united states st class smith in april this court addressed the threshold issue of eligibility for relief under section four for the st step that this case presents an important issue left open and that is what procedure apply as in section four for proceedings once debility has been determined our position supported by recent st step decisions of the st circuit in chambers the th circuit involving and the th circuit or in other words a recalculation of the guidelines under the current guideline manual because the district court here rule be could not consider the current guidelines or intervening amendments our position is given we have to get there but i want to understand your textual argument well limit the museum for or if we accept as much as you want us to that can be considered a new under or create you quoted statutory language that says for example may consider and it seems to me that we're asking two different questions we're not arguing in this case the district  impose and then and for for see the statute excludes defendants from moving if they have already benefited from the fair sentencing act or if they have had a prior motion denied after a complete review on the merits and the th circuit in burbling found that that language implied that a floor of process a m or simply deciding not to go ahead and impose any sort of a new sentence is that it must undergo a complete review of the motion on the merits why does that imply that that it then has to do all this recalculat welcomed complete review on the merits what are the it begs the question what are the merits and i'm operational and i think your position would be whatever is in the motion must be adhered to by the judge so it became part of the merits argument the district court found that it couldn't consider it no no i don't think the district court found that it couldn't consider it i think the district court found that it would be considered i  release that is a statement that it can't consider that and then that page eight of the court's decision he says amendment seventy eight's changes go beyond the scope that the st step back to express lead permits a saying that the case required him to consider the reach of section forty four of the act and then he specifically determines that he can't judge young cast in terms of whether yes that in the end you say the word opposes ports that position and then in our we you went to the point as they rather than the fact that it has to be a reduction it can't be an increase of that word imposed just that anything you co nsider at a regular sentencing proceeding can be considered at the proceeding where the sentencing decision gets made pursuant to the st step back then we get to the question of if that's the that you must do a new thirty by fifty three in those but you need not do an application of the current guidelines what is the text that supports that conclusion mung among the several circuit sort of taken this can weaken the answer my question is that it's not your best shot at the statute is the may impose one that's the best you can do towards an obligation on the part of the court to do what you want  we sensible that they gave discretion as to whether to reduce what i understand you to be saying in the th circuit to be there as though you obviously have discretion as to whether to reduce in light of the draft or after application st sentence again in deciding whether to do that you are still imposing a so you have all the discretion you ordinarily have when you imposes that but you're still imposing one and in consequence you must consider guideline that's present today and that would seem like a coherent account of what was dead because it might be a surprising result but just as a textual if it seems to have some integrity well i certainly agree doesn't doesn't say in the text what procedure applies so the court has to infer from the text what should apply and size fits all approach to st that we certainty to my mind i think that sometimes we've got to go back to the actual realities of how the criminal courts work and i read the as really in effect contemplating what amounts to a two step process the act was passed by congress to when you does look back and you decide it is the sentence fair and job are you going back in time when you do that in the house so knowing only what we knew at the time and changing only the crack and the way to correctly calculate the guidelines he does we do know that from the quite a bit over so if you would mute and mr richie you have to tell you i disagree with your two step process i think it puts the cart before the horse at what by what standard does a judge determine that the sentence is fair or not the new ratios and new provisions provided in the portions of the the fish sentencing at me specifically i have to consider if those were all in effect guidelines i think it's perfectly sensible to n b a inquiry at that point if a judge goes on and says no the disparity grow the sentence in a meaningful way and  for this defendant deserves a reduced sentence then i think before applying imposing a reduced sentence i think it's perfectly logical for the judge at least as a matter of discretion to take into account guidelines changes and things of that sort right i don't find any way in which in the statute that requires her to do that disagree that judge on balance the th three thousand five hundred and fifty three factors undo in this case and i appoint the court to my reply brief at pages two through seven where i explain why the opinion shows that he five if conception came before the court today and the court considered only the changes in law that the fair sentencing act and acted the sentence would be the same so that text among others shows that he did not do it th and eighty analysis if i may just the last point is with regard to the disparity argument that the government made at the end that this group of defendants would be treated differently if they got the benefit of current guidelines that is a consideration that the court can take into account when deciding whether to reduce the sentence it is one of the enumerated three thousand five hundred and fifty three dollars a factors and the court could thank you thank you both