may reduce the term of imprisonment if it finds that extraordinary and compelling reasons aren't such a reduction and that such a reduction is consistent with applicable policy statements you would like us to be allowed to support judge to consider whatever the district court judge would like to be consider my understanding from your briefing is that you think that the district court should consider the fact that the nine  hitting a roadblock in the analysis we're in the st step back we've just talked about section four or three jump to four hundred and four it's a circumstance in the st step backward congress in its own words said individualized determination of the impact of this change and sentencing is that it were changed maybe considered by or how do you get around the fact that congress when it enact in the st step that opened up the door for defense to make direct motions for compassionate release retroactive in the next section said but there are individuals circumstances where we're going to essentially give retroactive benefit how do you get past that poor a court to consider this type of circumstance is a factor that's for compassionate re cases in which sentence had not yet been imposed but there's a retroactivity bill ten but you're exactly right unlike the with nec the very next section which makes the air sentencing act amendments sentencing act but rather as a th circuit you didn't we think correctly the very same congress in the very same statute opened a narrower window for the inmates who were subjected to nine  said there's no parameters there are parameters the th circuit got this exactly right this doesn't create a kind of a wild west as this happens for could put it where every district judge can do what she wants there are these the terms of the statute naturally cabin the availability this make this window narrower by saying there needs to be extraordinarily compelling reasons and courts like this one will review for abuses of discretion any grants of sentence reduction so as a poor circuit put it's not incompatible with all to say it's not categorically retroactive and in a way that produces the kind of numbers of sentencing reductions you see pursuant to forty dollars th verse that that's quite we only have in this we're two plus years into this is just a couple of dozen few dozen cases a trickle compared to what categorical retroactivity would produce says rehabilitation alone cannot be a basis for a cent reduction so in the in a statutory regime that admits of no exception on its face in which congress demonstrated that it knows how to place a particular reduced them i suggest to the court that most important text is text that limitation finds no support in the text of this matter you mention extraordinary compelling sentenced about the significance neurologically from social science point of view about age and as judgment brain oh said to say that that can't be considered a compelling reason because there is no significant collateral or secondary harm the only harm is the harm of continued imprisonment well respected a district judge the harm of continued imprisonment is why this statute exists so  not my question might not have been clear i'm asking you what is if we had to give a district court a test for what costed extraordinary compelling circumstances your answer seems to be i can answer compelling by way of example rather than and you know it when you see it as opposed to some kind of you know is it critical is a significant is it highly important if allam sam try it does no good when care it has to have sort of a secondary collateral judges in their discretion and sitter appropriate it whether individually or if you collectively who want one a reduction in the sanctions obviously to the extent that they were going forward method this vehicle for for reducing a sentence is going to be subject to appellate review the contours of that fower already bounded by the words extraordinary and compelling will be further defined by the decisions of the court but i think there there is no basis in the statute for the court to place out of bounds rehabilitation age prison record and we support community support attributes of the offen chris contemplated and not as permissible bases upon which a court might decide that a case presents extraordinary and compelling reasons and if i can just words it's i think it's important i'll suggest to the court it's important to understand the role that congress contemplated three thousand five hundred and eighty to see one a to have back when it was an active which is not the role to which it was relegated by the bureau just age and infirmity any medical status it is in part this on the provide of safety by now or unusually long sentences based on changed circumstances over time it's an opportunity for courts it's narrow lead circumscribed which is why there's a relative trickle of these cases but you know i have to go past eric andrews case to see the the the dire need for this kind of judicial check on prosecutorial discretion after after sixteen years that the defendant is in prison so i'm going to suggest to the courts that you should not limit and there's no basis for you t circumscribe the considerations a court can take into account except on your abuse of discretion review and over time i'll suggest there may be cases in which this court decides that there are particular considerations that either were insufficiently compelling and sufficiently ex either independently or in the aggregate insufficient to garnish sentence for talks and but there's no basis in the about it and i was wondering if you know whether or not a clumsy application was ever filed i don't care about the disposition i just i know it was filed i think not judge and and i know you don't care about the disposition this category of defendants all practical for what the long and expansive answer that you gave a minute ago to judge short as question about extraordinary compelling when you give the same answer if next  week the sentencing commission have acquired and they reissued the very same policy statement that's been in use for a long time then would you still give the same answer about all the things that a district judge can consider yes that extraordinary and compelling reasons why aren't there reduction i'll suggest to this court for a number of reasons that there's no cabin ng of that anywhere in the coliseum statement or in the commentary and to the extent the commentary is read the way the government would like you to read it it's impermissible under this under this court's decision in this year under anything under it at least two other ways i'm not going to give you a long answer but there is no proper happening of that discretion but to grant a reduction anywhere in