filed his own briefs and i was appointed to file an additional brief and present oral argument today and i'd like to address the very interesting issue of whether mr telsey can file another hevia spert petition without permission after he was recent since under the st step back then the answer to that question of st impression this court is yes now the elephant in the room in this zoom room is the armstrong case that judge  that was great yesterday maybe i should've said the cat in the room instead of the aisle but before i get to armstrong but let me let me address just some basics about the st step back and and simply because it's filed simply because what one has filed before doesn't mean that there is a nd or sex success of papers but this one there's a long line of cases both from the supreme court and in the that analyzes whether the judgment challenge to is in effect in other words if there's a new judgment then yes you can file a new havey it's that vision and that's because you're challenging that judgment for the very st time and by the way the st step act and in this case even though the sentencing under the st step back is discretionary remember here that it changed the minimum mandatory tell us he was looking at a mandatory life sentence the st time around that was changed to a ten year minimum mandatory and so was the supervised release in this case though under armstrong and under those other three thousand five hundred and eighty two c you cases this court explained you know quote all original sentencing determinations remain unchanged with the sole exception of the guideline range that has been amended since the original sentencing that's not true here judge wilson so that guideline changes and in armstrong and other in those other cases it's a mechanical two level or whatever the level reduction is and nothing else can even be considered here or under see one be the other subsection there's a lot of factors that can be considered and that's how we're so different from armstrong let me give a couple examples so so the st thing that can be that has to be reconsidered is the minimum mandatory sentence in effect nicam by the way because an insignia is the th circuit case the minimum mandatory changed and it was considered a restart there's also other things at play what are the new guidelines for count one in this case most change question this is not a simple modification it's not a mechanical reduction there was quite a bit of discretion at play in tel c's case and that's what led to the judgement that's that at issue here the judgement being challenged here and so so i think those are the major differences between the armstrong case which was limited and the wide open it's not a hey b s grant where there's a brand new full blown sentencing but it's also not a clerical change or a mechanical change like we had in armstrong this is somewhere in the middle right there's lots of discretion so we're trying to figure out is this closer to a mechanical change or a ministerial change like in armstrong or is this closer to a full blown re sentencing hearing and because there's so much at play in this case so many different considerations under the st step back that come into play at a recent and sing it seems so much more like a full blown re sentencing although i can see judge wilson back this question that it's not there's no hearing but we have to say it is this closer to the  sentencing or closer to the mechanical without discretion change you know in this case remember there was lots of briefing back and forth and the district court in his order a considered though is whether the new judgment which are absolutely right you know as a formal matter there's a new judgment whether that new judgment should be subject to a twenty to fifty  five that is not considered successes but the twenty to fifty five isn't necessarily limited challenging issues regarding that in your judgment the twenty to fifty five could go back and challenge the conviction whatever and so that's one to having difficulty following them the logic is why does the plenary nature of the recent unseen suggests that the defendant of the petitioner i guess here should be able to go back and challenge things that he already had the potential to challenge initial point sure it fair question and when i st started reading these questions i have the very same question but the cases are very clear on that i'm from mag wood which had the same exact into that new judgment so as weird as it sounds all the cases are pretty clear that if we find that your premise is correct judge pressure that this is a new judgment then that restarts the clock and allows they gave us but fish there for better or worse reraise those planes again and i see my time is up so unless there's another question i think i'd like to reserve some time for  imposed mean a lot of these arguments are kind of like the red queen in alice in wonderland who says the words mean whatever i say they be imposed just just means two to set out it doesn't have a legal definition of a statement but for example  sentence and therefore not a new judgment for the purpose the mag would and what mr marcus is trying to do is is essentially argued to three thousand five hundred and eighty two c has no connection to the st step back that's not right because this court are that the guiding case if you're the president and what the government is asking you to do is to make the logical jump from denson armstrong behold that a reduced sentence under the st step back is not a new sentence for the purpose of just like you said in armstrong and we'd love to see a published opinion making that one holding