of the st step back to congress authorized district courts to rewrite history unfortunately the district court here did just that by your own easily applying the st step back to mr ben to be despite the historical fact that his initial sentence had been impose yes i mean exactly so as a legal matter we don't dispute the fact that big picture of a sentence renders that sentence no and void legally speaking but i would see a few things st of all a general rule the courts right on a clean slate a resentencing doesn't displace and can't displace the clear and specific language in section forty one see about when for section forty one does and doesn't apply what's more because you're of a sentence doesn't always erase an initial sentence for all purposes in the words in the memorable words of then judge barrett in her dissent earlier today victor is not a time machine and the sentence the district court has to look to that previous sentence to see what guidelines were applied and reapply those same guidelines on  like congress did here with section four a one c in the st step back to the sentencing reform act allows district courts to go back and look at the imposition of an initial sentence as a historical reference point so we're not arguing that the vacated initial sentence still carries legal force all we're saying is that section and ball congress said and section four hundred and one dollars see is that the initial sentence should be looked at as a historical reference point and i should also note that in dorsey the supreme court said that the sentencing reform act is also a background principle on which congress legislate so congress certainly would have had this principle in mind in in acting in drafting the st step act i should note that the fencing and all can do the sensing reform act doesn't apply in this case because it only applies at least as far as its provision is concerned where the court of appeals remand the sentence but it helpful example of another scenario where congress explicitly contemplates that district courts ought to and in fact need to look back to initially impose sentence even where that sentence has been vacated let me ask you a question mr mask and this is andrew brasher is there any meaningful difference for your position between the following two cases so case one would be before the st f x effective date the descendants sentence is vacated so he's awaiting resenting on the effective date of the act and case to be this case where the senate is serving a sentence on the effective date and then later after the from our perspective all that matter is this if likeability of section four a one turns on whether a sentence was handed down before the act and date period full stop that being said  cases rejected the government's reading of the statute but those cases don't support his reading of the statute in fact if your honour's for whatever reason found the sixty seven dollars circuits reading of the statute persuasive which we don't advocate that you  address the other side too i mean it strikes me that the defendants in the th and th circuit cases had a much stronger claim to being in the same position as someone who had not been since before the st backed became let me ask you another question so i was attacked i find your textual reading of the statute to be persuasive but i'm having trouble with this question how would congress have written this if it wanted to have written a statute that is what the defendant says this statute means that makes sense why would they have that in just ask you how they read it differently sure so for one thing i think there are a few ways congress could have gone about it i think it could have said if a ballot sentenced for the offense instead of just a sentence you know in our view congress as we went under briefed congress made a conscious decision using the definite article to mean any sentence so congress certainly had the option of narrowing that down to either to valid sentences to final sentence is the ultimate sentence is in some way that would signify that it contemplated that the statute would apply to the most recent as opposed to any sentence in this case the initial sent and then you know the other option has been imposed as of this a lot of work in the statute at the present perfect tense that has been imposed is backward looking whereas simply saying is imposed no your honor i mean they are synonymous so there's no i mean there's no reason it would have to use the same word twice but i would also point out to the extent we're going down that road that congress also used the on or after formulation that i was just mentioning in section four hundred and two b of the statute in section for one of the statute congress used finality as a measuring stick which it also could have done here had wanted kennedy's reading and the six and seven circuits reading the government's reading is the only one that doesn't require your honour's to rewrite or add extra wor the on or after formulation that it could have included just as easily in section for a one c but cited not to so all taken with all the government's reading of the statute is the only one before your honor's that its entirety which such lego i just brought out because of that the court doesn't necessarily have to reach the four a one c and alice's which i will address this case squarely falls under dorsey and this circuit's precedent in sentencing was the st step back and under the analysis in dorsey and in hinds congress intended to reduce penalties of section four a one to apply to create ackman offenders sentence after an act meant whether that was at an initial insane which is what we have here so is your position to ask just a quick question understand that position a little bit better i mean if congress had it in the st step back in this provision and said this is not retroactive to said sentence at that point so it would be a retroactive application it would be applying the law as it exists on the day sentence and which is consistent with pepper and dorsey and so for those reasons we believe that the district court properly applied s i say hines controls in terms of the four a one c analysis what i mean specifically is that if section four a one c applies to pre act of spenders at their initial sentencing which is posted happens then under honor is pointing out that historical fact does not necessarily have legal significance and that's the distinction that we are making and this is consistent with the distinctions that we know that in practice so for example under double jeopardy if you take that as an example if a defendant is convicted by a jury sentenced and then the sent the invitation and sentence are vacated it comes back down his reach tried and convicted upon sentencing there is no double jeopardy issue even if the court were to impose a higher sentence after making it or there still would not be a double jeopardy concern because the only legally relevant sentence is that nd sentence the final one after vacate or so for those reasons your honor we agree that if mr bennett he had multiple counts and only one had been dated that would be factually distinguishable that would be closer to rd circuit