the honorable the judges of the end i did states court of appeals for the th circuit good morning your honor is to may please the court section four or four of the st have asked just one question did the fair sentencing act modify the statutory penalties for the offense of conviction in this case the answer is yes and that's not disputed we know this because section two of the fair sentencing act modified the penalties in a forty one b one b three for the offense mr worsening committed possession with intent to distribute crack cocaine and it did this by increasing imprisonment in the one i don't believe that that's in dispute the government did of course acknowledge this modification of the statute on page four of its response brief and although some things have occurred since then i believe i'm correct in saying that still where was burnt pretty badly originally i you know agreed positions with the parties he is in prison still today when he could have and should have been released in march and in fact the government then agreed he was understand the result you want in this case and that's important for sure to the parties here but in terms of the rule that you would like us to apply to the facts here what would that  well i think in terms of i mean you are correct that regardless he the result is the same we think it is important for a couple of reasons the court could of course reserve the question of why he's eligible if it wanted to reserve for another and that perhaps an easier way to understand the difference is that the district courts theory and eligibility the government's original theory of the and its current thirty area of eligibility all in our view share the same problem and see reason why they are incorrect and that's because those three approaches essentially seek to take what are discretionary factors under section four of four beat and impart them across subsection defense across the board no i don't i don't think that that's quite the best way to go about it simply because i know that earlier decisions often did refer to the way in the indictment they used that term and i think in in our view that that was know what we can and cannot use to determine eligibility for a covered offense now in terms of really it's not about the weight though it's that's a secondary issue you're saying hurry up does that have anything to not for but do you do you agree that if you get past eligibility and then into the district court's discretion about whether to change the sentence or not that that drug quantity in the plea could be considered at that stage under yes under section four of or be the discretionary factors the court can consider all the relevant information then in determining whether or not tempo's a reduced the waiter in the mail of between five and fifty grams because we're talking about that that well what five to forty year mandatory minimum or sentencing range am i correct aspects of the statute it is do you agree that that in connection with a modification of the senate as opposed to a full recent saying yes we believe it is and is not a plenary wrist sentencing our view it is not quite as limited as section thirty five easy to see to proceedings so it is a limited imposition of a reduced sentence somewhere between  morning your honors in man please the court daniel kane for the united states i'd like to get into exactly where we disagree and agree on the merits of the increase but st i would like to make one point absolutely clear which is that if this court were to remand this case based on it the agreement of the parties and it decided not to not to accept that agreement and i'm not sure that just agreement is made her honor and agree that agreement itself isn't enough this court would have to make a determination that mr morrison's eligible but we think that it's sufficient in this case for this court to hold that assuming without deciding the government's more narrow constricted theory of eligibility applies even under that more narrow theory mr worsening is eligible and i can represent to this court that in the vast array of these cases across this country and this issue has been litigated many times there is no court in this country that would deem mr worsening ineligible on any basis other than that applied by the district court in this case so apply here we agree as a result the defendant's guidelines range is irrelevant to whether the defendant eligible for discretionary sentence reduction in this case it so happens in our view the district court heard in deciding that the defendant guidelines range today would be the same as it was before that's because he's a career offender and the statutory penalties drive the guidelines range for a career offender but in any event the defendant's guidelines ranges are relevant to eligibility rather the question is whether the defendant was sentenced for a covered that's defined in the statute as a violation of a federal criminal statute the statutory penalties for which were modified by sections two or three that are sentencing act and which were committed before that act was enacted and so we agree on all of that and we further agree on one essential point to the resolution of this appeal and that's that eligibility is determined on a count by count basis that's why the district court heard here in relying on the relevant conduct find the sixty grams related to the entire fifteen count indictment mr morris included guilty only to two counts only one of which was a drug trafficking offense and there's just no dispute in this record it's unusually clear in this record th but the senate in the middle of all these things is a he would be sitting in jail that should not be in your honor that's right we agree that this defendant is eligible for meat release of course the district court still has some work to do in deciding receive a bottom of the guideline sentence and your honor to answer your question about mechanisms to make that happen that's what we're trying to do with the motion to remain and here we wanted to remand this case with instructions that mr marson is eligible and leave for another day the vexing and very difficult violation in section would it would suggest that it's you're taking away the retroactive effect because if you take a violation the statutory a reason why your interpretation of violation can't be right and i want to give you an opportunity to respond to that thank your honor no we don't think we're denying the retroactive effect of the fair sentencing act and indeed this case would seem to me as a prime example a defendant whose conduct in fact involved sixteen grams of crack cocaine and both before and i'm sorry before the sentencing act that would have triggered different penalties and one of after the fair sentencing and our view is that congress has done here is invited district courts to consider whether based on the record just as it considers in the thirty five easy to see too much on whether based on the record the quantity of drugs involved in the offense would have triggered different penalties before and after the fair sentencing act the fair sent to apply the fair sentencing act retroactive the st question is did the statute change your penalties per not for this particular person but just did the statute change that you were invited under then the court can take into consideration as a matter of discretion  between pre and post for scenting act and once that itself would be a very unusual statute as this court has made very clear and i quote from united states versus good when the law closely guards the finality of criminal sentences against