let's see here well i understand that i don't care as i said i don't care where anybody see it but could the government just not bring itself to sit there and become sit with you two g one when congress said that on sentencing on remand criminal should remain bound by the penalties that applied as of the initial sentencing and so there's no indication of any rational intent does anything close to clear could this place the federal staging statute in this context now by the government and my point here rely on dorsey which which i think at first blush appears to be on point but i think it's important to recognize the reasoning of dorsey i use the term somewhat loosely because it's a six factor balancing test that it's not entirely clear what the relative weight of those factors is and which if any of those factors might be  apply to the post act sentencing pre x offenders doesn't modify sentencing by saying initial just as a threshold matter why aren't we back to apply that arguably by its terms more limited to the context of that paragraph what they're talking about so how do we get around this whole you know just statement or no absolutely because the court's factors in dorsey's several of them were addressed specifically to the situation of initial sentencing provision in the guidelines thirty seven forty two to one where congress expressly said that sentencing on remand should be treated differently from initial sentencing and recall that when congress does that it thought the guidelines were mandatory actually it's only a result of the judicial remedy and booker that the guidelines are no longer mandatory so the extent we're looking for can grow national intent the only time congress has clearly addressed the question in this case whether initial sentencing and since you remain should be treated differently congress said yes they should be treated differently that sentencing on are you going to remain and should be governed by the penalties that were in effect at the time of the initial sentence so they should not be treated differently right is that unless i'm getting mixed up here sorry  right that they should be treated differently not initial in the remained sensing rule should be the same that's what you're saying they're not different that's right and what i meant was for purposes of the dorsey analysis were doors he said that all  it were in a very very very odd posh term normally we rely on the ever serial process to bring to the court's attention the opposing points of view and you're here arguing what is a very very a legitimate position in defense of the district court but the whether it's ultimately banned to be correct or not out of now but it's it would come of not the normal every serial process has at the same time i don't think the government's agreement two the law being what the low is not controls the court if you thought about to defend the judgment below because the government had abandoned that position so i think in terms of you know the practice is clearly established by dorsey itself and so i'm just say that there's a district court judgment that's in  a little half baked but it might just help me to understand three seven four two g and three fifty five three day so just take dorsey itself and just say ok that was pretty acts of the time they were sentenced was  for the dorsey himself i think as he dorsey himself wins he's told you now get the benefit of these things but you still have to be we sentenced ok so how did that work america i realize in dorsey itself highly confident the district court gave him the benefit of the amendment but i'm trying to figure out how that worked given your argument and trying to figure out ok so for  sentencings you don't apply the three seven for two g but for other types you buy so what was the language in three seventy four two g that helps me get over that what strikes me  penalties that were in effect as of the time of the original sentencing so because of his original sentencing was september twenty ten post that right that he was supposed to act but supreme guideline guideline change but post act which is when the court decided t effective date of the reduced mandatory minimums was august third two thousand and ten so the court said he should have received the benefit of those reduced mandatory minimums when he was sent i totally get that rest and now he goes back for he still has to have a recent six actually so his recent unsing thirty figure out with three seventy four two g is one could say that's only referring to guidelines that's right and if it is only referring to guidelines the guidelines would have been the old guidelines that's that's right so there's there's a question about dorsey in particular because he's in the somewhat unusual circumstance of you know there's a small window of people who are sentenced between i totally get that reporting i get that complication  trying to figure out as i know dorsey got the benefit of the new statue right it seems the only way that makes sense out of your argument in three seven four two g is that this language of you know that you call the palette the rules somehow is picking up statutory changes that's right in the court said that you do pick up the statutory changes so this is a way in which the reasoning and dorsey is somewhat peculiar because it relied on the guidelines provisions thirty five fifty three a fo day which refers to guidelines only and it relies on that provision to displace the statutory minimum and the way it does that is because of the way the guidelines interact with the fair sentencing act and what congress said in the fair sentencing act is that we want to make the guidelines and the mandatory minimums consistent read ok so therefore because we want the guidelines in the mandatory minimum to be consistent and because the guidelines that are going to be applied are the ones that are in effect on the date of the initial sentencing