martin your honor my name is susan champion and i'm here on behalf of my client malcolm mckee who is currently serving a mandatory life sentence for a nonviolent drug crime he's already served over two decades in prison for this nonviolent drug crime and as noted by the court below there is no question that mr mcgee sentence would be substantially lower or he sentenced today but the respect the least submit that they are not strictly bound by these guidelines and in accord with judge riscos recent concurrence in rodriguez we urge this court to follow all the other circuits that have addressed this issue and to amanda's case able to file this petition thanks to congress's expansion of section three thousand five hundred and eighty two which now allows individual defendants to file petitions for compassionate relief directly to the court rather than having to wait for the for b o p to do so the court below denied relief for mr mcgee on the ground that because congress had not explicitly made the amendments to the section under which he was sentenced retroactive reducing his sentence would you serve  as i said all the circuits and a majority of just records have all agreed that they can use those sections for exploring telling circumstances we argues that the guidelines do not apply the guidelines specifically reference e o p initiated motions for compassionate release and therefore the extraordinary compelling circumstances are now in the hands of the courts to make those decisions when a defendant is able to step act so i don't we have some indication at least from congress that we should pay some attention to the sentencing commission so what i would what i would argue here is that we need to look at the intent of bringing this expansion forward congress pacifically wanted to expand the use of compassionate release and has instructed the courts to make those determinations the guy like themselves as as we as we assert do not apply to defend it nish initiated motions and that does not mean that courts should sit on their hands while you know waiting for the sentencing commission to the policy statement to say well that's a good thank you think about it think about that here's some other things certainly some courts have done that and then it's purely within the district courts discretion discretion to consider whatever guidelines they might find valuable in making us amend but again we argue this is about the problem though so as that it's clearly in their discretion whether to look at it look at the guidelines or what the policy statement they can if they want they don't have to determinations that you know individuals that make these motions have a variety of extraordinary and compelling reasons and so long as the court is able to articulate those it is certainly within the  purview to consider whether those articulated reasons the standard lesson that that's pretty subjective what each perhaps what each district judge might feel as compelling know is that congress intended for an expansion of the use of this that they felt that it was not being used appropriately what we do know is that in one thousand and eighty four when congress was discussing these issues they they themselves said that th and and should be used to consider unusually long sentences and other factors and they did leave the white quite open in terms of what doctors people could consider courts could consider so our argument then is  no different from other situations in which a court makes the determination based on articulated factors about whether somebody meets the extraordinary and compelling circumstances and then it would be an abuse of discretion notions to reduce cases with just a straight sentencing where the district court now after booker and all have now exercise of song discretion to go and do whatever it wants regardless of  unfettered discretion we have opened the floodgates and what i will argue is that the floodgates are not necessarily open  the titian r s are able to present their compelling case their extraordinary circumstances and district courts will have the opportunity to review them and make it a terminations of whether those cases sufficient whether the case made by the petitioners sufficient multiple courts have been addressing petitions like this and there does not appear to be a deluge and unmanageable deleuze for the court to address these types of petitions and again you know it's important to focus on the origin and intent of this expansion congress felt that not enough of these petitions were being brought to courts and that petition should be able to take advantage of this particular avenue of relief and granted them not for today so what remains for you stinking from us we are asking that th remand this case back to the district court for review of the merits and again there's no question mr mcgee is serving a life sentence for a completely nonviolent drug crime he's been in prison for twenty years and ha spotless record there are multiple factors related to mr mcgee that that squarely was then reasons for considering seriously a petition for compassionate re and there are three of particular changes in law that would mandate that he not be subject to a mandatory life sentence and his disciplinary record is almost fatless he has strong family ties he is position for success in the community there are multiple reasons that the district court should consider these merits and make a determination and that's all we're asking you are just asking of these cases where we have a power a circuit court ruling what's the best case for a best case is going to be the rocker from the nd circuit which holds that one b one point one which states that the guidelines manual lacks an applicable policy statement covering prison initiated applications and that because of that it does not curtail a district judge discretion because any decision is consistent with a nonexistent policy statement and say that last part of me has and i what because any decision is consistent with a nonexistent policy statement and then i would also point to united states v mccoy out of the th circuit and then finally united states  full discretion to define what extraordinary and compelling reasons are without consulting the policy statement again because it's discretionary i have not going to say that a court can't look at something because it is within the court's authority to consider whatever the court thinks is relevant however i think all of these cases very strongly reject the proposal that a court is bound by these guidelines or from the government and please the court my name is lee not i represent the united states i'd like to