excuse but i think you're right back with  name is susan otto i'm with the federal public defender office i'm representing the appellate michael made to be this is a st step back case as well and i have sort of blended the two cases when i was thinking about presenting argument because mr may tevye and lying mr manny has a guideline range that doesn't change it doesn't change because mr may to be received two adjustments to his sentence from judge miles reduce it to the bottom end of the guideline range and that's really the difference between those ameliorative amendments and what congress was intending to do in the st step act of two thousand and eighteen congress was intending to reach those men and the few women who were deprived of the benefit of the fair sentencing act of two thousand and ten the statute changed but it was not ma retroactive so the best you could hope for was a bottom end of the guideline sentence and that's what mr may tevye received the when you apply the statutory provision to mr may tabby he eligibility issue and said i'll give you that one but i'm still not inclined to reduce the sentence and the judge sided to district court cases one from the eastern district of washington and one from the northern district of ohio united battle about eligibility in that case and the district court correctly found that intervening supreme court decisions made all the difference the fair sentencing act of two thousand and eighteen does not allow courts to apply unconstitutional guidelines are unconstitutional rules and in stone the court having considered eligibility have you considered the revision to mr stone statutory punishment reduced his sentence to three hundred and sixty months which doesn't sound like a very generous thing except mr stone was serving life in prison so the court applying the st step of the fair sentencing act st step back to two thousand and eighteen says three hundred and sixty months in mason and this kind of brings us back to what we were discussing in mr manny's case the district court said no i'm not going to revisit unrelated sentencing determinations for example we're not going to go back and look at career offender i'm not going to reach other issues we're just talking about the straight guideline computation interestingly in that case by applying that rule the government was not allowed to advocate for abrogation of one of the downward adjustment so the court applied that rule fairly and the court instead mason citing the e s p insider said that indicated the should consider the guidelines seventy five minutes confinement no i want to make sure i see them you're not repeating would you argue before regarding the necessity of the here i mean you're not adding anything many that you want to emphasize with respect to the need for here and is that what you're trying is that with your addressing now well i know your honor what i'm addressing now is the fact that the district court cites stone in mason for this theory that you don't have to revisit i'm sorry you're addressing the reason this of the sentence male is that correct and there was the minutes that this was within the guidelines range doesn't that put the burden on you point and that's why i was perhaps harping on a little bit on their reasoning in mason the sentencing guidelines don't change the court is still permitted under the st step act eighteen to determine what is sufficient and not right or the necessary and in this case the judge simply found the absence of a change in the sentence in the guideline range as dispositive and said application of the st step back to two thousand and eighteen doesn't change or sentencing guidelines it certainly didn't but that alone is not dispositive if congress would have intended that they would have but in both of those instances even if you were michael mann toby and you received the benefit of reducing your guideline range incrementally through those successive guideline amendments the judge who  deciding what to give you because it dylan couldn't go any lower so then the bottom of the guidelines so what was new here that the court to the not consider in declining t grant a variance the statutory punishment had changed mr may teddy was eligible and interesting lee mr may to be heavy arguably if he would have been in front of judge bryant instead of judge russell would have  within that narrow group of people who might be eligible for some or c because he was not a relentless recidivist he was a st time offender what would your complaint is that he base this on a generalization about there wasn't a change in the guidelines correct and did was there any factual point regarding mr may to be personally but the judge declined to consider are you ar pepper factors and said i'm not good enough this is the problem with what we're what more can he say well probably not much unless you allow mr ma and the reason for that is because i have the fundamental difference with the government i don't see this as a mere reduction or a mere motion to reduce congress said impose a they would not be adjusted based on his cooking conversion change because the court has the authority since all of the and everything is combined for sentencing because you are back in rather were sensed separately but then the can then sentenced to serve concurrently unless he changes the concurrent statement how is ma sentencing time and it seems like because he's going to get this unchanged sentence for two and six how could he possibly be benefited by winning every duction and count one because the sentencing package doctrine would dictate that because the drug amounts were combined in your a back in front of the court but two and six don't talk about or don't address drug quan under the sentencing package doctrine the court could reduce the entire sentence d but the but the statute and the statute does not authorize the court to readjust a sentence on anything other than one that is changed by the conversion factor and courts don't have the ability to go back and say gosh you know i think these other two counts were too high too and i'm going to reduce says is the rule here what what what what what other word could be used was tried to think of what the kirby well i suppose that if all congress wanted to do was to say that for those people who had been deprived of the benefit of the reduced range or the reduced statutory range of punishment that a reduction could be a motion to reduce could be considered in granted i can't really imagine what what we should we are distinguishing the st step back from other statutes because it uses the word impose what that one of the cases i mentioned in the st argument before the court this morning that being williams case from the th circuit directly addressed that and found that the term impose does doubt make this into a new sentence saying it's not a form of magic word and it's inconsistent with the discretionary description of the rest of the st one is the case and the case the site you're referring to that was united and just beyond that clarification i don't have anything to add in addition to the remarks i made about the the the requirement for a hearing person that was also before the court earlier this morning in ma or could i just ask for some clarification on the government's position in district court that the government can test whether mr maytag he is eligible for reduction under the st step act we did your honor ok and what what's what is the government's position now on eligibility well as your honor knows the debt eligibility argument when in favor of the defendant i would say that this was done very early on in st step back litigation when the no candor we were still ourselves trying to figure out what the limits of the st step act might be or what they should be and i would say that our position has  d somewhat in part because all of the judges at least in my district and found that eligibility is really a categorical determination to be made if a person was convicted of a crack cocaine the vents regardless of their own personal conduct and i think that was the distinction here which we as a just a matter of practice don't make any more so we did not cross appeal the one disagreement i would say that we have with the defendant's argument that's raised in this case that was