in case one five dash four zero eight seven united states of america versus jason fowler oral argument not to exceed fifteen minutes per side katherine added narrow for the of just over five years based on a subsequent amendment to the drug guidelines that reduction would reduce his outdate from twenty thirty seven to twenty thirty two and put him in his late fifty's at the time of his release there are two issues before the court today first whether the district court erred as a matter of law and finding that mr fowler was not eligible for sentencing reduction based on amendment seven eighty two and second for the district court abused its discretion in denying his motion for a reduction based on public safety the answer to both of these questions is yes i will focus my arguments today on the first issue and rest on the briefs as to the abuse of discretion do you get our questions about some of these underlying sensing calculations i did your analysis of the court so if the answer is yes is there anything we can do about it in this procedural pastor no i can but what what what options are available i mean so if we have an  r do you think there is prejudicial and the best answer i can give not intending to be quite the best answer i can give is maybe what's what's the reason you're hesitating the answer well what i'm asking this court to do because i think the  boils to down to what is the definition of the applicable guideline range to under the unique circumstances in this case and depending on what the court's answer is to that question there may be a prejudicial error in which case mr fallon would pursue it perhaps a twenty to fifty five maybe for if an ineffective assistance of counsel under molina martinez or or something along those sorts one and two fifty five might be the remedy on this on this point correct thing also if if if if the grouping error say worse we were jumping the big hurdle here the judge is supposed to get the guideline range right before the judge does anything else so if the judge gets the guideline range wrong and we were to say go back usually he's back to ground zero he can say now i've got the right range and i can go through my mechanics and i can go up down or sideways i'm not sure that's correct in this in the procedural pastor they were in because we're  five b two doesn't let us do that that's correct ok so just so you give a great answer which is twenty fifty five ineffective assistance separate proceeding is there anything any other avenues i mean is there any other way you can think about doing this just out of curiosity i have to zack and think of one either but i just i'm curious given your expertise i don't know if one and again i think it depends even if we ramya did you'd be skeptical the re man based on this in this exception or you don't think so i guess it would depend on what the answer is and how the court's going to because i think the bigger that we haven't talked about yet is what is whether he's going to be eligible for a reduction under thirty five eighty two the court finds that the at the guideline range hasn't changed in that sort of i think the big dispute here well let's assume every one of my questions is premised on a lousy assumption that your current appeal doesn't go anywhere that's just a just just for the sake of argument then you would say there's not much that can be done with the remain no matter what the government says ok so let's go let's go back to the more issue before us is explain in the sink terms why this sentence that he actually is serving is based on the reduced drug guideline as opposed to being based on the murder robbery convictions correct we're asking the court to define his apple book ethical guide my range as to count three separately from his total guideline range for two reasons first because the district court did not use the total guideline range when imposing the sentence and second because the district court uniquely crafted his sentence to give effect to to the one point one the district court did not use the total guide irene to imposing the sentence which is evidenced in the transcript at the recent unsing hearing when defense counsel is arguing that the base of the total athens level should be a thirty seven instead of a forty three and the court responded quote it makes very little difference practically because of what i intend to do the court then imposed a sentence based on the statutory maximum for counts one two and four and then used to be one point one to impose a sentence of one hundred eighty eight months on count three so defense counsel at forty four sixteen at the recent unsing was setting out the applicable guideline ran knowing that the statutory maximum was a play for the other counts and what is the effect of an across the board and i don't have an answer to this of the fact that he didn't really summon some two hundred eighty eight months because he chose to run what eighty months of that consecutive so he didn't say i'm concurrent rather he didn't say i'm very honored to party but your man did not get to forty plus one eighty eight he got to forty plus one zero eight that's correct and i think it's really important that we compare what the district court did at the original sentencing with the sentences that he imposed on remain and at the recent and sing because i think it's telling that the district court was intending to give effect to to the one point one in the way that he structured the sentence so with the first time the district court imposed two forty for the rico counts and two hundred seventy six concurrent for count three and then one hundred twenty months for count four which was the firearm count saying the court changed and imposed two hundred forty months on the rico count one hundred eighty eight months was was clearly based on two d one point one and structured it differently decided that this count would be partially run concur partially run consecutively and then chose count four to run concurrent so if the court did not want to get defected to the one point one it could have done a couple