sentencing act to that defendant doesn't make the act retroactive it's just a do over for a large scale crack dealer who happened to be sentenced before august rd two thousand and ten section forty four doesn't contemplate that outcome and it should because it would result in by section two or three of the fair sentencing act that was committed before august rd two thousand and ten the district court heard by reading the phrase the statutory penalties for which to modify federal criminal statutes rather than the full integrated noun phrase violation of a federal criminal statute properly construed section forty four dollars asks whether the statutory penalties for the defendant's violation were modified by the fair something and because the defendant violation  court has to consider whether the defendant's conduct would have given rise to lower statutory penalties under the fair sensing in this case mr davis's violation undisputedly involved as least a kilogram and a half of crack cocaine that party gave rise to the same ten if you are right that the phrase the statutory penalties for which were modified are in section two or three with their sentence in the two thousand and ten refers back to the violations rather the definition of the word violation works in this context is clear the word violation does have different meanings in other contexts for example there are violations of supervised release i think by adding federal criminal statutes section fo super clear its intent but i think the more natural reading is the statutory actually has some work to do other than reinforcement and the work it does this is the model if the word modified is violation the work that statu is tells us that what we should look at is the statutory penalties for a violation not the actual sentence that the defendant received because as the defendant points out rightly the st sentencing act section to the st sentence actually did not affect any canon that the nearest reasonable reference is the most likely reference i think in this case in this case like in every case it can it is really only as helpful as the context and in this context i think the more natural reference is violation and i emphasize as as we do in our reply brief that this report itself has said that the nearest reasonable reference counting isn't taken flexible rule that no matter what the most recent the most proximate noun is necessarily the one modified particularly where the preceeding phrase is one that hangs together as a unified whole with frame two a single thing that from the supreme court's decisions in science here the phrase violations of federal criminal statutes is i just want to pick up on that point mr cain because putting aside the statutory interpretation issues that i think you have this policy argument that you're making the purpose to try to treat everyone equally before and after the fair sensing act i do m davis is actually being worse off as a result of your interpretation here because this is only relevant conduct he never admitted to this one point five kilos of crack at his plea and his plea agreement davis hasn't made that choice here and he can't because there's no question that mr davis in fact as part of this conspiracy was cooking a kilogram of powder cocaine into crack a month citing who made that finding that because of the nature of the defendant's violation congress has directed district courts to consider is whether the defendant violation is one for which the presumed that the defendant what would the standard of violation of law defendant's already been found guilty that's not this this is a reduction in the mandatory minimum this is an alteration of the sensitive judged the minimum that the judge must impose not so statute what did you have to prove what did you have to prove for this individual mr davis to be subject to the two thousand and twenty year mandatory minimum what did the indictment said fifty grams or to do was rectify that minimal standard that the government enjoyed for such a long period trying to track down a large group of people and it made it discretionary with regard to the judge's indication of i don't understand and laugh  as to the actual quantities involved in a defendant's the fence that's the finding that the government thinks the congress is directing just a course reliant by using the word violation in the fashion which is not in the business davis is currently most with the government's agreement it's really only these cases where the factual record either a plea agreement or jury findings or sentencing findings dictate a higher quantity that the government is opposed i think is important here because the government never argued below to the district court in its discretion they could use or should consider the disparity of what defendant sentenced after the passage of the st sentencing act  government and died somebody on those new mandatory triggering quantities they never argue to the district court that it can consider that fact in a discretionary of of the of the motion in any event here that suggestion that we look and we interpret the statutory language in a way that doesn't comport with what i would say are sort of commonplace and stand and the definition of a cover dispense it has to have some meaning and it does have meaning what was the federal criminal statute which davis was convicted of forty one dollars b one a offense of fifty grams or more that penalty no longer is twenty to life for a fair sentencing act section two was a fair thing act change those statutory penalties those penalties now are ten to life and there's the court appropriately found mr davis eligible for a reduction and that he was convicted of a covered offense and therefore it moved on to section d that discretionary determination as to whether or not he deserved a sentence expand eligibility to those who are not even crack cocaine offenders and i don't see our reading of the statute is requiring that at all if you think that the statute if there is a conviction of a call for a crack offender a cocaine offender that that allows them to come in and ask the court for independent confederation of a possible reduction so are you saying that it's limited to crack cocaine offenders yes thousand and ten he was flawed the government sort of asking the court to speculate as to what it might have charged had those earlier penalties been available to it but but they weren't irrelevant to it so mr davis's indictment as it was in two thousand and nine would never have read he was responsible for cocaine in excess of two hundred and eighty grams that wasn't what the statu but the court and looking at it you know have the government argued to the district court you know there's this disparity that's going to happen for folks who were sentenced after because we might have been able to charge it differently maybe the court could have litigation itself but for somebody who didn't challenge that judicial finding pre sentence investigation report because it didn't matter it didn't but it was two hundred and eight just over the threshold that person that the government's minimum would be ten years you have the difference between a mandatory life and a mandatory of ten years even though you know the finding with the same respect to both of them and i'm just trying to point out i don't think you can argue that there's not go were directly not a five by and of course a forty six to the extent a forensic may have especially for the extent that they incorporate those healthy provision thank you thank you thank you thank you both for your argument the court or