good morning my name denis carroll on behalf of mr abdul our concha defended the pellets in this case i'll try to reserve two minutes for rebuttal there is no dispute regarding to factual issues in this case first importantly the guideline range for the defendant was lowered as a result of the guideline and then that seventy two and secondly i don't think there's any dispute that they got that the trial court's determination to run the sentences consecutively was made pursuant to its analysis of the thirty five fifty three a factors and it was not made pursuant to any guideline application decision or any part of the guidelines so in this case it comes down to what's in the plain language of both the statute and the guideline and there's nothing in the relevant guideline or the relevant statute that prohibits a court from revisiting or reassessing whether a sentence should be run consecutively or concurrently why wouldn't that be limited to the first appeals in this case i'm sorry the first why wouldn't the question of whether concept utility was appropriate be answered if it all only in the sense  original sense of you because the first sentence appeal didn't address that the guideline reduction the retroactive guideline reduction has nothing to do with it the sentences weren't based on the guidelines as you said they were  based on the mandatory minimums and the concept utility was not based on the guidelines it was based on thirty five fifty three so i can't see where the guideline reduction opens the door to revisiting the concept of a well i think the guidelines provide the answer for that and the jurisprudence behind that when there is a retroactive guideline and that meant the end of motion is made pursuant to that retroactive application the trial court is required to recalculate the guideline considered a new guideline range and then determine after an analysis of the thirty five fifty three  factors whether a reduction is appropriate at all forgive me i you are talking about this is if the judge originally used the guidelines these were minimum sentences that were impose the judge decided to compose them consecutively based on the guidelines so if when the guidelines were amend it how is it that the judge has to go back to consider something he didn't consider in the first place you didn't look at the guidelines and follow the guidelines you followed the minimum sentence that hasn't changed as it with respect to these particular crimes well certainly the the mandatory minimums did not change but that wasn't that what that was and that the primary basis of the sentence or i think the primary basis of the sentence was the court's analysis under the thirty five yeah factors but but but that had to do with a variety of things and whether it should be consecutive or concurrent but the fact here is that the guidelines were not the basis of the judge's original sense where they the court was required at the original sentence to consider what the guideline range was that is clear under this circuit case law that the court has to calculate i get that that the court did that and consider the original guideline range and then consider the thirty five fifty three sentence to the mandatory minimum because it was in fact the statutory mandatory i would disagree with the court on that regard because the court and now instant sentence after consideration of the thirty five fifty three  factors and specifically adopted the concept utilities i recall it the consecutive nature of the sentences was imposed as a result of the consideration of the thirty five fifty three i factors after calculating also and considering the guideline range which is something the court had i don't think i'm getting across my question and if there's a helpful answer to it i really want to find it out the way the case looks to me is that the guidelines just had nothing to do with anything so the change in the guidelines was not something that needed to be considered since the sentence wasn't based on them in the first place it looks like what the judge did is he used the mandatory minimums and not the guidelines to sentence he used thirty five fifty three and not the guidelines to determine that the sentences should be consecutive the guidelines were reduced for drug crimes  disagree that the court did not consider the guideline range at all at its original sentencing the court had to there was a discussion about the guideline range there was a discussion about the court imposing a sense always have to in a sense if there's a mandatory minimum of say ten years and the guideline sentence is eighteen to twenty four years then you have to consider the guidelines but if there's a mandatory minimum of ten years and the guidelines is eight to ten years then the sentence is based on the mandatory minimum well then under the guidelines that the guideline range would be ten years under your example but in this case the guideline range was less than one hundred eighty month and there was a discussion by the court about how rare it is for him to impose a sentence above the guidelines especially for first offenders the government argued that the court could simply oppose  hundred eighty months on each count and run them concurrently but it just seems easier to run them consecutively and impose the mandatory minimum on each count now i think the second part of my answer to the court's question it may be the court is looking at the judge's order in this case and that's at issue in this appeal in determining whether the judge actually decided that i'm not going to change anything and i agree that the trial court's order is it is not entirely clear but i think it is clear first of all the government is not arguing that that the trial court actually followed the steps required in the guidelines in the statute in terms of considering the new range and then balancing the thirty five fifty three i factors  in determining whether or not a reduction is appropriate but i think the statute and the guidelines do compel the court to engage in that process and here the trial court determined that nothing in seventy two the relevant amendment requires the court to revisit the sentence i would suggest it does it doesn't require the court to change the sentence the court may look back on it and determine the new guideline range  some antic distinction i mean there's nothing here in his two sentence cryptic order that suggests didn't have the authority he's just saying look i've read now the amendment i read seven ninety two i look at and i don't see anything that would make me require me to change because it really is not necessarily related to what i did before i think it's clear the judge had authority but he just decided to revisit but th amendment didn't prompt him to do anything so well with that i think the government has not argued that and i think the amendment does compel the court to at least revisit the sentence w you say revisit he knows what he did before he looks at what happened here and he says i don't think i'm going to i'm going to change anything well as and he revisited it i don't know what the term revisit means and i don't think there's a legal definition here but one be one point ten does require the court to determine the amended guideline range that would have been a political ask pursuant to the amendments and then engage in the thirty five fifty three a balancing process but that assumes again that the court relied upon the sentencing guidelines and in imposing the original sentence if you did then doesn't thirty five eighty two see actually deprive the district court of jurisdiction if you reconsider the sentence i don't think thirty five eighty two c deprives the court of jurisdiction because thirty five eighty two c requires the court to consider a sentence really sentencing reduction if the