here before you this morning because he is eligible for a new doc shouldn't just sentence under the amendment to the sentencing guidelines seven hundred and eighty two and pursuant to the supreme court case hughes versus the united states the district problem with applying davis to this case is three fold st of all davis didn't concern the application of the eleven c one c agreement it was  cocaine specific quantity findings were made in davis for each defendant and the court was not bound by the plea agreements which the dependents answers none of these things are true for mister so the other thing that happened in davis which distinguishes it from what happened in mr john's case is that the davis court ordered new probation reports for each of the defendants and then went through and repeated the original sentencing calculations the original amount that were found and the new reports as well this also was not with respect to mr g in fact at his original sentencing hearing no specific an accurate characterization of what happened because as the court knows under the guidelines a defendant may find to admit or deny the facts in the p s i i in order to preserve his acceptance of discussed in the future which applies to sentencing did not apply in this particular case and the government pursues this contention as well under united states versus state but they take a very narrow reading of what  said about the ex post facto clause because its concerns are not limited to fair warning and such it they are also d concerned with even where these concerns are not  liberty or life and those are the concerns that are implicated here because if we look at the broader context amendment seven hundred and eighty two was meant to correct the problems of disparities in sentencing the draconian sentences that are required for and under the guidelines for drug cases and to partially address the problem that we have with mass incarceration in this and those concerns should be given play in these kinds of sentencing reduction requests and the courts and that we're trying to narrow this to prevent a person from benefiting from the change of the law but to read the law in his favor as far as possible as congress has decided that this is something that should be done it's the sense a commission has also instead of reading sufficient facts in the yes i there's nothing to prevent the court from finding that that person isn't eligible because the guideline is not and that's done in the context of an ordinary plea agreement in a case where specific findings were made with respect to the drug quantity in this particular case you can't say the same thing for mr john because there weren't particular quantities found beyond the ones that he admitted to in his plea rely on that stipulations in the plea agreement that your client was responsible for more than dollars upper range amounts of drug quantity and then referred to the more precise findings in the p s r which are accepted by all at the original sentencing no objections were made true in reliance on a lock in play agreement but it is the case that no objections were made to degree and level of your client's drug dealing over the course of a lengthy period of time on a massive scale and determined that he would have had the same base level even under the new guideline is so that the new guidelines can't help it wasn't an eligibility kind of a finding as a as a matter of law just that he didn't and the new guidelines wouldn't help him because the amount of drugs that he was stealing exceeded the new baselines your honor i think that st of all it's incorrect or inaccurate to say that he stipulated to the facts in the plea agreement it's true that the parties neither party made any objections but that's not the same thing as accepting or agreeing or admitting to what's contained in the well there was no conjecture well that's true but under the guidelines a person can not of which is taken as either neither an admission nor a denial in order to preserve his acceptance of responsibility and there was no reason for him to object to anything in the p s i i because the p s i i of this particular sentencing was irrelevant so in order for mr shihan to be held accountable and the guidelines so it's our position that the court was bound by what he admitted to in the plea agreement that they could not in this particular case apply what was in the p s a without it wasn't litigated because of the nature of the plea agreement and you can't apply those particular facts to mr time without violating the ex post facto clause in his case which essentially amounts to determining that he has a higher  level than what he admitted to in his binding plea agreement which would increase his sentence rather than reduce i see i'm out of time i'd ask the court reversed the good morning it may please the court sorry shop will be bhattacharjee for the united states the district court correctly concluded the defendant was not entitled to a sentence reduction because based on the undisputed record facts as they existed at the time of sentencing defendant's guidelines range ability to make factual findings if they are not inconsistent with the record as they exist in the time of the it for original sentencing that's precisely what the district here and the minute order denying defendants motion for sentence reduction the district court cited both the admissions in the plea agreement as well as the undisputed assertions in the p s r that attributed to defendant trafficking over one hundred and fifty kilograms of crack cocaine which is six times more than the threshold set by amendment seven hundred and eighty two dollars for a base offense level of thirty eight and since the base offense level is the only issue in dispute here and defend its base offense level doesn't change the one hundred amendments seven hundred to the district court correctly concluded he's not entitled as as a matter of law to petition for a sentence reduction i'd like to address defendant's statements regarding why no objections were made at the time of the original p and i don't believe there's anything in the record that indicates either party was prevented from making non frivolous objections to the p s r inspectors statements what the p s r did find is consistent with defendant's own sworn admissions in both his plea agreement and in this change of plea colloquy in his plea agreement defendant admits to being the street king of the black disciples gang which is over the course of more than a decade and helming this prolific drug trafficking organization that was responsible for multiple drug spots including this calumet building which a cooperating witness indicated in the p s r was responsible for pushing out one point five suppose the only remaining question is whether the district court's reliance on the undisputed factual record at the time of sentencing somehow triggers the protections of the ex post facto clause and defense counsel's right the government is relying upon this court's decision  there is no possibility that the defendant would walk away with a higher sentence which means that the ex post facto twice in the protections simply are not engaged by this type of proceeding even so defense counsel argues that the court should a factors like that disparities in sentencing policy statements if but only if the defendant had proven he was eligible for a sentence reduction because amendment seven hundred and eighty two lowered his sentencing that did not happen here and that's the that's the simple fact that the district court relied upon in make its ruling here that really was not error and so the government would respectfully request that the judgment below be affirmed if the court has any questions i'm happy to answer them