am here on behalf of g s mckinney dischord erred in this case when it held that mr mckinney was ineligible for relief under the st step act solely because his guidelines range had not changed the government has conceded this point on appeal at pages twenty six dollars twenty eight cents of its brief the government concedes that mr mckinney statutory penalty range has been reduced and at page thirteen of its prefer the government states quote the st step back to apply is to the and then because his offense involved crack cocaine and he was sentenced before august rd two thousand and ten we agree the government's concession is consistent with published decisions from four other circuits the th th th and th reversed decisions  analogous to the district court's erroneous decision below this court should do the same in the south is absent the government's concession he would concern me a little bit how this comes for us because it seems to me that you didn't give the district court a lot of help there is the district court of law in its order that no one had reference what impacts statutorily the st step would have and i looked at your pleadings below they're all talking about the guidelines and in fact they're dealing with arguments that in some ways you're abandoning here they'll go to twenty three thousand five hundred and eighty two i guess it is and the reference to the notion that what we have here is not it doesn't matter if you get a guy if your guidelines are to do so well that's how it would but now all of a sudden the disk record is making this big error because they focused on the guidelines and it didn't focus on the statute so great thank goodness for concessions because you put this record fairly difficult situation by the way that you brief this that you didn't make this coverage argument there's no where in your brief that you made  record yeah to seventy seven dollars the government states in this case there is no dispute between the parties that the defendants conviction is a covered offense and that if applied today based fence level in this matter would be reduced accordingly so there was i agree with you that it is frustrating that nobody said the statutory range went from twenty to ten and that's a straight in the bay depending on how this gets rain when we write it would be frustrating to your court to know that somehow it made a mistake when it was not given up framing of the argument by the proponent of the argument so that it would know what steps would be at play here i think to sort of understand the way the and i didn't do the briefing blow but i think t sort of understand it you have to sort of put yourself in the timeframe of when this happened and there this was at a point when the government was making this three thousand five hundred and eighty two c two argument that was confusing everyone nobody thinks that are you most correct today and so i think the way these things typically work in our in our district is that we have an attorney and two attorneys sit down and come up with agreements and most of these cases and when they don't agree there's a briefing and i think on a briefing sort of just started at a point where the parties were in their heads and not where the you know what i do i don't eat your valuable time i just want to i just want to make right we are the district well wasn't doing something really wacky here by the way proceeded in light of the briefing that it had before it that's a different question than the error question it is ok all right you know i do think the air is still fairly obvious based on the text so i guess i guess i want assuming you know i do think with with the other circuits you have come down on this the government's concession we're going on eligibility turning to harmlessness so we think the government is wrong with respect to harmlessness on simply to overarching reasons st i it is the government's burden to prove harmless error and it's a briefing on this point is is too perfunctory to merit this court's consideration and nd even if this court considers the government's harmless error argument the disc to one sentence alternative finally in fact finding involves the same error the discord made and its eligibility determination the dischord denied the motion for one reason quote because mr mckinney's guidelines range has not changed  so the principle of law that we're relying on is that when a district court is required to make a discretionary ruling that is subject to appellate review this court has to satisfy itself before it can conclude that the judge did not abuse its discretion that he exercise discretion that is that he considered the factors relevant to that exercise so for three reasons all rooted in the text of the st step act the dischord did not do that here st the st step act has nothing to do with the guidelines  st step back deals and statutory penalties and not guidelines ranges the district courts consideration of a nothing but the guidelines range is insufficient nd section four for c of the  wedded together but i mean this is the discretion you know and that's because the reason is the same right the reason is the same but the limitations issue doesn't apply here i mean it would seem to me anyway what place here is whether the guidelines can be the determining factor in exercising discretion isn't that right but there's where i'm going with section four of foresee that section directs district courts to conduct a complete merits review and a complete conduct in the gum it has conceded that point as well on page sixteen up to three the government states courts are a free to assess the ordinary considerations pertinent to sentencing in the citing whether to reduce the sentence these considerations are set forth in section three thousand five hundred and fifty three say in addition the court may consider post offense conduct either positive or negative in assessing whether to adjust