the policy stick ork commentary so the policy statement says you can consider terminal illness for purposes extraordinary and compelling age family circumstances and other reasons determined by the bureau of prisons if a district judge word to analyze a motion using the i have a circumstance your honor in which the commentary to the guideline endures to the significant factor meant that the defendant in a way that it's correct the policy statement does not and i'm going to suggest that and pursuant to this court's decision in this year i don't i have i'll suggest that that according a a a a restrictive a more onerous interpretation that the policy statement written large based solely on a on a a statement in the commentary that you know the amok but your hypothetical yeah obviously the commission's going to decide whether or not it wants to relegate to the bureau of prisons or to article three judges the determination of extraordinary and compelling reasons but if they do it if they relegate vest that i don't think they ever vested that discretion and v o p but if they do so in this way in a subsequent amendment i'm going to suggest that that would be flatly contrary it would be a more restrictive  regime than that permitted by the us the statement itself and for that reason would fly ok i understand all of that i get all that argument and if that day comes you know i might i acted responsibly as the gatekeeper so we're taking the keys away now the inmates can make their own motions and that was an enormous change congress could have but i don't see where they did change the meaning of extraordinary uncompelling they still specifically delegate to the sentencing commission the path of the finding extraordinary and compelling they did this all against a background of the existing policy statement and many years of jurisprudence using that policy statement so so while i get the procedural change i don't see how this effected a big substantive change especially especially if it's just for this weird look to nowhere that we're in because there's no quorum and everything will go back to the way it was as soon as there is a quorum that seems to me highly unlikely but situation that right under our noses sometimes we overlook these things that operate in every sentence every sentence reduction it says that judges have to consider applicable policy statements  congressional enactment said have not yet been incorporated into the guidelines so also just to you that they sold me on that statutory directive you have to knowing full well that the as you put it the purpose was to take  of the middle what's the and one for the most critical purpose a st step in this regard is not in legislative history it's on the face of the amendment  look at the structure and purpose and legislate of an act and that's in that case the fair sentencing act as you recall dortch he did to offer fair sentencing act what for  it would be odd it's kind of a rule of law it's a rule of lenity principle it would be odd to to look at this set of circumstances and construe it against defendants up given that and rational purpose as stated on the face of this patch and and lastly i've already mentioned this so i won't repeat if you've got this i'm going to suggest to the court by the way i might have mentioned this at the outset the as determined by the bureau of prisons language in one d never are ordered to limit the discretion of district judge of the same commentary says district judges are uniquely positioned to determine whether extraordinary and compelling reasons that language is a vestige of a regime in which there could be no motion but for such a determination by the bureau of prisons is a district judge decisions one of our clients cases  discretion that the other part of the commentary explicitly says you have to use their uniquely position to exercise rather it's just a reflection it's of the spiritual reflection of a regime where by definition the motion wouldn't be before but there are hopefully will be remedies for that if others agree with that proposition both in the legislature which sets criminal penalties and in the executive branch in the president who has the clemency power but the important point right now is unfortunately for mr andrews that the court has not been given the authority to reduce his sentence simply on the grounds of the length of the sentence the other important point to make here is that of what is being asked for here which is nothing less than the most profound change in federal sentencing than we've seen since booker in changing the finale date and the certainty of federal sentencing what was the background of the defend his agents poor upbringing what he's done in prison what we heard in those couple minutes is the same sentence increase and that is made every day in federal court is that there is no limit the there is no limit on the number of times that a compassionate release motion may be presented there is no limit on the time period in which a compassionate release motion may be present  absolutely does your honor but it's all and this is also why it has always been restricted it's why st and foremost congress did something very notable here and it has never changed us is limited the fact is that those identified b the sentencing commission congress declare we are not going to have nine hundred or so individual federal judges deciding in different cases who they want to revise we're going to restrict this on a national basis to the criteria established by the sense the commission and the supreme court in dillon tells us that is binding when congress uses that one which consistent with the applicable hours the state in the sense of commission that is binding and so congress and also of course have ninety four dollars team where congress directs the sentencing commission to identify the circumstances that will allow compassionate release that's extremely significant and then what the sentencing commission has then done consistently and has the bureau are here going back nearly a half century is limited compassionate release to the traditional considerations that we would all agree our program which is changing as in the individual circumstances that are profound circumstances and it's commission has stated that it does not have to be unforseen has of the time of sentencing but it is still restricted this quite a bit early and very importantly because that as i have as we of judges to keep their jackets from being overloaded for the rest of time by requests for reconsideration of sentences it's for the benefit of the public which has the right to finale in the completion of criminal cases it's for the benefit of victims of a lot of your argument seems to require us to have to balance by one the one point one