sentence reduction based on the most recent amendments to the the guidelines mr shaw is currently serving a seventy five months since the judge reduced it to sixty two months however the judge's order does not go into effect until november served about five and a half years because at the time of his sentencing he'd already done eighteen months on his federal sentence is that right that's correct your honor so we don't feel that the judge is or moves the case well i  don't you know i don't think it would i mean that probably government doesn't take that position i just want to make sure i knew where we were yes yes your honor so and you want to be i reserve three minutes rebuttal please  it please the court mr shaw should be granted relief under section twenty two fifty five because his sentence violates the law as set forth by the supreme court and dorsey the dorsey has a very significant impact on this case and i think the best way to see dorsey's impact is to ask what would have happened if mr if dorsey had been decided a week before mr shaw was sentenced well first of all the district judge would have said one hundred twenty month mandatory minimum is in a political the mandatory minimum now is lowered to sixty months so the guideline range become to put the book i'd line range becomes eighty four to one hundred five months and that's important because that guideline sixty months and it effectively lowered the guideline mr shows guideline range to eighty four two hundred gallon right now i mean other than for the effect of the mandatory minimum right when he was sentenced back in two thousand and eleven the guideline range would have been any for two hundred five months now that's the guideline range that had already been lowered by this the sentencing commission in response to the affair the district court said well the guideline range really didn't change so what's what's the problem and the problem is this the starting point for the district court's analysis here was the mandatory minimum of one hundred twenty months that's where it made the well i want to test you a little bit on that and i want to make sure we're in agreement about what was going on in this guy is from the thirty five fifty three the motion that was in the myth that effectively  hundred twenty what would not the starting point once that was there was no statutory mandatory minimum operative in this case not ten years not bad viewers not anything right and ryan to man the sun but the district court was the radically free to grant a variance on any basis had one been to crit requested by the defendant and he did in fact grant a variance on the only basis requested that the defendant correct that is correct your honor yes so i mean the district court the pool only point i'm making the the district court was not limited in any w when the government made that motion they recommended a thirty six month reduction so mr shaw sentence went from one hundred twenty months the mandatory minimum down to eighty four which would have been the put the book guideline range but for that mandatory minimum so  our whole point is that the maybe that that mandatory minimum did not appear to be the starting point for center doctor but actually it was in the me let me ask you for more thin twenty to fifty fat as if coming correct yes sure there's case law from the supreme court on down that it's not inappropriate for the district court to take into account what he is aware of from the original record in the handling of the twenty to fifty fat right but that is correct yes there's no explicit reference to bad the district court to the earlier handling of the house but it would be normal for a district judge if the district judge thought that his discretion was going to be exercised differently upon recent sing it would have been typical for the district judge to have taken that into a camp in applying the appropriate standard in this context wouldn't it i think i think so your honor but again my point is i think that the district court got off to the wrong starting well let me ask you set me up about this guy i'm trying to take all the the facts into account and it first blush the arguments about dorsey seem like they would might have some merit in that you might be entitled to a rewind but the more you look at this case the lips i became convinced that that was in fact the case this is a pretty apt thought initially as sort of reacted negatively to the magistrate judge is speculation about what the government would have done on ray man however when i read the sentencing transcript here's what i found and let's see if you and i are in agreement on this this was first mr shah got a pretty good deal he was subject to a fifty one enhanced meant part of the plea agreement the government did not seek that was right that's correct ok the thirty fact fifty three emotion that was my was i don't know that characterization of this but it oh maggie yours is a federal judge which are getting to be considerable i have never seen a more perfect bunk to read thirty f fifty three a motion and would you agree that it was fairly profound to it was based on his proffer that doesn't happen too often it was clear the prosecutor could not even when pressed by the district court i'd imagine any significant cooperation maggie inference from that would be that the prosecutor just felt that he ought of free this defendant from the strictures of the mandatory minimum but that there one really anything else to take into account discussion but the fact of the matter remains the government characterize whatever whatever missed the show said whatever information he provided to characterize that as helpful helpful to the tune of the thirty six month reduction the must have been on i'm glad but i want to be on the same page as the cooling but in the plea agreement itself and i'm going to paragraph twelve of the plea agreement and this is on page three thirteen of the record paragraph twelve starts of nothing in this cream agreement is going to protect the defendant from prosecution from a variety of offenses most of them dealing with false statement perjury and it goes on to say should should the defendant commit any of those i quote during the