a previously impose sentence we agree review not one limited solely to the defendant's guidelines range and i'll give you three reasons why i think that's right the st is the consistent usage canon with in section four a for b congress also used the phrase impose a sentence to a sentence a different reading within the same subsection of the st step back nd when you look throughout the united states code when congress uses the phrase impose and sentence it refer uses that phrase to c to use the verb reduce reduce the term of imprisonment thirty five c one b uses the verb modify and that of why that's why we happen to now drop using c one b as a basis to proceed for isn't right i don't you know a footnote where you said that the the why we ever went there is beyond me and i think it had to do because the government went to see to the guy try to argue that these were limited syncing proceedings under c one b business i think is wrong and i hope that the court does not adopt you have a question joshua i well i had sort of conceptually i want to make sure i understand how this case fits together as i see it although there were two affects his the statutory structure so is the cover person to well is is the guidelines the sole determinant of the exercise of discretion that the court would have in this sentencing proceeding that will take place to three if the answer to that is no then what is what would the court then use the three thousand five hundred and fifty three factors would be your argument and that at least for current purposes you've taken off the table an argument about plenary sentencing so you're just fifty three a including a four would be on the table so those are the three things we're talking about yes but i honestly don't even want to talk about three we haven't asked for a specific remedy we haven't asked for the good morning your owners brian clark i'm an assistant united states attorney in the district of kansas i represent the united states may it please the court i'd like to pick up on the framework that you just provided judge holmes and start with eligible eligibility even in the district court the government agreed that mr mckinney was eligible for a reduced sentence under the st step back so that hasn't been an issue the question in the district court and i think part of the confusion that arises from this case is how as you mentioned the motion was framed in the district court as a request requesting almost exclusively a plenary re sentencing and so that's what the arguments were about in the district court mr mckinney requested plenary re sentencing  mckinney but having read all of these cases it's clear to me that i have discretion to decide whether to give mr mckinney a reduction of his of his sentence just in my discretion and there are a number of cases that the district court relied on where it found the defendant to be eligible found no plenary sentencing available but then went ahead and reduce the sentence so that last i'm sorry mr clarke if i may let me use a framework because i want to make sure we do nothing else i understand your response to this correct it seems to me using those three that three structural thing that i set up that you've conceded every one of those i mean the only thing that you have taken off the table and he's now not a including post sentencing conda yes you've conceded that all three are conceded if that is true the only thing that is off the table is the thing that he is not not now asking or where my missing that because if that's true and i and i commend candor i it's that's all good if that's true then for purposes of this case there really is not much for us to do but to remain man for the court to implement that mission sure so i think i have three responses ok the st is that i just want to make sure that mr mckinney has in fact aband imposed combined with the word sentence requires a district court to conduct a quote actual sentencing hearing where it considers three thousand five hundred and fifty three a factors among other things are you talking about his opening brief opening  his reply brief and i am missing it but he seemed clear as a bell and it i'm not arguing that and i would be perfectly happy with that i just want to make sure that we're clear that we're not getting confused by using terms because i understand that he said that he's me understand that you're right to have some caution on that let me let me but let me understand this particularly since the word plenary re sentencing can mean multiple things right ok what if what i just understood him to say is that at that juncture the question of what that whether it means anything else is going to be hashed out below now does that sound like a reasonable disposition to use with one when caviar and slight edit to that to that's not what i understood you to say and if you have language in there that says that i want to see it because that's not when and that your concession so it's my understanding that mr hans meyers reference our concession on that point is the language in our brief that says district courts are free to consider section three thousand five hundred and fifty three a factor they are not bound to use correct that's our position in what is the what is the legal definition of their discretion how is that discretion defined then if they are not bound to consider thirty five thousand five hundred and thirty eight factors because if that's your position then then then you also would be taking the position the court did not necessarily error by only considering a four guidelines it do you believe that i think that's correct and i also think that it's not entirely clear from the district court's decision that that is the only thing that the district court considered because under if it consider it's one line and they write it well these guidelines haven't cha you lose that's correct and so under this court's decision for example in