court as far as i can tell now obviously i don't speak for the government but at this point the it appears that the defense and the government agree with the district court that these were covered offenses  there's an eligibility for sensory duction it appears that the government agrees with the defense and we both disagree with the district judge about the just rick judge's test about availability of  relief and the government agrees with us that that's not a proper test under the fair fair sentence i'm sorry the st step back and so that the only issue i think that's before the court is the district court's indication that in its discretion it would deny the motion under the first step back so i think that's that's a must the court has questions about and i recognize that the briefs the majority of the briefs are devoted to the issues that now appear to there appear to be agreement between the parties and unless the court says about that i intend to just focus on the discretionary yes or no i don't think we do it because should go right into the step back a little better but the nd point is what do we do with the fact that two of you agree with something that the district court doesn't agree with if we don't hold the district court was wrong so if we were reminded to the district court and not hold the court was wrong simply that each of you would like to go forward is that enough or could the district court to maybe i should start that question or could the district court said well that's all well and good but that's not my view of the law no i well i mean you could remaindered to the district court i think it should be remanded obviously to the discretion issue but it could i think the district court could say the same thing again which is i don't think it's available but if i exercise discretion this is what i would do and i think that's our argument that that has to be a fuller i thought wait i thought your style and i thought you were going to i'm sorry i thought you were advancing the claim that the district court was wrong on the test of availability yes in the fact that the government now agrees with you doesn't change your view that you are bringing an appeal in which you are saying the district court was wrong governing council now says well we don't disagree with that so you would want us to say i assume in an opinion the district court's wrongs when it goes back to disregard has no discretion with respect to that determination anymore if we agree with you and i guess the question i have no i think that i think that's right and i think it's  why would you even hesitate over that i'm confused well i mean you could it only recently have if we were agreeing with you yes it seems to me straightforward that we would say in an opinion that here's the issue that was raised by the appellant this court went the other way they're challenging it we agree with the palin and incidentally the government agrees to this because wrong and on remand that's off the table you know i agree with that i don't i don't know why i hesitated in the only in the sense that you could just say it remanded to the district court and say exercise for more fulsome discussion of this discretion issue but i think you're right judge edwards  and i think that the simple answer to it is that at the st step back to has nothing about this is a veil ability issue that the district court super imposed on the statute and the agrees as i said that it's only the amounts of drugs either found in this case because it went to a right found by the jury in a chase of the plea it would be if i am by the jury or conceded or could but in this case because i went to trial it was night to eat it right or the petit jury clearly found only on the one count of it was that it was more than five grams and that penalty has been changed obviously ok so that if we do need to discuss this availability argument which is the forum for the argument let me just ask this a couple questions about yes so what is it what is what do you understand the words to mean as if all i can say is it to me and means just what it says did there's nothing that says that if you decide that this that the guidelines would be the same that you can't modify read impose a reduced sentence modifies the wrong word impose a reduced sentence it means it's what it says it if it's if they were in fact it doesn't say anything about a half there has to be a lower guideline range a lower statutory range that's informal for a so but when the judge considers whether they were in effect as if they were in  effect do you think that that means that the i understood from your brief that you understood the jor judge may consider the judge found amounts for the and making the determination including for the statutory ranges that right no no to what it is you say it what it just so perhaps either i'm not understanding the brief or the brief is less clear than it might have been i'm sure it's the so at page twenty eight of the brief i'm not track trip you up here i'm just trying to figure out what you what you mean here it says of course in exercising its discretion made a judge may take stock of several considerations including the judge found amount of crack in the conspiracy ok sorry i'm sorry that so what do you mean by that that's the stage we're at this appeal which is the discretionary state in deciding whether to actually impose a reduced sentence the judge can  it in the discretionary stage and looks at the statutory penalty that's a different question obviously than if the judge does the jury found him out and looks at the statutory penalty in the discretionary phase right so if the judge looked at the jury found amount only in the sentencing phase the judge would see that your defendants have