cooperation phase of this agreement and quote so obviously there was some discussion prior during the plea agreement to mr shaw cooperating and providing information he did exactly that he provided that information and at least in the prosecutor's view even if it was a cryptic view he provided thirty six months worth of  information or at least enough to get a thirty six month reduction and we would submit that based that just based on dorsey when that first mandatory minimum that hundred twenty month mandatory minimum is no longer  the guy in the guideline range became eighty to one hundred five months the sense reduction should have been calculated from that eighty four to one hundred five months and i say that because as we cited in our brief this case law states that with a guideline range is greater than the mandatory minimum and it certainly was after dorsey then the guideline range becomes the appropriate starting point for the sentence reduction point like the calhoun case that was recently a two thousand and fourteen case in the same context a twenty two fifty five and where the calhoun found that because of the because of the particular facts of the case somewhat similar the plea agreement itself became ambiguous and is isn't there an ambiguity here that after after the at the position where we are now the language of that play agreement the lowest end of the applicable god line range could be re added to say that the government could insist on the id for months in its and or the government could say that it would be satisfied with a sentence that falls between sixty and eighty four and if there is that ambiguity doesn't it need to go back to the says that in the transcript well i mean that's not that it's explicit if that's not an inference driving the train script i mean the government says so the court presses the government counsel extensively some question about whether the united states position was whether twenty to fifty five is the appropriate vehicle yes we believe it's appropriate vehicle but to win a twenty two fifty five mr shaw has to show one of four things what m shows is that the court and the parties were under the misunderstanding at the time based on the law as to what the statutory mean atory minimum was that misunderstanding does not equivalent equal a fundamental error for twenty to fifty five purposes because the thirty five fifty three emotion took the mandatory minimum out of play that as the court's aware and i don't know how much of the  want based on all this post conviction the statutes that are here for twenty two fifty five thirty fifty thirty five fifty three thirty five eighty two what happened here is at the case that posture it's at now for a twenty to fifty five there has to either be a constitutional where there is none here there has to be that the court was without jurisdiction since we don't have that that the sense was outside the statutory maximum or the sad story limits we don't have that is whether or not it's other was available for collateral relief and that's when there is a fundamental error that miscarriage of justice so substantial injurious that it violates due process and the only  only error are the position mr shaw has at the fundamental areas that dorsey did not apply we all now know that dorsey should have applied but in reality there is no fundamental error in this case because the man and atory minimum was of no consequence the court was available to sentence not only had a sixteen month mean tory minimum but is zero mandatory minimum because of the thirty five fifty three d and when there is been a genuine error of  violation twenty two fifty five would be the vehicle but but that's not the case here because there was the thirty five fifty three and there is all the thirty five eighty two analysis in mr shaw's brief and even in the magistrate's decision so this  the united states that that this court doesn't have to go into all of that into what the policy statements are as to what effect the mandatory minimum had on the guideline range because this is not a thirty five eighty two case where we are going back and looking at what whether the guidelines were amended and needs to be changed the fair sentencing act i think act had no i had no effect on mr shah's case and in reality then there's no justification for twenty two fifty five relief and what if the police agreement itself now has an ambiguity in it do does the government get to say that doesn't really matter here's what we would have done anyway or do you have to go back on and examine it at the district court level if the ambiguity had some effect on the decision your honor i would think that that it might need to be reminded but it but it doesn't in this case because the at the low end of the guideline range if that's what you're saying the ambiguity is and i know the case you're talking about because you can concur in that case but if the ambiguity here is what is the low end of the guideline range arguably the ambiguity but the guideline range did not change the guideline range was eighty four months two hundred five the ambiguity that or is it is the ambiguity what the government has promised in the plea agreement and what the intention was whether you would bid on the eighty four then or whether based on that language it would have the language indicate satisfaction on the part of the government with a sentence that would fall between the facing two hundred forty versus one hundred twenty one now under twenty rather than sixty but the united states as you pointed out at the sentencing hearing was adamant that they were not that they united states was not interested in going anything below eighty four the district court even commented that eighty four month sentence was fair reason eminently fair are some some are like that there was never any question that the united states did not intend there is no ambiguity a four months was the guideline range and no less than the statutory mandatory minimum was in the plea agreement but added the united states added at the sentencing hearing that it would agree to go below the statutory minimum and made the thirty five fifty three emotion opportunity here to do that in the twenty to fifty