therefore the guidelines in order to be consistent with the mandatory minimum must make the mandatory minimum reduced to achieve that consistency ok so so then at the end of the court's opinion and dorsey they're confronted with this strange situation well what about m dorsey he was sentenced before the new guidelines were effective and what does the court say the court says well congress said to make these guidelines changes effective as soon as possible and it very well could have been the case that you know they got as the sentencing commission had issued these guidelines immediately on august third and because of that possibility that these new guidelines had been in effect on august third we want to allow for the possibility that those guidelines are going to be effective and therefore congress must have intended the reduced mandatory minimums to take effect immediately on august the created a reality that did not in fact exist sort of that's right about alex draft but that's all and in light of entering the statute that's right that's right so what i'm trying to figure out is they didn't interpret three seven four two g b right that's that's correct when i was trying to figure out how we can have dorsey get reset inst which doesn't that invokes three seven four two g that's right but the court was not addressing that  situation i totally get i'm trying to you know maybe it's like i said it's half baked but i'm still struggling with this if you if you're right in today's case what i'm struggling with is there will be re sentencings where you applied the guideline rules at the initial sentence and there will be dorsey where you don't apply the guideline rules at the initial sentence and that seems a little odd to me no i think so i think for dorsey's recent unsing so this is after the court decided dorsey  want the court was paying close attention to this question but so say you the sentencing judge after dorsey i'm pretty confident got the benefit of people he certainly got the benefit of the mandatory minimum so they didn't apply the guidelines in place at the initial sentencing no i think they still would apply the guidelines and i think the government would agree that they would still apply those old guidelines with the possible exception of you know the guidelines have been made retroactive but i think that retroactivity cannot this place what thirty seven forty two g one says so i think what may be the result of dorsey when mr dorsey actually came up for his resentencing the mandatory minimum had been reduced but the sentencing court still would have been required to apply the old guidelines and so you have the more jhaveri down  forty two g one directs the district court in the initial instance to apply the guidelines that were in in effect at the time of the original sentencing that's what the language of the statute says but the practical reality is that district judge is going to vary to what the new guidelines are and i didn't go back to look that would be a good thing to do to go back and look and see what precise sentence mr dorsey got but i'm almost certain that we will find that he got the benefit of the new guidelines as well if you were to of been sentenced under the old guidelines then he could then he would perhaps file a motion under thirty five eighty two c two to get the benefit of the production and why would a district court go through that but there is a difference right because dorsey was initially quite differently just based on a of a greed was than any but then hit that just happened to occur to the facts of this case make it a hard one to decide what the right role should be of course right but in the supreme court has noted for example and pepper that disparity that results from the normal appellate process is not the type of disparity that congress has been when dorsey is applied it's not all that clear it is difficult because as the supreme court said in dorsey no matter where we draw this line there are going to be disparities there is going to be disparities between people who were sentenced initially and re sentence prior to the passage of the fair sentencing act but in any dorsey the court emphasized that type of disparity that we're really concerned about here is quote the imposition of disparate sentences involving roughly contemporaneous time the same place and even the same judge thereby have the lighting a kind of unfairness that modern sentencing statutes typically seek to combat so lyster dorsey on re sentencing for example will get the benefit of the new guidelines in the new minimum hughes should too because at the end of the day the overriding theme of dorsey so how about this quick how does dorsey come out if this is the way the statutes worked ok one hundred nine is exactly the way it was then your fifty five three a is exactly the same except in one respect a four two says that you apply the guidelines that are in effect on the date of the on case let's just say hypothetically if that's what the statute says you have one zero nine  retroactivity rule and then you have three five five three a which says ok we apply the guidelines in effect on the date of the crime not the date the defendant sends the date of the crime so the part of the question is you now have both those two things were in tension and dorsey so in my hypothetical they're both running in the same direction so i assume that's a nine no case saying dorsey loses right because the tensions disappear three five five three a says sentence on the guidelines in effect on the date of the crime it's definitely a harder case i don't understand how there's i can't i can't see one part of justice briar's analysis that i don't understand how to be anything but nine zero the tension that he tries to resolve with other indicators that's his whole point that's his whole stepping off point so that statute of limitations well i think that those two factors two of the six factors