thousand and ten modify the statutory penalties for the office of conviction the answer in this case is yes ramon folks was undisputedly convicted of violating twenty one u s c eight  a and b one a for possession with intent to distribute fifty grams or more of cocaine base at the time he was sentenced that invoked a statutory mandatory minimum penalty of ten years in the penalty range of ten years to li fair sentencing act of two thousand and ten there are sections two and three modified the statutory penalties which apply to the office of convictions for mr fox as a result the court should hold the mr folks had been in effect at the original time so mr newman if we look at it is two steps st step eligibility nd step exercise of discretion which member in this case as well as in the greer case did not get to that st step correct did not make that eligibility termination or found to be you know that's correct i'm not familiar with the greer case in the particular facts but that was the procedural posture of this case bill but at the same time the as the government keeps trying to point out i will to the court's question that was asked in the prior argument i do believe that the canon of the last antecedent as far as modifying  the statutory penalties for which were modified should apply in this case in interpret what it means to be a cover office so for looking to the statutory tax we're looking at a violation of a federal criminal statute the statut the plain meaning of the text means that you look at a categorical approach in this case and in others i would mean looking to the language of the indictment to see if the facts allege include a cocaine eligibility determine or turns on at the same times i think that what we should also be kept in mind of the court should consider as was pointed out in the last case argued that this is all a discretionary ridging the entire purpose of this was to put this in the hands of district court judges who the supreme court in this court routinely say are best position to make these decisions they're the people who actually make these decisions and impose since is one of the st instance but t are able to determine if a particular person merits a reduction at this point and so with that if you can take the the government's position essentially vitiate a lot of the discretion that congress placed in the hand of the district court the government says that if congress wanted that they simply say that congress could have used different statutory terms to say that anyone who was ever convicted of hundred and eighty grams as alleged in the indictment is eligible or b one b of less than half the time sorry less of the time five grams is eligible for so i think if you are looking at the x equities of the case and if we're looking at the legislative history of the st step act it's clear that the intent of congress was to grant district courts discretion and to place people such as mr folks in the position where one they're eligible for relief but two that decision then turns to the district court based on an individual i's decision based on the facts as presented one that he can review from the historical record but two that he can review based on the submissions at the time of the motion to reduce the sentence the other point that i'd like to make your honor is to point out the procedural vehicle that's it issue in this case we maintain believe that section of for the st act is in fact an independent grant of authority a kin to the relief that a district court has when correcting modifying or vacating the sentence under twenty two  application of the lower guidelines the government wants to cabin st step back motions into that limited procedural same type of vehicle when in fact the only thing that limits a court's discretion by the pla terms of the st epoch is whether or not they were convicted of an office after august rd two thousand and ten and to whether or not they've already asked for a sentence reduction under the st step back and it's been decided on the merits that's it three thousand five hundred and eighty two c one b should be construed in considered as a limited restriction on the general rule that you cannot modify sentence unless expressly permitted by statute and we have expressed permission in another statute here section four hundred and four dollars which authorizes the district court if they so desire to conduct a planetary recent incident or to conduct some other limited procedure as the court deems appropriate in the case to case again that's consistent with congress's intent to make the st step act section four for relie discretionary and place it in the hands of federal district courts to make individualized determinations it with that i preserve the remainder of my time for a bottle with most or any question it please the court counsel my name is katherine boyle and be at the united states your honor since all three appeals today have been consolidated for purposes of argument day and in but same issue i just like to treat this is building on my prior argument rather than  boring you will be repeating the same things at the same considerations that we discussed and united states forces young are present here the taxon purpose of the statute demand the same conclusion that the defendants actual conduct must be considered in determining whether he is eligible for a reduction here and i want to discuss this in particular because the defense counsel brought it up quite a bit and in suggesting that it needs to be the statue of conviction in order to ensure there are no disparities between vengeance we believe that reading really misconstrues the tax and anything undermines the purpose of section four o four which is meant to extend the benefits of the fair sentencing act to defendants who who were not able to benefit from it because they were committed their offense under be one a one v three are automatically eligible for some sort of procedural windfall that this same defendant who committed the exact same violation factually was sentenced for following me in act one of the st sentencing a nd here for example mr fox was charged with was charged with and pleaded guilty to a conspiracy that at the time involved more than fifty grams of crack cocaine but as was made clear by the records the court at involved in a conspiracy involving more than two hundred and eighty grams of crack cocaine to have an opportunity for i describe for a reduction in the sentence that somebody who was charged for the same conduct post two thousand and ten and a conspiracy under that really undermines the significant weight this court has placed on finale it doesn't consider the fact that the procedure opportunity is in itself a windfall even if the reduction is not granted you can look for example at a and the court typically the court determines that they're not if the guideline range is unchanged this shows that the courts frequently and they do this in twenty to fifty five and say can cause proceedings to i'm sorry your energy you have a question  investigation report there is going to be either stipulation or at least some discussion with regard to that the indictment itself though is going to the best have a range right so if we're if we go to the indictment controls theory that's not going to help us right yes your honor and i think that the same issues we've identified in terms of the text of the statute and really the same issues we've identified in terms of the purpose the statute those same problems are presented with the indictment controls theory because that too is going to to the fair sentencing act it was the practice of almost get nearly all prosecutors to charge the stache or a threshold in the a moment so you wouldn't have seen typically an indictment that was charging it would charge fifty grams if prefer sentencing and your honor if i can make to keep points st starting on disparities the supreme court has made clear that whenever congress legislates especially in the area of criminal law it always involves a line drawn congress rarely if ever takes new changes in criminal law retroactively a political so there's also the same was true when the fair sentencing act originally applied and that's what the supreme court said in dorsey that there will be disparities but that alone is not enough to trump a textual interpretation of so they don't apply to people retroactively right now they don't apply to cases that are rector actively retroactively on collateral review so to the the government wants to make a mountain out of the fact that some people are able to see a reduced senates under the st step act while others are not even if they could theoretically have been indicted for more than two hundred and eighty dollars degrees that was a legislative decision that congress made it's not the role of the courts to the reason that actual conduct and relevant conduct for example from the p s are considered so heavily in those sentence modification proceeding is because we're looking to see if a guidelines amendment that's retroactively a political to someone lowers their sentencing guideline range so of course we have to look at what's in the p s r and and the actual relevant conduct of someone in three thousand five hundred and eighty dollars to see two proceedings in fact that's what congress did with the fair cincinnati but what we didn't what congress has not done here and they made the decision distinctly not to do it is to tie or instruct the sentencing commission to adopt lower guidelines implementing the fair sentencing act and then require to finish to show that their guideline range somehow would have been reduced and so there you would look at relevant conduct instead what they said categorically is that you if you have covered office if there's a violation of a federal criminal statute the statutory penalties for which were reduced or modified by the fair sentencing act of two thousand and ten and we believe that the only reasonable interpretation of that tax would be to hold as that you look at a categorical analysis similar to a shepherd's analysis at what was alleged and the crime itself was there cocaine base violation of a forty one b one