the honorable the united states court of appeals for the st circuit is now in session all persons having any business before the honorable court may give their attendance and they shall be heard god save the united states of america at this our backcourt court as in session today's career offender based upon two assaults in two thousand and four he has known served twelve years of this and it's he was twenty three years old at the time of the offense he is now thirty six years factors and in particular by his post sentence we have built a sion and the fact that he no longer qualifies as a career offender under current criteria judge young denied the motion without hearing  sentence order which only said that quote the act is not sweep so broadly as is he or claims on appeal the parties are agreed on certain essential one that the defendant is eligible for consideration under the statute as he was sentenced for its current offense to that the judge had broad discretionary power to impose a reduced sentence he could do and that is i understand conception was argued last month so you're in the difficult position where the key controlling precedent is sort of in process but not yet issued so now you know we know what it is it would be helpful to me and i don't want to foreclose you from saying other thoughts but it would be helpful to meet to know if conception is affirmed is there anything that distinguishes your case that we should still consider it and can firstly if conception is reversed how far do we take that in your case and particularly the st question if we assume conception is affirmed that the only thing that the first step back to authorizes a court to do is for the court to put itself in some kind of a time warp where the court puts himsel shoes of the sentencing judge at the time of the sentencing and makes only those changes that the act actually requires for example if the if the senate's being served is in excess of a new maximum sentence then obviously the statute affirmatively requires a change and that is said to be  is to reduce the maximum sentence so this defendant's maximum sentence was cut in half and went from eighty years to forty years and i would suggest that under any rational reasonable interpretation of the statute even an extreme which i regard as a fairly extreme interpretation that there is really no no substantial discretion that that would be a change that indicates the court has power to recognize that as your runners decision in the smith case discussed a change benchmarks the the pose of the of the sentencing and consistency with the entire legislative history that these sentences were far too great and indeed had a racially discriminatory impact that that is exactly the kind of thing that should that should cause the the court to seriously consider exercising discretion to reduce the s would necessarily call for a close examination an exercise in discretion even under that head would type of rationale but all of the cases s where we part company is that the government says well the judge did in this case and we see no indication of that at all the court forces st of all that's basically where the court said it was not doing by referring to concepcion and secondly there's not the slightest indication that judge john engaged in a discretionary exercise here based upon our showing of mitigating correct yes thank you attorney starn you can meet your device and if we could hear from attorney sacks please reduction in the district court did have broad discretion really the only question here is did the court properly exercise that discretion and i think contrary to what my brother counsel said the record we see issues in sentencing appeals all the time where both the government of the defendant agree on a joint request for sentencing and the district court judge does something different as he or she isn't title to but we see that all the time on recommended sentences either so so i don't see the logic be tying your suggestion that we shouldn't further just recorded acts because both back to that the point that your honor just me yes that we are the courteous sort could make a joint recommendation and the court could you could portion to ignore that to make its own decision but here it's not a question of a recommendation to hear both parties rejected that legal analysis then presumably what if that's but even more so no that's not what happened because we look at the district court's decision on this occasion of its own decision you know down the previous day concepcion at least the district court and that that he believed that the sentence was fair and just at the time and remains so today so so it seems to me that that's a clear indication of the perhaps unique that you defendants in concepcion and in this case were were simply not precisely but there was extreme similarity between their factual and legal circumstances they were both five minutes  most important factor which the district court had discussed at the time of the initial sentencing that is the prior of the predicates of prior crimes of the defendant which the district court referred to as crimes of incredible the sentence where the facts g s are in the underlying most important underlying factor had not changed me but but that said i don't think it would be in any way inappropriate for it for the sport to your premium for a fuller explanation however i the factors as they are now reevaluation factors and of course if things have changed the factors are different that's something the district certainly has discretion to take into its sentencing calculus however in many cases the most important factors driving the consider it i think more consider could be given a couple of different meanings here and the answer is yes to one no to the other if we consider in terms of determining what the correct mind sentencing range for balance yes absolutely that is something that the that the import may consider that comes into the as the thirty fact if you three a factors these are things that feed into determine what the correct sentence is and current guideline from that and if you apply the current guideline we submit and the government has not challenged on this appeal at least so far that he does not qualify as a career offender but even if he did there are many cases in which a court says yes he may still be occurring fandor but we still have discretion to go outside of that as the court did even before to a small extent we can we can go and we can look at the whole case and the whole case here involves they rationale that the judge originally gave for this sentence he said i am giving you eighteen years then it's four or five grams of cocaine because i predict this is what is necessary to keep the community safe from your crimes and now look at what has happened he has made an incredible record in chrism he has year twenty three to year thirty six that is what this is about and that is why he is perfectly positioned to get a reduction and why judge young whenever the guidelines are and we do suggest he individualized review that the framers of this act expected thank you