things it could have run the hundred eighty eight months concurrent entirely then we wouldn't be here or it could have chose to run the hundred twenty months for the firearms consecutive instead of splitting the current current and consecutive sentence on count three and just maybe i missed this but in the map that at page seventy two thirteen said that that hundred twenty months was consecutive it was not it was concurrent because otherwise the math would match up that's correct and i think that that that error was repeated from the government sentencing memorandum in opposition of so you're saying that it was it was concurrent all along in the early in the first round as well know of the plough that's what somebody got that hundred twenty in effect a reduction right there by being made consecutive well not exactly i mean the judge ran one hundred eight for count three he got one hundred twenty plus them but i think that's what's important right so the judge didn't decide to continue to run count for consecutive as it did the first time the court certainly could have done that the court didn't do that the court chose to run partially current and partially consecutive there are you saying that in one sense your argument even if it were valid it is an artifact of the way the judge decided to structure it that he could come out exactly the same sentence in terms of number of months just by manipulating the consecutive versus concurrent versus but sort of stuff right i think it's important that the judge decided to do that on count three the drug count because that shows that the judge intended effect to to the one point one and that provision has been subsequently produced by him and seven hundred two have you thought about the possibility that any ruling we provide on this appeal whether to help or hurt the twenty to fifty five on the air that you've acknowledged and i suspect you say will acknowledge isn't there i mean is there i maybe you haven't worked through it but you might let us know by letter because one question is whether this is a good idea i don't know i haven't worked through it in my head but i'm what i'm asking myself as i said here is this is very strange there's just one error after another in this case and that seems very promising from the perspective of twenty to fifty five are we now going to add to the we're going to make it harder to undo the errors but what we do here we can make it easier to undo the years by what we do here so that would be something i have no sense for but i'd be curious if you do i did think about it when preparing for this case and i  was very uncertain how to answer the district bar inside the court second question about whether there was a prejudicial error because i don't want to commit one way or the other cause again i don't know how the court is going to end up the finding of a book either and i also do not want to say something that would affect our prohibit him from filing the twenty to fifty five i'm succeeding on i haven't as i was thinking through come up with anything that i am saying that would hurt his twenty to fifty five ok i'm hopeful that that's true acknowledges there's a whole line of cases in from this court mclean and and all of those cases that acknowledge that the total the ethical guidelines range case law says that you apply one b one point one in its entirety but i think all of those cases are distinguishable from what we have here because all of those cases were intending to define what applicable guideline range was in relation to the mandatory minimum into the guideline range for the career offender here we've got the opposite problem we've got counts that were capped with the statutory maximum so i have found no cases directly on point to say that the applicable guideline range is before or after that statutory caps and how the court imposed sentence here so i have not found also any case from this court those because the guts of the problem is that without the statutory maximum the guideline range on the robbery murder is tremendous and would would wipe everything out you will you'd have no case at all but because the statutory caps replied then you want the applicable guideline range to start looking elsewhere in the only place you could look to is the drug get right because i think that the court when it was opposing sentence was required to look at what it statutorily could impose and so i had to break sentence under thirty five eighty two c two because mr fowler's guideline range which was driven by two one point one which then cross referenced to a one point one remains totally unaffected by minute seventy  answer is yes the longer answer is even if you to group the offenses in error and so there was an air season in the short answers there was not an error they were yes they were correctly grouped but even if there had been an error will explain why there was no nature of the offenses here we got four separate counts of mr problems chart with substantive rico rico conspiracy drug conspiracy in the firearms conspiracy about this court is already kind of laid out in mr felos previous that all of these acts had to do with mr mr fallows relation to the outlaw motorcycle club he's not charged individual with murder he's not charged individually with robbery rather it's part of his role as part of this motorcycle ga he was doing this while he was a probate and he'll fight for the album's motorcycle club it's important to understand that his first appeal the court stated quote he acted with the intent of perpetuating o m see a low motorcycle club as a criminal enterprise and thereby furthering all of his ragged syria activities now that's important this is not a one of murder not a one off robbery so when you have to the chase are you saying give them the questions we've asked for get the prior peals i mean because parkas don't help you much of theirs and better to err ok so if we were doing this all again from the beginning would you recommend that it be done the same way they are recommend starting with the guidelines and specifically going