five situation are in the twenty to fifty five motion the court was given the opportunity to say do i want to go any lower than made a point of saying the united states does not want to go any lower  there's nothing changed here the court knows at the time they're ruling on the twenty to fifty five what dorsey has said and still does not want to go any lower and i remember your honour's that what we're talking about here is twenty to fifty five this is not thirty five eighty two where there might be some question what the court starting point would be in doing the departure or where the guideline should be this is for only a fundamental error at the  have a quote from one of our cases in front of me and it doesn't use the due process language and i just i want to make sure that was in the in addition on your part in that it is explicit in the case law for twenty to fifty five just didn't have the boilerplate in front of me but that would be i don't know if the do you understand complete miscarriage of justice and amounting to a due process validation to be something different or do you understand it to be basically the same thing every is complete miscarriage of justice something lesser i would say it's necessary lesser but i'd say they're different there could be a miscarriage of justice without due process  but the point here that and i'm repeating myself is that there was none of that here and we just planted this case and as you see from the records has such a kind of comic convoluted procedural history there was the direct appeal the thirty five eighty two then the direct appeal and the thirty five eighty two appeals were consolidated then there was additional briefing from dorsey and then the parties the two different counsel moved to voluntarily dismissed those appeals or dorsey could have been considered both in the a direct appeal kind of situation since they were consolidated so although we haven't raised it in our brief and probably should have raised it earlier would you didn't but you didn't argue do procedural but also we're beyond that yes i guess we are judge but i was still just pointing it out and looking at whether or not error is so fundamental that twenty to fifty five relief is warranted it was an issue that could have been addressed earlier but the party the defendant voluntarily dismissed two different lawyers moved to voluntarily dismissed their appeals and it was ruled on then in a context where he perhaps would have had a more favorable  is effective date for that amendment the probations memorandum of recalculation in that current thirty five eighty two says his release day is january two thousand and sixteen but i think that was based on before an additional the eighteen months at the time he was in it and he was sentenced in february of eleven so he's given credit for nine that had nothing to do with the with the reduction in the district court he had already actually been in federal custody for eighteen months of course he would have gotten credit for all that the district courts adjustment is understand it was for ted that there was a delay in  he'd been picked up on state probation parole charge and there was some delay in getting the federal watch for the case fat and that the credit that the district court ok well that's probably really what your position that that when the new change comes into effect in november you think that's the release date yes he will be out november first  question is whether if he were granted the relief he wanted in this case would he be out before november first probably if he were a good every getting recent well that's right to me you know so why isn't this moment because you'd be entitled to be sentenced read released before november first and you think that process could be undertaken in completed between everything gets done it will probably be time for him to get out but as far if there was really a legal error that needed to be addressed it would need to be addressed i would think if there was something that needed to be corrected even if a practical matter unless by the time you all were issued in your opinion november first had already come and gone then believe it would be moot but it at this point i don't believe it is moot but as but as a practical matter i can understand the concern  but i really have nothing else to add other than just to say the thirty five fifty three changed everything here and the language in all the cases we didn't the united states did not cite those cases in the brief but the importance of a thirty five fifty three rendering a mandatory minimum in operative is really what what changes everything here and if i have no other questions i thank court very much you thank you your own as i just have a couple of points to make i just have a practical question yes you're on things to me there's a practical solution to this seems to me that this is not going to be resolved in recent months before november i'm struggling with why we can't agree that this case is moot and let him be released in november and you know are sparkly disagree that this cannot be resolved before november the first i think it can be i think the parties in the court will work to ensure that that happens so i'm not i'm not willing to say i understand you the practical well i would hope so but the practical reality of timeframes that we see here very frequently does not that the district court would have rethought this sentence were not very great to begin with what do you think the chances are the district court's going to rethink the senate's now i had i would say probably not very great so i mean practically speaking we're every we're sort of it may be an exercise without much impact on any but i don't know of any way to factor that into the analysis unless  you know the government has any way of doing that i think the selection of the november one was the result of a lot of compromises and a lot of effort to dry up the bureau of prisons get ready in the courts get ready but i don't know why go and make your poem a warning to the bureau of prisons website you his release date is february seventeenth of two thousand and sixteen but of course now it would be eleven one fifteen and our position is that