already served mor e than the statutory penalty which is twenty years you know they just twenty seven years yes if the judge looked at the jury the judge found amount it would find the judge would find i don't discretionary leave aside the argument of it about availability that's not necessarily been talked about here and i'm with you on the question of discretionary and i'm trying to figure out what does a judge post do in the discretionary phase and that some parts of your brief you say what i just said you say the same thing on page forty five or something like it i mean i just find it so if you can help both of us some of which page with that one was page twenty eight no no right the other is page forty five and that says helen's do not seek to reopen factual disputes in fact they except the judge found quantity terminations for purposes of their guidelines calculation right back and i know i can have my discretion and the judge asked well can i you use the jury must i can or must i use the jury for if i must use the jury for then i got a release i should release these people immediately not just reduced because it's above their sentencing that stature emacs if i look look at the judge found one then and i decide decide to stay the same then i amount and what i'd like to reach would be but it's not a it's not a disqualifying is just as the i understand it's not disqualifying i understand that and i just had a government agrees with that and i'm just trying to figure out what is the judge think they're part of the equation for the judge to exercise their discretion but they are not in any way binding on anybody did i understand but the judge if if the judge says ok look i think i should look at the judge found amounts i looked at the judge found the mts sentence is still within the statutory range and still within the guidelines saw on going to stop here i don't find any of the other considerations terribly relevant that's one judge could do that another judge could say i'm going to look at the jury found amounts and my god this is above the statutory limit reasonably within discretion then i think so as long as they take into account all the thirty five everyone i appreciate the other i'm only just for the moment on quantity yes yes i believe that's correct they could consider what the jury mean that in the discretionary decision making the judge is supposed to think about as if apprentice applied or as if apprentice didn't applied at the time the judge should consider that it seems to me i must think considered i'm not i don't think i would go that far but it's certainly a factor that they should consider and was raised before the district childhood mr white was born that was fifteen years old the facts are set out in the briefs i'm just going to highlight a few of them that but the his mother was a drug addict in jail his father was in jail mr hicks his parents drove away when he was five years old and he never saw them again and never knew what happened to them they were raised in a neighborhood which is the time was rife with drug dealing they were at the time they were sentenced they were two thousand one hundred and twenty three years old they have spent far more than half their lives in jail they've spent twenty seven years in jail the letters that were sent in their support of the appendix for m understand what you're asserting might be mitigating factors is your argument that the district courts simply did not account for any of them yet is that the discretionary discussion in the district courts a sixty one dollars page opinion was about a pigeon and a half or two pages at the very end of the opinion which all it did was reciting the facts of the offense i'm n said nothing at all said nothing about their ages and of course the supreme court  consider the mitigating factors and let me ask you with respect to one because yes i think the two sides are going past each other on the obstruction of the government is pointing to something that i don't think you're claiming i think you're claiming that the district court in consider being that obstruction suggested that hicks himself was involved in the murder as opposed to what the transcripts as  he clearly was trying to affect that proceeding but he was self was not involved in murder and so your ball talking about entirely different things but in any event the question i have just out of curiosity is satisfied myself  supreme court now seems to think to make it clear you're claiming clearly erroneous the government's claiming plain error with respect to something you're not claiming you're claiming clear error on the obstruction with respect to what the district court said and i'm assuming you're assuming that it was preserved that is that it was raised with the district court and responded to by that i just look back at the transcript but i want to make sure i understand both sides the government's talking about something you're not talking about so i'm not talking about that but with respect to what you are arguing i think it was murder that was not correct and that you're arguing that that influenced the district court right so i'm a little district court now set the opinion said he was involved in  yes but just on the original sentencing judge did not see it or not i understand so but there's no there was no hearing on this motion it was all done in the papers that i know i understand what you're claiming it was clear era yes ok by reference to what there's a transcript colloquy is that where you're where it was raised with the district court judge and the district court judge so that you could judge knew you were not raising the claim that the government thinks you  raising which they say falls within plain era land you were saying the