please the court i'm very very very appearing for appellant mr brown this is apparently the st st step act that has been presented for this court and my argument is about the district court being able to address my client's clear offender determination that had been made twelve years previously so in presenting this issue issue is i would say we would hypothetically hold that as potentially invalid made an argument below and in my brief that it is invalid but that's not before this court i don't think remained to the district court for the district court to address that issue so what i'm looking for is the district court having the legal opportunity in addressing a motion under st step act to follow the prevailing sentencing law the course than acing law and i refer to gull versus united states where the supreme court in two thousand and seven said that the beginning place for a which would knock out one of the convictions that is a violent crime now can you appeal the new sent the imposition of the new sentence and under twenty well every case that i've been able to see says the judge can't do that can't read reexamined the background he can do that the reduction is a result of the st step back  period and i'm trying to figure out a way that you could access that some and get some relief under the as a result of your titles decision i take the point so i think that this is the only to refer to what your honor has said about the court the courts that have addressed this issue that you have seen have said that that door is not open into looking at this sort of issue you know what we really care about is what the circuits are going to say versus the cats need to be herded in the district courts that have been all over the place and i think that you know head wood is is the one that we have which certainly i'm sure will talk about that a bit but i just want to point out we just have one circuit that has sounded on that issue so far there's various other circuit rulings that have issued but the vast majority of them deal with qualification for a sentence modification so my brief just proceeds through an analysis of statutory construction  we're looking at the plain language of the statute but one of the prime rules of statutory construction that i think we should heed while looking at the language of the statute is the rule we have for merck and company from the supreme court that says that courts normally assume that when congress and acts of statute it is aware of relevant judicial precedent that is not recognized  which is you know st of several deficiencies and i submit that our in heck would and so when the st step act is passed congress is mindful of what gall says and thirty five dollars and they are essentially writing a new power of the court the district court to modify a sentence and it's like a piece in the jigsaw puzzle that fits in and congress is aware of what the rest of the puzzle looks like so that is that is where we begin and that's why congress i say intended for this to be impose a reduced sentence there is a qualification as that is satisfied and so using the word impose two times i think is significant because the court that originally so and also by saying that and they impose the fair sentencing after of two thousand and ten i think it sections two and three the nd and rd section and that implies the st one  not apply so so i think the point from what you see in this statute is that congress knows how to write these limitations and we have even more credit than they do they you know while they're at it why would they also that it's limited maybe something like calling this innocent commission to figure out what's what are some good limitations we should have and then we could have something like we've had with the retroactive sentence guideline changes but they didn't do something like that so i mean that gets into another rule of construction which is you know if congress is using this terminology this looting terminology which we also see with limitations and we don't have any sort of limitation here that we would expect congress to do what it ordinarily does if it means there to be a limitation that's going to express it so i think another consideration is the facts are hypothetically are assuming for the sake of argument that the clear offender designation is invalid and you know what that signifies when you have a sense that is reimposed if you will and let me know to head what at the very end says the court that is doing this business is imposing  word and so when you have this reimposition of a sentence that not a legal career offender senates anymore it's trickled down from the guideline that dollars especially including the requirement to avoid unwarranted in the same disparities because down the hall some other fellow at the same amount of crack cocaine client had twenty grams of crack cocaine who's not a career founder by virtue of the th circuit case on flowing sleeping a farm in oklahoma that person is not going to be sentenced as a career offender to congress and ten that were congress have intended that and we should expect to see some sign that they would've and seeing hearing or hear yeah that's why i'm not here to address where that line may be drawn if there is a line drawn out how should we do that how should we draw the line the issue presented in this case is may the court correct a college degrees got a ministers or while he's been in prison the court could not take that into account but could take into account this other situation i'm not porting to draw a line so for in my reply brief gets into this a little bit there's a washington district court case that's called us vs washington that sided in the government's response brief and so the st part of my reply addresses this concept and i'm saying i don't need to argue plenary i'm not arguing plenary in washington there are issues raised such as th amendment and equal protection and the district court is saying and i'm not getting into all  that reopening factual disputes was also a numerated by that district