the way the virus affected all of us so judge pryor judge branch and i are very happy that you are with us today and here to help us figure out these cases we have no lighting system of course given our telephone arguments but misty so we'll give you a two minute warning when you have a couple of minutes left in your argument so that you'll know when it's time to error in both its initial order and in its order denying reconsideration but in the st order the court added one sentence that it would deny relief even if russell was eligible that alternative discretionary denial is the only way to affirm here but in addition to being wholly conclusory that ruling cannot be upheld for two independent reasons st as a procedural matter because the court's sewa sponte recount derives russell's motion for counsel has a section four of four motion the discretionary denial was made without hearing any arguments in favor of a discretionary reduction and russell has a compelling argument to make and light of his below p record and what his guideline range would be today if you were sentenced today  discretionary denial was based on the erroneous legal assumption that russell statutory range would remain under b one a instead of under b one b the question there is how do we determine what the statutory range would be under the fair sentencing act section c of the jones decision answered that question the court must use the drug quantity that the statutory range was based on at the original sentencing here that was the fifty gram quantity admitted in the  agreement which would now trigger the statutory range in b one b not be one egg to four hundred and forty one gram quantity in a factual proffer was admitted only for purposes of the guideline range so it cannot be used to determine the statutory range now that straightforward methodology is easy to apply and it's exactly what this court applied in jones for all four of the movements there and moving allan is particularly instructive because like russell there were two drug quantity findings and case there was a fifty gram quantity found by the jury and there was a more than two hundred and eighty grams on the found by a judge and what this court did is it looked to it used a former because that is what the statutory range had been based on in his case it did not use the higher quantity because that did not actually trigger his statutory range and the same rule should apply in this case i think the government really was really only one conviction there that that was that issue but the i think it's also instructive to look at the other movements in that case there were two movements jones and jackson who were preapproved the defendants and what this court did in jones is it said well you guys were pretty a pretty so there was an uncharged quantity that was found by a judge and now it's what triggered the statutory range at your sentencing and you're stuck with that so mr jones was trying to say well you can't use that quantity in light of a printing we now know it's unconstitutional in this court said no you're not allowed to read litigate that and that is exactly why mr jones lost his case and we see that in the st paragraph of section c of the decision but what's interesting here is the government i think that's trying to relive it get the drug quantity issue here in this post to print a case it's trying to repurpose the four hundred and one gram quantity that was originally used only to to calculate the guideline range not the statutory range and just like mr jones was not allowed to relay to get the drug quantity issue in the jones case we don't think the government should be allowed to relive the gate the drug quantity issue here and we think it would probably even if we look at the drug quantity identified in the plea agreement do we really need to decide that it's you know your honor i think that's exactly right the narrowest way to decide this i think would just be to say that this discretionary denial in the initial order is flawed is procedurally flawed because it was not that was made without giving mr russell any opportunity to make his arguments and so even if the statutory range remains unchanged if the government says he still eligible for relief and the discretionary denial is still procedurally erroneous so i think it would be nice for this court to give guidance on how to determine the statutory range in plea cases like this one but i don't think the court needs to decide that  resolve this appeal and send it back and and the parties can can dispute that issue on remand in the district court so i think you're right your honor i think if it would be nice for the court to clarify this issue because i think the government you know i think there's been some disagreement and some published opinions as well about how to do this but we think that jones opinion speaks pretty clearly to this and again it's really the st two paragraphs of section c of the decision that we think answer this question but if i could i think i think the other reason why a real man here is so crucial is because mr russell really does have a strong argument that he would write in the b o p file that he had tach to his reconsideration motion it's really an impressive rehabilitation that he has shown he has  zero disciplinary incidents in over fourteen years he serves as a mental health companion in the skills program at coleman which helps people with special needs he's got over a one thousand hours of ged course credits he's got glowing reviews by the staff and counselors at  and another argument as well is that if you were sentenced today he would no longer be a career offender because without the residual clause in the guidelines his prior conviction for fleeing and eluding would no longer be a crime of violence and without the clear offender and hance meant his base offense level and twenty seven so these are some of the arguments that i think he would just like the opportunity to make with counsel before a judge to who in light of jones now would understand that he is and fact eligible for relief and that the court ha authority to to issue relief i think just turning briefly to the reconsideration denial i think there may be a dispute about whether that was based on eligibility or discretion we think at the very least it's unclear and therefore has to be vacated after jones this court has been very clear and consistent that where there's any doubt about the basis of the denial it has to be remanded and we've started a dozen post jones opinions where this court has done that including two of them brewer and leave or jackson where there was far less ambiguity then there is here there was express discretionary denials in those cases that were alternative discretionary denials and here we don't have an expressed discretionary denial in the reconsideration or even though we got one in the st order so this judge knows how to make a discretionary denial when he wants to and the arguments that the judge was making in the reconsideration denial are basically exactly the eligibility arguments that the government had been making of reduction what effect does it have in his factual proper your client admitted that the total amount of the crack cocaine involved was four hundred and forty one two grams right so we don't think that that the plea agreement only for the purposes of determining the guideline range not the statutory range we agreed that the four hundred and forty one grams can be considered by the district court when he's exercising his discretion whether to grant or discretionary