l i guess your honor four minutes please thank you may proceed thank you may it please the court tracey dry spell assistant federal public defender on behalf of dr stevens the parties agree on a lot in this case we agree that mr stevens was eligible for the imposition of a reduced sentence under the st step act of two thousand and eighty in light of the jones decision mr stevens has conceded that the appropriate penalty is after application of the st step act in the fair sentencing that would have been a sentence of five to forty years imprisonment and a mandatory minimum supervised release term of four years what we disagree about is what the district court actually did in this case and whether the order entered by the district court satisfies the minimum requirement established by the united states supreme court i'd like to begin with with why i think the order in this case is simply inscrutable erroneous and unclear as to what the district court was doing the st fourteen paragraphs of the order which is i think seventeen paragraphs long our recitation of historical facts we really get into the decision of paragraph fifteen and what he says of the fifteen is that in this motion mr stevens six relief under four  the terms of the supervised release how that was changed by the act the st act so what it says a paragraph sixteen is even if the st step applied the court would still impose a sentence of five years of supervise release and so there's two problems with that and the st is that i i can't tell from paragraph fifteen if the district court recognized that the st act applied or not and the nd problem with that is the court doesn't give any reasons our denying the request to reduce supervised release and so if i could just go back to to why i think paragraph fifteen is so inscrutable really because he rejects mr stevens argument that apprentice should apply which we now know was it hands guidelines suggest to me that what the court was saying is that the new career offender guideline doesn't help him because his guidelines weren't lowered and that's wrong for two reasons we know now since jones that that doesn't matter remember this was issued prior to jones when a lot of district courts thought that if your guidelines didn't change you couldn't get relief i mean it's also wrong because under forty one dollars even though we're not challenging that mr stevens was a career offender the court would still have to compare his current career federal guidelines to his current and enhanced guidelines under the one book rule i don't think there's any precedent for looking out well for the career offender guidelines is now lower but the un and hans guidelines was looked higher twenty years ago so he miscalculated the guidelines but i still don't think that would be a not and every case that the government aside to be cited as a number of cases on page twenty four of their breeze for the proposition that the court doesn't have to go through an accounting of the factors the majority of those cases dorman were the initial sentencings where this court could go through the sentencing transcript and see oh well they discussed this at the sentencing and they discussed abbott with them saying and so it was very clear maybe the district court in one of the cases had rejected a departure what would it have mattered if the government had responded and you would have a pleading from mr stevens and the response from the government that would be that would be closer to what the court had an store the government had responded in the district court referenced the government's response and so this court found that this report was adopting the government's counter arguments here as the court is aware that didn't happen the judge just denied this the day after it was enter d i guess what i'm what i'm trying to to to figure out is if we were to write an opinion what would the opinion say would it be sufficient for us to say that the district court has to to provide i am not for the to have meaningful appellate review is that sufficient is that not that i think that is part and parcel of what the court said and read and have as mesa i noticed going through it again in preparation for argument that the court was really focused on or at least i was focused on whether or not the district court responded to the parties arguments the shabbas makes a court mention that whites and so in this case mr stevens referenced very specific arguments about his post defense rehabilitation the court had never had the fifty three a factors you say we should make it mandatory that prefatory what is there in the language of section or i'm for the st step back making factors but to answer your honor's question and so what i what i meant state of the court is inclined to reach that i would ask for the opportunity to provide additional brazing but if the court looks at a couple of things st of all it says the court should impose sentence reference back to thirty five a which then brings in the thirty five to be three a factor but the reason i raised the question is it's an interesting saying i might agree with you that it would be a wise  may not shout motion of the defendant the phone is a reduced sentence as if sections two and three of the fair sentencing at or in the fact at the time blah blah blah and then in the c it has some other provisions among which he says no court shall attain a motion made under this sentence to reduce if a prior motion had been made and said and then the last sentence is nothing in this three a so you have to reference back to a and so the implodes but i guess the problem that i have is it seems to me if congress would have wanted to make th sentence it should be implied that the court is considering the purposes of sentencing particularly as this court has already held that such sentences are to be reviewed its reviews of discretion how is this court to review that for abuse of discretion if there are no factors binding courts discretion by the same token how is it just for court to impose a sentence that is appropriate sufficient and necessary to fulfill the purpose of a sentencing without regard to what those purposes are so i do think that it isn't then i have like a very powerful policy argument and one that i would be inclined from speaking for myself to agree with the problem i have is that texas truly cars did not shoes to do that and the reason i stopped on the point is assuming you are right that the district court gave us no reason it's and therefore we cannot exercise appellate review in a meaningful way and therefore we have to rematch the question is do if you make a predatory you're going to run into the situation for example post defense rehabilitation or maybe the district court considers that for some defendants and not the others so you could run into the disparity problems that the guidelines themselves and specifically the st step ac were designed to remediate so i would ask the court to make it mandatory but again i didn't really read that in this case because the government seemed to concede not only that it was appropriate but that it was something the government and the government's position actually ha that this to end it is not eligible and in fact if the court felt that this dependent the district court had felt that this defendant were not eligible you wouldn't have needed the discussion that's in paragraph fifteen or the sentences  that was filed in the motion he didn't address he didn't reference any of the arguments made for terminating supervisory at least he doesn't articulate a correct standard procedure reviser the set is no