congress has expressly granted it your stiction to do so and the question before you is whether the compassionate release statute expressly authorized the particular reduction in question here and as we've explained in our brief answers no i'd be happy to address any questions raised by the briefing subject to questions i plan to address the following two points st under this statutory scheme the sentencing commission policy statement defines the meaning of extraordinary and compelling reasons and nd the  st step act did not transfer the note one the authority from the director actively didn't counsel with the fact that we don't have a policy statement that's presently a fact your honor we believe that we do have a policy statement that is presently i really have a policy statement that was promulgated after this act no we don't but our view is that the entire that the rest of the policy statement is still controlling the parts that have not been repealed of their position that might result in the policy statement being thrown out and it page one hundred and seventy two dollars that chided us for making that suggestion they in fact said that now the only thing that would be thrown out would be the portions directly affected by the st step and so i don't think they can make that argument but nd the statute itself three thousand five hundred and eighty two dollars even after the st step act still requires consistency with quote you know political policy statements and if you looked at the title as one the one point statement in the guidelines that addresses compassionate release motions there is no attempt by the commission to differentiate one policy statement for a defendant filed motion versus another policy statement for a motion filed not by the defendant and so the says that it does need to amend the policy statement we agree that it needs to amend the policy statement in so far as the policy statement contains currently refers to defendant filed motions and that fits under a traditional implied repeal analysis i mean we discuss dollar that talk about a defendant filed motion have been impliedly repealed because there is now an irreconcilable conflict with the st step act and those but that doesn't get to the place that the district court got to be melted well before we go there do we now look at what the bureau of prisons says and their policies are all goes off the table entirely because because now we have a defendant who asked for release with the warden asked for release when the director got nothing and now he's filing with the court which we all agree i think is correct he can do that yes but but does the policy statement of europeans come into play here at all manifest congressional intention it is entirely consistent to say that a defendant can file a motion and get into court on the st three grounds identified by the commission medical and circumstances an age and still say the defendant and into this title of that provision of the st step act which is increasing the use of compassionate release but if you look to the data that we put forward in the twenty eight j letter simply giving defendants the ability to directly file has already increased the use of compassionate but if you're not you're writing out then the sub party the other one reasons you know if you don't have the director involved is that what you're saying that there's there's no sub party and no  and thirteen inspector general report lays out in painstaking detail how the bureau of prisons was not exercising that authority to expand the categories and made it really clear back then that the director was not moving beyond a three phase and yet when congress tries to quote increase the use of compassionate release in two thousand and eighteen it doesn't do anything about that the only thing it does is give defendants a direct file option and so what congress is wanting to do is just go right to the point if what congress has wanted to do is direct somebody to expand the categories beyond a through c it could have done that directly or if what it was wanted to do was give courts the authority the b a p was not exercising it could have done that there actually to and so so mr amount of argument is really premised on a supposition about what we think congress may be wanted the congress didn't do this even though congress was aware of the exact problem that you've identified as background congress knew that b a p was not moving beyond finding of consistency with the policies they meant but the nine and the four a to which references thirty five dollars a to c globally and then one hundred and forty which specifically references the compassionate release statute both give the commission definition in effect what they've done no i don't know i don't know i think i think all i say is back and this is my th th ts it says that congress directed them or says congress directs the sentencing commission to promulgated such policy statements and i quote to describe what should be considered extraordinary and compelling reasons now describing could be interpreted differently than we have is ninety four a to see which talks about the commission describing quote the appropriate use we have the language that you just reference which talks about the commission describing what should be considered we have three thousand five hundred and eighty two which requires a finding of consistency with the policy statement that we have three different statutes where congress is meeting this to the commission's final exam and then we have the legislative history well we have the policy statement that says the court determines after it looks and and finds satisfactory support than the policy statement gives to the sentencing commission sure but then i would direct to our most chairman means more than describe right but then within the fam policy statement if you would to the provision under no one the very st line of  one of the commentary quote provided the defendant meets those requirements or subdivision to extraordinary and reasons exist under any of the circumstances that were thought the commission had wanted to say under any of the circumstances set forth by law or other reasons this is not nearly as complicated as the government suggests because congress told us exactly what to do when the law changes in the way it did in the st step act and the commission