three that applies to motions filed by the director of bureau of prisons but there is no statement that applies to motions filed by other people like the defendant that was the conclusion of the nd circuit and united states versus salo or united states versus rocker we think the court should follow that holding that is the simplest solution to this problem what is no one  case in october i don't recall the name consider the argument but ultimately did not decide the issue because there were other grounds on which to affirm i'd be happy to file that authority with the court but i'm not aware of any other that is decided on this issue we have the six circuits decision but if there's nothing else well there's nothing else they yeah the nothing nothing that i could find so that it is the most straightforward look at this there are other reasons why even if we assume section one b one point three one three might control here that this bit of commentary in no one t would not control it has to do is basically an administrative law problem where we have the sentencing commission interpret ng its own regulation its own policy statement and typically that sort of interpretation would be controlling under our or seminal rock deference but there friday situations in which that deference doesn't apply we've laid them out in our brief i think most importantly here is the interpretation of a regulation has to reflect the agency's fair and consider judgments on the subject and it's clear this doesn't this reflects fairing considered judgment a statute that no longer exists and so under that rationale alone this isn't controlling the main points here is under those principles of administrative law that we laid out the district court was perfectly entitled to decide whether this case presented extern airing compelling circumstances and you know the district court might have decided that it doesn't we would i tried looking into that in preparation of the argument i didn't find anything certainly publicly i'm i'm sure that there is something behind the scenes but i i am not aware of certainly any public facing statements what they're regulations i'm not confident that i have a good answer for that it didn't do that in the st acts i think if congress the end the intention behind this was was clearly we're tired of waiting for the director of the of prisons to make this determination we're going to permit defendants to themselves move for compassionate release so i it certainly wasn't premised on any agency at action obviously they that a district judge's exercise of discretion under the st act would be unreviewable no i think it would be reviewable for an abuse of discretion i think it's a decision that is going to be made in the st instance by the district court and relies a fact intensive inquiry particular cases so i think it would be hard to say as a matter of law that in a particular case you know there are or are not extraordinary circumstances and so i think the appellate review would be for is discretion but that's certainly a standard of review that has some teeth and that we're being warned of the if we agree with you district judges will run amok well and obviously we disagree with that and in our reply brief i will say so the numbers that i know at least as of this week i think we've had about eight hundred of these motions granted across the federal system this is a count that i get from a federal defender mailing list there are fit one hundred and fifty thousand federal inmates so it's a little over one percent this is not sort of policing the prison gates this is district judges in individual cases thoughtfully considering whether a particular defendant vulnerabilities particular defend warrants compassionate release and i guess mister henderson that out of those eight hundred dollars motions granted the majority probably somewhere in the ninety percent are covert specific so this one percent is probably not reflective of when we turn return to some sense of normalcy what the numbers will look like that that's my sense as well and of course it doesn't take into account the s of thousands if not more that have been rejected i mean as this is change sentence reduction statute in only one way that's relevant to this appeal and that is it changed the procedure for which defendant could move for compassionate release it granting a direct file allowing the defendant the  the miscible in extraordinary circumstances why isn't that the governing rule it is the governing rule your honor but it's subject to what the commission itself determines what are going to be the  statute says that decision has to be consistent with any policy statement of the commission and the applicable policy statement of the commission and if there is no applicable policy statement then anything is consistent with nothing right we're left with the statutory substantive standard that's what the nd circuit held right which the government believes was incorrect your honor and there's a petition for rehearing on bonk that's been filed in that case i set out in the twenty a j letter of the basis for the government's position and that was incorrect reasoning that let me tell you what my problem with the analysis in your twenty eight j letter is you seem to read the statute saying that release is permissible only one authorized by a policy statement but what the statute says is it has to be consistent with an applicable policy  statement that's what led me to wonder whether when there is no applicable policy statement there's any constraint because anything is consistent with nothing that's the basic problem and the government's position your honor is that there is a political policy statement there are certain parts of the of one b one dollar that are no longer operable under the changes the st act but that doesn't throw out the application about entirely and as we see that the district courts across district courts are still applying it because even in your district and the northern district of illinois district courts are on both sides of the fence that is correct your honor and i think that's set forth in a very detailed analysis  d that ron's case that was mentioned earlier from this i believe it was the th circuit that never really answered that question but lays out the the division or the dividing line as to which way the courts are going on these and but the government's o four in five have references to the motions per the determination by the bureau of prisons but the rest of the of the policy statement but i'm  out the sentencing commission isn't suggest we should carve that out congress hasn't suggested we should carve that out the statement reads as it does on motion of the bureau of prisons but on what basis should please just ignore that introductory language because to do so would find direct contravention with ninety four your honor which leaves it to the commission to describe what should be considered extraordinary and compelling circumstances for a sentence of the statute but it doesn't get into that and so you get to the commentary in the application notes where the commission is give us something with some teeth to describe what the parameters are because i'm on that basis i didn't see really maybe maybe i missed it  direct response to defendant's arguments against our deference to a commentary to a policy statement that addresses really the statute that's been amended in important ways since then so why don't our response was that under the dillon case the commission's policy statements are binding on the district courts further this court th circuit has held that the guideline application notes are part of the guidelines themselves are not merely commentary on them and further under stenson unless there is a conflict of the text of the statute and there is absolutely no textual conflict in this case the only way to resolve the only way to find conflict is if you assume that congress has procedural changes were intended to have substantive benefits which is not the case here because as i indicated at very big opening here the only change that was made to the statute in th two was allowing the defendant said direct while the congress did not expand upon the categories or definition of what could be extraordinary following circumstances and it could have done that in the absence of some specific and deliberate indication of what those parameters might be or what congress had in mind it's not for this court or any other court to fill that void or that vacuum and determine what extraordinary compelling circumstances might be and that leads us to kind of this list of undermining finality in sentencing the unraveling of the twenty dollars to fifty five dollars parameters the undermining of mandatory minimum sentences  sentencing disparity all the things that the sentencing reform act was meant to address becoming problems when there are absolutely no parameters as to what extraordinary compelling means and it is only up to the district  under an abuse of discretion standard to determine whether a court was outside of the bounds just how worried do you think congress is article three judges is confirmed running amok  with with this for me well i think congress should be concerned about a discrepancy not necessarily all judges or a small group of judges or whatever the percentage may be that may find that  to write a new policy that is correct or not and in doing so without further direction of congress the government's position is that the only thing the commission would be doing at this point is changing that language that preparatory language upon motion of the day after a bureau of prisons and maybe addressing application notes for because those are the only two portions of the of this entire policy statement it would appear to be not consistent  now that the st step act was passed in two thousand and eighteen and the district courts exercise their discretion all the time in sentencing issues for motions for downward departure motions for deviations it's something they do routinely why do you think they can't do it in this circumstance because of that list of those discussing before your hon think censure the bureau of prisons is in a better position to make that determination or that district courts can't do that when they were teens really exercise their discretion my answer to that would be that they can exercise  discretion when they are given that opportunity with a clear intention by congress to grant that authority to them but it is congress that's in the in the position of the determining the penalties for particular i think further mister henderson i just wanted to pick up on one point the judge easterbrook you made which is that the statute requires that a reduction be consistent with a policy statement it doesn't depend on a