think i will tell you of all my colleagues i think this was very much we're up to the they are with you in person and my but you know it was not meant to be quite this early but requires the court to review the district court's order denying mr treaties motion for the imposition of a reduced sentence under section four for the st step back of two thousand and eighty the problem is that the order itself does not allow for meaningful review by this court and unfortunately in forty four mr treaty but under the established law this court this would require the matter to be remanded back to the district court and if you look at pursuant to the st step act and the problem with that is that is at best and big us as to whether the district court understood the full scope of its authority under section four for the st act or it was actually exercising its discretion not covered so that he could be recent and they simply argue that he shouldn't be recent events so why would a reasonable reading of the district court order be that the district court were rejected the government's argument and found it couldn't be reasons district court is in fact prohibited from sentencing mr treaty below the one hundred and fifty one based on policy statements in the sense in guidelines specifically under one b one point one those policy statements do not apply here this court has stated as much as several unpublished opinions and most recently in the jones published opinion the big opinion regarding section forty four in fact the defendant here is almost exactly in the exact same position that we we cannot be sure that the district court understood its authority under johnson the exact same thing happened there and and to be fair to the government your honor this was at the onset of the section four hundred and four motions and the government's position at that point both in johnson and here in mr treaties case was that the policy statements under one b one point one applied and prevented the district court from sending somebody below what would be the the new or in a motion for four reduction based on  retroactive amendment the amended guideline range that is incorrect and that this court held in john jones that for the johnson defendant that was current that was just incorrect the order in the johnson case the jones of johnson defendant in the jones case is almost exactly the same as the order here where it is just unclear whether this record is saying i'm just exercising my thought in that sense in a below what is now the new sentencing range or i lack the authority to send some below the the sense in range and again that has to do with the government's response which is docket entry number thirty eight there is no other government response so it to the case starts out mr treaty files just a one page p motion very brief the government has their response which is at thirty eight dollars mr treaty tries a couple of times on pro se responses those would be docket entry number thirty nine which is very brief documentary number forty he does do a better  explaining that one be one ten is only applicable to these three thousand five hundred and eighty to see two motions those are the retroactive amendment motions and not applicable here there's another response that's a little muddled and then our office steps in and a counseled motion in which it tells the court that the court is not restricted in any way by the policy statements one the one ten those don't apply here and that the district court has full authority to reduce the sentence as it eight factors is that are you walking away from that argument no your honor i think that and the court is correct that this specific argument wasn't precisely placed in a brief but the argument that was raised in the brief was five to three factors because of the statute that you are proceeding under doesn't expressly require that that's correct but if you look at the language of the of the statute it's very specific language it provides that a court that has imposed a sentence for a cover defense may on a motion by the defendant imposed we do sentence that's very that's very specific language that tells the court that it may now impose that we do sense it doesn't say maybe do a new evidence it might go back to recalculate in some of the prior sensing calculations under various sensing guidelines provisions and that's not what we're talking about here this is simply looking at the lending question about the go back to you kind of go back to your st part of your argument and asked a question about the district courts were this report says i will not reduce the sentence the district court didn't say i cannot reduce sentence and when i st read this order it seemed pretty clear to me that the district court's word choice was basically saying look i'm not going to do it ari gave this guy the benefit of  a variance from the guidelines for this very reason because of the crack cocaine powder cocaine disparity and i will not give in the lower sense why isn't why isn't that the right reading of the district  and leave says for grounds on the i'm sorry affords no for the relief to mr johnson that is very similar to i will not grant any relief and the problem here was that again the government specifically argued that he was prohibited from sentencing mr treaty or from granting a reduction further than to one hundred and fifty one based on the policies that i just i don't know i mean you're talking about a district court order in the other case that mentions the sense based on any arguments in the ins motions or any changes in the law pursuant to the st step i mean it seems like the court saying it doesn't matter what the st act changed it doesn't matter what the arguments were in the motions i'm not going to give him a lower down in august and the court in this case late granted the government's motion that gave this death dependent a sentencing as if the pair step are in place at that time in april of two thousand and t how the procedures will go in or recognition of what was coming down the pike in terms of the change of a law that is not meant to scuse me for interrupting you at you're a very experienced prosecutor  yeah i'm not asking you about our president i'm asking about your argument this case somebody it seemed to me that you saw so far do consider the thirty got the three factors in this case or is that don't think but i do think that that's a fair reading of it your honor when you look when you do the two things that i'm saying right now which is you look at your original sentencing where every one of the three thousand five hundred and fifty three factors were walked through carefully and then you look at this opinion and the court says you can