the last case on the calendar united states versus around good morning moves with the court my name is thomas neutered and i am representing the pallant are with me here is my associate wade government this is a case where under the sentencing reform laws and the changes to the guidelines civically amendment seven eighty two mr burrell who was sentenced back in the year two thousand at a time when the guidelines were mandatory and when the levels for kicking in certain guideline levels at the guidelines points were much different in terms of the weight of drugs involved in the case is the amount that the judge that was found at the time that he was convicted sentenced the first time too high to for you to receive any benefit  know i know what i'm saying is the amount has to be that the matter has to be referred back to the district court for that amount to be determined unfortunately judge nickerson has passed away one point five  was the conservative estimate it was the government's estimate but judge nickerson specifically said that he was not making a finding of how much over one and a half kil one point five and then we're not it could be ten times fifteen times we never over so why is that combination enough to satisfy the eligibility terminations district well i think you have to consider them separately the marking of the box on the beach wasn't even part of the judgment it was fart of the statement of reasons where the only two options were i find  finding moreover the case law is quite clear that he's supposed to have number one to make the specific finding under the molino and i think it's the mature a case and second y it's only reasonable to rely on the pretty certain report of the pre sentence report has made the finding based on something they themselves did in the various amendments that were given to the court below judge jury whom i like very very much but he the probation report disclaimed any information about it they just said this is the number the government gave us and that's all relying on and that meant the government detail explained how it got to the number and it as i recall that it took half of what it could have argued but it still wasn't litigated we didn't have to litigate it back in two thousand it was me doing it we didn't have to  findings set forth in the present report that would be the end of it right if he had it it might be the end of it except that if he said that i might have argued that's not sufficient because the pre sentence report i only implicitly found something way above one point five to question is how much about but then it adds the clarification in the statement of reasons why isn't that sufficient is i don't i really don't think he specifically when he said it could be ten times it could be fifteen times the one point five level both numbers of which are below the current necessary number of twenty five point two kilograms it may have been somewhat rhetorical but he was declining to make any finding in those numbers none of us had any reason to believe there was a need for it because we couldn't anticipate the change in the guidelines and just checking off that he's adopting the pre sentence report i don't think means necessarily adopting every detail as i argue in the reply brief for example it gives two different dates of birth for my client i'm sure he wasn't adopting both dates of birth i think it meant that he was adopting in general the guidelines calculation because he did find that it was over one point five kil i made arguments about why it could be lower than one point five which show that there are arguments to be made in other words the individual inquiry that could be made based on the trial transcript we declined to go any further once he said that there's no use it's clearly at least one point five and that's all i have to find out what's our standard of review of the district court's determination here the  it's clearer i think on on the factual is clearly right but i'm not saying he's wrong i'm saying he didn't make a decision at all and in other words well unless you're saying judge theory was clearly wrong  on this record the sentencing court concluded that it was sixty grams i can't say that i agree that that's the standard but if it were the standard i would say that it is an abuse for this  reason it's a little bizarre that under the dillon approach to these two these reasons issues you first have to meet this threshold of saying that something was wrong with the quantity calculation and then you not only get a new guideline which in this case would change it from life to thirty years to life which is still very high but you also get to go into the things the post booker aspect of looking at the other factors in the sentencing statute and make a fix a certain is outside of the guidelines judge nickerson did not have that opportunity it wasn't it wasn't available to him a thirty five eighty two option doesn't kill and say that it's it's not a recent unsing wholesale that we're just looking at and you know i think that's right but i think is it does say that you still want once you've hit that threshold so that you come back for the re y the court i believe can consider things like what's happened since the person's been incarcerated as well as the the other thirty five fifty three factors that now is  sentencing but even if it weren't available the just the change from life to thirty years to life is a major major change and to say that this person is finished with his option to have any consideration under the changes that have occurred in our view of how the crack cocaine calculation should be handled based on what it least is ambiguous statements by judge ni n made at a time when he did not have to find that there was twenty five point two kilograms he only had to find it was one point five i think it is is essentially an abuse of discretion to refuse to do it and i think is an appropriate thing obviously if judge in a case and were alive we wouldn't be here because it would have the motion would have gone to him and he would have either said no i meant it with sixty seven point whatever or he'd say ok let's say you're the argument about it we're in this odd position because he's passed away and another judge has to try to review what was said at the time but what was said at the time was not a decision that gets us to twenty five they please the court my name is michael moore body and i represent the united states in this case the question on this appeal is whether the defendant is eligible for sentencing reduction under amendment seven eighty two to the guidelines the district court concluded that the defendant was not eligible for such a reduction and this court should affirm that decision for two reasons first the district court mediaweek determination at the time of sentencing the district court concluded that the defendant was responsible for sixty one point five four kilograms of crack cocaine based solely on the statement of reasons or is there something else in the record to support that your honor i think it would be based on the sentencing court's rejection after that maybe ten times may be fifteen times yes or no i think when that semen is right in contacts it's not the district court making any kind of finding what's happening