verdun garcia and corey both of those cases the district court had its eye on and cited this court has said that it sets a very low bar in terms of what a district court has to say in terms of explaining its reasons for imposing a sentence under reading this report only has to provide a reason basis for exercising its discretion you are absolutely right but that's a question of articulation grant the point would that so that's a question of what you got to say it's not a question of what your obligation is right when i hear you saying now is you don't think the court would have an obligation to consider all of those factors that's correct in the  mckenna gives two reasons for why he thinks the district court is obliged to consider those factors the st is the word imposed and respectfully he just puts far too much weight on that word imposed a good example is the u s supreme court's decision in relied on the lead which in c one b he said the motion was brought under c one b and so now on appeal to come back and pull the rug out from under the district court in that way and completely change the framing of the case i think  sentence that's it except for unless certain exceptions apply three thousand five hundred and eighty two c one b is the exception that says if a different statute authorizes a modification of a sentence then that's permitted so the only you're saying that if you're saying that eve the court is free to consider thirty five thousand five hundred and thirty eight factors but is not required to and part of the reason that is not required to is by reference to the make that up i mean if we don't accept the alternative that they're bound to why are they were they even free because the district has broad discretion in section four of four b of the st step act congress said courts may impose a reduced sentence that invokes broad discretion and then again in section four hundred and four c of the st act congress reiterated nothing in this section four or four shall be construed as requiring a court to reduce a sentence under this have very broad discretion in deciding whether to reduce a sentence for a person who is even eligible so it's still your position then it would be your position that the vehicle through which one eight factors correct ok well if that is the position then is it in fact the case that the court erred at all i mean a t m in other words under under your position the court did what it was permitted to do which was to to it well assuming there was error on the question of authority ok then the court your position o harmless error would be ok well the court said even if i'm authorized to do it because the guidelines haven't changed i'm not giving them relief you're saying the court could have looked at more but it didn't and so there's no air in mine or standing correctly in one slight modification modification is that i think that what that we have to view that one sentence granted it is one sentence but that one sentence at the end of the district court's decision in light of the entire decision so and that's how this this court has done it again in those those cases that determine whether the district court has offered sufficient explanation to what end are we doing that to the end of deferring to the district or in terms of what it is have with the worthy then i am going to i'm going to render this decision which it was it was entitle to do because of the three thousand five hundred and eighty two limitation right is that what you're saying and give me any  unit you want now because i'm writing back and look at this juxtaposed to your brief right and i take the point and i think you're absolutely correct that the complexity of the issues involved in this case are not as fully fleshed out in the briefs on both sides as they probably should have been and with respect to remain and the government is not a would not be opposed to a remain and but we would ask the court in any language not to require the district court to consider anything in particular because section four of four of the st act doesn't if the court were to say something along the lines of it appears that you only considered the guidelines please give us you know further explanation for your decision or please you know but counsel i'm sorry why what ground would we have under your argument for doing so that's i really that's the part i don't understand if you actually think we should affirm based on this record i think you could but i'm also recognizing that it's not absolutely clear and i  want to be perfectly candid with with accord on that so not entirely clear so i one of the cases that was cited supplemental the word i think took a position that it least could speak to what you're talking about i'm not saying i'm buying it but right but could speak to what you're it's not clear that you knew you could have considered any other thirty five thousand five hundred and thirty eight factors therefore we're not reversing really we're vacating for you to go back to have a proceeding in which you extensionally explain what you thought the scope of your discretion was in then act on the scope of your discretion right and i believe that's a hardwick case and the government would have no problem with an outcome along those lines because again i think some of the issues that we're talking about now aren't fully fleshed out in the br perhaps they aren't and that's unfortunate but yeah i agree and apologize for that and so it may be that the preferred and maybe even the best approach is to dream into the district along those lines that it's not it's not clear that you understood that you could consider these factors we're not saying that you have to but we're just going to give it back to you to take another look at it but again the government would urge this court not to tie the district court's answer require it to consider anything that's not explicitly in the text of section four a