the united states court of appeals but the th circuit is now open according to law that the united states and dishonorable courts good morning this judge bill pryor thank you  for all being here this morning in this unusual circumstance of conducting all arguments by telephone it's a practice that has been working pretty well for us over the last  few weeks and we have some important cases to hear this morning judge grant and i are very pleased to welcome our new colleague from the middle district of florida i say new relatively new colleague from the court section forty four dollars of the st step at is a broad remedial action passed by congress to reach all federal crack defendants convicted and sentenced during the two decades that the one hundred district court in this case found mr jones wasn't eligible under four for a of the act because he was charged with the mixture of both powder and crack and because the statutory penalties currently a  forty one a one and his penalties were set by b one day and his sentence was entirely driven by the crack since the general jury verdict in his case did not indicate whether he was found guilty of crack power or both under us vs alan the district court can only rely on the jury's verdict of guilt for the crack since it has the lowest statutory maximum penalty and none of the limitations in four foresee apply to mr jones for forty also does not prohibit eligibility for people like him with mixed drug offenses and it doesn't  any relevant conduct drug amount also the district court error when it found that the fair sentencing act did not modify b one c the drug quantity n b one c if tied to the all right so the district court found his original senate saying that mr jennings was responsible for at least seventy five grams of crack cocaine right yes  and as i understand it what the district court said was the statutory range for that offense with that drug quantity finding which was a drug quantity on thing made for not just guidelines purposes but for statutory sentencing purposes did not change anything with respect to the penalties that would have applied to him if the fair sentencing act had been affected at that time yes around and that is what the district court found so the real question is if if if the st step  whether the penalties that were changed by the fair senate seeing act if they had been available at that have been the statutory penalty framework at the original senate saying whether th made a difference if that the way it works it would have made a difference what it well i think the way that the fair sentencing it works is you have a two step process the court determines eligibility under four for a and that is just a categorical question so the categorical question under four for a looks only to the nature of the underlying statute of conviction so if he was convicted of a statute that was modified by the fair sentencing act he is eligible to have his case reviewed and i don't devoted to what who who's eligible under that st step but it seems to me that when you get to the next step and the question is if you w becomes almost academic if your statutory penalties didn't change yes ron i have a few responses to that st in mr jones case the court never got to the nd step the court found that he wasn't eligible and then didn't go any further than that also i think when you get to the nd step the statute for four b c is that the court is allowed to impose a reduced sentence and when the court imposes a rule a reduced sentence today it has to impose that sentence based on the current constitutional requirements and so when looking back as if the average language is only there to make the statute retroactive and so that the court can apply it and so when looking in this particular case when the court looks back it's still going to be constrained by what the jury found in this case and in mr jones case the jury did not make any drug finding so mr jones if he were to have his statutory penalties reviewed today he would fall under b one c because the jury didn't make any drug finding his new statutory penalty is now  o to twenty years which is a change from what it was before under b one day i don't understand what in the act suggests that the the application the retroactive believe the language of the statute does not limit the court from applying would if constitutionally required today as i mentioned before i believe that that advice as if back for someone who has already been sentenced who is being considered for reduction of sentence when the drug quantity funding can't be used to increase that defendant's punishment the punishment he's already received the only purpose that it can be used for is reducing his punishment so there's not a constitutional problem no six the problem in this context is there your honor i believe that very is because if the court were to base the current statutory counties on what the judge found that would be a constitutional violation because you cannot determine stature now that that's already happened that's already happened that's not something that's going to happen and this proceeding the drug quantity finding was already made the defendant was already sent it's based on that we know apprentice and you know that line of authority is not retroactive on and so that's behind isn't it well respectfully on our i would disagree this is not a collateral review case this is a statutory practice i believe that if the court were to allow the district court to rely on the judge findings then and those judge findings clearly differ from what the jury found then his statutory penalty would be higher then what was justified by the jury finding that kind of a higher than his current sentence i think that's time that mr jones was sentenced it was not constitutional for the court to sit his statutory penalties based on what the judge found so those that are toward penalties have to be based on what the jury verdict found which in this case the jury did not find scuse me a specific drug amount and also with particular to mr jones mr jones this case never got to this stage has he never even got any type of initial review because the court just said well he's not eligible under four for a so what we're asking the follicle judge prior's question from earlier let's say that let's say that c because his statutory penalties must be set by what the jury verdict found in his case that puts him under b one c and so his maximum sentence now would be twenty years and not li again thank you please the court in this appeal the court must decide what benchmark district court should use to determine eligibility for a discretionary symptoms the time sentencing section four hundred and four is not the broad remedial statute that jones indicates instead it's text its structure and its discreet purpose indicate that it serves a narrow function namely to give a nd look for certain defendants who sentences were affected by the change or would have been affected i should say by the change in quantity thresholds brought about by the fair sentencing act in tw decisions at that time remain unchanged now i think there's a discussion or at least not suggesting anything else is different yes your honor i mean it's not  look at it both ways i would suggest that the language actually is clearer by saying that you look at the fair sentencing act as though it were in effect at the time the offense was committed meaning that you look at it at the time of the offense and at the time of sentenc honor i think you can also look at it just as strongly if not more so by looking at what the statute does not say and it is certainly true that neither the fair sentencing act nor the st step back provides for didn't over resend it saying it decision whatever decision it makes ought to be grounded in the text of section forty four dollars and the purpose is it serves a pretty in allowing our decisions that apply to initial sentencing decisions and they do not apply to motions  