and the next case on the calendar is united states easy and consistent we're just at it's three five eighty two c which is a discretionary statute or allows for discretionary we sentencing if a defendant meets two conditions and  or judge below offered two reasons for rejecting their adduction however before addressing the district court's opinion and and the two reasons advanced by the court below i would like to address to the letter that was filed by the government on february and february warn which letter brings to the court's attention a case that was decided after this appeal was fully briefed the case is united states versus ramirez decided on january twenty fifth now that case does address the same issues raised in this case however one book rule on which the government relies was never raised in the opposition papers was never raised in the court below and we haven't had a chance to adequately address it now the letter addressed to the court on february first implies that you received a copy of it yes your hon and and the letter implies that since ramirez was decided after the briefing of disappear as was done that the letter could be considered as new law however the case relies on all presidents of discourse and the one book rule is not a novel rule and under this court's own precedent arguments that are not raised and not sufficiently raised here  guidelines that is correct your honor and that is the first reason advanced by the court below however this court has said the language in the recent sensing statute which you can't get to the second point unless you prefer this one has on the first point are correct and the first point is that a defendant has to have been sentenced to a term of imprisonment based on a sentencing range that subsequently been lowered by that by a commission with the didn't give a different range that was the range right there was about the range was less than to sixty two to three twenty seven that was the range weight on to the next question is has that range been changed under amendment seventy two other words that level thirty eight to sixty two three not three twenty seven and if it hasn't and doesn't thirty five easy to see not even apply well the same range same range most of the ranges are lower but not over but if the court looks at this case the way it looked at it in for instance united states versus mcgee and the court said and i  defendant's sentencing range is based on not the section or not the range that was recommended by the probation department but it was it is based on on the sentence that is actually impose as you know i'm a district judge right yes or all kinds of people every week sometimes every day and week and quite frequently i sentence people to a sentence below to be typically because it's just a variance not even a departure but a variance so in this situation if i concluded it was level thirty eight and i also concluded notwithstanding the fact that the bottom of the range to sixty two for the following three reasons i think two hundred forty months is the right number i haven't changed the range the range of still level thirty eight two hundred sixty two three twenty seven happens every day a week it would be novel in my experience to think that i oppose  mean that that's the implication of it all right if it could you're saying that the range changes depending on where the sentence actually ends up well as as one district court noted and this is a district judge harsh sentences and with that in mind the court looked at the language based on a sentencing range that has since been lowered and ended it's been lowered for certain the way it's construct understand correct me if i'm wrong it's been lowered for certain qualities but not for other one right but in that you're the quantities were were so substantial that notwithstanding all of these amendments the same range still apply yes your honor but in the case the court said because a friend it was granted a departure departure on the booker and not an authorized variance or a guideline authorized departure he was ultimately sentence based upon an offense level determined by his drug quantity and this is this case our case unlike in africa right now is not a departure it's not as if the judge said i'm going to depart from level thirty eight to level thirty six and sentence of his if you were in love with thirty six or level thirty or level twenty eight there are circumstances that would warrant that but he didn't do that here he said levels thirty eight three whatever it is it is commonsensical to look at the actual sentence imposed and regardless of whether it is a variance or the parcher you look at the sentence and if the sentence reflects a different range than the one applicable at the time of sentencing then that would give the defendant a chance to receive a lower sentence congress passed a statute right thirty five eighty two see that what you're saying i mean i understand what the district court did in that case in connecticut but there is an unsteady five eighty to see that you know will give the defendant a break will make it easier on him because well after all he got a lower than guideline sense to begin with so we will assume that the guideline range was the lower agency was to keep the sentences for the higher quantities well that may be your honor but still under the statute and not commissions guidelines the defendant here was received a sentence that was based on a sentencing range that has been lowered and even though his case or the drug quantity in his case yielded the same of for discretionary sentencing but the judge below believed that the guideline amendments which is one be one ten which was passed in two thousand and eleven that was declared binding by the supreme court in the long versus united states and the district who are cited that decision to say that i am precluded from granting the motion even if i what were inclined to reduce the sentence and that is different from each predecessor version of the amendment which allowed the re sentencing discretionary sentencing when the original and seven the statute or the guidelines said when the original sentence represented downward or the departure of comparable reduction below the amended guideline range may be appropriate and the only limitation that guideline imposed was that the court could not reduce the sentence below time served and it wasn't until two thousand and eleven that the commission in acted at issue here which basically limits any reduction in sentence for eligible defendants to cases where the departure was based or there very well the departure was based on substantial assistance assistance to the government which is a motion which it has which has to be requested by the government at sentencing and so that excludes all other defendants and all othe morning no me parents and on behalf of the united states the defendant appellate argues that he's eligible for resentencing under section thirty five eighty two for two reasons first he asserts that the sentence imposed by the district court necessarily reflect his a pluggable sentencing range under the guidelines and that he was therefore sentenced based on a level thirty six offense second he argues that the policy statement in the guideline section one it's also the offense level that was in fact included in the defendant's own submissions at sentencing and it's based on drug quantity it remains unchanged by amendment seven hundred eighty two  the argument of the appellate was based on an offense level of thirty six because his guy his actual sentence fits into that portire corresponds to that part of the guidelines matrix is novel and simply doesn't withstand scrutiny were that position to be adopted by the court references to below guideline sentences as used in thirty five eighty two and elsewhere w essentially lose meaning because it would mean that the guidelines calculation is necessarily changed to reflect whatever sentences imposed would never be able to look much sense right if the government range is thirty eight to sixty to the you the answers to what they were and you can't do the reverse very easily right now you can't you have to have additional information and primarily of the criminal history category if you will that wasn't even within that i mean you had to do forty court's part decisions in mickey and martinez those cases are an atlas and they analyzed defendants who were sentenced under more than one section of the guidelines in particular the career offender guidelines and there was no such reference in this case to another section of the guidelines it was simply based on the drug quantity and the sentencing commission subsequently rejected her approach and i recall correctly ye i would just like to make soup points first one does resentencing statutory five eight sue was written congress obviously did not have a book or variances in mind and so in interpret the language based on a sentencing range that since been lowered there there shouldn't be a distinction between guidelines authorized departures and variances in the book variances and so because the language of the statute was written before booker could congress was not contemplating restricting the scope of the statute only to  the law really does not equate congressional silence was congressional approval or and so the last point i want to make it is judge livingston you mentioned the approach mcgee was rejected by the commission but it was only rejected after the defendant sentencing date and so if the court were to agree to the ex post facto clause prohibit the retroactive change apply because it was the approach that was prevail and the time of sentencing thank you orders thank you both as the court is going to take a brief recess before the final ca argued case on the calendar this morning it'll be very brief