that look at that at thirty five fifty three eight two for that  that that becomes a harder issue i'm not sure because one of the principle where you know you know why you're hesitating because that hypothetical seems to be this case well yeah i'm resentencing because you have one hundred nine telling you a rule which now lines up with a recent single rule which is consistent with yeah it is a hard question but one of the other factors in dorsey is this idea that one congress cannot leave it behind an what did congress intend in the fair sentencing act what was the express or necessarily implied intent of congress in fact in the statute and in we're trying to figure out by reference to various  factors and background sentencing principles what it was that congress had in mind in terms of the police ability of oh let me kind of i guess jump in on that i mean here's one way to sort of characterize this case and tell me if you disagree  mr dick has gone through the specific reasoning of the dorsey court sort of taking the opinion on its terms and in his view at least shown why those reasons do not apply this background principle you know that some guideline statute that now are using to interpret some guidelines if a step provision about guidelines which we're now using to determine statutory retroactivity has an exception which applies to this case so that background principle doesn't apply argue and and some of the other concerns that the dorsey court goes through don't apply so you know if one looks at the specific reasons one can make a quite cogent argument that those reasons do not apply here but on the other hand we have sort of this practical reality which i think is what you're getting at right now which is like come on you know congress wants no more old crack sentences and it's sort of the letter of dorsey versus the spirit of dorsey but why are we stuck with the letter of dorsey in why shouldn't the background principle from this eight some things that congress actually sayid which put us no further legal the deciding we case that arguably the deciding the case based on the spirit of the day i'm not suggesting that the court has to decide this case based on the spirit of the day although it certainly favors our position but there is specific language in dorsey that that indicates that the that the supreme court was reading congress's intent as expressed in the statute to conform the guidelines with the applicable law to exercise its emerging emergency authority as indicating an intent to apply the new fair sentencing statute going forward for any district court imposing a sentence to apply that going forward you know congress really been wrapped up in the spirit of the day it could have been explicit about what the courts were to do with the folks who could be sent under reasons why that doesn't necessarily hurt but it is the government's position in this case specific to this f s a or with the government take this view in all cases in the future where you have a one on one debate the defendant wins and one and i doesn't apply him is the government's position that you're there argument you're making is not unique to the f s a in other words so that in all we sense and cases the only question is if that initial sentencing sentencing statute where the statutory minimum zar tied to the guidelines in a way that makes them makes it unique so that they and many purpose behind dorothy is that in order to give effect to to the  congress's intent to have the guidelines applied quickly in swiftly as soon as possible after the act came into effect so it has decided that they intended the minimum so you wouldn't actually that wouldn't actually have any meaning so if you don't think this argument doesn't apply to sings where there's a set of rules now for the initial sentencing that have changed and if you're not going to take that across the board that i don't understand why we should care about hughes or anyone else the diff disparity between hughes being sen today and someone else who for whatever reason gets the benefit of the f s a we're certainly taking that position i may be misunderstood you but we certainly are taking that position with respect to all post act re sense things not in any statute when no i thirty seven forty two g one it's not true that they would never apply because they do apply they were given retroactive applications so they apply to him just like they do you for everybody can think well i mean we have a statute that says that would apply to mr hughes no because as this court said in and taylor they are advisory only so but we're talking about here for two different things i think taylor says you can consider the existence of those amended guidelines but his rain which is still the term by the initial guidelines the guidelines that were in effect isn't at his initial sense right guidelines from the initial sentencing apply i mean are we talking about a guidelines provision that says these shall be retroactive yes how does that trump the statu congress gave us already stuff but there's no discussion of retroactivity right that's why we're here you know but the guidelines do apply retroactively and the point about taylor is that the court not only said that the court that  apply the guidelines or whether to vary from them that's better stated thank you i mean that's every day i don't think there's much debate on that is why she's correct right that's correct but the whole so we have the whole problem about oh my gosh you know the guidelines that applied to the sentencing are going to be out of whack with the mandatory minimum minimum and so on as mr dick says in his brief back to the country we have total harmony here between the mandatory minimum said he would say apply and the guidelines that apply and you can sort of think about taylor but it doesn't matter because there's a mandatory minimum and that's the way it goes with the mandatory min um in