statement quote subject to any amendments made to such policy statement by act of congress regardless of whether such amendments have yet to be incorporated by the sensing commission close quote we obviously have no commission amendment and to judge briscoe's point right at the outset in fact that's led several district courts and this holding is quoted approvingly our judge campbell in this case has led several district courts to hold flat out there is no applicable policy statement yet for motions when they are made by defense but even if one of the one thirteen can't just ignore some of the references to be opie's gatekeeper rule and we know congress did explicitly to increase the use of sentence productions you can't just ignore some of the references to be a same conclusion or see the percipient court's opinion sans statutes trump card lines and then it says the critical underlying inquiry is what's the basic objective of the statu e to its language and its structure and here we have a statute whose language explicitly and structure and objective was to take b o p out of the middle and we motion there are still compassionate releases that are graded a through see that are initiated by the defendant because your honor and because the commission articulated for criteria you know judge briscoe quoted the ninety four team and that section goes on to say that the commission should describe criteria to be used by courts and one of those and these are to provide relief for unusually long sentences and and judge i'm going to the answer to the question is of course the government's a good argument if accepted doesn't know glittery in motions for compassionate release but one ground for that motion explicitly anticipated by the congress back in eighty four and by the sentencing commission is it extraordinary compelling reasons other than or in addition to the specified ground and what the government wants you to do is create exactly the catch twenty two you described in the face of a congressional enactment intended to increase the use of sentence reductions which are intended among other things to allow for reduction of unusually long sentences what i want you to read this and read this they say they want to read you three statutes and one policy extraordinary and compelling judge for precisely the reasons you've seen her in this trickle of cases and if i can address i want to address that if i can in the context of my response to the government's claim that this  narrow window of congress open will produce far reaching destabilizing consequences which is what the government alleges and the the reason it matters the reason the change in  twenty four c matters is because for one thing the the sentence reduction that cap amounted to recede requires change circumstance you can't to i we agree with the government you can't ask for a do over for of an unusually long sentence it requires change circumstances that's set forth in the in the legislative history that is quoted on page thirteen of promptly and boy do we ever have a change retroactive the same cons in the same stature opens a narrower window that allows inmates to file sentence reduction motions even when b o p s opposes the sentence reduction and you'll recall from judge campbell's opinion just because congress didn't want to make every one hundred and twenty four c stacking defendant presumptively eligible it doesn't mean it can't make it relief available for some and look before you that show the judges look at the fence characteristics and conduct in prison and the result is this trickle of cases like this one no physical injury well do we have do we have any circuit court decisions on this case that would tell us that it is totally proper to you what judge campbell did in this case that is to determine on her own what is sufficient but not yet we're hoping to get one here from a our doctor after we have d a ruling that would go your way the floodgates well i mean this is just the beginning of whatever comes next  thousand three hundred and eighty seven dollars drug sentences reduced that's what retroactivity does that those are far reaching consequences i agree in the same year ninety six inmate motions for sentence reductions were granted you round up judge it's six hundred and ten dollars thousands of one percent of yesterday's the opi prison population should the policy statements that were in play are they still to be applied in any way yeah well there they should supply as judge campbell said in a number of other judges said yes they should provide some guidance especially with regard to the three specified grounds but the policy statement to the extent that it vests in judges both the policy statement and the statute and commentary on which the government relies explicitly vested in judges s not the commission the determination whether reasons are sufficiently extraordinary in compelling to warrant a sentence retraction so yes i don't we don't shy away from the fact that one b one point one three can provide what would be extraordinary compelling circumstances other than a truce so my question is assuming that that's the case so if if if we were in that hypothetical world exist extraordinary compelling circumstances now these would be the criteria for rehabilitation or other valid purposes under that do hypothetically amended appropriate statement so it seems to me that if in that world district of the eliminated requirement that release must be sought by the p o p director in the st instance and i i think with large obviously prefer step by definition those other reasons would have been determined by people because they had to make the most of the nd answer to your question is this there is literally no sense and i think there's some confusion created in this respect by the government's arm there is no sense in which the commission delegated to be guilty there's a responsibility to come up with criteria on which they based on which sentence cites nine hundred and forty quotes it says here we go we did it we did these are the four grounds age medical condition family circumstances reasons other than or in combination with them they did it they couldn't delegate it judge to the commission if they wanted to or that prefatory language talks about is whether in that particular case not determining criteria whether in that particular case b o p determined