district court to the district court he wasn't involved in this is not about him and murder it's about him and trying to influence that proceeding right yes all right you're saying that your raising that with the district court preserve the question and the district court then got it wrong in its assumption well look what yes it did in the district court in its decision said that mr hicks was obstructing from the civil side controls and no preservation is required supreme court in davis now seems to put that completely to rest there is a preservation requirement with respect to alleged factual errors i just wan make sure because the government's not joining you in this discussion you are claiming it's a clearly erroneous test and it was clearly erroneous as if to say you did preserve it yes and you are claiming you raise it with the district what the district court then went on and made a determination that was wrong and that's all you have to do yes ok it's ok i d can i follow up on that i'm just i think of the district court  you know relies on a fact that is not true it has to be remanded so i care less about this standard of review question maybe than judge edwards does at this moment but i'm not sure about the answer to this question so you raised in your sentencing memorandum the points about rehabilitation childhood sattar yes ok yes then the district court  right i think is in yes you know not just his involvement participation was the word used yes something like that and that then you did not have an opportunity to respond after that is there was no on the incredible letters about their rehabilitation and mentoring for their support from their families and friends job offers if they were released from prison for whatever reason i mean there is no indication the district judge can see any of that mr cramer let me ask you one other question what do you understand the district court ted in its alternative holding it is judge made findings jury made findings of quantity neither one both good a judge given given what the judge  previously said to the judge understand what you believe to be the law to get ice i think the government also now believes that the judge could have used the jury found the quantities argument even if what that is when the when the district court ultimately applies discretion i don't see any indication one way or the other about whether that included s proceeding so clearly the judge was using the judge me faxed founda x so is part of your argument for a rematch only the argument they were making a moment ago but also that the district court didn't understand that it could have relied on the jury found quantity for purposes of sentencing range and guidelines absolutely i mean she so that what she didn't mr him she didn't say that they're suing the because she took it off the table at the availability stage there when she said  in the alternative i would do x then get the tablets not that she must have assumed that that she couldn't rely just on jury quantity right if she didn't say one this that was one issue we argued that she should consider that so ok whole sentencing structure changed a lot all these mitigating factors and none of them are mentioned back at the discretion can you hear me now ok good morning sound like a commercial there please the court elizabeth gabriel on behalf of the united states i do think as mr cramer pointed out that we are in agreement on a lot of issues  to clear up what the government's position is if there is confusion on that and to discuss further what we think the mechanics of the section four were proceeding should be if the court would like me to address that otherwise i'll are are covered offenses for purposes of section four hundred and four and that they were eligible for consideration for a sentence reduction now we agree with appellant that the district court should not have considered the judge found quantities in determining what the statutory range would have been if sections two and three of the fair sentencing act were in effect inter in terms of the so at that that phase we think that the judge should only look at the jury found or admit were admitted quantities but we agree with the power and that when it comes to deciding drugs whether found by the jury or not and so at that point the total quantity would come into consideration so this this this statement in your which says the position of the partner of justice is that section four for b contemplates determination of the statutory penalty range based on the quantity of crack cocaine reflected in the jury verdict or admitted by the defendant a guilty  mean that only with respect to this argument about availability and with respect to that or the way in which the judge acts in the judge's discretion exactly so when once a defendant is deemed eligible because he has committed a covered offense the district court has to figure out how sections two dollars and three dollars of the fair sentencing act would have affected his sentence in other words what the statutory range found were to were admitted quantities so so we think that the courts so the judge found quantity should not be relied upon in determining determining the a political statutory range but then once that is  quantities in determining the sentencing range when you go to discretion we're above the jury found or above the sentencing range now under the jury found quantities so what is it just a court supposed to do at that point that would seem like the district court yes has discretion but should realize that the person has served longer than the statutory range and which case maybe it would be an abuse of discretion not to release the person w was well i think simply because the the total quantity would elevate the