response to the hughes said that mr guerrero was not eligible for a reduction because he'd already this issue had already been decided by and in fact what the the court did the st time around  was not address the merits of that but only to find that he was in eligible at that time successive motion ok my question is whether mr and this is for both sides whether how we should understand mr guerrero's letter of july th two thousand and fifteen which asks the court to appoint counsel and judge rules on no says no i'm not going to do that but in essence runs with it and so that decides the merits of such a request without having such a request in front of it right yes right so the way i read that letter he wants a lawyer and he wants a lawyer to present a request which obviously would require at least some development of why he's eligible under dylan given the five k wanted cetera should and would have to be elaborated but it would have been helpful at this point so what i'm concerned about is that it looks to me like judge lewis on oh with no doubt the best of intentions took this request for counsel and in essence re characterize where there are prohibitions on successive motions but the court has taught in the supreme court has taught very clearly that if a judge wants to read characterize a document in such a way as to make it a one chance then the the judge has to give the lead author notice of that an opportunity to withdraw that's one of the castro case that reasoning seems to me would apply here  that's correct judge i agree with your analysis because i would definitely argue that these st this st go round could not properly be considered and this has nothing to do with  one sense and that is i think that jut wringman over the district court in the nd to says and i read you narrowly i think the government also did too because the prior decision on and so what we have in mr guerrero's case well it wasn't technically under eleven c one c it was a decision that was not based on or the guidelines in the sense of freeman because the parties had agreed and the judge impose the same sentence that the parties had agreed so in that sense yes hughes opens the door a little bit further to say that it's ok because all these decisions are based on the guidelines whereas prior to excuse i think if the case had been presented fully there would have been the arguments not only about five k ones but the government probably would have come back with the argument well this isn't a case where the how the guidelines reduced and incorporate the five came one substantial assist reduction and what i'm saying is that if the case of the case wasn't fully briefed in front of judge and he did this on his own  he didn't take into account dillon and he didn't take into account other arguments that could and should have been presented with respect to this so what i'm saying is that fuse does make a difference in terms of sort of a side note and if i could now come back around to judge hamilton's point also and then is that in this particular case where m was reaching out but not specific about how he was going to go about this i don't believe he had a fair opportunity to present the issue and that it would be fundamentally fundamentally unfair in this particular case and foreclose not did was find that mr guerrero was ineligible and he never addressed the merits it's a two step analysis and what he did was say well he's not eligible because he doesn't change his guidelines even if we apply this amendment and he didn't go on to address whether the merits of the motion should be heard and that would be his exercise of discretion and if upon a finding of  a determination because nobody nobody argues that he's not eligible by means of the reduction in the guidelines i think both car parties would say yes the guidelines are reduced in this case especially when you take into account the substantial assistance motion and so then the question would become does the merits of this particular and that's never been addressed not by judges i know and not by the district courts from the current case so we would like mr guerrero to have that opportunity i see i'm about out of time here if you have no more i will reserve my thi thank you for your patience today motion wasn't really emotion and really was intended to be soley a request for counsel or something of that nature he had a remedy for that and the remedy for that is an appeal and appeal of the original order that order was issued in october  fifteen the fed has it made any allegation that it received notice of that or he hasn't made any allegation that that order was mis characterize his only claim in this court and always has been that that was wrong on the m counsel he didn't make an argument that a this has something to do with any of the issues that are that word issue in hughes or in this case is related to that dixon or ray or any of those cases be argued another complete side issue a case of this court called wren that i also don't believe has much too much to do with then he appealed and this court issued its standard rule three  order that said you either need to file an informal popper's motion with us or you need to file a docking statement or you need to pay the filing fee and he get he did nothing and he waited two dollars and a half years before he then filed his new motion based on hughes for reasons which court has already explained and that are even discussed this case does not have anything to do with any of the issues that are present in hughes the district judge was on or didn't cite use theirs was on or didn't deny this motion based in any way on reason we think that that's what the rules are the rules from read in beer there was one decision per man meant this court's decision and wisner which acknowledges unpublished but i think makes the ballad point is even if you're wrong even if you're even if the district court was wrong on the merits your remedy for that is to appeal josh hamilton i do it big acknowledge your point i mean i suppose there could be a scenario if if the district court had just in response to this motion document  said i see you want counsel but i've looked at this on my own and i'm denying the motion i might be a closer case but that's just not the facts of this particular case i mean in response to the defendant's motion the court said was the foster decision holds i can't give you counsel and i'm going to now look at this i'm going to now get probation to look at this i'm going to review this motion and so it's not like he responds to the july th order by immediately denying the motion takes time he gets the he sends the notice he gets the order and then in fact it takes so long that guerrero responds request for status document one thousand two hundred and fifty eight alex guerrero proceeding pro se and we request the status of petitioners and eighty to see to drug minus two motion he's characterizing it himself as a motion i mean i again i'm sure mr guerrero would have loved to have counsel this court's precedents say he wasn't entitled to counsel and so he wanted to go forward on the merits of his motion denying petitioners request for a sentence reduction that's what he wanted he wanted a sentence reduction filed a motion for a sentence reduction that certainly included a request for counsel but that's what this was read and beard specified the party is entitled to one  such motion filed that motion he didn't file an appeal and he can't come back now in two thousand and nineteen and we consider that the stroller of the time just so that we get the language correct here the original guideline calculation was offense level forty three dollars criminal history category one is that right i believe that's correct requested a six level reduction based on substantial assistance and that would produce a middle level thirty seven dollars in order to get him a two hundred and twenty eight month sentence iran would need to get him to a level thirty five dollars in order to then fall within the relevant range and the district court i mean you know one can go back and read the sentencing transcript in the parties basically the government just says you know we agree on a plea agreement to recommend two hundred and twenty eight other reasons in this case which appear to have basically just spend everything that you're going to read in the p s r and everything you know about these defendants we believe that this below guideline sentence is a fair sentence that's i think where the parties came out here but that's the sentence that ultimately came up the guideline range was a thirty seven dollars which was above and the parties agreed that it was a below two hundred and twenty eight months one thousand your son it was appropriate not since the court imposed ultimately i don't know that the court needs to get into all of those details here because the bottom line is the law is clear from reading the law is clear from beer you get one chance that it may be judge was on a misinterpreted dillon or or some of these other cases and maybe he had the authority to impose a lower sentence maybe he would have exercise that discretion or maybe he wouldn't have the point is that if we'd been arguing this case in two thousand and sixteen those would be the issues we litigated instead we were getting real red beard because of of where we're at and and so i don't know that the court in writing its opinion needs to say much more other than your honor i think that there couple of things to be taken st of all the judge was wrong about foster i mean he couldn't have the court pay for a lawyer but he certainly could have appointed one and it regularly happens especially as you know in this district where when there are changes in the guidelines federal defender still take over that and file the requisite motor so he could have done something to get this man a lawyer and be the cases which talk about cited by the opposing counsel which talk about not having a nd motion look at cases where which they characterize as having a nd bite of the apple and mr garo never even got