extraordinary or other reasons were available and the only reason it says it is because the b o p would have to have done it in order for the motion to be filed to begin with which brings me back you know it is whatever objections get made we'll give it may we know that when there's an act of congress that amends ago a policy statement we apply that policy statement subject to the fact that it's subject to what the congressional all i was curious again about the fact it's an a then six you're a prisons policy state are they totally off the table we don't care about mean to suggest to me to be disrespectful to v o p but judges decide this might say fine guidance yes there are two completely flat contradiction and judge bacharach mentioned one of them flat irreconcilable inconsistency is between that program statement five thousand and fifty dollars and what the commission itself says one relates to whether you can consider circumstances existed at the time of the sens and another relates to this fact that the b o p s only acknowledges three of the four are grounds for relief so for what it's worth i don't mean to suggest no one can read it but but both the cot both the statute the policy statement and even the commentary on which the government relies turns to judges to make a determination yes she jumps to gleason if we agree with that point and district courts  have already here i guess we're going to have to decide on a case by case basis what extraordinary circumstances are and are we going to review that for an abuse of discretion by the district court what you know what what what would you advocate as the appropriate definition if you will of extraordinary circumstances that the circuit courts need to come up with a great question and if the government here actually contended that there were an abuse of discretion we might be discussing it in the context of this appeal but without a doubt what is already textually a narrow win extraordinary and compelling circumstances against a backdrop requiring change circumstances will be the contours of that narrow window obviously would be further defined by decisions including those of this court and i would i do want  ten of our brief the sorted racially discriminatory history of the application of these tax sentences commission rang alarm bell in two thousand and fourteen set for decade understood here's the quote from last fall quote a district court is authorized to modify defendants sentence only unspecified instances where congress has expressly granted the court jurisdiction to do so so there's no requirement that there be such a system and there's no right and said that in the wake of the st step back to that entire note is gone you'd still have an entirely consistent coherent skin because at that point what the defendants would be able to do is direct file a motion under notes one a through saying and that's what congress did in the st step back this is where we're pushing back on a point by mr mom up if congress wanted to expand the categories of quota the only thing it did was give it a fat rex file and that's already resulted in relief for scores literally scores of defendants and the dad of this this i think is why mr gleason with respect is wrong when he says that it puts defendants in something of quote a catch twenty two look at our twenty eight j letter from two thousand and eighteen which is the year before to two thousand and nineteen there was a quote five fold increase in compassionate release grants just on the medical you know power to defy other extraordinary compelling circumstances typically when we are trying to ascertain the meaning of the statute a guideline a policy statement we decide which is the better interpretation in the absence of chevron or look with the elephant in the room and say which is more consistent with y as determined by the be director the b o p s remaining in application one day why should we decide even though it may be response yeah the answer your question just backtrack is because you have to do this it's an implied repeal i think if we were doing us on a direct appeal the question as you friend it would probably be more consistent with the defendant's position that you're doing  really really sure that this is what they intended so what are we sure of after the st step back we're really sure that it intends for defendants to be able to direct file that's why the language and one they want to point thirteen says otherwise goes away but are we really really short clear and manifest invention not just for defendants to be able to direct file under one and three see but is there a direct is there a direct manifest intention that court speak given a new substantive authority to expand the categories do is take congress that it's worth if it wanted to do more equip it knew this problem existed it didn't fix the problem with one day and i think the result of that just bacharach is on in the hybrid peel analysis you simply say congress wanted to fix this but congress has never done it did not do anything in the st that back to expand of the categories it knew that the lp was limiting itself to those three categories and it didn't make any direction about that at all and so the new policy statement to get right to your question just briscoe the to do to one the one dollar but under what congress did it would have to reflect the fact that the finance can now father in motion that that would be the new policy but that congress has never made a direction t i mean that that it was released after father was done the cornet that it's a five fold increase and then the next number i think matters to sixty seven percent of those motions were defendant five motions and if you really need an example of where this is playing out it's actually the year after that it's the cope with year because there have been scores of coded related motions filed by defendants not by not by b o p and that's illustrating what we're saying congress want to defendant you know to get into court and they are and that alone is increased the use could but congress passes what we think is a very modest statute it's a very modest statute that says we're going to let the commission come up with some extraordinary reason the commission has come up with those reasons and those are the reasons and other than that you're back to spend ality and the direct appeal