we have a number of cases on the docket today schedule for all oral argument on the first is we have about sixteen seventeen cases that have been consolidated factually there are minor differences however the legal issue in the legal reasoning in each of these cases is virtually identical and it comes down to two real questions as far as from the government's perspective number one of was cricketer based on a guideline amendment that was retroactively applicable and number two did the district court have the authority under thirty five eighty to see opinion in a case called andersen is controlling authority on this issue and numerous panels that set forth in our brief have consistently applied anderson in the seven  holding that where a sentence was determined based on the career offender guideline that it was not based on a sentence that was subsequently reduced it's going to seventy two because the drug quantity tables and to the one point two are no longer applicable that essentially that vehicle is not available the district court only had a to modify a defendant's sentence if it was based on a range and this court has construed that language in many different opinions basically saying it had to be derived from and although appellant apple e's excuse me  have made in their briefs a considerable reference to the fact that the court made a factual finding that it was based on that finding is simply not supported by the record and as a matter of a reduction in this court's opinion in andersen the court held the guideline amendments lowering often slow bills for crack cocaine cases do not apply to prisoner sentenced as career offenders finding that they did not derive freeman the supreme court's decision in two thousand and eleven these are all much later than two thousand eleven forced earlier this week twenty seventeen had no direct applicability changing the scheme for which we would determine whether a district court has jurisdiction to enter to remain the district court has jurisdiction to determine if there is an applicable  so in dillon the united states supreme court talked about how thirty five eighty two see is a very narrow limited exception to the finality of judge that a district court does not have jurisdiction it's not a plan or a sentencing either to go in and tinker with s imposed sentences at any time after the fact unless there is a specific grant pursuant to for example a retroactively applicable guideline amendment like seven eighty two and so what this case calls into question and why this was such an important case and why we sought to appeal is that if analogy of judgments and the applicability of the restraints under thirty five eighty is you know our view very narrow in the supreme court's very narrow is essential to our proper functioning and that if we were to allow for an amendment to take place  regardless of the requirements of one the one point ten and and all of the structures in place that would throw our system into chaos fortunately in this limited context no other in our division no other district court had construed the applicability of seventy two to extend a career ender provisions and so we had this finite group that we sought to appeal essentially we believe that number one anderson is controlling number two that the district court does not have authority to go outside of the rules and procedure set forth in our brief regarding the out of the ability of thirty five eighty to see except within the narrow confines and so  that is essentially the government's two principal arguments and we would read that in each of the seventeen cases that this court would reverse the district court's judgments amending the defendant make them retroactive and determine the extent of retroactivity in amendment seven eighty two the sentencing commission reduced the offense levels for all drug offenses by two levels i say all there were a few exceptions judge to now in the western district of texas and decided to review all of the cases in under his jurisdiction these in particular out of midland he and his probation officer reviewed all of the cases themselves he granted quite a few rejections he wanted to grant reductions for these seventeen individuals the government opposed because he would check with the government before he would grant any of the reductions government imposed and so the court appointed the federal public defender's office to represent these individuals he asked for a briefing from all the parties he held hearings he had the defendants brought in from their locations of incarceration he reviewed all of the record s and he then issued orders in each of these cases in which he found that the sentence that he imposed had been based on the drug guideline to the one point one the difference between these cases and anderson is that in all of these cases while it's true they were found to be career offenders they all received sentences below the career offender guidelines and the vast majority of them receive sentences below based on substantial assistance to the government some of these people continued to provide substantial assistance over the years testifying they got additional reductions under thirty five fifty three the additional reductions  under rule thirty five b and judge ginnell believed that these people were eligible for reductions that they deserved a reduction and he and he granted the reductions and he had already to do so under thirty five eighty t c two which gives the district court the authority to reduce a sentence that the court based on a guideline that was subsequently lowered and here the judge john l determined that he had based the sentences on the drug guideline the supreme court and you're making with anderson had in some circuits after the crack amendment rule similar to what you're proposing  then the commission came in and and resolve the split that existed in favor of the circuits that hadn't allowed amendments in those situations that is correct your honor so how do you get around that with the the commission did in response to that  not binding if it conflicts with the statute of congress or with the congressional directive one of our positions is that it conflicts with thirty five eighty two c two in that the decision on whether a sentence was based on a guideline range that was subsequently lowered is given to the district court the district court is in the best position to determine what they based what he based his sentence upon and so in that way the division in thirty five eighty two c chill the district court gets to do what district courts traditionally do they get to determine they get to sentence and they get to determine what they sentenced under which would determine eligibility the sentencing commission has a lot of authority on these modification proceedings to decide whether to amend whether to make it retroactive and the extent of that retroactivity but it can't take from the district court the ultimate authority of saying i based this sentence on a guideline range that was subsequently lowered and therefore this individual's eligible under that first section of thirty five eighty two c two a secondary argument that i have on that house to do specifically with individuals who were who got reductions for substantial assistance and judge ginnell at these hearings kept referring to the fact that this was kind of a confluence or of of career offenders but people who had provided substantial assistance to the government and so this was a great concern of his and the commentary knew title twenty eight of the us code section one ninety four as part of the sentencing reform act and it sets out what the sentencing commission is supposed to do in terms of setting up the guidelines it sets out what congress has directives and over the directives two to the commission one of those directives in ninety four and is that the sentencing commission assure that people who provide substantial assistance to the government get lower sentences and that directive is actually evident in some parts of one b one point ten so for example in one d bill in point ten b to the sentencing commission limited reductions below the amended guideline range it used to be that if you got a departure of any kind