judicial change of heart to grant a defendant a discretionary sentence reduction is itself a procedural windfall to that defendant unavailable to other defense it's and so for example consider a defendant who is convicted prepare a sentencing act let's say the defendant pre sentencing act was both charged with and convicted of trafficking in a kilogram of crack cocaine that same defendant today everyone would agree is subject to the b one a now if that defendant today receives the opportunity for a discretionary sentence reduction we agree that of course the court could deny the discretionary reduction and thus ensure that like treatment of pre and post fair sensing act of evidence but it's quite unfair there and we would argue a logical that the pre sentencing act offended receives the procedural windfall of a discretionary re sentencing unavailable to the post her sentencing act event and by the way this disparity is not limited just to cocaine based defense would be true for every drug defend opportunity of procedural opportunity for a discretionary sentence reduction but now under the defense theory the crack defendant would we think congress doesn't hand out exceptions to finality in such a scattershot manner but again your honor we don't think that this case is that's what you're suggesting that's exactly right your honor and we see it as as analogous to the thirty five dollars you to seek to increase in which a court courts across the country routinely every day are required to assess whether the quantity of drugs involved in the offense based on the record would have triggered the same guidelines range or not and in that inquiry this court has repeatedly affirmed that there is no problem with judicial fact finding at the eligibility phase of a thirty five dollars c two motion and that's because as the supreme court held in dillon under these circumstances which are merely sentence modification or sentence reduction and defendant sentence can't be increased under these circumstances the th amendment right identified just doesn't kick in because the jury isn't being because nobody's being asked to increase that and sentence but again your honor i really would like to emphasize that this is not the case to decide that question it's a problematic vehicle for a couple of reasons one of which is that the district court didn't engage in the difficult inquiry of what what is required under the texas action for a forty two this is quite an unusual case in that the indictment in this case actually charged a quantity a specific quantity and not merely a threshold quantity which i can represent across the country was the normal practice of the united states and rd this is an unusual case because in part because of the government's fault in filing an erroneous briefing we take responsibility for that but this case hasn't teed up the very complex and very important issues as well as they have been  examples of the issue here which this case does not in those cases one defendant pleaded guilty to so an interesting question there is whether a defendant under those circumstances is eligible where he's actually admitted the greater quantity at a plea colloquy that would be sufficient to satisfy a premie of course and then there's another case in the johnson of washington consolidated appeals in which the quantity was merely identified at was merely found by the district court at sentencing so that obviates any potential apprentice concerns which again we don't think exists and i'm just trying to give this court a flavor of the sort of complex variations that arise in this context this is a  very a little more than a month ago your honor and again our opening brief in this case was running not have been filed didn't represent the government's position on relevant conduct at the time and it doesn't now which isn't to say by the way that relevant conduct can never be informative as to the quantity involved in defendant's offense in this case it is crystal clear from the plea agreement that the relevant conduct was related to the entire indictment the entire common scheme or plan related to the tendons  in this case there's no question of the quantity involved in his offense was sixteen grams this defendant should be subject to immediate release and so we would ask this court for a prompt order remembering this case the district court with instructions that the defendant be found eligible for discretionary particularly out of the eastern and western districts of virginia that have directly otherwise and for very good reason for example this these have come out since the briefing has been cleated and we're only really getting into this now so i apologize these aren't actually  it is not limited by the sentencing commission's policy statements or one b one point one none of those are limits here and so until in suggests only that we should be looking at the text of the statute and that statute is for a for a for a whore imposes none of those limitations and simply ask the court to look at the statute for eligibility all of these other considerations are relevant only indiscretion i also want to indicate why it makes sense for congress to have left this sort of a decision as far as the reduction in the district court's discretion it did reserve the question of eligibility for itself in section four farai but there is only one way to know whether a sentencing court who sentenced a defendant in the early two thousand and or you know in some cases a decade or two ago there's only one way to know if that sentencing court's decision would have been different if you knew then what we know today which is that congress has expressly repudiated the sentencing disparity that existed at the time and there have been a number of decisions that have come out since many of these defendants were sentenced the  st step at the fair sensing act itself you know if any of those changes of heart would have persuaded a district judge to impose a slightly reduced sentence the only way to know that is to give it back to the district court and let them explain if it would or not it makes perfect sense for congress you have done that and it's not in our view a windfall at all it's simply correcting a disparity that we have now recognized as harsh and unfair for people  court that mr singh was eligible and that was in fact our primary concern the legal disagreement we can reserve for another case but that was our concern oh no no no nothing difficult cases and i think it would seem pr to me that in your position you might want to you would articulate you would certainly would like to have the man but the court chooses to basically wrote to the court to make decisions on it at least from your perspective not talk about a long time but you know a month to someone who's in jail as a one time we agree your honor we agree but also we have to be you know st and foremost have to assure that there will be no problems on this remained that we had on the st one we just did not feel that that was correct just in terms of the remainder the powder versus crack i mean the entire point of these you know the st step act was to apply  crack cocaine to the ratio for powder cocaine was not a problem so the fact that a powder defendant may not get this reduction is congress simply wasn't trying to correct a problem there they are trying to crack it for crack cocaine and so we just really think and many district courts have held and we wholeheartedly agree that these are not windfalls not in any sense because they are meant to correct a problem number one number two the sentencing court always has discretion to