guidelines range for example above the new statutory range doesn't right now a reduction from the sentence that was originally imposed so because at that ultimately the court has to consider the totality of the circumstances all of the factors under th fifty three dollars the court can weigh those factors differently you may decide that well you did the total quantity of drugs doesn't outweigh other considerations or as in this case the court concluded that judge looks at that case and said these folks on the statutory range should be released but i now am going to exercise discretion to increase what appears to be the statutory range if we look at it as assuming the statute was in place and you're grinning that starts to read you have to take what the jury found such to arrange no is exceeded they've done their time so the question before the really i'm sorry to interrupt but i gotta make sure i'm following when you say any reduction remember i'm having trouble with the word reduction now let me see if i can help from that i understand you it's gabriel to be referring to his forty fo a discretionary decision and because to reduce from the original from the original exactly because defendants are not entitled to reduction zx under the fair of the st step backed the court has considerable discretion to consider the nature and circumstances of their offense and does the judge does the court have the so as i understood mr cramer's position the judge has discretion to either look at  judge found quantities or jury found quantities or both you agree with that as well in one once the statutory ranges determined yes in the think that's correct yeah i think that's correct we would of course the government would argue that the judge should look at the full range of conduct i write but do we know whether the district court in this case knew that it had that ability because  you know given the shifting views of the i'm not blaming the government about this but given that you know the changing views and the judge's sort of st two steps of the analysis this is really the question i put to mr kramer before do we need to remind at least leaving aside mr cramer's other arguments which you'll get a chance to respond to and and a nd sorry mr kramer it's really good and zoom i can see your facial expressions perfectly issue well well i do want to just explain why i think a remained is unnecessary the court starts out her written decision by discussing the views of appellants and recognizes that only the judge found quantity only my assumption was she is not assuming that the jury is the jury found is in play at all there's nothing to indicate that she at all the only thing she references in the discretionary port is the judge found quantities right that's correct but i do want to explain why i think she why i think she considered the other position because she then when she when she goes through what she thinks section four hundred and four means and how it should be applied she then says well even if i'm wrong essentially even if appellants are entitled to  be saying with her on that point the even if i thought she was saying don't matter because they're not going to do any better and they're not going to do any better because she's assuming the judge made quantities control i thought the thrust of her opinion you know what's what waste time on this question i'm not going to do any better because when i look at the judge made quantities there in the same place that's the way i read her opinion i did not see anything to say just that she understood they would be better off if you she used the jury determination and she was rejecting that too well the way that i understood it your honor was that she in that you know her or even if even assuming language is a reference to even if i missed even assuming that i was wrong in how to calculate the statutory range and i still and in other words even if appellants are right that in fact they are entitled to but you agree that the reading that i'm suggesting is as plausible as your reading of the district court because she's only referring to the judgment and the worst or best that we come away with is we're really not sure well i agree with you that she only refers to the judge found quantity but i don't think that it means that she misunderstood her dismantle no i don't even we don't even have to go that for the appellate court really not sure what the district court judge i don't have to go further than that if i can honestly say the view you're propounding i get it but the view that's in my head i get to and i don't know which way to come out if i confuse what is going goes back  i understand i understand your honour's that point and again the government's position is that we don't think that there's a lack of clarity in the decision but i do understand the point you're making ok you were responding to judge edwards question about where he said look if i can't tell what she did it has to go back i heard you say i understand but did you go further and say did you say what you think about that well why didn't he write about that i don't the government doesn't believe that there's a lack of clarity in the court's opinion so i know that the courts mean if the court thinks  understand your position is that it is clear but you know you're a good lawyer you argue new case but if we think that that's if we read it and think there is uncertainty then you agree it does have to go back in t issue of whether the grand jury was investigating mr hicks for murder the reply brief as i read it is that it makes clear what murder was at issue  but the p s r indicated that the grand jury that the witness whom mr hicks bribed was investigating white and hicks for a murder and so i think the district