made again please the court what i'd like to focus on i suppose in our particulars we have three cases here the text is is fairly clear and i think one of the things i was talking a lot about what a violation of a federal criminal statute earlier i think the government omits that propositional phrase from their reading of the statute they say violation and then they ignore of a federal criminal statute we have to take the language as a whole in our particular cases i heard a lot about disparities and we made this point in both of our briefs what actually happens in the central district of illinois in terms of sentencing is usually up to the prosecutor rather than the judge because the way the drug offenses are sentenced in our system depends a lot on what the mandatory minimum and maximum are and those are often determined by whether the prosecutor has filed in information under section eight hundred and fifty one dollars about whether the defendant has a prior conviction so in each of the three traces here  men all cooperated they all pleaded guilty they provided substantial assistance to the government nevertheless the government exercised its discretion to enhance their sentences by filing the section eight hundred and fifty one dollars notices and so that meant for m shaw that his statutory range went from ten years to life to twenty years to life for mr robinson it went from five years to forty up to ten to life and the same for mr shaw sorry a fifty one notices and so the disparity argument rings a little bit hollow but what we see in the actual facts of this case are how that plays out so let's take mr greer for example he cooperated he provide substantial assistance his guidelines range originally was three hundred and twenty four two thousand four hundred and five months the government moved under section five k one dollar for a sentence reduction the district court imposed a two hundred and seventy five month below the guidelines it was appealed it was reversed under under kimbrough and the end result was two hundred and forty months the district court could not produce that sentence and further that's the mandatory minimum sentence even though the guidelines kept changing so at this point mr groos guidelines range is two hundred and twelve thousand two hundred and sixty two months if this case were prosecuted today the government almost certainly would make a motion not just under section five k one point one of the guidelines but under eighteen united states code section three thousand five hundred and fifty three which permits the district court to ignore mandatory minimums it in cases of substantial assistance and the way it works as a practical matter typically the government will move only under five k one dollar if we're well above that mandatory minimum but if we're at that mandatory minimum the government will will move to get below that but at our original sentencing in mr curious case there was no no need to make a th emotion the government said well we're well above the mandatory minimum so we're just going to depart below the guidelines to get down to two hundred and seventy five months so when we're talking about disparities actually in mr groos case where he sentenced today even even under the government's theory here with a mandatory minimum of twenty years he still would get would get a lower sentence he shouldn't be punished for being in the wrong place wrong time mr actually provides another data point about why when we look at what the defendant was actually convicted of and not what we think he actually did mr greer was arrested and law enforcement found sixty five grams of crack cocaine on his person he was indicted and charged with conspiring to distribute more than fifty grams of crack cocaine the actual amount had absolutely nothing to do with what his statutory range was going to be if he couldn't contest that the sixty five grams of crack found on his person belong to him and was attributable to him it didn't matter if he was responsible for sixty five grams or six thousand five hundred grams that just there was no point in fighting and so he pleaded guilty to and admitted to a conspiracy to distribute more than fifty grams of crack cocaine that's what he was convicted of so when we look back at that many years later and tr determine did the court impose a sentence for a covered offense we have to determine what was the a fast what was the violation of the federal criminal statute and it's plain that what mr greer pleaded guilty to was conspiring to distribute more than fifty grams of crack that's that's the offense now the district court again in exercising its discretion can determine well do i want to consider maybe the government would have charged this differently you know maybe the government would have done all these things we think it also should be able to consider what the government has moved under three thousand five hundred and fifty three dollars easy even assuming that the government would have charged things the whole point is these are all district court arguments these are all arguments that can be presented to the district court we can argue about disparities we can argue about a fifty one enhanced minutes we can argue about all of these things but the point is that discussion ought to happen in the district court because for people who statute of conviction the penalty the statutory penalties for which were modified by the fair sentencing at are eligible for consideration  should find that these defendants are eligible and remained for a consideration of whether a reduction is a program with regard to judge should did in the robinson case obviously he exercised i don't see exercise discretion but he reached that discretionary point where your concern there though is what he utilized in exercising discretion yes and judge shadid there are two cases bede and forty's that we mentioned in our reply brief not reduce the sentence below the new guidelines for and so we think that may have been on judge chad it's mind the it's more fully briefed in speeding forty's but even here there's not really a real clear explanation of why mr robinson wouldn't merit a lower sentence because if the government agreed with us that mr robinson was eligible they would actually agree to a much lower sentence because mr robinson cooperated so his his guidelines range went from two hundred and sixty two to three hundred and twenty seven months now down to one hundred and eighty eight to two hundred and thirty five miles the government when making section fifty one point one motions typically recommends a percentage off of that  originally in mr robinson's case they recommended ten percent off the bottom of the two hundred and sixty if mr robinson were eligible and i think the government put this in its response then a comparable reduction would be appropriate and ten percent off one hundred and eighty eight months is a lot lower than the one hundred and eighty months that mr robinson is is currently sitting so we think that we think really judge chad just forgot that this was a cooperation case  it's not about the guidelines it's not about eligibility it's you've got discretion use it reasonably you know maybe explain it a little bit if you can and and that's what the st step back so they could decline to they  say you know i've considered all these factors i've considered the defendants conduct consider the defendant's conduct after he was sentenced in prison that can happen that's that's perfectly permissible but it's really about the exercise of discretion we're here on a legal determination that these defendants are not eligible they are the court should reverse and remember so the district courts can use their discretion thank you  defendant it's the penalty statute we've already pointed out the issues with that such as the redundancy saying violation of a criminal statute the statutory patsy's for which but i just wanted to make that point clear eligible for a reduction and additionally we don't think that the district court abused its discretion in concluding that even if mr robinson are eligible for adoption it would not have reduced in reaching that conclusion the court noted that if mr robinson sentence because that original one hundred dollars a month sentence was a downward departure even from the amended guideline range and you know defense counsel points out here that he believes the district court judge just simply forgot that this was a cooperation and somehow i believe that he was constrained by the sorts of rules involved in section three thousand five hundred and eighty two and there's really no evidence in the record and this is an able district court judge and there's no evidence in the record that he was somehow be two hundred and seventy mark to the court mentions none of that i agree with my friend that there's nothing in the record to suggest anything about what the court considered other than the the only thing the court considered was the guidelines range is still higher than the sentence and therefore a reduction is not appropriate we've go on at length and forty's and speed we think that's that's just a misconception of the discretion that the judge has had discretion the guidelines are the same so we think it merits of thank you thank you thanks to both castle and to take the case under advi