you get a comparable reduction and then the sentencing came commission came in and said no you can't except for one exception substantial assistance in one b one point ten c the sense of commission sets out that you can't get a sense below a statutory mandatory minimum except for substantial assistance if there's a thirty five fifty three emotion file so the vast majority of these individuals provided substantial assistance and so that if a commentary there in one egg is read in such a way that it prohibits a lowering of a guideline range based on substantial assistance that's contrary to the directive that th commission was given but there's no question if these folks were sentenced under the drug guidelines instead of the career offender guy mind even if they got substantial assistance they'd they would have gotten a benefit from this a memory people all over the circuit were and as i sent you a cinema getting resentenced that is correct that is correct this is a judge to tell recognize this is a difficult situation because many times the people who are designated as career offenders their guideline range as one of these individuals the drug guideline was thirty to thirty seven months but designated as a career offender based on prior drug offenses it was one eighty one to two thirty five but then they continued to provide assistance to the government and so judged really it's it's and now it gets to the situation in that the court looked at the supreme court looked at and freeman which was the question is a person who was sentenced under a binding eleven c one c plea agreement ever eligible for a reduction under thirty five eighty two c two or they categorically barred and the court there said they're not you have to look at where that sentence agreed sentence came from and if it was based on the guideline range then they're eligible so the question here is is someone who is sentenced under the career offender guideline what the sentence was the sentence imposed what was the sentence based on and here the district court after reviewing i think he took an incredible amount of time on these cases after reviewing everything he found that these cases were based on the drug guideline and in accordance with that he reduced by two levels the often the current oftens level for the sentences of the the courts case law has primarily dealt with situations where someone was sentenced under the career guideline and then came and sad hey i was actually crack cocaine a defendant and so i should get a reduction and the district court said no you were sentenced under the career fender guidelines so you're not eligible yourself with the career right and so you're not eligible the difference here is that we have a district court judge who's imposed in this case we're talking about people who were identified as career offenders but immediately sentenced below that immediately sense many of them immediately sent a substantially below what if your  mentioned that banks seems to be on point and against our position on this one of the interesting parts about the banks case was there the court said you look at the guideline range of the sentence that the defendant is currently serving and when you determine whether they're they're eligible for the reduction now banks was procedurally different banks was actually sentenced under to be one point one on reduced the crack cocaine guidelines he filed at thirty five eighty two c two motion and the district court judge reduced to the career offender guideline and stop there he then there was a subsequent reduction of the crack cocaine guidelines and banks filed another thirty five eighty to see jail and he said listen i was originally sentenced under the drug guidelines i was sentenced under to the one point one so i should still be eligible and this court sad no you look at the guideline of the sentencing range that the defendant is currently serving and that's what judge ginnell did in these cases these individuals received some of them received rule thirty five rejections years after the original sentencing so he looked back over the years of his recent saying sentencing in re sentencing of these individuals and sad i based the these sentences on the drug guideline and i believe that the district court judges in the best position to make that determination and that it's it's subject to to deferen of these he looked at and decided no i actually based it on the group offender guidelines and no modification i don't know the answer that because we weren't involved and till he got to know from the government so it is quite possible i mean we so in other words he wasn't initially planning to do a reduction you want to have been exactly we went to been involved if he he reviewed them all himself there were some that he did not grant i know that because just from reading the rehearing transcripts he talked about the process that he went through he said i reviewed like a thousand of the but he didn't i think he said he granted like nine hundred of them so i don't i don't know how accurate those numbers about right right but clearly that indicates that there were some he did not grant but i i can't provide information as to whether there are any career offenders that he did not grant i do want to have if i could a fallback position and say oh if the court we believe that that that the commentary no one a does not apply is not binding in any of these cases because it attempts to if it's applied to limit the district court's authority to determine eligibility what he based the sentence on fall back position as i said it certainly cannot be applied to the to the people who gave substantial assistance because that directly conflicts with congressional directive further fallback position the specific language in commentary no one as a says you consider the oftens level in criminal history category before consideration of any departure under the guidelines manual or variance many of these individuals received reduction under statute thirty five fifty three eight and also by rule under rule thirty five and said the plain language there the commentary would not apply judge genelle understood that this was a difficult issue that he was facing that's why he took as much time as he did to review all these all the facts of the cases he wanted to give these individuals the reductions you believe they deserved the reductions he gave these individual the dutch found that they were based on two the one point one gave the two levels off from the drug guideline i would note that currently four of these individuals have been released from prison three of them are successfully on supervised release the fourth one is already in a halfway house we would ask that this court  the sentences as modified by judge lester any further questions you'll agree that there's no agreed up on the definition of what based on me yes i would agree that that's true i think that's one of the things i would just you know said he based it on that was his determination of determination about what based on meant to him right and he used it he analogized it to the what the supreme court did in freeman it how they looked at where you have this binding agreement on a particular sentence you know could that ever be based on and so he used that same analogy in looking at these cases and said ten day ever be based on regardless of whether a defendant received a reduction for substantial assistance through five k five it is clear that the police in this case cannot escape the language that it's been see to specifically provides that it has to be based on a sentencing range that was lowered these reductions based on substantial assistance  cooperation where vehicles by which cooperating individuals were properly rewarded for their substantial assistance none of that  alters the fact that at the time their sentences were calculated if you look at the pre sentence reports at the time the sentences were imposed they were imposed in the dischord adopted the p s r that set out a framework that shows that the guideline range was based on their status as a career and all of the arguments that apple is trying to make in this case basically call into question a framework that this court has consistently adopted