you're the next case united states versus my name is barclay johnson and an attorney with the federal defenders office in vermont i'm pleased to be here on behalf of mr carrousel i'm not sure ours is the issue is quite as interesting as the free speech first amendment issues but our narrow issue in this case is quite narrow when it is really only about whether mr carrousel is eligible for a reduction or retroactive reduction it's not about whether he should receive one ultimately or how small but doesn't the rule the one be one point ten b one say apply the amendment as if the new rule were in effect at the time of the original sentence we have these other two injunctions the isn't that what it says i mean shouldn't we just be applying the new rule or just in the district court in the appropriate for the district court to apply the new rule that lowers the heroin distribution conspiracy a number  and then and then plug it in to the guidelines that were in place we have these two narrow subsequent instructions that tell us exactly tell the district court exactly how to do that and that is on the one hand the court shell substitute only the retroactive amendment or guideline provision and then on the other hand that it shall leave all other guideline application decisions on affected but what about things that aren't decisions in other words this seems to me and now it gets to the situation where the reduction moves the guideline level below the threshold where you can get three points for acceptance of responsibility so in that case you'd be suggesting that it's a separate the district court made a separate guideline decision in the previous sentencing to give three points for acceptance of responsibility and that should stay in place even after the reduction which moves the base offense level down below the threshold for that i think so for a couple reasons one is for example the seven circuits decision so look what all this rewriting the rules that you would be rewriting the rules i would not be following in the district court here follow the same analysis the same formula but but took it down to levels because of the in men and but then it follow the same procedures that it did the last time and in the end it was the same and perhaps it take a step back and differentiate between this initial right there are two steps in the analysis of whether someone should receive a reduction one is are they eligible and the second is should they get a reduction i think the point the court's identifying as a no no i'm talking about eligibility i mean you're the the rules say because of the grouping rules that you would then it changes because of the the differential changes but but the court is following precisely the rules that it applied back then but because the starting point is a little bit different the different steps are triggered but the not changing the rules it's following the same rules is it not i don't think so because then it's not we have these two very specific admonitions injunctions from the sentencing commission and they're mandatory in thirty five eighty two proceeding  like in a full initial resentencing in the full initial resentencing we have a whole lot of other rules that we have to apply but here we have this very narrow window is this person eligible and this sentencing commission says it substitute the retroactive amendment leave everything else unaffected well no it says don't make any different decisions and what i'm suggesting is there's a difference between decisions that the district court has made like well i think on balance it's a close call but i'm not going to find that there was a gun and then apply is doesn't apply that unhandsome which is irrelevant to this decision about the offense level  for the drugs this report can't go back and revisit that and say gee now that he's getting these this break on everything else really i should go back and close call i think maybe i should give him the gun and handsome and you can't do that but there's no decision being made here just as a matter of the operation of law once you plug in this new guideline then various calculations automatically follow don't think there's no decision made about how the grouping rules apply and it's certainly no different decision being made about how the grouping rules apply the grouping rules apply the same way it's a formula but the formula is affected once you substitute the new number for the old so why does that come under that that rule and what would be the purpose of having that be the the rule i think the they follow automatically but they're in a full sentencing but we have these other now very specific rules from the sentencing commission saying leave all other guidelines application decisions on effect of we think each of those steps you know whether it's acceptance of responsibility grouping rules what have you is a application decision that those or application decisions by the guidelines by the sensing commission and not by the district judge in other words that there are provisions in place that operate at a certain level and those when that level is changed and those provisions change and in this case the robberies get and get an extra half point that they wouldn't have gotten otherwise that was a determination that they made you know they would have made gotten if the level of been higher so isn't this a prohibition on in effect re sentencing and revisiting all those questions that came up with the original sentencing i don't think so i think it's i think it's a very narrow admonition to the sentencing court to only substitute the guideline the retroactive sentence this person in the supreme court said no you can't do that because of this prohibition that says leave all other guideline application decisions on a stack dedrick to errors that were made this is applying your group faithfully carry out the admonition that you just posed to go back to the original god line and put in the change that the mechanical operation of what how that plays out is is very from making decisions and in effect re sentencing based upon new considerations well i got i think that i think they're very similar though if you look at the supreme court has said you can't correct errors and i think functionally there is no principled distinction between an interpretation of one b one point one zero but if you look at the sentencing chart itself right you look at the grid last time you made a decision you might say