st again by apologizing for a rather glaring error in my in my brief on page sentence to ninety six months i'm sorry that was a pure oversight let's i'd like to talk a little bit about the standard of review because it there's a fundamental disagreement in the parties briefs and the reason for that is this our view of judge order in this case is that she in denying mr mcgee's motion exercised her discretion recognizing that she could types the reasons are extraordinary and compelling that this case unlike the now case currently before the court doesn't provide a vehicle to make the determination of whether in the st instance district courts ha that a legal conclusion and an abuse of discretion question she is judging did not say that she lacked the authority to do so in her reasoning what she said was the power given explicitly to congress that is he references there is the power to make that for a one retroactive interest the reason we that that reveals and exercised her discretion under the power delegated by congress to the sentencing commission and then by the fence and commission to the director of the bureaucrats and that robot well if that is if i think i understand what you're saying and i'm not sure i did understand your argument before but  if that's what you're saying why didn't she abuse her discretion and she actually did exercise her discretion why wasn't that an abuse of discretion to believe that she could not find that an extraordinary and compelling reason think here between how we think judge egan exercised her discretion and how appellant would have this court given all district courts discretion is that here judge egan in reading one  subsection wendy i recognize that the court had to say or exercise discretion under that specific provision to define other reasons she did not read one b one point one three out entirely she did not find in a pluggable in fact in the following sentence of her order she thought as further that there are no other factors cited by the defendant that correspond with the requirements specified by the sentencing commission to define extraordinary and compelling circumstances under that there wasn't an error though for the court to believe that she needed to apply one d or the or decide whether there were other factors because if that doesn't does not mean the district court can't consider those factors in exercising her discretion but we don't know if that's what she did here it seems to me that the way she worded this one paragraph order is she believed that those factors absolutely did constrain her because then she goes on to say further there are no other factors cited by defendants correspond with the requirements specified by the sentencing commission to define extraordinary and compelling reasons and then you know so she seems to be referring to the policy statement here and she seems to believe that it guides her and i'm saying was that an abuse of discretion since if if we agree with the defendant here that  and to the extent that she correctly identified that the provision under which or that she had discretion to consider reasons that go beyond one  under the other provisions other reasons provision of one b then it was nonetheless not an r or an abuse her discretion because she recognized that she had the discretion to go beyond the three reasons in one that to define for herself what reasons would qualify under the other reasons provisions not constrained by the direct reasons identified by the director of your prisons or indeed by the sentencing commission and  because the use of the retroactive use of the non retroactive provision in for a one time would clearly be outside of the reasons that had been given by either the sentencing commission or in the bureau of prisons policy statement and so by considering that as a reason that she might have used under the other reasons provision judge even revealed that she was at least considering her discretion to find other reasons apart from those reasons that the sentencing commission and the director of the bureau of prisons had identified so if she denied this motion on the merits which is what you're saying she did what was her reasoning what was her support for denying that mr situation was not was not sufficiently extraordinary to warrant sentencing really the gatekeeper what's what specifically wasn't changed in in the st act was what standards would be applied once those missions were filed and the fact that congress botched in expanding  plainly eligible for compassionate release now the defendants can file those motions for themselves they are able to get access to the courts and the court you grant those motion and well the point i think become down point becomes as regards your gatekeeper benefits the district court and the district court must the district court look at one point one b the guideline and and what possibly could make this a political one it opens up with the lines upon motion by the director of the bureau of prisons and i don't i don't understand how you can say that congress intended that that existing policy statement which doesn't apply sets those clear words well saying it doesn't apply begs the question somewhat but the reason it remains of all is because that's not the part of the guideline that not a congress directed the sentencing commission to adopt and those parts where the census commission fulfilled its congressional mandate to set a few one hundred well that have just hasn't fulfilled  congressional mandate the congressional mandate is to pass and create policy statements that are applicable to the st step act and they have not done that because they don't have a quorum and so we're left in this ne mind the government believes that if the policy statement can be read to but still provide the standards that apply even though the gatekeeper has changed thank you thank you council we have your argument apologies i would just refer the court to the title of the amendment which is to increase and expand increase the use in transparency of compassionate release that was congressional in multiple reforms the laws have have also expressed congressional belief that these extreme sentences for particularly clients like mine mr miki completely nonviolent courts for consideration of compassionate release and this offers the court's an opportunity to use their discretion to do so i just want to stress for example that many many circuits and district courts have been providing the sort of relief they have found that they have discretion and many individuals with perhaps more serious offenses and who have served are less time than my client have been able to take advantage of