tell that the court considered again the nature and circumstances of the oftens because it's friday in the st page of the order in the nd full paragraph the court really integrates exactly what the defendant was charged of event considers the nature and circumstances or this defendant i just driving that he is a career offender he then goes on to explain to you that the statutory penalties have changed doesn't separately require consideration of those factors it's the lottery your honor is to the overarching legal argument with the specificity to when you then apply that with specificity to this client it particularly matters because the district court said i will not not i cannot and as we said in the junks union and i am for getting the side of nd yes i'll get back to you when it's clear what the just hope will do if it wasn't if it didn't think it had an authority to do anything else it would arguing that the judge could not change the sentence i think he was reciting document thirty eight i do agree that the government referred to one hundred and one ten and as mr lopez acknowledged the that was possible because it discussed its variance decisions at the earlier proceeding and why you know it didn't go into why it did it but if you know the background it's referencing to that is telling you it was aware of its opportunities the court even discussed the difference of variance versus departure at the original sentencing and made in specific determinations to do that with respect that sentence let me ask you let me ask you just to drill down on drug  grass question so the way out i haven't looked at your the document that was filed in a little while but the way i understood it was that the government was conceding this was a covered offense that could be reduced but the government was arguing that the district court just couldn't go below the guidelines range was that was that the argument that the government was making that under the statute it was a covered offense so there could be reduction but that reductions could the nd step the bottom of that revised range and that is the argument that the government was making that would be commensurate here but at this point importantly this case was only grace nine months or more before jones came out and case was not was great months before the judge a case came out and the underline is was even longer more than a year before jones came out so we didn't have the benefit of the complex analysis  thank you you know one thing i wanted to bring back is to the actual language such as for four because by definition section four for only applies to defendants who were sentenced prior to august  or more earlier so the idea that anything that the district court might have done were gone over at the initial sensi condemn it somehow i'll cover this for a four proceeding that is happening at least at that date or more later  does not hold water in fact if you look at the very three thousand five hundred and fifty three factors most of those will have in fact changed by the time that the district court is considering whether it's going to pose a reduced sentence certainly some of the nature and circumstances of your fans might have changed said i want you to respond to what i can see but i kind of thought was the government's point on this as i got kind of confused the years too i mean i think the government's point was not the motion came quickly after the sentencing which was how i was confused but that  fair sentencing act in the st step back followed on shortly after the original sentencing in the district court had already invision that those were going to happen and already accounted for those i think that was the government's point so how did that how did things change at the district court given because of the one hundred to one ratio that was about to be changed on august two thousand and ten and if you look at the sensing transcript itself i believe on page twenty eight is where the district court's decision actually starts it is as unclear as docket entry number forty five as to whether that variance is based solely on one hundred to one ratio the district never makes that clear there were numerous factors that the defense argued at the time of the original sentencing for the variance in fact if you look at the sentencing transcript again counsel for mr treaties spent about five pages going over the various factors that warrant varies before he even says anything about the one hundred  ratio so yes the government at time of sentencing basically conceded that a variance would be to be applicable based on one hundred and one dollars but there were a lot of factors that were argued and the district court never made clear that that that's what is there a like a some kind of number of motions that can be filed in the st that back to you only get one motions or scum some kind of procedure to follow successive motions is there a thing that would limit and they just to file successive motions on the st well under the st step act as a whole their various sections but under this section under this section you basically will get one shot at the apple you get one bite at the apple and and and that's in the language of section four  subsection c and it really is there to ensure that in my view it's there to ensure that all these defendants that were sentenced in almost a quarter of a century under this basically rac shot to go before district court judge and say ok can you please just take a look at this case take a look at my case and see if the fair sensing act had been in effect when i committed this offense when i have received a lower sentence based on the person that i am now and the district court can say yes or no based on all the factors and congress trusted that to the district court the problem here is that this record was not clear as to whether i understood its full authority in fact they could go below the amended range or the new range and y unfair and so this goes to the procedure and there are says several cases controlling law in this circuit saying that when a district court just basically fails to understand the full scope of its authority and but i agree that that specific point was not included in the briefing that specifically but i think the argument that we're making here all the argument that we're making here are in support of the great argument that was relied on in the brief a c i'm way past my time and so i would just take the court for all its time and just basically the district court order here and i really have a lot of respect for this district court judge that the already here just that is does not allow this board for meaningful appellate review and under the established law this court that must