the judge made a decision to look on the chart and find level twenty eight journalist or category one there is the number now it's level twenty six you have to look at the right cell in the chart right because that's the mechanical result of calling it level twenty six rather than level twenty eight that seems that clear right you don't have i think sentence because that was a deceptive decision that you made you're just doing a mechanical task right look at the chart and get the right cell i think i think it breaks down at that point i think what i'm suggesting is there is no distinction it's not possible to arrive at a principle distinction between an interpretation of one b one point one zero that says you cannot correct a guideline application error from the original sentencing in such a proceeding because of the provisions prohibition injunction that you must leave all other guideline application decisions on a fact and interpretation that says nevertheless it's fine to redo the whole calculation to account for us of course this these other long anticipated guideline application decisions and but that's ok notwithstanding the fact that the guy lying one b one point one zero says leave all other guidelines application decisions are more in fact the regional the original formulation of the zero unit score under the under the twenty was twenty eight for the robberies was not that that was not a decision that the the judge made it was just applying the grouping and the grouping formula as it occurred at the time and so he was told if that there are mechanical rules on how you group your group and then you come up with these these answers and then when that changes you're not changing it this assent it's not a sentencing decision that affects whether there's going to be our guideline change in the normal the normal where we think of it is behind the the prohibition of not going back and revisiting decisions what's the purpose the purpose is not to do that the purposes is to apply and then and but not to let's hear from the government you have some time for a bottle and the government's position which i think i heard from judge lynch a little bit in their question is that this recalculation itself is not a guideline application decision covered by the last sentence of one b one point ten b one and i think there's three reasons that you should adopt that proposition first this court's prior decisions addressing one b one point ten indorse the district courts analysis and really reject the  begin with the rios case a decision written by judge walker there the court said that new findings were allowed to increase a guideline range because of findings that were not made at the original sentencing and those new findings could support a recalculation of the guidelines that would mean that there would be no eligibility for a new sentence and in the government's position if the sentencing court has an obligation to make necessary new findings without violating the last sentence of the one b one point ten is certainly doesn't run afoul of it by doing a new calculation i also want to cite to the court a case that we did not cite in our brief the dury case at eight twenty four fed third to ninety nine from two thousand and sixteen there this court addressed the possibility of a second reduction the court recall there were two different reductions of the guidelines relating to drugs the first was the crack reduction the second was a broader drug reduction  and the court there held that the eligibility based would be based on the sentence the defender was serving not the original sends there the defendant got a reduction from the first crack amendments and the court said  the district court's decision not to allow allow eligibility for the second reduction and there it was just like this the grouping rule meant that his guidelines did not change in spite of the lowering of the drug guideline and it was a similar kind of thing with another group that affected the group in calculation and there this court held that the defendant was not eligible and of course we've always said the ag your case in our briefs other circuit second other circuits have more directly analyzed this issue we've cited those cases in our brief including the tal afar case which follows up on the question the judge lynch asked that and finally there's really no case law support at all for the appellants position the dylan case that the defense sides of course didn't even address this issue and at the end where my adversary is talking about the mistake issue that's a different issue that's the issue of a defendant coming in and trying to say i'd like to revisit decisions made by the district court about these different matters you know whether i in fact did have a gun whether i'm in fact a mitigating role or what my level is and there are the costs of the government and there are the dillon court said that kind of read decision or new decision isn't permitted in some euro the government urges the court to reject court for the district court to correct guideline application errors because of the prohibition or injunction that a court must leave all of their guideline application decisions on affected  i think there's just not any reason to think that if you can't fix legal errors in such a provision in such a thirty five proceeding there's no reason to conclude that you can also redo change or in the government's words use a fresh arrive at a fresh apple guideline application calculation rios i think it's  possible the rule of rios is possible because one b one point one zero doesn't say don't find new facts it says leave all other guideline application decisions on affected i think dillon also shows us where cases such as coghlan the seventh circuit case the government relies on air and aren't faithful both to one b one point one zero and t coghlan says that the limitation just means the court can't revisit factual decisions but that redoing the whole guideline calculation is fine again it's just not what one b one point one is the provision is clearly talking about legal guideline application decisions when it says on the one hand first you substitute only the retroactively changed guideline application guideline provision and then you must leave all other guideline application decisions on the fact that the court doesn't have any more questions will rely  thank you well reserved decision the final two cases are on submission i'll ask the clerk to