there was no basis for which he could receive a reduction as the fair sentencing act were in effect at the time he committed his offense he certainly would have been subject to the highest range of statutory penalties in twenty one dollars u s code section eight  for consideration does it really matter all that much when when at the end of the day if a defendant has been determined to be eligible if we if we determine just what you were outlining that this is a defendant for the statutory penalties would not have changed under the fair under the fair sentencing at and therefore it's not you know should not receive a reduced sentence under the whether they were eligible under a really is more to me at least an academic question am i wrong so your honor i think that's right quantity established at sentencing the firm covered if it means a violation of a federal criminal statute the statutory penalties for which were modified by the fair sentencing act st the use of the term violation is notable and it is broad to encompass the defendant's conduct moreover the decisions that have relied on sort of this clause at the end the statutory penalties for which were modified by section to refer to the fair sentencing act those decisions have several problems one is the obvious federal criminal statute or certainly a phrase that continues to modify violation and simply put what the fair sentencing act did was it did change the the framework for violations meaning then the penalties for the violation because violation was committed before the fair sentencing weren't modified by the fares at all  and that's a reason to read the penalties cause as modifying the statute not the violation but it seems to me at the end of the day it doesn't really matter  at the you know if you look at the defendant and determine that this sections two and three of the fare sentencing act didn't change a statutory penalty your honor i have a couple of responses to that question i would like to begin with with sort of the back part which is that i agree alternately that the statute should be read as a whole and when for for a and b are read together it provides no basis for setting aside drug quantity it entails a simple calculation where the fair sentencing act is the new lens that evaluates the defendant's actions as they stood at the time of the offense i would also suggest that the fair the fair sentencing act sentencing act then with the last clause that was committed before august rd two thousand and ten therefore the violation is of a flavor that the fair sentencing act modified but it was committed before august rd two thousand and ten meaning that the defendant likely was not a po and if the defendant fail within the narrow class of persons under dorsey who was entitled to the fair sentencing act section four forced the steps in to say those defendants who already receive the full benefit of the fair sentencing act  ineligible and that part that the way those statutes interplay actually suggest that that congress was focused on correcting a specific disparity namely the changes in quantity that occurred under the fair sentencing act under the statute and congress was not intending a broad remedial action to a to attempt a sort of post hoc nd look at sentencing indeed that's flatly inconsistent with section four b which talks about that it was in effect at the time the covered offense was committed that interpretation also would create two absurd results that i wanted to be sure to talk about the st is it would place crack cocaine defendant congress was intending to allow these defendants to step on a plane above other defendants instead it was to remain a particularly disparity the other challenge with this approach is that it would place older crack cocaine defendants on a plane above newark crack cocaine defendants more recent crack cocaine defendants who were sentenced and charged under the procedures and circumstances as they would apply under current law there's absolutely no indication that congress intended for a defendant li jones who was responsible for vast quantities of both powder and crack cocaine to be able to revisit his sentence in a holistic manner instead jones should be subject to the quantity that was both found sentencing and reinforced in the subsequent post post sentencing briefing in this case where he has sought various sentence reduction motions in the past and have those denied moreover this court also should evaluate section particularly instructive here dylan addressed section three thousand five hundred and eighty two dollars c two which deals with retroactive guidelines provisions but it's reasoning on issues like drug quantity and allowing district courts to rely on  judge found facts and concluding that that doesn't create sex the th amendment concerns certainly read in dillon an interest in allowing students and courts to consider judge brown back for purposes of a sentence reduction and at the end of the collateral review or re sentencing by another name meaning he wants the district court to simply evaluate these issues through a written motion that's not what it's even more than that i mean it's fairly recent isn't  looks at the jury instructions in his case however he would preclude a district judge from being able to fully consider and fully evaluate the quantities for which he was responsible and ultimately what judges should be able to do with motions is to evaluate the full sentencing record and determine what that record stablish is therefore the district court correctly concluded that jones was an eligible under the st step that the district court's minutes yes your honor very quickly the windfall or the disparity arguments and all of the arguments that the government has made they have been all of the district courts that have looked at these cases have rejected  and the government's entire position there is no similarity between the st step and three thousand five hundred and eighty to see to all of the courts agree and even the district court in this case agree that that the st step broad purpose to give crack offenders one chance in individualized review on the mir it's and we when you look at the background that came before the passage of the st step act it's clear that congress intended to reach back and look to all of those crack cases sentenced under that one hundred and one disparity that were not previously eligible for any type of review under the changes to the guideline amendments and as far  as putting crack these crack to finish above the crack defendants that again i think is a is a policy disagreement that the government has that doesn't invalidate the law or allow the court to interpret the statute that's contrary to what the language of the statute say is and there's no the way that someone like mr jones would be above someone who sentenced today because in one thousand nine hundred and ninety four mr jones was sentenced under mandatory guidelines it only took fifty grams of crack for a life sentence there's no way that he would have been able to argue for a downward variance so it's clear that somebody like mr jones just by getting the opportunity to have one look at his case is not getting any type of windfall and is not being put above their crack defendants being sentenced today because the sentencing schemes were completely different so you know i think that looking back at what the district court did in this case mr jones never got his one opportunity to have his case reviewed and considering that the purpose of the st step is to reach back and give eleven look at all of the sentences that were sentenced under the racially disparate one hundred to one sentencing scheme is not placing them above anyone else so the district court erred as a matter of law and improperly prevented mr jones from getting his one chance at sentencing review and all we're asking this court to do is to give mr jones that one opportunity thank miss thank you ms kim we have your case and