the fair sentencing act reduced the mandatory minimum that would be a put mr downs from a ten year mandatory minimum down to a five year mandatory minimum the district court erred by concluding that the fair sentencing act does not apply to mr downs and mr downs should receive the benefit of the fair sentencing act for three reasons first the term sentencing as used by the supreme court in its dorsey decision is broad enough to encompass the entry of judgment second mr down to receive the ineffective assistance of counsel and third the dorsey case applies retroactively under twenty eight u s c twenty two fifty five subsection f three well in the sentencing point i think you probably know we're going to say i mean thirty five fifty three refers to the it says the court at the time of sentencing must state in open court the reasons for its imprecision of particular sentence i mean clearly that say that sentence the time of sentencing is the sentencing hearing which i think if we asked one hundred federal judges before this case come up probably about one hundred would tell you that's what they would think certainly sentencing begins at the sentencing hearing but that process is not concluded i'm a sentencing i mean this is law thirty five thirty three is law in the criminal rules or law and they repeatedly refer to sentencing as being the sentencing hearing i mean those are wall rules enabling that yes or no they are law but they are specific to the context in which they are applied and here the dorsey case was dealing with when the fair sentencing act should and should not apply to defendants where that cut off line should be in the supreme court and it is you know  after the date of an act i mean there were talk they were trying to redefine sentencing there as i recall i think if you want to they did not deal with what the definition of sentencing is and they certainly weren't dealing with a rule thirty five motion i mean they weren't discussing the rule thirty five fifty three a factors what they were trying to do was under the specific concerns that they were dealing with regarding who the fair sentencing action applied to you where the line is to be drawn and the court said sentencing the court did not define sentencing in one particular way or another so dorsey's not very helpful in trying to find sense right you know one thing that the equitable sort of argument before in the case i mean you know i mean we can't just take dorsey as a mandate that everyone should get you know everyone gets shorter sentences obviously congress wants shorter sentences congress could with the stroke of a pen written retroactivity provision into the act and none of us would have this problem they didn't do that and then you have a background principle also in the statute presumption is the sentencing  law that applies is the sentencing law when you committed the crime so i mean just saying that dorsey is about fairness i mean dorsey was a creative case but as the court of appeals dorsey does not let follow through thirty five fifty three rules enabling the background statute we have to apply the law and not just sort of you know we're not a court of equity up here certainly on and i'm not asking this court is broad enough to extend to or encompass the entry of written judgment but in the court on sentence the court indorse he gives us a hint at least the court indicates that it's unfair to apply the pretty fair sentencing act to mandatory minimums after congress determined that they were unfair specifically the court indicated that limiting the f s a to post act conduct would and i quote involve imposing upon the pretty act offender a pretty act sentence at a time after congress had spoken typically found in the fair sentencing act but such a sentence was unfairly long as the imposition was an after and they drew a line i mean i certainly there is your honor and in this case it was abundantly clear that the president's signature was effectively going to be a rubber stamp and the d c circuit court goes into some detail in discussing all of the information that was out everybody that that would be the retroactive rule was that i mean in fact our court ruled it was our governor certainly during the dorsey case did determine a circuit split however this was was a reasonable was a reasonable outcome it was the outcome that we got and while the courts had held that dorsey was not a political to anyone to any pre act conduct other circuits had held that it was so there certainly were reasonable jurists that could see it one way  other and given that the supreme court ultimately concluded that it applied to preset kind of cuts against your ineffective assistance of counsel reasonable people could go either way but not always the attorney's advice stated was that the it was an reasonable to fail to request a continuance in that case because there was a reasonable probability that jurors could conclude one way or the other and the court indicates that when you  looking at the first prong of an ineffective assistance of counsel claim which is the deficient performance pong that is viewed under you look at the attorneys conduct and can see there whether it's on reasonable under the prevailing professional norms as evaluated by reasonably competent attorneys in that case the court noted that the defense bar in general was asking for continuances and that because both houses of congress had signed the bill and there was such publicity that the court was likely to approve it that failing to seek a continuance was ineffective assistance of counsel because it would be it was possible that the court would ultimately that the supreme court of the circuit court in that case ultimately determine that it did apply to pre act conduct you know that i mean obviously it would work out better for him in terms of an ineffective assistance claim you just have a hard time with one u s c section one of the federal saving statute which expressly said that the sentencing laws that apply that would apply to him are presumed to be the ones when he committed the crime yes your honor and then you had our court and you had a whole bunch of other courts i mean there was it was a creative decision dorsey i mean the court sort of acknowledged that you know six factors that really didn't have much to do with anything in the statute i mean it's hard to see how it's