reduction but for purposes of calculating the statutory range under the fair sentencing act we don't think the government should be allowed to see to repurpose that that drug quantity especially because had the fairest sensing act been in effect in you know two thousand and eight when he was being sentenced well the court could not have constitutionally sentenced him under b one a because at that time fifty grams or more that was the charge in the indictment that would be a b one b offense so it would basically violate the th amendments grand jury events right well yes i think jones makes that clear and i don't think there's any dispute that there's a covered offense here i think our point is just the next step of determining what the statutory range would be under the fair sensing act you look to th drug quantity that actually triggered the statutory range at the sentencing for pre aplenty defendants like jones and jackson that's not necessarily going to be the charged amount that's probably good if there was no amount that was being charged for your premise cases for the most part so in those cases it's usually going to be the on charge quantity that was found by a judge but in post apprentice cases like this one it's going to be the charged amount because that is what was triggering the statutory order even though we have conceded in our subsequent letter to the court that the court erred in its initial finding a valid ability that the court nonetheless affirm it based on the court discretionary willing because we know what the district court would do with its discretion and very clearly told us that it would deny mr russell  discretion mr russell had not yet been able to present any argument in favor of a favorable exercise of discretion because he adjusts request of counsel and th district court re characterize his motion for counsel as a motion for reduction of sentence why shouldn't we just send it back let the district court give mr russell a chance to make his arguments given that he has a covered offense and if the district court is going to exercise its discretion and deny relief then we'll know that for sure on a complete record my reading of the  defendant know that what the court felt was the important factor was to avoid unwarranted sentencing disparities unlike defendant so my reading of the orders together is that the court was considering the defendant's arguments and basically just some and know that there was no change and it's its view of the case or the way it would exercise discretion discretion would you agree with me that mr russell had not yet put any arguments before the court you just asked for counsel correct yes your honor and then he looks like it looks like the parties never ordered the transcript it's not in the record is that correct from the original so that hearing that is correct your honor ok so what what argument for evidence were before the court when it said it was exercising its discretion  the government's response and the court's knowledge of the record in general the government's response but you didn't specify that's correct your honor that's right and nothing from mr russell as judge jordan pointed out and then we corrected the same the nd order denying the motion for reconsideration but this record gave some reason for denying the motion but i can tell from that whether the district court was explaining why mr russell was ineligible for early in the court lacked authority which of course would be interact as a matter of law all or whether the wannabe because in the motion for reconsideration russell made the very specific argument which is being made here today that you look at the quantity listed in the indictment to to then set the that the two orders are to be taking together and this is why the court explained that it would not it would not exercise its discretion and the last sentence to avoid unworn and disparities between between the  of the four hundred and forty one grams in the plea agreement do you agree that we don't really need to decide that issue we can just remand and send it back to the district court i do agree with that although the court may have to wrestle with that deciding you know it's the scope of it discretion but i don't think at this event at this at this moment i don't think the court has to resolve that ambiguous and that we know what the court would do if it were  hersh just that i think this case is like the linear case which was recently decided on published pinioned where the court looked at the quantity that was admitted in the plea agreement and that russell here admitted that this larger amount of cocaine base was his relevant offense conduct and so the court is thus bound by that and that the record shows that the court was looking at that and the correct statutory act and explained it reasons for not for not granting a sentence for the action in this case there's nothing further i you yes thank you your honor just a couple of points about this reconsideration or i think it has to be read in context and our reading is that it's an eligibility denial that what the court is saying here is that anybody not just russell but anybody that's a b you want a case that has more than two hundred and eighty grams is not eligible it's saying in the last sentence congress did not intend to afford these people the benefit of the law that's a categorical exclusion of  people and these are exactly the same eligibility arguments that the government had been making of all of the pre jones cases again no where in this order do we see an expressed discretionary denial even though the judge knew how to make one from the st order we don't see any mention of any facts particular to mr russell about his case other than the drug quantity mr russell's arguments in his reconsideration motion for discretionary reduction had nothing to do with drug quantity they were about his rehabilitation and that is why he attached his lengthy b o p s record to the motion and we see no mention of that in this order whatsoever and and i think it's also worth pointing out that the government's response in this case was a four page response that was soley ineligibility argument there were no arguments about why a discretionary reduction would not be appropriate and in addition the court had also ordered the probation officer to respond and and they submitted an ex parte memorandum which was also an eligib argument that he was not eligible there were no arguments about discretion in that memorandum either so to judge prior's earlier point there's just nothing in this record that would suggest that i'm not sure what this just initial discretionary denial was even based on and i'm not even sure how this court could possibly review it but as to the reconsideration to i we think it's best read as an eligibility ruling and at the very least it's ambiguous and this court's decision in jones makes that very court still said well it's ambiguous because maybe that discretionary denial was influenced by the erroneous eligibility zeile let's just send it back and be sure and so in the end that's that's what our position is  we're really asking for pretty modest relief here we're only asking that mr russell be afforded the opportunity to make his case and make his arguments to a just record that now in light of jones understands that it has the authority to grant a discretion or reduction and because mr russell did not receive that opportunity the st time we respectfully request that this court vacate the orders below and remand for further proceedings if the court