court was entitled to rely on that representation and i don't think that it was preserved in this section four hundred and four proceeding once the district court ruled i think it was incumbent upon appellants to raise an objection either to something they're not asserting and they did maybe i misunderstand clear they're not they're not asserting what you're claiming they are claiming that this you could misunderstood in characterizing the obstruction charge misunderstood in the sense that you could assume that this was about a murder that hicks was involved in not a murder investigation or that he did something bad in connection with a murder investigation if i think yes it was as if to suggest that hicks himself was the subject and they're saying that's not correct in the district court shouldn't assume that and that would have affected the district court's thinking if the she really assumed that that's what was going on right but i think that that that claimed factual error which is underlying the the the district court's decision is a claim that should have been brought up oh i saw it in the transcript  right and i think that even if this i know that at the sentencing hearing appellants to mr hicks of counsel you know made a statement general statement that he wasn't involved in any murders i this is in trying to discuss discuss the availability problem with respect to hearsay that as to hicks you can't use the hearsay because he wasn't involved in causing the availability namely the right right i think that the distinction is that that statement refers to a general statement about his involvement actual involvement in the murder but what's at issue here is whether the in finding that the grand jury was investigating him for his involvement in murder and we don't i think that's where you're mr owen but i didn't read the report them to me making that argument but an event on trying to find the based on the assumption that he had bribed or on the finding that he had bribed witness who went to the grand jury and this is what the district court's written opinion states withholding in information from the grand jury that was investigating him for murder three or in the sections were for proceedings preserves their objection to that factual finding here again this distinction i'd like to make is we're looking at what was the subject of the grand jury fact bribed a witness who was going to the grand jury and that's really what was the critical conduct that the district court in this proceeding relied on in finding that a reduction in sentence was not warrant just on jury found do we have to address this issue for him doesn't this go back on that too for him i think that's true yes ok  decision making the judge can use either judge found or jury found amounts although of course you would argue that she should use the jury found but that becomes a permissibility it would be permissible to use either one as that right yes just with just to clarify that's after the statutory sentencing range is determined under the fair sentencing act so  doesn't have to be determined or is it as of the judge have to announce this is the new statutory range or is it just a question of whether the act applies i  where it's required to actually have the judge make some determination well for a for b requires the court to figure out how the fair sentencing act would have affected the sentence the the forest and i thought it was in the context of the four for be proceeding where did the judge miss state the matter in your view with respect to the obstruction and where did the defendant say something to suggest you got it wrong your honor so it page fifty nine of judge of the district court's opinion it says hicks in case in obstructive conduct to withhold information from the grand jury that was getting him for murder investigating him for murder for him for murder that's what i remembered or what i would like to point you to was page appendix page two hundred and eighty two where the government this is from the government says judge green say a word about murder there which clearly they would have if about mr hicks being involved in murder that's what mr krevin exists for that as a direct response to the question of whether the grand jury was investigating him for murder i understand the government's position to be ok its structure and how it may be different ok the disco cartmell to muttley have made a decision that hicks wasn't involved but the only question here is  was that grand jury investigating him for murder and do we know one way or the other about that it was this was it the defense lawyer had given to talk about how mr hicks was not involved in the murder did not involved but what about whether he was being investigated that i that i understood was the government's question the right and i guess there was the defense lawyer said it had nothing to do with mr x being in volved in any murder and this indication the judge considered any of the mitigating circumstances and that her decision on how of the jury found facts were irrelevant it was the judge found facts that would drive the guidelines range in the statutory range seemingly colored her view of the discretionary phase in then i just want to say one last thing it's extremely important especially in this case to be certain because under the  back the defendant only gets one shot at it they are precluded from filing a nd st step back motion there precluded from any relief by section c which says if a previous motion was made and denied after a complete review of the motion on the merits i guess our argument is that this wasn't a complete review but in any of that it's extremely important because they will they can have another chance the filing of the st step back o