there is defense counsel is making an argument that this was a much smaller organization than the government had said it was and the core in response says ok let's not except for the sake of argument to the government's calculation that it's forty times the threshold of one point five kilograms let's say for the sake of argument that's fifteen or twenty kilograms you still don't get there in this case that's all he was saying it wasn't a factual determination by the district or it was he was making an assumption for the sake of argument there now defense counsel said during his argument that the court specifically declined to make a factual determination at the time of sentencing when you look at the sentencing record that is just not accurate the district court did say that the technical issue here was whether or not the one point five milligram fracking guideline but the district court never said that he wasn't going to make a factual determination to see if the defendant's that it was sixty one point seven five sixty one point five four your honor the best evidence that the core meta determination made that determination that that was the amount your honor i think the best evidence in this case is the is the written statement of reasons here now to that's the checkbox but i adopted p s r i don't think that's correct your honor oh i think i think that's the clearest statement but i think that determination is can entirely consistent with what happened at the sentencing proceeding the sentencing proceeding on the record he clarified in the statement of reasons that he was explicitly adopting the factual determination in the p s r now to credit the defense counsel's argument here you have to assume that the court made a mistake made a mistake in the judgment in this case which i would submit is one of the most important documents that a court signs and files that why you know if all that was relevant for sentencing purposes was whether it was one point five kilos or not case the court notes that the statement of reasons there said which is that the corps adopted the factual findings in the pre sentence report but finds that the appropriate addition for the role just meant is to rather than four which indicates that the district court did in fact in this very case know how to amend the statement of reasons if it wanted to just to state that it was doing something different than the p s r the district court did not do that in sta district court check that box because he meant to adopt the factual determinations including the weight finding in the p s so said i reject any findings on the record that's correct your honor and in fact i  would submit that when you review the sentencing minutes here it shows that the district or is rejecting any challenge to the way determination after an extended coffee and as we're talking about the miles decision i would also point out that this precise issue was addressed in the miles decision in two thousand and thirteen that was a challenge that miss miles made on the thirty five eighty two motion saying that she was entitled or eligible for a sentencing reduction because the district court did not make a specific factual determination at the time of sentencing this core rejected that decision rejected their argument the court specifically said that because judge nickerson at the time of sente five four kilograms of crack cocaine was what the defendant was responsible for i'd like to briefly turn to another argument that the defendant has made in his appellate reef which is that the reasons set forth in the argument could have been raised on direct appeal but was raised for the first time on a thirty five eighty two proceeding that argument is forfeited but at a minimum the defendant's going to have to meet the plain error standard in this case and i  don't think the defendant can do that it's very clear based on the p s r what the basis for was was here for this determination the p s r states that this drug organization operated for twenty four hours a to the trial that he sat through as the district court judge which included the cooperating witness testimony about this organization and the mountain want to the of crack cocaine that this organization saw and as well as the duration as well i think there was some extrapolation here based on the cooperating witnesses testimony i think the testimony dealt with in particular a several year time period and the government extrapolated based on that testimony about how much was sold during that the time period but there was evidence that this was a seven year long drug trafficking organization that was selling crack cocaine every day hundreds and hundreds of files of crack cocaine every day so when judge nickerson cited to the record evidence when he discussed the p s r it's abundantly clear what he was relying on when he was making the wheat determination in this case and adopting the p s r so unless there are additional questions for the foregoing reasons the first of all i don't think the miles case is controlling here even though it was a related case first of all at the time of its consideration i think the level that needed to be met was eight point four kilograms and not twenty five point t but secondly the finding is individual ised even though you're talking about a conspiracy it's the foreseeable amount of any individual participant in the conspiracy and one of the arguments that started to make you know i get to what i started out the actual sentencing was that mr burrell's role did not spend the entire seven years that this was an entire extrapolation the whole calculation was an extrapolation based on  estimate given by one witness that in itself i think has come under some criticism by this court over the years but it's since it's an individual ised determination a sentencing that all he needed to find was one point five kilograms and we really didn't need to argue anything more because if it was ten times or fifteen times it wouldn't make any difference it affects the way all of us acted if i if i had known that i was dealing with a twenty five point two i might have taken a direct appeal on something where it was clear that the one point five was was clearly met so so i just suggest that when the judge did not have to make a decision of more than one and a half and one it really seems based on the words he used that he was declining to do so when he didn't really want to hear more argument on some number that might end up lower than the government's number but higher than one point five because it wasn't relevant it wasn't relevant and that that affects the way people act that's why courts decline to make rulings on things that they don't have to make a ruling on because they may not be litigated by the parties if they're not necessary and i really think basic fairness suggests that this should be sent that to judge theory to let him review the trial record and any other evidence that the defense and the prosecution want to put in and just make the finding it's not that complicated but it's just declining to make the finding based on the ambigu situation left by judge nickerson at a time when the finding was not necessary seems seems not not to be basic justice thank you reserve decision the final two cases are on submission