thirty five eighty two argument that's two parts the first is that we do not believe that the we believe that the district court clearly erred in finding that the defendant was eligible for relief under section thirty five a can i ask can i ask this i mean strikes me as one of the most bizarre clear air determinations were asked to review because the judge says i didn't know i never found him to be a career offender right and one would think that the judge herself would be in the best position to make that funny how could we say that she was clearly erroneous and telling us what in fact she had done in that prior for so i think the court has to as the court doesn't many cases has to look at the transcript of the original sentence and determine what the district court actually did at the original sentence and what it did but can i just ask this i mean for for us to rule in your favor don't we just have to say to the judge that you know that you lie that your group badly mistaken about what you in fact did that just strikes me as an odd thing for us to declare the court committed clear yes we would if we would since submitted to this court has to find that the district court committed clear air in finding that the defendant was eight was not a career offender and twenty sixteen that it found that the defendant was a career offender and twenty well early earlier on so the parties at some point anyway had stipulated to him being a career offender so is it even something the judge can find to disagree with that yes i believe so i think that the court is is free to find that the defendant is not a career fender you can find that for example the offenses don't add up t defend it's par for answers don't add up to a career offender fined him but you are correct that in the plea agreement the and then again a sentence in the defendant stipulated that he was a career offender but it's not it's not a matter of what she says it's a matter of what the law requires if the judge had expressed this freshly said i don't think your career fandor but the law shows unequivocally that this person original sentence in i don't find him to be a career offender and we probably wouldn't be here today but the district court did find that the original sentence in that the defendant was a career offender based on his to pilate and based on his plea agreement and that is our position today that the district court got it wrong when it when it was confronted with the thirty five eighty two motion so there's kind of an odd thing here because there's also originally an understanding that the drug involved was crack but it seems like over time everyone started assuming everything should be treated like the drug involved was cocaine and i don't really understand how that i understand that the judge just agreed with the crack cocaine disparity but how all the 'm not comfortable with the crack cocaine guidelines and the prosecutor said perforating a little bit but the prosecutor said the defendant still a career offender so you should use the power career offender guidelines and career offender guidelines and that's what the district court use the powder cocaine career offender guidelines that are the crack guidelines the guidelines that are actually apply couple to this defendant yes they are they would be actually a political but but has the government waive that at this point we're not arguing that that the defendant falls  crack cocaine career offender guidelines but we are arguing that he's a career offender whether you look at that number could be arguing that he the crack guidelines or what's a flexible right i don't quite understand is sort of the same thing as the career i mean the actual facts are that it was crack i think well yes the actual facts are that it was crack and the fed it was plead guilty to a crack cocaine if once and was found guilty of a cracker for cain offense but the district court made it very clear that it wasn't going to use the crack cocaine guidelines and i think the prosecutor immediately shifted to ok what about the propellor cocaine guidelines and i don't know if it was the district court or the prosecutor but somebody shifted immediately to the powder cocaine guidelines i don't think that the district court was comfortable with the sentence that the crack cocaine guidelines the sentencing range that the crack cocaine guidelines would yield and therefore use the powder cocaine career offender guidelines i want to come back and maybe i just misunderstood your answers so united states  brown those courts whether a defendant qualifies as a career offender is a question of law not a matter of discretion this defendant let's assume qualifies as a career offender as a matter of law then it doesn't matter whether the judge as she seemed to say the first time around found that he was encouraged of fed there or as seemed to say the second time around determined that it was not he would defend it was not a clear offender it's a question of whether or not the defendant was a career offender that's correct your honor and if i if i misled the court before i only meant to say that the government probably wouldn't be if you would would not appeal i district court finding that the defendant wasn't the career offender because the government is pretty used to getting sentences below in this district anyway the district government is pretty used to getting a sense slightly for us if in fact this defendant is a career offender as a matter of law we can't pretend that it's that he's not the law can't yes i believe that's correct the  guideline for be one point one a cents worth what a career what is it a career offender and is this defendant well eyes unless you've waived the applicable to component of the argument and that's what your opponent says so what's your response  united states to determine whether davis is still good law this court's decision in the us and and that may change the the the waterfront of the bill to the first and second prong so the court is only the may may say something about the the application of of thirty five thirty two and so on if this court is is inclined to see a waiver then it should hold this case  pending the spring squits supreme court's decision which will probably come down and by by the end of june our argument that we have a way to do is to fold first is no no no party raise this below so no party thought that that there were two prongs no party thought that the question involved the second prong the only question was whether the defendant was a career offender and that's what what everyone focused on the defendant the district court the government and it being up here a legal question that's part of the argument you were making that this defendant wasn't eligible for recent sing whether it's a pure legal question i mean it's whether it's a whether he's a career offender i think that great office suggesting it's a legal question it's a legal question it's a component of the argument you're making so it seems you could be saying well there's no prejudice because it's a legal question it's part of the argument we're making i believe that would cut in our favor as well if if the court is inclined to see it as a pure legal question then and i plenary re sentencings and on that basis these court over and over again has rejected arguments by defendants trying to claim that the district court has had initially earth when they found them as a matter of policy both the crack cocaine guideline and the career offender guideline defense counsel in this case has argued that to her honor and well no i am is what do we do with the comment so one b one point one zero comma no one a says that we have to look at the criminal history and determine it before consideration of any departure or variance and you're saying this was either a departure of areas because she's departing or varying because of her disagreement with both aspects but of course of us a look at it before those things and how do we get to where you want to go when you aren't you only ne effect get to the applicable to a requirement one be one ten and the and the commentary go only to the second requirement yeah i agree with that but if we if we think it's a legal question or we think they generally raise the eligibility enough that the whole thing's before us then i don't think you really offered an argument for us to get around this a political issue i fully disagreed that just saying that a defend actually preserve both the requirements of these core starting with wesson continual pleasant all the way through has always treated the requirements as this requirements why does the same rule should not apply here i mean we are often treated though as a claim for which there are different arguments so often we say you can waive a claim but not particular arguments and that they have challenges eligibility that i agree with you th they have not made the right arguments and why not is unclear but there also was a fair amount of confusion in this proceeding it seems it is it is very true and i think mr garden has done his very best being argument that the applicable to component has been waived by the government and so we conclude that for whatever reason it's jurisdictional it's purely question for whatever reason it is properly before us do you then lose or do you have some argument that you can overcome i w certainly if if you're honest for whatever reasons would be inclined to excuse the government's waiver i would request the opportunity to brief the issue and is there anything you can say what would you say if you brief this is i would say not be prohibited by the comma that i was reading earlier well that's the question in the comment the comment certainly doesn't seem to invision a kindle situation and this is the reason i in my opinion this is a pretty complex issue a little struck by that you certainly brief your brief was terrific in this case you had you knew that this was in play because you're the one who i think recognized early on oh my god they might have waived the thing that might win the case for them so offer further arguments why the district court was right our only obligation is to respond to the government's arguments in their opening brief and their arguments what we need to the based on requirements and i apologize i i you probably will lose if we find that the applicable to component is properly before us and i guess you're saying that you think you might have something on the merits to say about that if we were to give you an opportunity to file another brief certainly are you are but i would i would emphasize again as again that the government did wavin the applicable to requirement the government he has not made an argument before on your honor you know asking that you excuse its waiver so  would just point the court to the this court's decision in west and wesson which in which that the court held specifically that a career offender does not get relief under the first based on prong of the of the and it disposes of this case if the government is found to have waived the the argument that the a political guidelines are the career offender guidelines and i thank you very much the case to start you will be submitted live to the third case