to seal the courtroom as well and to not record the oral argument that counsel thinks that's appropriate and we talked about it before he decided that the court can continue to use a pseudonym  doesn't need to be sealed and to speak getting into any particulars about the cooperation we simply need to talk about cooperation as an abstract matter right well i think that makes sense from the standpoint because just otherwise if parties just always stipulate to seal that really doesn't address the you know having that public to have access to a courtroom and so a but i think if at some point it became necessary to either of your arguments we would want you to have that opportunity to me it i'm not really sure at this point i don't i'm  clerks but i'm not sure anyone else is left to deciding recorder is being recorded and it's also being it's on you tube so right it's being streamed live you tube so i'm just we can proceed just simply fell through the trap question objects of the court but i think we've been able to accommodate that and as you pointed out on the merits the parties here agree they're both arguing that section one of the one point and i expressly frame to save or cooperating defendants in retroactively sentence once it's undisputed that time and again the sentencing commission has acted on the congressional directive to incentivise cooperation by defendants using no references telltale are completely might be creating a little deeper split but not and i don't think either of those cases the supreme court granted cert or no and your honor i would disagree that there was actually technically a split on this issue that it just hasn't been decided because we have one point of disagreement we have of the government is that i do not contend that variances are included in this because by the very fact of the statute allows we said only when there's been a change in the guy and a variance by definition has nothing to do with the calculation i put you have the phelps case on your side you know your server is there is quite awkward i mean that's where i'm sit so it was first thought that came to my mind let me ask you referenced within the plea agreement right the retroactivity of the amendment was we know that it has to go back in time so now we're in the land where assuming we were to apply the one side of the split the phelps side your clients out of jail right if so then if it were to go back and the guidelines were reduced based upon the retroactivity of the amendment now all he is left with is he's in his supervised release period so is it your contention then that we should do that in that the judge should have the ability to decide whether or not fact that the five year supervised release a statutory wouldn't matter if that was what the original departure held right to be my conditions well your head it covers that as well and i would point out that application notes seven to one  one point ten specifically contemplates the sort of situation that people will get retroactive reductions perhaps years after they've been sentenced and their custody will be up but those people shouldn't be left out in the cold which he gets out of the supervised release   but it's the case that he's only just recently embarked on his supervisor lease term but that's actually one of the points of prejudice in this case is that if everything had gone in he argued as both parties agree and agreed from the beginning should've gone understanding says in that case like that that's not based on the guideline and therefore he's not eligible so even though he would get the retroactivity he had agreed to that sentence and that's very true and i should explain that i was in charge of doing for all of the southern and we rise that person that we can't even we can't even advocate for you because we believe that you're not eligible but this is one it's just it's just not common type of police in our district and the judge still has the ability to reject it right he has to consider it this is not what he said about this appellant he said it was seemed pretty clear that he would consider it and after all that we're talking about here is six months the average reduction in the southern district of california was about ten months so it's not even an average reduction whereas we are having some people on joint petitions a five in six years reduction in their sentences with this is a small amount  substantial assistance case it is different what surprised me most was that he seemed very much attuned to the idea that the rule lenity at least would apply in a situation where you have such conflicting interpretations of the statute and then he said there was no ambiguity all this statute i think the very fact that a case like phelps exists and indicates that yes there are different ways of interpreting the statue at least that there's a reasonable minds and that the end of the design it's not wasn't easy it's not easy it's not the best written but i think that it is the the indications are there the language is not technical the exception uses broad language is says term of imprison imposed when it could have easily said the guideline range computed at the time of the sense it could in fact later on in the same sentence the commission uses a term of art amended guideline range that's a term of art in this guideline and the it uses that in the same sentence and counter poses that with broad terms like term of imprisonment imposed and comparably lower these are very broad lose terms i think that's the signal that the commission intended to look at the whole sentence as as the government said in the brief the ratio the reduction the amount of reduction that's allowed is the ratio between the whole sentence that's  imposed as opposed to the original guidelines so that you're looking at the whole sentence not simply the part that is derived from the substantial systems which would have been a very easy thing for the commission to do if they meant that but they deliberately chose some broad terms and i think that's i think not only the language of the guideline indicates that but i would point out also really important to the history and i want to emphasize the amendment seven eighty because i think this one it really shows where the commission is coming from this is the case that put the exception to five g one point one into the guideline that allows it to go past the trumping of the mandatory minimum that's a huge benefit just one school it's another cas that's a huge windfall for these people and we had to agree that that is definitely true but it's consistent with the view of treating operators as favored favor class in this case the government that the commission had several circuits that applied the trumpeting they went with the minority with the two circuits that didn't and those two circuits had different reasons for doing it and one of them just simply apply the rule of lenity the other one said no it's implicit within the purpose and understanding the meaning of the statute that you don't apply the trumpet there was no explicit language whatsoever in the guidelines at the time but in the commission adopted the reading of what was in the court was sa implicit in the meaning and that what's really important for this case is it's a clear example where some courts were denying certain cooperate hers any reduction whatsoever and the