longer five years now it's a term  four years so i mean it seems to me that he really didn't look at this as closely as he should have and i understand the court's point in why he might feel that way i do think that whatever that historical discussion is is irrelevant because in two thousand and fifteen the st act was not in place and that's what the basis of this motions you're i would argue that the history of a dependent isn't irrelevant to the consideration of the st step back this and wouldn't give many credit for any amount of the time that it can proceed after he had been released from prison i mean you can see that in this order even the district words are to the situation of the five years is still the correct term and even with a reduced term of four years of supervised release five years would have been an approach could be an appropriate decision by the district court he had the authority to maintain a five year he had no way how do we know that that he understood that the the time a supervised release was not lower if there's nothing in your reference reference at that point i would agree with your honor i did what i my difference with your your on it was only in the fact that he really seems that we understand that he knew that he had the discretion to use for years absolutely your honor and if you this court were to determine that you cannot decide that he had and he understood that he had the discretion as times about what is the appropriate sentencing parameter spread and it was twenty six years old when he was lieutenant manager and in force or in this major drug organization that had charged six murders relate it to this  that is to say whether it's mandatory or preparatory the problem is he says none of that he cites the history when he gets to this motion in paragraph sixteen review if we cannot found with any confidence what it was that led him to reach the conclusion your honor it's clear from this court that i just laid out for the court come from the bible by bothering by taking the effort to elucidate those fourteen paragraphs up the history this court is showing you he is well f r with this that he is current on the history of the entire penelope of this case and that those are from st relevant for him to use in his analysis and that based on that set of factors the defendants post sentencing rehabilitation you really we reaffirmed that whole thing in gold a case a plural form st step back a step is here in december of this year of excuse me december of twenty and he's comfortable given that analysis on this post sentencing factor given all of the factors that i laid out a moment ago that are all part of the record that this court knows well that he wouldn't change the sent whether the district judge operated on the assumption that he was not eligible or was and b we don't really know why with any degree of confidence it's simply the not the application and therefore see we we jones opinion was extraordinarily detailed and well thought out and addressed as i said four different sets of act caverns and four different orders in varying degrees of clarity and specificity and from that lengthy argument and this court properly felt that the right standard to set for all the district courts was met and we have reinforced add but that wasn't really what was at the forefront of the debate in any of the four consolidated cases so it strikes me as an open issue that doesn't mean jones was wrong and from my own honor i would say that this court is that based on the penalty of cases that have come out through since jones which all in this circuit reaffirmed that the standard is may i believe that this court is  pleadings and i'm not exercising my discretion or i am exercising my dishwashing and at least we have an understanding of what the arguments are because here we don't really know what the district court judge was thinking or not what is your position i understand that your position is that you would rather have us articulate the may consider the three hundred and fifty three a factors but i'm not even talking about recent history a fact that i just want to know at this point the district court has to act the question here is it's unclear to me that he knew that he could exercise his discretion because it appears to me that really frankly he didn't think mr stevens was eligible that's number one so that was an error and you can see that that was there a determination that he's not eligible would have been never correct so i guess my that's my question which would it be a better rule to have the government respond before ruling and that is the question i thought you were asked when i'm not oh where of any circumstance but that but i didn't research it your honor where this court has told be just a court levels that they cannot rule until they've got a motion or response and a reply arguably so on i'm not aware of any context in which we order a district court if they have to go to those steps because it is a district court that has very simply said honor this court is writing on a clean slate i was one of the lawyers involved in jones my recollection is that all four of the defendants were held in a legible and so the question of whether or not the district court statement of reasons was sufficient didn't come up we were really arguing over eligibility i think anything that the court said regarding mayor must was dicta in that case because when the court did re man two cases it was because their orders were ambiguous as to whether or not the district court understood its authority before issuing or before whether or not it's it was ambiguous as to whether or not it was a discretionary you may be right considered i agree your honor it may well have been but the issue did not come up and i do know there have been several unpublished decisions of this court that have suggested it remains an open issue so i would ask this court to hold that it is a must narrower a much more specific so you're comparing the general to the specific and when congress wrote you can impose a new sentence as if the the fairs and the act were in effect in this court is already held in dense and you put yourself back in the place and don't change everything else that incorporates the three thousand five hundred and fifty three a factors there is no other way up for a district court to impose a reasonable sentence if it doesn't have some gauge by what to determine that's where it couldn't even consider factors that the supreme court and pepper upheld may be among the most relevant and particularly when you're looking at somebody twenty years down the road what what mr stevens has done in the past twenty years and particularly the past eighteen months since he got out of prison is i think the most relevant factor for the district court to have considered in relation to his request but i went out even regardless of where the court falls on the mayor must the supreme court help and that's not necessarily a three shift and three age factor so i guess the real question is at the end of the day is it sufficient just for that district court judge to articulate and to give us what the reason consideration is for his or her exercise of discretion i think it would satisfy what shabbas mesa said was the bottom the bare minimum i would ask this court particularly in light of world morsi which makes this a one shot deal you get one when we're talking about a remedial statute that the sentencing commission bag congress for twenty years that really ins an appropriate and fair use of this court's authority to direct district courts to deal so i would ask that the court sen