other statutes and thirty six sixty one for example the congress congress has has said that the district court should take into account all in relevant information including our limited information about the conduct of the offense and taylor court said that that includes the sentencing commission's most recent pronouncement as to what constitutes an appropriate sentence but there's minturn minimum so as in many cases where you know otherwise you get to think about things and so on you run into a mandatory minimum in this case it really doesn't matter right i mean isn't that that's the way it is there's only a mandatory minimum that this court finds that congress intended to notwithstanding the fact that it clearly intended i'm either side just let me know what i'm missing but i'm three seven four two g it seems to be all about the guidelines right so it's the guidelines in effect on the date of the first sentencing right so it's it's it's so we're trying three four two three seven four two g one in this is the key you know one of the key provisions and it refers to the guidelines at the beginning then it ends by saying that one effect in such day but has this clause together with any amendments there to by any act of congress and i think it does when my question is does not refer to statutes that directly amend guidelines is that all they're referring to yes ok and i can suggest some pages eleven and twelve of his brief but that might actually apply to for example the statutory framework the anti drug abuse act but we disagree with that and we believe this clearly references congress's ability to directly intervene amend a guideline as for example has the child pornography got mine and is there a case that kind of clear shows that i don't have to worry about this that you're right i don't have a case for you right now ok ok great but all right well mr dick if you want to respond just trying to figure that out i this talking about directives that were enacted but had not yet been manifest to those actual guideline as with the child born in our congress always doing these directives this is talking about a directive has been passed the week before but it just hadn't been converted into an actual amendment to the guideline but that that directive and then guideline is going to apply so we're talking about i don't know that that's what they're talking about because it says amendments there to by any act of congress that with in effect on such date which would suggest i think yeah ok that's a was one smaller point in our appeal that i do want to just bring to your attention and that was related to the appropriateness of considering post sentencing conduct progress that i made in sentencing and i did i didn't want that to get law the way because of the law second issue and the blue brief yeah and so i think that's been fully briefed i would suggest because i think there's some disagreement about really what happened at sentencing in terms of looking at the transcript i think it's going to guide the court just to look at the language that the judge used our contention is that he declined to consider the post sentencing progress that the defendant had made in part because he believed that at the most the best it could help him out with would be a month and in the years that he considered if he just didn't agree with the defendant's position i mean he didn't i mean it's in the transcript get as you know and i absolutely agree and i think it's just it's just fine point i would say the court can decide what it thinks that the judge really did is it your position that judge younker thought he lacked the power to consider the argument or would you recognize that he knew we had the power but just chose not to i don't you know i don't know but i think the important thing was that he declined to exercise it because that would have been a big deal it would have been one month and that i know that that for certain i can't tell you what i think you know if if he explicitly said i have the power to do this and choose not to do it i think i'd leave that to the court for for a fair reading of the transcript because my interpretation wouldn't wouldn't really add to it but i didn't want that point to get live and the other thing that i wanted to mention just in terms of disparity and  were indicted who were sentenced at the same time the point is you know and we talk about disparity and senate saying we're typically i mean obviously judges worry about disparity among defendants in particular cases same concept is really not directed to folks who are in this time case it's really directed to national disparities so that really i mean it's helpful to know but it's really not the controlling the governing laws corrected not unlike this case i take it either the us supreme court or this court at that point could reinstate the sentence in other words affectively reversed the reversal but but their order says in light of the new law in light of the fact that it turns out the district court didn't violate any law we quote reinstate the sentence so if they've done that this whole case goes away right because  mean if if if the court just says looking at the law you know the so when it comes back down there's there's no quote re sentencing to be done right about that would be correct ok so if the appellate courts can do that i'm just curious why couldn't judge ocker have just said by the time it got to him hey i will i got this case as opposed to this general issue that the district court got it right right the district court did it right the first time the sense should never have been vacated and you have to agree with  should never been vacated by the sixth circuit given existing law today ok so it just seems very funny to me that pallet courts had the timing worked out the right way could have reviewed all of this by quote reinstating the sentencing proceeding arguably he could have issued an order reinstating