commission said no that's not what we want we don't want cooperat be disadvantaged in an unfair way like this that's exactly what's happening here those who cooperate but also render the institutional benefit of fast track they are automatically schooled in their  good morning you may have already the car now and all in the half the united states i just want to focus on the one area where we principally diverge and that's whether there's a right case in controversy for this court to consider and we disagree and believe that this case is entirely moot and that cases like camp just don't apply in this circumstance here and that's because this is an appeal from a thirty five eighty two proceeding so thirty five eighty two has to do with terms of imprisonment alone there's a separate section thirty five eighty three tha they could still be violated on a supervised release stright so if if the court were to accept the stipulated interpretation here and he went back and the court said you know the court could then look at it and say if i would have given you fifty one months and then you would have been at it such and such a time and so then i'm going to shorten your supervised release and therefore it and and which would be meaningful to someone if say at four years and one day they committed a new crime as opposed to at five you know so and that would be the case in an ordinary sentencing proceeding where the sentence is vacated so if someone is no longer in to get the court is not allowed to touch supervised release in a thirty five eighty two proceeding so the thirty five eighty two c two proceeding is only about the term of imprisonment and so the district court in this case could only have reduced the term imprisonment for the defendant ok so two questions when did he regionally file was he still incarcerated than he was so he filed an april twenty sixth teen so approximately one and a half years after the of amendments went into place the defendant filed seeking a joint request for a reduction to fifty one months the district court considered it and issued its decision in june stating that it could not give the defendant the relief that he sought since then this defendant has been released and was released in december twenty sixth seen as a result the district court has no power to do anything even if this court were because under thirty five eighty two the only thing that the district court can touch is a term of imprisonment read about section thirty five eighty three the one where he could move to terminate his five year term of supervised release in the interests of justice early and that's and that's not something that the defendant cannot do he is free to do that in december of two thousand and seventeen to file the thirty five eighty three the proceeding to terminate his period of supervised release or to modify it in some way but that's a separate proceeding that the defendant needs to pursue the eligibility for reduction here is not a triggering condition it's not a condition precedent to the reduction of supervised release and that's made clear a note seven of one being one point and i don't know if i mean i have to look at this more closely  so the guidelines actually say that it's not a condition precedent or triggering prerequisite to determination of supervised release the notes say that the fact that the defendant may have served a longer term of imprisonment than the court determines would have been appropriate in view of the amended guideline range determined under subsection b one shall not without more provided bases for early termination of supervised release so the district court is required in a thirty five eighty three proceeding to consider host of other issues for example has the defendant complied since he was released are there are reasons why supervision may still help someone like this defendant who's had drug problems that led to the relapse and the subsequent conviction sequence is at least in the seventh circuit when you're looking at the length of a supervised release the court encourages it not to be such as suffered concept but that you might consider for example even a longer term of imprisonment and a shorter period of supervised release so that you retroactive applications of a guideline under thirty five eighty two c two which only permits the district court to reduce the term of imprisonment and because the statute is clear the guidelines track that statute in this kit courts case law also tracks  a thirty five eighty two limited non plenary proceeding but i understand your honor ok i'm sure she answers that that i guess you're kind of looking bigger picture obviously in your interpretation and so there would be i mean because you obviously on the the legal issues that was something that's going to recur you're in agreement on but in terms of if we accept your position on this that would mean that there would be other people that there would be more  cases not not really in the southern district at least my understanding is there's only one other case and that's the there's a case of identified in our briefing i'm not going to state the name because it's under seal but there's another related not related there's a case that was noticed that has the same issues but we actually don't think there are similar issues because that defendant had a guidelines for range that was entirely below the mandatory minimum so their arguments that his sentence was not actually based on the sentencing guidelines these are the only two cases i'm aware of that involve this blended mix departure issue so there aren't going to be a number of defining etc left in the lurch because this issue is rendered most of em are going to still be in and we know there's going to be a lot of cases that we agree on let's just get a nice streamlined procedure we put it together took it to chief judge and they put it through as a general order and then we followed the general order procedure sat across  it's for the entire southern district i mean other other districts came up with their own plans but they do plan to be commended for that we thought it was the most efficient way to have federal defender service in the district wide clearing house so that everything would be through supervised release the case has a case in controversy here i think the closest thing that this could be related to is rightness and rightness the supreme court said is to combination two factors fitness for judicial decision and hardship it's this is obviously commission's getting at with the application of seven is that well we have to make some provision for people that sometimes we don't get around to making these retroactive amendments until some people have been prejudiced by it so we're going to give them some sort of basis and so th exactly what that notice for i would say the court has to decide this now not simply because of this case but as these retro match active amendments work the cases the case law develops on this at the back end of it it's only once a lot of problems have arisen in how to apply the retro after amendment that we get the case law developing on this i think here the court needs to decide this now not just for this case but for the future the next time a retroactive amendment comes law will be in place the courts will have guidance and will know what to do all right thank you very much coun