance there is no eighth amendment violation the supreme court and this court have upheld eighth amendment challenges and instances that where defendants were sentenced to far harsher sentences than this pretty particular defendant and also were those defendants had far less of a criminal history the supreme court case th comes to mind as united states v harmaline and i believe that particular defendant had no criminal history and was sentenced to life imprisonment or something close to it for possession of crack cocaine the sixth circuit is also up held ten year mandatory minimums and instances where defendants have a little or no criminal history in this case this particular defendant the united states would submit although she did not have the worst criminal history she had a beer or a fairly substantial criminal history she had a criminal history points and she had some serious underlying convictions in her past including a felony conviction for smuggling drugs into jail also a misdemeanor conviction for striking a law enforcement officer in the face and a misdemeanor conviction for distributing the controlled substances which just as easily could have been a felony conviction i do see that i have a lot of time left but unless unless the court has any questions for me the united states would i would honour's what subsection one b one point ten in the sentencing guidelines does when it incorporates the amendment under seventy eighty is it gives the court discretion to grant an additional reduction below the value of the defendant substantial assistance it does not contemplate that the defendant the amount of substantial assistance or the value of the substantial assistance provided by the defendant has increased in any way are different mechanisms if the defendant has provided additional substantial assistance to have their sentence retroactively reduced what it does on a retroactive re sentencing is remove the limit of the mandatory minimum and grant the district court discretion to further reduce the sentence based on consideration of thirty five fifty three a factors granite there is a floor that the sentencing commission has provided but in many cases there is a substantial difference between what the floor is and what the the sentence was originally in determining where to place the defendant's retroactive sentence the court is directed to look at the thirty five fifty three  been tending to to summarize my argument your honor her incarceration harms not only herself but her children and society as a whole because the amendment guideline amendment seventy has clarified congressional intent that thirty five fifty three factors can be considered to reduce the defendant sentence beyond the value of their substantial assistance continuing to prohibit consideration of the thirty five fifty three factors in initial sentencing leads to absurd results leads to treating defendants differently for unreasonable for no legitimate reason part of why it concluded that a substantial reason for why it concluded thirty five fifty three a factors couldn't be considered in a rule thirty five b proceeding was because to that point congress had not done anything to clarify or changed its interpretation of thirty five fifty congress sufficiently indicated that we were wrong and graham we would we would have to say your honor guess that this amendment to the guidelines which