to the provision the guidelines that discuss and in that you would look at the two thousand and other what you would do it the same way that's your theory i'm saying you would still reason offense level forty three and a guideline range of life and i can explain that specifically you would look at comment two and comment three of section three d one point two of the guidelines that discusses how their group comment to and again these are commentaries a reference to the two thousand and nine edition comment to discusses whether or not you have multiple victims but common three discuss es when you have a single criminal episode which is the rico case your honor here when you're looking at the rico gagliano to each one point one it says that the offense level was either going to be nineteen or the highest of the predicate offenses and specifically for the predicate offenses it notes that murder or robbery resulting in death or extortion resulting in death references the murder guideline to a one point one that's important  the purpose of group it's too easy one point one that is then cross referencing to a one point one so we go through the process of calculating the guidelines with a clean slate started to eat one point one in the goal what is the highest of the predi hundred to me one point one since you straight to to a one point one and you wind up with a forty three now let's assume for the sake of argument they were not correctly grouped that in some alternative universe you have the drug conspiracy as a separate group of offenses you still go through the process and that is outlined in chapter three of the guidelines manual which is we calculate an offense level for each of the separate groups and you wind up with one single adjusted offense you don't wind up with a different offense level in different guideline range for each count of conviction rather they all go through this process of winnowing down until you reach one final number and one final range i can stop you there is basically that your statement that you have an applicable guideline right and only after that you look around at the statute and see whether you can actually get to some part of that applicable guideline range that's absolutely right you're you start from the from the manual and work your way to the back you know once you reach the end you determine is this capped by the statutory maximum you don't do that midway you don't start there's some cases where we say that when there is a statutory maximum or a statutory minimum then it truncates the range and the applicable range is sometimes even a point when you have a supposed to guideline range is only seven years and you have a mandatory minimum of ten years don't we usually write that at least as the guideline range is ten years because the minimum same way on the high end you are i would take those as two separate issues so if you're dealing with the steps toward maximum imposing a cap you still go through the process of counselling the guidelines and say someone's guideline is to tended to sixty two but the charge with say felon possession far which has a maximum of ten years in the normal situation the guidelines would just be ten years you get the range first and then if it's kept a step shortly you said it exactly right counsel but then when you said don't you say the range becomes ten years and that is the applicable guideline range yes your honor going back to the example is talking about before which is if they were in separate groups one for the drug conspiracy and one for the other three counts would still go through this process and say we did go through the process of calculating what specifically the guideline range would be for each of these counts for the first group which will contain counts one two and four you still wind up with  offense level of forty three so let's set that aside fence level forty three for group one then we go through and do the process for group to which would be the drug conspiracy and we go to say two d one point one now in this situation both parties appear to agree that back in two thousand and nine the offense level had they used to be one point one and i'll point out there was no reference to due to d one point one in any of the transcripts or in the p s r but had they used that you wind level for thirty four again this is for group to which would then be reduced to thirty two under amendment seven eighty two and then you go to the next part of the guidelines specifically under section three d one point four which discusses the uni how do you determine what the adjusted offense level would be when you have multiple counts of conviction under the units anything that is nine levels apart or further it's a wash you don't add any units you don't add any levels on and i'll point out if you did it will only serve to increase the offense low not decrease it it's always in a defendant's been a fit to have got to have offenses grouped into the smallest group possible because of their group in multiple groups the units have a tendency to marginally increase the ultimate adjusted offense level but what through this process would either be a thirty four or thirty two with a minute seventy two applied and you end up resulting in an offense level of forty three at the inn even if they were saying that if you a group you would have forty three on the robbery murder you agree that the drug part would be this slower and that would have been reduced but your argument then has to rest on the fact that the forty three would give you this enormous range that would never get reduced yes in your i would just a clear that you don't apply the statutory cap that's the that's the real guts that underlies all of it that's right and to be clear your honor these two offense levels that we have all timidly wind up in one offense level when you go through chapter three you don't wind up with two offense levels and two separate guideline range that has no basis in the guidelines manual whatsoever that fire stand that the that is the cap issue that may drive it i'll go ahead point out