judge in washington and though that's not related to my issue my issue springs from the fount of the supreme court case that tells us in call to begin all soon and sings with a correct determination of the syncing guidelines and where the reserve anticipate i'll be wanting to reply to thank you look at career offender designations that may or may not be accurate i'm sorry you say may or may not we know that it's not accurate given or tied each case i would agree ok and so the disparity is huge if you take that into account in reimposing or imposing a sentence how do we handle it i mean to me it bothers me is this justice or is it is a what is it when you say we'll even though you didn't really we said that's not a crime of violence we're going to pretend it was and we're just going to give you a twenty month back actually it is it is not pretending that it is all right now it's recognizing that at the time this man has sentence twelve or thirteen years ago at that time it was correct well it was not because it was deemed to be unconstitutionally vague forever and the fact that a lot of people made errors and and nobody raised it until until the individual in this particular case  doesn't really remedy the situation from a fairness standpoint there are competing i recognize within what the judge saying there are competing considerations for fairness in this case one of which is what the court mentions and against that you're also weighing what the supreme court has told us and ellen and in other cases that we start these analyses from a understanding that when a sentence is entered it is supposed to be a final plowright and so you have finale concerns that that i know this court grapples with just based on the typ these intervening facts in the intervening developing that now make the sentence wrong now if they hadn't come before us under the st step act we'd have these questions  thing that the court has to consider in this fundamental fairness and what is just judge me sarah just mentioned that we have another process for raising these questions whether they're going to be successful or not may depend on whether would also be unfair for all of those defendants who for whatever reason are not able to successfully challenge a career offender designation to go back now and grant only those defendants who were caught with crack cocaine a nd bite at that apple would be fundamentally unfair it's unfair to other drug defendants and it's unfair to those people who are cynics for non drug cases while the congress and the senate some commission i think have gone a long way in trying to correct that disparity between crack and powder cocaine i do not believe that there is any sense in the law that the court meant to grant them a special gift and say you crack defendants and you alone can come back now and challenge your career offender guideline i believe that that is why every district court save one that i'll speak about in just a minute every district court that i can find that has considered this question has followed heads would now a lot of us may not be published they don't engage in a long analysis they simply cite the analysis of that th circuit case which goes there looking at the text looking at the as if the language we have an unpublished circuit case considering not this but whether or not you can go back and correct for eight but for death from the drugs sort of an answer went and in that case united states versus carter the court also didn't allow us to go back very very file these ancillary proceedings and then his solid atum and is in this case before the district corps oh how could he have his issue stiff gets of appeal ability that have been denied applications for a nd subsequent twenty to fifty five to look at johnson denied after beccles came down he's filed a couple of things under the all writs act he's he's tried a dismissed as an opera twenty to fifty five so he's had a chance and he should not get an extra chance that other defendants will not get if they were not crack cocaine dealers is that we look at the text which here is applying we look at the other element of statutory construction that is that the expression of one thing excludes another here the court said you were to apply as if section two and three had been in effect at the time congress did not intend that other changes would be made as if they too were in effect at the time of the offen the only case i found that promised to get back this one bit for forget the only case that i found where under the crack cocaine the career offender designation was allowed to be challenged found around eous and relief was granted it was a final thing i want in that case though where it was allowed it was allowed not because of changes since that time it was allowed because at the time of the senate's was imposed there was an error in the career offender guideline so back in whenever it was erroneous we imposed at that time under the law at that time and that's not what we have here i will be happy to submit a twenty eight dollars j letter with that citation and with the court's permission i'd also like to list k this notion of the expression of one thing implies that there is not another thing that's intended is very very broad and doesn't give us much congress press releases and the sponsoring congressman and their statements about what we intend and i've seen all that and have not seen any inkling of that but it's an apples and oranges thing though where you have congress expressing we can retroactively apply these new sentencing ranges in the statute and somehow that implies that following the standard sentencing apparatus in federal court is is negated because it's not mentioned it's there apples and oranges that there's no reason the congress should have naturally thought well we need to address what paul says about the law there's no reason that it should have occurred to congress to to say anything one way or the other about that so the silence speaks to us thank you the case is submitted counselor thank you very much cordesman recess