not before the court in manny is the defendant's characterization of the district court treating the unchanged guidelines as dispositive and it is clear that the district court did not deny relief because it didn't think it could only that was a factor that went into its calculus in deciding that it would not and that again comes up in the context in the district court's order a bit is discussion about what it would or would not do in that discretion for example the district court use district court's judgment that the current sentence in place was the appropriate sentence under all the circumstances so we disagree with the assertion by the defendant who says the district court was wrong because if you the guidelines as meant atory and a limit on its discretion the courts discussion of that fact shows it clearly knew that it could still impose a reduced sentence and simply decline not to and in case there was any doubt about that point this exact argument was raised by the defend it in the motion to reconsider before the district court and the district court clarified when it was essentially being asked judge are you sure you didn't view the guidelines as a limit on your discretion and the district court answered in the negative so it is clear that this again falls within the district court's discretion the fact that the guidelines were unchanged did not work the district court's authority to act it merely chose not to and that's one of the options that is given to it under the st step back i believe beyond that unless there are questions from the panel that will conclude my od i'd like your comments on my concern about whether the definitive here would get any benefit if the defendant won his case given that his sentence under count one which is the only count that the court can reconsider was raised in the court's question to defense counsel there is not discretion to consider reduction of other counts not tied to the crack cocaine so that with that urine or any opinion we issue in this that that is a issue that i haven't necessarily fully thought through but the court would be correct that the st step act would not give discretion even under the sentencing package doctrine to count other than those affected by the fair sentencing act of twenty two any other count i would suggest relief is unappealable on for exactly the reasons that your honor's question  review i'm interested in your commenting on how sharp that disagreement really is because if we are to assess for abuse of discretion th denial of the senate seen reduction is there any problem with our considering both procedural and substantive factors and why isn't that standard sentencing review whether it's an initial sentence or a motion for adduction your honor to begin with the court's st question i would say that there is very little difference between the government's view of what goes into  what the standard view should be and that offered by the defended ultimately we both agree that it's an abuse of discretion where we defer is if the procedural and substantive parts are viewed only in isolation and for example a district court might come up with a sentence that's completely reasonable but if it violates a procedural rule for example didn't give a defendant a chance to allocute didn't require a defendant to be present i think we would all agree that that was a procedural error that could not be overcome and so the the difficulty of what the it is not that we disagree on the concept of what all goes into in the busa discretion but our disagreement starts at whether or not the procedural and substantive components must be viewed separately and in isolation did the defendant in this case present a proffer of what the defendant would have said a hearing been permitted he did not your honor so i'm i'm having trouble on the procedural question under this context you would have us rule that there is no right to a defendant a period but if the court were to say ok you were on your  seat in the room you're you i'm going to reconsider whether i should reduce your sentence under the st ep act you know i would have but i got all this prison report about how bad you were in prison gosh i'm not go let you come into court and have a hearing to explain the end it just doesn't feel like that would be giving the defendant procedural due process your honor and i would suggest is that i would urge the court not to hold a pri line rule that every defendant you ask for for step act relief automatically get a hearing but it is possible that just under the abuse of discretion standard that we've suggested the way that argument would be brought before this court is for a defendant to say judge you failed to give us a full complete review on the merits of those of the sole issue of drug quantity see that's my my problem the whether there's a reason zing or not the only thing that's changed is the drug quantities correct and if the court on reasons is that 's all i'm going to consider because that's the only change that happened then the defendant's post sentencing conduct would not be relevant but we all seem to agree the defendant's post sentencing conduct could be relevant so if the court considers post sentencing conduct but doesn't give the defendant the right to explain any of that post sentencing conduct either wh wasn't as bad as the courts concerned about or maybe to explain that it was good and that's exactly what the defendant here would like to explain are you saying that the dinner would have a due process right to it to be present for a hearing if the court makes a negative comment to the defendant about his post sentencing conduct but he would not have a right to hearing to present positive conduct runner it makes no sense either your honor i would say  be that the government's position is that no hearing is warranted and in that respect i would suggest to the court that this should be viewed just like the other syncing modification procedures that are much more familiar to the cork those under more recent crack crack guideline amendments where a hearing is not required even if a judge does consider whether positive or negative would write this to say that had there been a proffer of what the definit wanted to say it would be maybe he would have had a right to a hearing and the concern i have with all of that is that the only thing that the st step back to laos is a reduction in the conversion road and doesn't seem to even of refer to post sentencing conduct so  quite uncertain what kind of a rule you would like to have a right to your honor i would suggest that the rule that now squarely before the court is does the defendant get a right does every st step act let it get it the right to hearing and i've suggested that the answer is no again because it's a modification not a sentencing in the st instance and it may have been something of a noble or oversimplification for me to say there was no isn't he any of you if you agree that it is legitimate for the court to have considered those arguments advanced in the pleading and the government disagrees with some of those why wouldn't he have a right to explain and defend those statements to the court sees me if if you concede that the court can consider post conviction conduct i have a very hard time seeing how you can defend that the defendant would not have a right to appear in elocution to address those subjects your honor wrote suggest that st of all as happened here the defendant had a full opportunity to present that to the district court and it really comes down to whether or not hearing or know the defendant was afforded the district obligation to perform a full complete review of the motion on the merits have an answer to your question i don't believe this is a nobody for the simple reason that count two was the maintaining count count six was the m d m a count and i believe that you are correct that jurisdictional question thank you yeah so if you can do that as a heavy fine i think you know that that's important we don't want to do something beyond their jurisdiction but nobody was prepared for judge e mails inside here so i think we should have supplemental briefing and probably maybe maybe i will never be or brief on your representation and your visitation carries a lot of weight because although we'll look forward to