a sentence reduction after he filed a request with jeff smith camp pursuant to the recent changes in the cracking guidelines now this case is clearly governed by the supreme court decision in agreement like we have in this case were that specifies a particular sentence and where there's a plea agreement that specifies a specific sensing range that has subsequently been reduced by the sentencing misstated or risk interpreted the quantity yes what what relief are you looking for here do you think that because these are areas you argue these are material matters for that is the drug quantity she made a finding of forty five grams which is outside the agreement the agreement in this case quite clearly in paragraph six eight says that the parties agree again pursuant to see one see the drug quantity between twenty grams at least twenty grams but not more than thirty five grams of crack cocaine and that sentencing range back at the time of the plea agreement with  level twenty eight under section two d one point one of the guidelines now have that range is possibly compass by three different ranges and so it is incumbent i think on on her to decide which range would be the most appropriate given that there was the the finding outside the agreement a forty five the plea agreement of the parties which is binding in this case of twenty to thirty five and then there's no evidence really within the twenty to thirty five so you're sure you don't you don't think that we give in i'm not asking to make the decision but i'd say that you don't think we could make the appeal should go back well i think you could because if you found it under the rule of lente that it ought to be the quantity would be twenty grams which would be the lowest quantity which would put mr long in a new amended guideline range twenty two you could add two levels for the gun which  appropriate for her to the side now in this case you can very easily determine where the party found the guy lamers should be because you have a level twenty eight you have two points for two levels rather for the gun that's  thirty minus three points is again three levels i'm sorry two at the low twenty seven he's in criminal history category six there is no question about that he had more than thirty criminal history points and a level twenty seven puts him in a range of one hundred thirty months to one hundred sixty two months he's right in the middle of that range of one hundred forty four months that's where pursuant to the agreement in this case so if you were to decide the case it at a level  twenty plus twenty twenty two rather based on is the quantity of twenty grams again you get twenty two plus to twenty makes it twenty four less three is twenty one and you put in that range a courts do every day and we don't do that unless you can give me some authority the we have to do something like no i'm just saying i think that the end result of that is fairly clear within those parameters so if you want to you could but i'm agreement and that at the time was a level twenty eight we're asking that it now be subject to the thirty five eighty two well so that you can because that range now is it as has subsequently been lowered by the sense  freeman said that the going line re whatever may be has to be specifically mentioned in the c agreement before we mentioned it wasn't specifically mentioned in the calculation under the sea green well i disagree with that because we have a very specific provision here and it is that specific provision that is referenced in agreement and that has been lowered by the the sentencing commission it's the drug quantity guideline to the one point one we specifically referenced that in the plea agreement where you talked about at least twenty grams but not more than thirty five grams that's the specific one that has been reduced what i think you are referring to is there is no then statement that and therefore the imprisonment range is one hundred thirty to one hundred sixty two months something along those lines less kind of what that's what kind of what the johnson case is you you've got to be more specific than that in your discussion of guideline calculations in this case to get your free relief well what what could we be more specific about than the level of self and again category six there's no question about that it if you look at his present report his criminal history it's abcess a level six criminal history six so you know working on this this calculation is the basis for this agreement and this does that kind of language that came kind of specific language doesn't appear and that's that this that is reduced by the sentencing commission that's not what the sentencing commission does they don't reduce those ranges they reduce base offense levels they reduce specific guidelines they reduce or sometimes make an enhanced  to certain things but the guideline range that must be referenced in this case is the specific offense level that we're talking about who you can reach a sea of agreement sort of without even worrying about the g you can't you yes absolutely so that's my point yes that they've reached a sea agreement on various terms and conditions and as i read freeman and is the grid freeman i think in the johnson case you don't get to that you don't get to that point in a case like we have here i don't think you need to have the ultimate range stated because judge is just a sort of more my or said that as long as the agreement expressly refer to the the range or the in my opinion the offense level that is subsequently lowered then you would be entitled to relief as he many times up so thank you would ask  since it is a c one c agreement and that was said seven years ago we didn't have the benefit of foresight and seen what freeman would do but this is clearly an agreed c one c agreement not based on the guidelines not explicitly based on the guidelines and not by inference based on the guidelines which is what just the sort of more your did for mr freeman himself she has these two exceptions she's basically c sentence is based on the guidelines that's one exception or two if we can infer very clearly that it's a based on the guidelines then the relief can be afforded to the defendant that is a let me have to ask you this  concurrence in freeman it just doesn't fit when mr sigman is doing this math for you what he's leaving out how old is the fact that mr law is a career offender that's found in the pre sentence report that found by a judge smith camp at sentencing and it makes a huge difference to what sentence he gets and omens that's not in challenge at all that's not an issue so when you do the math on this and leave that out you're leaving out a fundamental guideline fact that is not a virtue to him plea agreement in any way shape or form a guideline sentence and as we all know has to access it as a know what the guideline range applicable mr wong was ever going to be you'd be totally in the dark well your argument would be stronger wouldn't it if there had been no reference to the  quantity and the base offense level by our group would be airtight but as i said in two thousand and seven we don't know that freeman and guideline amendments are down the line i will tell you in response to your question that today when i go back to our office and draft the c one c agreement i do not use any language about quality at all anymore and that's because you find yourself in this situation i still would be just that and just curious as to you with respect to the negotiations here in drafting of this document what's the reasoning for including that the paragraph the rest of paragraphs excited because of the time that's what we were instructed in our office to do and try to use but the quantity and that's the only answer i can give you and the media and and some of your faces and judge beam pointed this out brought up one of them in a couple of your cases that you decided in the last four or five years have this similar issue or the same issue you noted that there is sometimes general at verge of i think is the term use you can't for the life of you determine what mr laws guideline range is going to be based upon the terms of the plea agreement and justice so the wire is very clear that that's the only thing that we're supposed to look at is  of a career offender is the brown case decided in november of two thousand and twelve a year and a half ago and i think that when you take the analysis of the brown case which is based upon just the plea agreement is absolutely silent on such things as firearms criminal history and some of the other things that have led to the eighth circuit and where he started the world judge riley started in the beginning you send this back i don't i don't for the life of me i don't know what we do because i would i would have jack i adopted the pre sentence report when it said forty five grams even though the plea agreement said something else so do we start if we send it back to we start fighting about the drug quantity again we can't fight about her friend or i think that's the of the case since he's never objected to being classified as a career vendor and if he is a career ender and although then you get into the statutory changes that have occurred in statutory penalties for quantities of crack cocaine and so what you do when you do that and you look at the forty one career vendor and the differences between life sentences twenty five year sentence twenty i don't know where we so i don't think you need to send it back because of any mistakes made by judge smith camp in your characterization of it it's a c one b because of any mistakes made by me mr bracher when we interviewed the end of it from twenty eight to twenty six it is those things just don't would say that this case is much like united states versus hoskins which was a career federal case and the c one see where that opinion goes through the freeman analysis and it doesn't land on whether mr hoskins was a career offender and while it is true that the pre sentence report says that mr wong was a career offender he's really not a group and because he was sentenced in this case under that the police agreement which did not provide any rationale for him being  plea agreement that's at apple here is the one that talks about the fence level twenty eight which was strictly to be twenty six but word says twenty to thirty five grams that's the only provision that's been changed by the