out as well even if you believed that the because of the wide of chases that at the supreme court in this court of issues of cream and wood and post my would in every case cited by the government in the defense the principle of finality under healthy has never had a successful challenging to the only illegality of a sentence not in state court not in federal district court not in this court the reduction of the st step back did not result from a successful challenge to the illegality of his son he didn't challenge is now our career criminal designation for the st step back because the st step back would not have permitted him to do so he simply asked for a discretionary reduction under the st step back a statute that this court has called an act of legislative break in biology direct appeal from the district court's discretionary direction challenging the reduction  illegal so he's never mounted a successful challenge to the illegality in his mind the arc or criminal designation is what makes the sense illegal he's never amount of self will challenge that but what he's done new arguments and now he comes before this court much like the red queen in alice in wonderland and says well this is different because there was really a mechanical change pursuant to the st step back  i don't know what a mechanical change in a sentence it seems to me that a mechanical change is a clerical change there's never a mechanical change when the corner of the scrushy and and even the st step back when it lowered the gone line penalties you still are presented with the reins so it's not a mechanical obligation because it's still up in the term where we're in that range that compounds from but just because you stand up and call something this is not really a mechanical change that's not what's both the district court in this court concluded that his are career criminal charges have no merit three times he's applied st to pick it up kill ability to have been holding hearings and the reason i ask is because i think there is some discretion here about what the sentence should be i just it's odd to me that the district court has to know the hearing on absolutely i mean you know you still have to apply the thirty five  three a to find out where in the range that's been lowered the sentence should be in of but it's been my experience that courts virtually never hold  live you know sentencing hearings to do this they don't need to a lot of times the sentence is agreed a lot the government will agree that it's should be at the low end of the guideline range and since you're not bringing in new facts been discussed so i don't really understand why a court would need to have a live rehearing to determine that and it's been my experience that they haven't done that out of the surely so just and crime if i'm wrong but so generally what district courts are doing is if if you know if the defendant got the high range the high guideline range previously and now he's out for a modification they recalculate may just give him the same high range under the new calculation the same with the low range just kind of just move it down and give them something that they would have given previous and that's what i've seen your hon a rehearing they're doing it on the on the pleadings runners unless you have any other questions i don't have anything else to give us with the rows of the thank you judge wilson amanda please the court i'd like to turn back to that question that judge brasher had about what courts are doing although i think most courts have not had in person live hearings for the reasons that judge will go is that because for the past year we've been in the can have those types of hearings and so i think it's important to note that if a court does have a hearing and does consider all these things and then issues a new sentence mr de rosa's arguments would fail and so we don't want to have a rule full blown hearing and even when it's on the papers all of these considerations come into play under three thousand five hundred and fifty three dollars so for example the case that mr de rosa cites the dense than case in that case the judge said that he wanted to consider on the papers to visit the person's prison record since the sentencing since the original sentencing the person's new much older age the fact that the family still back the person up so all and fifty three factors were in play although on paper and not in person and that resulted in a use of discretion to issue a new sentence and that's why wilson the use of the word starts to zero mr derosa says well what about the principle of finality you shouldn't be able to relate again issues that have been litigated before well he's just wrong the cases certainly allow for that in itself the supreme court reversed this court on that exact idea so in this court would raise the same issues the courts that you've already lost on those issues and he went to the supreme court and the supreme court said look because oh he was at the high end before we're going to have a new high end sentencing the minimum mandatory has changed the supervised release term has changed the court can consider three thousand five hundred and fifty three and this is really important because under the step under the other subsection those things can be considered and judges are considering them whether it's in person or on paper unfortunately because of the pandemic so i'd like to thank the court for appointing me to this very interesting issue i believe that this case is very different from armstrong that there is quite a bit of discretion available to the district court all these factors are at play and therefore behave should