guideline range is changed in prior to the guidelines it may not modify the term of imprisonment once it's imprisonment once it's been imposed except when the guidelines are changed but in this case if the court again we have to look at the record we've done a look at the record if we are of the view that he did not rely upon he looked he didn't rely upon the sentencing guidelines in imposing the original sentence and doesn't thirty five each you see deprive him of jurisdiction to reconsider it for i would just simply disagree with the fact that the court did not good morning may it please the court helen premier on behalf of the united states i'd like to start by simply noting that what's unique about this case is it's not a sentencing of one case but a sentencing of two cases and the district court in those two cases chose to impose the mandatory minimum in each case and then run them consecutively and really what is at issue here is council's request that this court consider the consecutive nature of those sentences and really what that means is asking the court to allow a plenary re sentencing because the court by imposing the mandatory  minimum obviously thirty five eighty two c two does not authorize the sentence below the mandatory minimum and the only question here then is do you go back because a guideline range that was calculated at the sentencing but that the court then varied upward from and coming to the total sentence in the two cases that it imposed in the two sentence cases somehow that was reduced re sentencing i think still in the answers that question the supreme court in dillon said they're not entitled to a plenary re sentencing and therefore this court should not allow it by asking the court certainly when we argued this to the district court we took the position that the district court did not have jurisdiction because of the mandatory minimum nature and that that wasn't altered and that nothing in thirty five in nothing and amendment seventy eighty two changed or opened up the question of concurrent consecutive nature of the sentence as we also argued at that time to the district court that if the district court disagreed obviously then the cour should exercise its discretion not to change the the sentence based on the facts of this case so if the district court had said well of course i made my average in all decision based on the mandatory minimums i ran them consecutively i see there's been this policy change and i the authority to now make them run concurrently with the government argue the district court did not have authority to do that your honor i think the question there is it goes back to our argument that he didn't have jurisdiction to do that and i think the argument there is that no because you're effectively doing a plenary re sentencing in this case because it's touching now a question that was not controlled by amendment seven eighty two seven hundred to simply reduce the base offense level for  the guideline range i mean ironically if this case had proceeded with a sentencing in nebraska and then a subsequent sentencing in the western jester to washington and he clearly would not have and the court had imposed consecutive sentences he clearly would not have been entitled to any sort of reduction so your view would say basically under thirty five eighty to see jurisdiction then as your argument is he exercised it not to do anything i think i mean i would agree with and i did not make that argument or did you not make that argument we didn't really make that argument in the i would agree that the court's order is somewhat ambiguous on that point i think judge layton made clear he didn't want to change the sentence but the primary our principle argument that the government prior sentence on the sentencing guidelines or in which case it has been these were mandatory minimum sentences that what they're asking for is a plenary re sentencing and therefore there is no jurisdiction because it meant seventy two did not change because i'm looking for which i can't find i remember during watergate judge sentenced all the watergate defendants to the max and said if you talk all reduce your sentences and there was some controversy later about whether judge ought to be injecting himself that much into the prosecutorial process and i'm curious does the restriction in thirty five eighty two see a court may not modify the term of imprisonment unless one of those exception applies was the history that it grew out of that order by the district court i'm maxing you out but i'll cut your sentence later if you talk your honor i i don't know i know in this case i don't know the answer to the court's question i do know that with respected this case the defendant was offered  opportunity to find out whether the jurisdiction is just sort of technical an arbitrary or whether there is reason for that limitation on jurisdiction that's the usual way things go as when a sentence goes back to a judge it's you can reconsider everything i think that's correct but i think the sentencing commission and in accordance with the authority granted in ninety four me thank you and i appreciate the extra time i would just point out that in the excerpts of record page eighty eight eighty nine the court clearly considered the guideline range and the thirty five fifty three a factors when it imposed sat since in fact i could not see any mention of it being entirely based on the mandatory minimums it was the government is recommending one hundred eighty months and this defendant deserved counsel me ask you this then under the guidelines section one b point one zero being one the sentence commission's policy statement says that in quotes the court shall determine the amended guideline range that would have been a pleasurable to the defendant if you members of the guidelines had been in effect at the time the defendant was sentenced in making such determination the court shells substitute only be amendments or the corresponding guideline provisions that were applied when this when the defendant was sentenced and shall leave all other guideline up the cation decisions on effect this seems to suggest at least to me that it's if you want to change as you've got to show in the record that the district that's not what this says this says or the guideline provisions that were applied what was applied i've sorry the court relied the trial court relied on about a global realize we considered the guidelines what i want to know is what particular provision in the guidelines did the district court rely upon which corresponds to what the sentencing commission's policy statement says the court relied on what the base offense level was was set at that period of time in the base offense level has since been reduced and that has since been where in the record can you point that says that the district court did that when when the just a court adopted the pre sentence reports calculation of the guidelines guideline range and that pre sentence report determined the guideline range based on the slava which is driven by the type and amount of drugs and there were adjustments for things like acceptance of responsibility resulting in a particular guideline range which was specifically referenced at excerpt of record eighty eight when the court then went through the thirty five fifty three a factors but that particular provision of the guidelines is frankly the basis for b one point ten b one is frankly the basis of my argument because the only limitation there is that the court can't change other guideline determinations things like the criminal history category can't be revisited you can't come back and argue i wasn't a leader i should've gotten that enhancement or you or you used long base offense level because really there were fewer drugs than what i should've been held at the district court