three where all the other circuits have said by its planes terms it's not binding on motion but by its offended so here is assume this court would have joined those other courts and you no longer can we are one the one thirteen as your basis what is the argument to say that that mr court was wrong not to consider what congress did when it decided to  extraordinary when congress explicitly states that it change in sentencing law does not apply retroactive it is not extraordinary it is ordinary for a court to enforce that and not to permit relief based on around this explicit declaration by congress the one hundred and four c stacking is not retroactive i also want to make a really important point about this particular case where the in its case which also illustrates just how radical  was change the sentence for a successor one thousand foresee from twenty five years to the lower mandatory met and if there was no preexisting condition so if he's convicted today it's a main dettori ninety one year sent seven times the position that's put forward by the defense here is not just that it's an extraordinary circumstance that he got a three hundred year sentence in the past for him to get released today their position is it's an extraordinary circumstance today to to impose the mandatory minimum sentence that's required to death by congress and what this means and judge were you know pressed us on this if the if your argument in the district or what this means is that someone if you accept this view that this is an extraordinary circumstances someone is serving a very long mandatory sentence there what that means is that a court could impose a mandatory sentence today ten years fifteen years whatever it is as required by congress and then come back thirty days from now after the defendant has exhausted its request to the warden as required by the statue and say this is an extraordinary circumstance i don't agree with that fifteen year mandatory sentence  year because i find it extraordinary this is not a trekkie so that's my answer to your question judge what that if one b one point one three does not exist it does still we have our nd argument which i think is very compelling which is that there is no extraordinary circumstance when all you're arguing is for relief based on an on retroactive change in law this is not to suggest the changes in law in changes in sense a in changes the view of criminal punishment the current sentence is too law based on what congress has set but what else the congress congress sat in section four of the rate this does not apply retroactively for better or worse and many people reasonably disagree but for better or worse mr andrews is serving the sentence that this congress currently believes he should be serving because it has it decided early on it's actually consistent with the ordinary that case had all served more than the mandatory sentences they would receive today mr andrews case is an outlier even from that in that he has not served the mental sentence he wants commission now policy statement and even though there are certainly parts of the powers the statement that need to be stated in reference to be of the core of the policy statement is application no one which heats the congressional direct and defines extraordinary circumstances and as we point out in our brief if the sense the commission had set application of one as a standalone provision there's no question that it would be enforceable and it's a very i don't i think if this were a case in which someone did present an extraordinary compelling reason then they just required does have some measure of discretion and the factors that judge reno outlined are very reasonable and you explaining what extraordinary work compelling but i don't know that we get there because i think you have to again establish that threshold and that is defined by the sensi the and if you throw out one b one point one three completely i would still suggest based on historical practice that that those that is what's actually in the family is when someone has individual circumstances related to the help or age or family responsibilities that you know take us outside the ordinary case the finale of sentences profoundly altered the the the basis of federal sentencing that's existed for the last thirty five years it's just not acceptable it's saying all of this that you know strongly as and as i'm advocating this i'm not  these are very important matters but they aren't matters that the law or the constitution confer on congress as the party that sets criminal penalties and then on the president who ratifies it has to approve whatever congress passes and in addition is the one individual in our system who has the concept our should there be something different should for three be made retroactive you can make great arguments for that to i like the difference between holmes in this case holmes a defendant which he received a twenty year sentence two years later seeks this relief you know at one hundred and ninety eight of the joint length of a term of imprisonment is justified by change circumstances that's what this case presents all represented and of what an attempt to do something fundamentally different the most fundamental defect in my respectful opinion in the government's position is this notion advanced by my adversary that that this sentence that eric andrews is serving is one that the current congress believes currently he should serve because today his tax sentences for the ninety one years that it's it's is so misapprehend these are not automatic check an exercise of prosecutorial discretion that produce sentences that shamus all whether it's three hundred and eleven years or ninety one years this is what the this is the limited what is that is that what you say it's not its only purpose but a purpose expressly stated by the congress that an active was to permit need to be would include cases of severe them and this is started with the statute i want to end with the statute there's no except can it be factored admits of no exception that would disqualify eric answers from a sentence reduction and you know this this kind of chicken little the sky is falling the pillars of the republic are crumbling that doesn't accurately describe what's happened be precisely because this was not made categorically retroactive and if there are instances in which the government exercises its discretion for a nineteen year old who commits these crimes i'm not i'm not quarreling with the seriousness of the crime he served serious punishment but if there are so many instances that the government's case where a good sentences like this need to be corrected they have to take that complaint to the congress effects of the statute that congress enacted and then amended