in chapter five the guidelines specifically chapter five part and this is in common to in the two thousand and nine manual anything that is offense level of more than forty three you just read is a forty three it maxes out right there and so then the next step the final step in this process you go to five g one point to sentencing on multiple counts of conviction in the situation where yes there is a statutory maximum for rico but there is up to life four counts three and counts for the guideline the offense level the adjusted offense level is for the total package everything that's in the indictment we don't parse it out that has no basis in the guidelines that point you say that because the drug statute could authorize going up enough to cover the range them but then doesn't that make that last bit of it the drug applicable guideline range there's not there's one guideline range for the total package that's how the guidelines are set up in the first place and i think that's a fundamental i understand but then thirty five eighty two asks us does it was the applicable guideline range reduced i guess you're saying it can't be reduced because it's still driven to the highest level by the murder that's right the rich specifically  which references the murder that's what's driving this train and whether or not you have it in separate groups you wind up at a forty three eight at the end the total of the total adjusted fence level at the end is a forty three and so let me make sure i'm not sure i got all of this but let's say first of all it's possible you're right so in other words there were no errors or minimum no prejudicial errors that's that's certainly a possibility we'll hear from the front of the other side do you agree section thirty five eighty two is a gives the court limited authority to reduce since the ship the short answer is no he would not be if there were errors in reaching the offense level grouping  molina martinez the defendant was sentenced to the low end of the incorrect guideline range here the court the court sentenced mr fowler the first go around to just over thirty years in the second go around to just under thirty years taking into account his time in prison and the fact he was teaching spanish classes taking that into account but it's still it's not necessarily being driven by the guideline range and that's specifically identified in the recent thing transcript page i forty four twenty nine and forty four thirty they just a little bit about yet if we get to the substance of this abuse of discretion your adversary said we rely on our brief but he seemed to say could correct me if i'm wrong on the record that the judge didn't even know or think about the fact that he had previously said he'd been a good guy in prison and then he didn't apply course he was the same judge did you the short answer is the judge already took that into account during the recent saying in that state is much on the record saying i'm taking into account your good behavior in prison before your adversary seems to say the record looks like he forgot all of that and just treated him like in any any other person your honor there's no support for then the record in fact the words was the same physical judge correct that's correct your honor in closing i would know it's important to note that mr fowler suggest or even argues that the court used or should use multiple guideline ranges for different counts and that's identified in page ten please nineteen pages twenty three twenty seven dollars that's simply inaccurate that's not how the guidelines work and had the court done that that definitely would have been an error rather discourse should look if i may just finish my statement i see when time's up again rather the court should look at the order that is currently want to appeal specifically document twenty two fifty three page id seventy you just briefly i will explain why i thought there was a gripping air and then we'll move really to the to the issue at hand i think to the one point one is the rico provision and it says that you set the base offense level at nineteen or an office level applicable to the underlying racketeering activity whichever is greater however comment no one says when there's more than one underlying often so you treat each underlying off as a separate i'm sorry is a separate count of conviction for the continuous and nature however three d one point two specifically excludes murder robbery and extortion from the grouping so i do think that there was an  the government argues that there was no mention of two to one point one at the recent and saying well to the one point one was not specifically referenced defense counsel at page forty four sixteen was detailing to the court that count three based on the amount of drugs had a guideline range at that time of thirty four which is a range of one fifty one to one eighty eight m m a seven eighty two has reduced that ranch to a thirty two for one twenty one to one fifty one while the district court in its order we sent in and did not specifically mention to the one point one it is clear that the court relied on that there was no other basis given for a one hundred eighty month sentence on count three further i would point out to this court that the unique circumstances in this case the defense counsel was making up either when you say you say that that happened to be just the number that he picked because it's the top of the range so you're saying that in effect an implicit reference but in terms of the some of that he gave doesn't just the whole thing smell like but the range is way up here and he's figuring out how much to give and he takes that eighty months all because the effective want to wait he could have just as easily say i'm going to impose one hundred eighty eight months on count three and i'm going to run one hundred eighty of one hundred eight of them consecutive and eighty of them concurrent so i think that the court clearly was thinking up to the one point one that was the only argument that was made about where the rain should be on that count