just ineffective performance for a lawyer not foresee that decision that the d c circuit certainly saw of otherwise and while there was the saving statute that you reference the sentencing act of nine hundred eighty four i believe also indicated that the law should apply that's in effect to the time of sentencing should apply to the defendant so as the supreme court held there were conflicting statutes out there court could hold its hat on one of the other to conclude that it applied to pretty act conduct one thing that is i think significant in amman case which is the d c case is they said there was no sound strategic reason for failing to request the continuum of your best argument and it would have cost the defendant nothing and the possible benefit was undoubtedly significant so the failure to seek a continuance under the circumstances in giving the possibility the reasonable possibility that the fair sentencing act would be applied retroactively just be hard to foresee you know it's not like the court had granted cert in dorsey at the time of the sentencing here i mean who who would have known that the court come out that way and then just very hard for see that well certainly the d c circuit indicated that the defense bar in general had been moving towards asking for continuances in those cases precisely because of the concern that the effective date of the act would potentially make a distinction or difference as to whether or not an individual would benefit from it  the question is whether there's a reasonable probability that a continuance would have been granted under the prejudice problem but thank you for the questions right you'll have you were both good morning mate please the court bill roache for the united states petitioner downs was and remains correctly sentenced nothing in the fair sentence sing act of two thousand and ten changes that result in because petitioner was sentenced after the this before the f s a became effective and for that reason the supreme court's opinion dorsey lives no support in an attempt to avoid that conclusion petitioner tries to extend the date of sentencing but as the  recognized the sentencing happens with the oral pronouncement of the sentence the federal rules of criminal procedure require a defendant to be present at sentencing the rules and provide if we assume as as we argue that petitioner was sentenced before dorsey became effective basically every court two of analyzed this issue is held at the fair sentencing act simply does argument at the outset procedurally of the certificate of appeal ability doesn't it isn't broad enough it doesn't ask or it doesn't consider ineffectiveness of course this this court can expand that and if it does i think you know first of all the claim as a district court held as untimely but to the merits abney got it wrong in addressing the deficient performance of the conclusion in that case puts forward too high of a bird on a defense counsel to predict a change in the law not only was the fair sentencing act not a political when mr dorsey was being sentenced mean that the president had not signed yet could have been vetoed nothing is a guarantee in the legislative process and this court has held before that  the standard is not clear who wants an attorney is not held to a standard of predicting changes in the law now secondly abney essential he put a burden on council to  not only predict that a law would become effective but that a wall would become retroactively a political in the face of the general savings clause which had not to my knowledge  ever been overridden by a penalty scheme a penalty scheme that was repealed by a new statute in so it just it's it would be a bridge too far to require an attorney in that situation to not only predict that a law would become final but to also be clairvoyant enough to predict that that wall would be retro active preexisting scheme was still subject to the penalty even when a new penalty scheme was passed was passed later and it's clear from it's clear from the record that eighth in the sentencing memorandum and page three forty seven of the record that the got the minute that his amended guideline range would have no effect on down the sentence because downes was subject to the statutory m metal and he he reasoned or analyzed it appears from the record that based on the fact that the fair city act most likely would not be retroactive  given that i just add me in the d c circuit you just simply got got it wrong in terms of the deficient performance standard and we would strongly urge this court if it does honour's the government has not directed this court to any case which has addressed the specific question at issue here which is whether or not the definition of sentencing or the term sentencing as used by the supreme court in dorse and that is also the date that triggers the statute of limitations for twenty to fifty five cases i mean why isn't it simply that the judgment reflects the sentence longer thanks certainly the judgment does reflect the not the end of the sentencing process and that cannot be appealed until that form of written judgment is entered in the record and that's indicated in believe it's pronounced baikal case which is cited by the government entry of judgment is an important date and the definition of the use of the term sentencing in dorsey is broad enough to include that date and that would not not arguing that mr downs doesn't deserve a reduction because of his conduct or because of his personal characteristics they're also not arguing that any new sentence or sentence under the post a mandatory minimums would or should be the same as they were originally the only reason asserted by the government to not apply the fair sentencing act  downs is that his sentencing hearing occurred the day before but congress had already determined that the mandatory minimum applied to mr downs was unfair and that it was too hard the continued application of the three fs a mandatory minimum to mr downs is not required by the supreme court's dorsey case certainly the continued application of the pre f s a mandatory minimums is unfair while sentencing begins at the sentencing hearing it's not complete until the judgment issues the fair sentencing act applies to mr downs and accordingly we are asking the court to reverse the order of the district court and remain for recent before