on judge snow's case but i'll talk about both the main issue i think in judge campbell's case is whether the mitigating role reduction in section two d one point one eight five is a guideline application decision in this court in the unbanked decision of gas stated that the decision to apply or not apply a guideline to the facts of a given case make it a guideline application decision it was in the sentencing guidelines case but i still think that that definition applies here and i think the judge campbell's decision to apply the mitigating role reduction was a guideline application decision and because the guidelines states that when you're applying when you're calculating the amended guideline range you have to leave all guideline application decisions on affected i think it was error here that he removed the two level reduction from the calculation of the amended guideline range i think judge campbell as you can tell from his written order realize that this goes against the intent of amendment seven eighty two and that this kind of resulted from on unanticipated interaction between the guidelines and i think he was right but he also said you know like i can't rewrite it and that's right too but i think that the sentencing commission's choice of language hereabout guideline application decisions remaining unaffected makes a lot of sense there amendments seventy two motions and the the guidelines are complex and involve a number of in related interrelated sections and by adding this language i think i believe that the sentencing to be the way it operates unless you consider in the us you find that the mitigating roll reduction is a guideline application decision and then you would just leave that number there  even though i agree with you it doesn't really work because the guideline the base often survivals lower but one of the things that i noticed when i was reading this provision the one b one point ten is that the very end in the commentary section they need they need they state three reasons why an amendment is applied retroactively and one is the purpose the second one is the magnitude of the change in the guidelines and the third one is the difficulty of love flying the amendment retroactive determine an amended guideline range under be one and i would submit that you know if the courts have to go back and reconsider guideline application decisions that doesn't really go with the commission's intent here and it's also contrary to the supreme court's decision and dylan which says that we don't change guideline application decisions even if they're wrong and in this case you know because the base often would be reduced to twenty eight applying that would be wrong because it says it has to be thirty but that's kind of my position in that case in the snow case again i don't really know how to argue this because the government  had conceded that yeah you should've gotten seventy three months that the variance should have been included but the kid the critical issue there is that under the exception contained in one view one point ten b two capital b whether a non assistance reduction may be combined with a substantial assistance reduction in calculating the comparably less component and you know there are three other circuits that have said no you can't do that because the the provision capital b has a phrase in it that says pursuant to government motion for substantial system and they're interpreting that as other circuits as an exclusionary and saying that you can't do that but i can tell you why you can and it's an amendment seven fifty nine which is the amendment that changed the prior version to the version that we have now and the way they used to work is there was a single limitation it just said if you're sentenced to a term of imprisonment that was less than the term of imprisonment provided by the guidelines applicable at the time you were sentenced a reduction comparably less than the amended guy like a dream may be appropriate that was the old version and then they added a statement though basically saying that but if it's a variance you can't get it you do not get it and they said that in seven fifty nine they say that this this caused a lot of litigation and controversy and that a single limitation appel of bull to both departures and variance furthers the need to avoid litigation and disparities in sentencing but the most important thing that they said is that current b is clearer because it restricts the exception to cases involving a government motion for substantial certain assistance and so i think if you combine the reason why they did that with the the broad term involving i think that what they're using here pursuant to a government motion for substantial system is not an exclusionary term it's a term that opens the gate and once you meet that it sort of triggers ok then you get all reductions whether and think they're for assistance or not the other thing is that the guidelines and the application notes are silent on this and i think that if they really didn't want non assistance variances and departures to be considered they would have said that like they did in the in the last version they're not shy about saying this isn't warranted they say in one by one point one guideline application which is what his original sentence w into yeah after changing when you calculate if you calculate the amended guideline range without including the two levels for the mitigating role reduction which he said that you know i can't do that because it it doesn't apply anymore the level comes down to twenty three because he started at thirty two but he got knocked down to thirty with the amendment and then he got a two level reduction for minor rol three level reduction for acceptance a response of the military but he didn't get the other two for mitigating role reduction so that comes out to twenty five he did have substantial assistance so that two points so three factors no you don't get to that test and till after you decide whether he's eligible for a reduction so you if the way it works in my understanding is that first you have to say you have to prove that it was you were subject to a sentencing range ok then you go down and you look you compare that applicable guideline to the amended guideline and the amended guideline range has to be lower than the applicable then you go to that provision which is you're limited you can go no lower than the lowest the low end of the amended guideline range and then except substantial systems and then the court decides whether that reduction is warranted there has to be a reduction you have to be able to reduce it under the section thirty five fifty three factors that's when it gets to to that level good morning the fisa court rachel hernandez on behalf of the united states just jumping right in with regard to the sentence in front of judge campbell with due respect to counsel the guidelines were the same before and after the reduction he was at a level twenty two originally and he was at a level twenty two after applying the seven eighty two analysis there's literally no way judge campbell under one b one point one could have come up with a lower sentence under be one of that section the court is required to determine the amended guideline range that would have been applied couple had the amendment been in effect at the time of sentencing judge campbell did that two d one point one is literally states a base offense level apply the greatest and list five subsections the judge is required to go through those five five subsections he did and originally upon sentencing and did again under consideration of the defendant's motion a five is a ball there that what the defendant requests is a windfall he request to be sentenced  re sentencing or i should say consideration of his amendment seven eighty two sentencing reduction to a sentence lower than somebody who is a level thirty today and that the guidelines don't support that the amendment doesn't support that and judge campbell sentence was or decision not to reduce the sentence was appropriate moving to the consideration in the judge snow case there the guidelines were not a consideration as this court found in rodriguez soriano the unit the fact that the initial calculation was based on the guidelines or even that the  were the same sentence and that's really my point with the snow case is although there was an initial discussion of the guidelines government asked to speak first on recommendation and said we're asking for a sentence similar to what judge campbell gave earlier today in a case with the same type of conduct that occurred during the same time period and that judge snow even said so you're moving that i give a similar sentence and run it concurrent to the judge campbell sentence and the government said yes exactly and that's on that's on your eighteen and from that point there's no more discussion of the guideline the court says that you are twenty three i will grant the variance to an eighty six month sentence and that will be consistent and concurrent with the sentence imposed earlier by judge campbell he doesn't reference and new base offense level a new guideline range and amount of variance he says it's almost as if a lightbulb goes off he sets the guidelines aside and he says sure that seems appropriate here that's what you were sentenced to earlier i will give that sentence in under this court's ruling and rodriguez soriano that's not a decision that's based on the guidelines and therefore under one b i mean excuse me under eighteen thirty five eighty two see to it is not