represent jose rodriguez i'd like to reserve three minutes for about oh that's created mr rodriguez the command for reconsideration of its thirty five eighty two sentence reduction motion i assume the court and i also as you might have seen i went through a catalogue some of the recent cases thirty five eighty cases and twelve ninety one was cited as the jurisdictional basis in fords case which i think displaced was an applied repeal of twelve ninety one the tenth circuit pointed this out in the in hon about ten years ago that there's no language in we send a format that restricts twelve ninety one there's standards about when something can be considered implicitly repealed these are really a conflict between the two sections well i think they're complementary more than anything else and particularly when you question if we want to agree with the government are we in the position to do it would have to be an buck proposition five eighty to mention problem might be won and one of the reasons why i think there is a presidential value even though maybe the jurisdictional aspect was an explicitly discussed is the problem the central action motion requires in step two as don't set out the two steps for determining central duction motion in step two the district court is instructed to justice had the opportunity to closely examine the issue and came to the conclusion that thirty seven forty two there's not provide a basis for jurisdiction to review a discretionary denial of a rule of a section thirty five a to c motion and given the department's position that's the position of the department is taking across the country and i believe this is probably the first case and the third side in which the government had the opportunity to address the issue and so they did precedent  scanlan in the ninth circuit case where the special concurring opinion explaining that he thought the ninth circuit's rule was wrong but that they were bound by ninth circuit president but that that precedent was fundamentally a conflict with the supreme court's decision and bill and which jurisdiction under twelve ninety one or thirty seven forty two or some combination of the both of them jurisdiction was not raised and this is just one of those classic examples where the only cases are those code tried by jurisdictional rulings that the supreme court the jurisdictional basis for the reasonableness review the work of required the court elected not to go that route and one with thirty seven forty two a why and i think that's different from the analysis that would be at issue here and you get that from booker later in the opinion when the court addressed whether there was jurisdiction for it to review the discretionary did not have a departure motion at sentencing and the court held that under thirty seven forty two the court did not have jurisdiction and the court  not then go to twelve ninety one to determine whether it had jurisdiction i think of twelve ninety one could play a role here would fully supplant thirty seven forty two essentially rent men during that statutory provision meaningless i think in addition to cooper make night the case that i mentioned in the twenty chain letter filed yesterday identifying jones essentially compels the jury the government's first actual position on this case because  discretionary decision not to grant a downward departure motion and make night also post but the case the court held that the court did not have jurisdiction under thirty seven forty two to review a discretionary decision on adequate adequately exercise its discretion and so this court no i'm not talking about adequately i'm talking about in the exercise of discretion we h where the court would have jurisdiction to review a district court's denial about say thirty five eighty to see motion would be for instance whether the district court even considered the thirty five fifty three a factors are considered income miscible factor and so when kraus tried to distinguish the thirty five eight you see contacts in the rule thirty five b contacts i think that fails in both provisions you have language that essentially leaves the issue to the discretion of the district court i believe both provisions the term ag and mr kraus mentioned that in thirty five eighty two you see that statute compels a district court to consider the thirty five fifty three a factors that's true and it's a district court did not consider the thirty five fifty three factors if that was present from the record then this court would have jurisdiction to review that issue and determine whether the district court actually considered the thirty five fifty three a fact which is colored good or pretty complete job is what you're going to be telling us right action in this context makes sense because there's no possibility that a defendant can receive an increase sentence at the end of this proceeding and congress could be very explicit about removing jurisdiction right i think that's correct your  jurisdiction in a case like this and that's because of the supreme court's decision indoors and city but the court said that where a sentence falls between the statutory minimum and maximum appellate review got it and but if this court were conclude that twelve ninety one could potentially authorize jurisdiction in this case then i think there would be a conflict because under this course decisions in big night and cooper thirty four seventy two does not authorize context and again i'll just point the court to this decision within the night and i don't believe there's a meaningful way to distinguish the discretionary decisions that were at issue in those cases from the discretionary decisions that maybe thirty seven forty she doesn't even apply in this context because i ruling on a section thirty five eighty two c motion is not a sentence and so doesn't fall within thirty four so shouldn't thirty seven forty two again i forty two governs the review of sentences and that's exactly what mr rodriguez is asking the court to do here and in mcknight this court sided mcandrews and expressly rejected its holding and so i think this issue has already been resolved by the court and the same goes for cooper cooper when analyzing whether it had jurisdiction to review a discretionary decision not to the party downward again only analyze the issue under thirty seven forty particularly public safety and the fact that this defendant had engaged in a year's long conspiracy involving multiple states of drug trafficking conspiracy he had a lengthy criminal history that resulted in a criminal history category of five  including the fact that after his most recent couldn't a lot activity criminal sentence in two thousand and three after he was released he almost immediately began the drug trafficking conspiracy that resulted in a conviction in this case and given the  case i think that's an example of another one of these cases in which the government did not raise jurisdiction to the government's fault and so the court tonight analyzed the jurisdictional issue on the merits starters fully apply kobo here because in stier the court was presented w