precedent and here we have complete the heater and no sentencing and under proper dorsey defendants are sentence under the law in a fact we know that from united states versus crimes as well as pepper the only exception is the federal savings statute and which permits congress or apply in new acts or lenient penalties to preempt act offenders without expressly sa act but all the congress has to do is show a plane import her fair implication that they intend to it was we just penalties to apply to pretty active offenders sentencing post act and we have that clear implication in the st step act we have it both as a section for a one seat which is what i'm called the dorsey fixed to the st step back to where congress said in the fair sentencing and we didn't include any language about what to do with pending he says and we learned our lesson in the st step back we're going to expose that language we'll talk about i do want to ask your question about that because so the government's brief doesn't i guess what i would say textual analysis of this  statute and one of the things i think government points to in support of this position is the fact that this provision of the statute says applicability to pending cases and so it's hard for me to see that i mean let's section four a one c and ending cases requirement the th circuit in both a which you filed as part of our supplemental authorities last week dealt with this very issue and what the th circuit reasoned was that under four a one c probably not a dispositive issue but what is your sort of theory for why congress wrote this retroactivity provision the way it did how does how does your reading of this sort of make sense as an understanding of what ackman and then it would be retroactive to everybody instead they added this clause that says if the sentence for the offense has not been imposed as of such date of an act and what do you think they were trying to do issue with that they have a fair sentencing act which is what the supreme court that dorsey that is to say that their sentencing act was completely silent as to application either retroactively or to pending he states and the supreme court said the fa that they didn't fix it if we redo the way you're suggesting they should be used but nothing in there at all right because it would just be a silence would have been the same thing that would result in the same thing that you're so yes thing we read the text to say right honor i i somewhat differ in your understanding so let me try to be a little bit more clear i think it mr bennett b s situation he it he would get the benefit under the dorsey hines analysis but also if we look mor is analysis and in conjunction with heinz he would still get the benefit so i think in mr bennett be specific factual situation he would benefit under either scenario that you this statute of one quite it used eight and another point eight used any and we cannot just simply disregard congress's choice to explicitly use different words especially and it's in the same provision so just russia i think this was one of your concerns doesn't they can't they need any and it can in some in some circumstances but it doesn't mean that here and that's where context becomes so important so for example i could say last night i saw a great movie that doesn't mean that last night i saw any great movie it means that last night i saw a specific movie that i thought was great and so i think in this particular circumstance context is very important and because congress chose to use sentence imposed which borrows from the common law understanding of sentencing and sentencing particularly in the context of a gator we cannot just simply ignore all of the body of law and understanding that goes with that term and to adopt government's interpretation would be essentially to ignore that common law understanding and under the presumption against change in common law which is well established both in supreme court precedent as well as in this court we simply do not discard the common law definitions unless congress explicitly tells us to do so and that is under curse so as to not return to the circuit as well as when the american trucking corporation in which justice scalia essentially said just simply do not do that without congress telling us to do so and here the statute did not tell us to do so if congress had wanted to it could happen because we know that congress and include definitions of of terms which  offense that was committed before the date of an act and of this act if no sentence valid or invalid for the often have been imposed as of such date of an act then a rd possibility a little bit more wordy so please bear with me is for us census demitted before the date of an accident this act this section and the amendments paid by the section shall not apply if a sentence for the often has already been imposed as of the date of such an act and otherwise this section and the amendments made by this section shall apply and i mean come on i want my one more question i want you to answer that that's ok could you address the past tense nature of the statute so that you know i think one of the one of the government's good points here not necessarily dispositive point but a good point is that it the statute says it speaks in the past tense so when we look backwards to see of the sentence has been posed as opposed to for example whether there was an existing sentence what you say about so again i think that goes back to the cont here congress was clearly trying to fix the dorsey issue which was a complete silence on what to do with pending he says and they made that dorsey fixed against the legal backdrop of sentencing in the heat of the well established law which we must assume under it would still get the benefit and i think that that is an explanation for the choice of the tents but what i will say is that again we cannot lose sight of the background principles against which congress legislates these are deeply rooted in our again we run and disappeared fix the back background principles are helpful as far as they go but they have to give way when they run against the statute and the sentencing reform act is a perfect example of that because how could that that should exist the statute that instructs this records to look back at a previous sentence how could that statute exist if mr bennett's argument were right that one spends is vacated not only is that white clean figure to be speaking from the books as far as he's concerned but literally wiped clean from the history books doesn't make any sense it's the end all of the argument doesn't work i address that i know that you want to read the  but again our position in the congress couldn't have been horrible little bit more precise and would have been preferable had to do that if you same word sure but there's no textual indication that those two words mean anything counsel can you identify a case but that proposition if your honor asked me that i could just as easily respond and i'll be respond with the case but supreme court from the durkin or from some other circuit because when you brought around but would ask me that question the word a retroactivity provision what's your take on that