for us the st step back i'd like to briefly have got fourteen seconds left to get to the other ground that mr mckinney says would require merits review it says a complete review of the motion on the merits and if you go back and take a look at what the motion was the district courts definitely did a complete merits review of the motion the problem is now on appeal mr mckinney is raising all kinds of other issues that just weren't in the motion that he'd like the district court to consider and and so that's a bit of a rub too so again it may be that the better approach would be and along the lines of what you mentioned judge holmes with the caveat that the government thinks that it shouldn't provide any additional direction or tie the hands of the district court in terms of what it has to consider ok so just to be clear i know we're going over but i'm going to give you time to respond but yes disposition with and i'm going to listen for your edits disposition would be essentially vacate it's clear in i mean we could make clear that there was coverage that's that's that's you conceded that we also are not going to be opining on whether you are obliged to consider the three thousand five hundred and fifty three factors that would be an issue that would have to be hashed out below it in address then but would be simply saying we don't know whether you thought you could consider these and we don't know what you thought to be the balance of boundaries of your discretion therefore we want to hear from you in the st instance on that i think yes as long as the court makes clear that it's not saying that this report is required to consider th for you real editor aren't you our guest just to make clear because again back to my original concern is that it seems to me that what mr mckinney asked for in the district court originally is really what he wants and he's abandoned that on appeal but isn't willing to say that he's not going to ask to try to sort of unwind the leader organizer finding he's not i don't think although i know no no no if this goes back it goes back to the poor to hash out all of those crimes because it's not clear right now ok i would stand and that would be fine thank you for your patience and the extra time i appreciate it thank then and i want to your reaction to that so they'll know where we are well i don't know that i understood it to be honest with you well i'll give it to you ok what it is is there will be a finding that says yes mr kenne mr mckinney is eligible for relief there will be a vacating in the bay caving will be along the lines pretty much of your hard work decision which will simply say we don't know based upon this ruling whether the what the court deemed to be the appropriate boundaries of its discretion in making this determination therefore we were man for the court in the st instance to make that determination because i've looked at the door to use as a lot of which are not in your breeze about what you know what the courts of done on three fifty three and what they can three a and what they've considered so there are issues to be briefed here and we would leave that for that to be done yes i think that's exactly what we've asked for in our briefing  what it deemed to be the appropriate boundaries of its discretion and you can litigate what you deem to be those appropriate boundaries correct can can i can i make a suggestion and that is that this court rely on the text of the st step act and that's what we relied on that this that that this court remand for a complete review of the motion on the merits and let's just stick to the text and i think the government is up here trying to rewrite the statute the governor was up here for eighteen minutes and never or said anything about the text of the st step but well let's be fair about this up until your brief your reply brief i believe it is you did not give up three hundred and fifty eight to see one b and that predicate that is the predicate for this argument that the st step act is tied to this vehicle for a modification it may have been in your opening brief but it certainly was in it but i think was in your reply brief that the st time you gave it up all right well part of your argument to get this to get a broader consideration is predicated on the notion that we are not bound to the there is no imposed that st step back uses impose and three hundred and fifty eight to see one b doesn't use impose that's part of your argument right you mean the argument is the text whether you want to say we argued it blow or that it isn't simple even then you would then why are we waiting to the opening brief in a footnote to give it up so it's obviously not that simple right i  actually think it is though as you point out some government is some defense lawyer in another case didn't take that position so it's not that simple the point i'm making is in this does disposition that we're talking about yes why can't minute left and i think this is important and i'm and i want to get it out because this case does not involve an individual who is sentenced at a mandatory minimum and i think this is a good way of thinking about why the government and why it keeps going  it's wrong because if you have an individual who was sentenced prior to the fair sensing act to a mandatory minimum whose guidelines range was below that the district court would have had to impose that mandatory minimum without considering anything right it could it wouldn't have been able to consider the three thousand five hundred and fifty three dollars factors so i think that is a good example of why when you interpret this statute congress would have had to have meant for courts to consider those factors because there is a bucket of defendants who did not get that consideration when they were initially sent its and with that we would ask this court to vacate remand thank you thank you thank you counsel for your arguments we will take