the original judgment which the sixth circuit had said a sad state existed by the time it came up for recent it saying but i think if you look at the language your honor and i could go back and look at it as well i could be wrong but i think the remained was a little bit more general but it didn't matter what the remained was because it would never have been i think like i said is that the right well you know my germs a little rusty i was dies but you the point is just that in every case where congress reduces the penalty for a crime there's going to be this seeming unfairness so maybe i should just stick to english and say there's no one fairness exception to the federal savings that she what we require is a clear statement of congressional intent and we don't have anything close to that here what about what about this emergency you know guidelines provision that granted you know we had the exchange earlier that provision emergency guideline why isn't that an indication of congress's desire to have you know everybody sentenced after that date of the act be sentenced according to that regime well i  guess the answer there would just be that there's always the authority to vary from from guidelines so so it's clear on the thirty seven forty two g one why isn't that an indicator of larger congress's larger purpose to have no more old crack sentences after the passage of that well because thirty seven forty two g one says you still have to apply those old guidelines so at very best the emergency guidelines authority is going to be in initial sentences where those are going to be applied not in old sentences so the government's position is as far as i can tell is that when you know when dorsey focused on the language about making the guidelines consistent with the mandatory minimum that we should extend that would agree in the f s a they could have trumped three seven four two g one absolutely ok so i take his question to be the emergency nature of this yes it says guidelines in effect on that day but then you make them hyper retroactive why isn't that an indicator that they were affectively tromping sure i would say again i mean the clue same clear statement rule would apply if there's going to be an implicit repeal of thirty seven forty two g one you would want it to be clear and i just don't see anything resembling a clear statement of that in saying you should go ahead and promulgated emergency god lines and what dorsey found is that that means they were worried about an initial sentences that might happen immediately in the aftermath of the effect date and so i would just say that the clear statement principle or the clear indication of congressional intent principle here is an insurmountable obstacle because it's not clear what they meant so so i think the court's obligation is to try to read statutes to be consistent with one another and to only find an implied repeal if that's the necessary implication in other words of the two statutes cannot possibly be read in a consistent manner and here i think it's very possible and indeed the most plausible reading is that they're consistent but you know what they said in dorsey was that we apply the law in effect at the time of the initial sentence doesn't matter what the law may have been in the past and if you look at thirty seven forty two g one it's essentially saying the same thing going forward we apply what was in effect at the time of the initial sentence doesn't matter what's happened with the law afterwards so it's just a clear rule that what governs is the law as of the time of the initial sentencing what your take on the phrase and three seven four two g juan about any amendments there too is that congressional amendments directly have guidelines sure right so the first thing i would say is that this provision is in no way necessary to the position i've taken here i think it does present something of a difficult question of statutory interpretation that this court doesn't need to resolve so if i were writing an opinion i might not reach out and resolve the question unnecessarily but i do think if this court found itself compelled to answer that question it is most natural to read that i was referring to not just direct amendments but also statutes where congress has you know modified mandatory minimum which are themselves a type of amendment to the guidelines and work congress has directed the sentencing commission to amend the got one so congress can amend the guidelines either directly or indirectly in the fair sentencing act i think it's most natural to refer to the first sensing act as an indirect amendment of the guidelines that did that in two ways if one change the mandatory minimum which are kind of the you know the why doesn't all this mean that on re sentencing you would consider the fair sentencing and its effect on the guidelines well it says on such date and so that's talking about the date of the previous sentencing so it's telling the court to apply the guidelines in conjunction with the sentencing statutes right so that if i drug abuse that i don't know how to but how but that brings is the question how did you think this helped you well it helps me because it's telling you to apply the guidelines and the statutes and the guidelines amendments that were in effect and so i think the way we frame it in the brief is as a negative in its right it's telling you to apply amendments to the guidelines that were in effect on the date of the initial sentencing  would have been created because here it was not present so i think that factors in the case what excuse me but in terms of the guidelines they actually took the other way because you're applying the old guidelines so consistency here demands applying the old mandatory minim case and appreciate your advocacy behalf of the district court an unusual position for you to be in that we're very appreciative of his climb we appreciate your having accepted the