be able to return to our normal course of business in the meantime thank you all for being here we really do appreciate it we don't have to light a system obviously but we do have a clock at the corner of the screen and the clock will tell you how you're doing with your time and valerie is our courtroom deputy we'll let you know orally when you've got two minutes left of your argument time if we take you beyond the time don't worry you're on our i want to recognize it's your court appointed for mr gonzales and on behalf of the court we want to thank you for your service to him and to us we really do appreciate thirty six months for a class b felony the government in its initial brave conceded for the st time that the st act applies to a revocation sentence so i would like to focus my and subsequent to the closing of briefing the th circuit issued an opinion coroner united states versus corner which  it doesn't really tell you how the st motion has to be reviewed does it just tell you the consequences of the failure to review it that way in the nd round i would respectfully disagree your honor i th the language they in the language that you're referring to you don't get a nd round if there was a complete review that's how i read what that's all i read it  guess i'm just saying no i don't think the that that logically means that the burst round has to be reviewed there has to be subject to a complete review on the merits where just means that if it not then you get a nd shot i and i did i disagree i think that if there is that we have to give full meaning to the language in the st step back a court have to do that and because the language says that there should be a complete review  times saying you know i i filed under the st step back but you didn't give me a complete review is i get the file again and i can't that could possibly be the meaning the meaning is that a court in its st instance has to give a t i believe that corner does not necessarily preclude that but what corner r says is that you have to do this complete review which includes comparing the statutory penalties and any resulting change to the statutory penalty and that wasn't done here and so it was but was the district judge aware through the filings what the reduced penalties would have been and while that the government is is arguing now felony mr gonzales has argued that he is now class b felony because he's not subject to the enhancement that his state court did it is not a predicate under the first step back and none of that the court the district court using discretion decision to decline re sentencing without considering the statutory remedy or is runs afoul of congressional expectations the court decided to  do what decided what to do without st determining the parameters of what it could give this court or the district court the government below argued the st step back to apply the guest required exception that argument and the district court did explain and i'm looking at page one of it's order that while in prison for the underlying offense and solaces conduct that involved drug offenses and numerous incidences of insubordination gonzales's conduct while incarcerated and while in supervision demonstrates an unwillingness or inability to abide by the law and then an closing the court says even if good solace were eligible i would decline to reduce his term of imprisonment because of his continued lawless behavior what else do we need a district judge to say well and of the st step act we need the district judge to say these are the these are my new sentencing calculations and i've taken into account the new sentencing calculation there is a purpose behind the st step back in the st sentencing act that judges are to take into account because of the unfair application of the you may be justified and remain and and then that would be a question for this court again certainly the court can take into account mr gonzalez's conduct but that can't be that the only basis because he under the the st step back he has to look at just what judge needs to look at the differences in the statutory penalty and there's been a determination here this issue of whether it be the new was there a dispute between the parties as to what the new title i calculations would be that not was never really addressed lee the government response focused primarily on the issue of whether the st step back to apply arguing it didn't apply and there was no detailed explanation but as we stand here today the government is arguing that of ruling is insufficient to cure the defect in the initial ruling and i see my time is about to expire ok thank you very much  clarifying exactly why there is no change to mr gonzalez the statutory penalties that are applicable to him and his argument seem to all spring from white and it is a point on which i don't believe there is any room for reasonable debate mr gonzales was subject to a sentence a very particular senate back in two thousand and six by virtue of the chapter and fifty one and hants that require the united states to show a qualifying prior conviction for a drug felony now many years later twelve years later the st step to change what could qualify for that enhancement it became a serious drug felony for which has two thousand and four simple possession conviction out of the state of florida would not haue qualified however that modification was not made retroactive to people like mr gonzalez who had already been sent his years before it was applicable only from the point forward and two defendants who had already committed their offenses but had not yet then sentence mr gonzale falls well outside that category of people so what is applicable all statutory penalties were before the passage of the fair sentencing act remain the same today so there was no change for the choice if you consider could i interrupt you for a nd you know i think you're speaking only for myself that there's nothing wrong with a district judge providing an alternative basis for a decision including in a case like this one but that alternative ruling and affirming of that alternative ruling is a lot easier a lot less difficult when the parties and the court agree as to what the revise range would be if a defendant were eligible but here both in the district court it now wan appeal you've you've taken the position that essentially that nothing changed with the st step aka with regard to mr gonzales and so given that as a preference and given that the district court didn't set out what the new range would be under the st step that how can we have confidence that the district court understood its discretion it's discretionary decision and other words it's its determination to not grant a sentence reduction here was totally independent of the eligibility determination and the court focused its order focused on mr gonzales's many and varied infractions while he was incarcerated his many and very tight to go violations while on supervised release and last but certainly not least his substantive new long fences that included powder cocaine crack cocaine and even a firearm that was the deciding factor for the court electing to not grant the request of relief it again was independent of the eligibility or non eligibility finding of course here for purposes of exercising its discretion the court did assume eligibility but if you're saying assume eligibility but how do we know that eligibility if you argued below that nothing changed in other words it's one thing to say the district judge understood general eligibility but if you thought that it only changed by a couple of months of mr gonzales thought that a change by forty eight months that be a very different version of eligibility how do we have any confidence that the district court understood what gonzales was requesting and the range of its discretion given to your position below well in a very technical sense mr gonzalez was requesting  complete vacation of his son is he was asserting that he was no longer that that he had been sentenced above the what he was asserting applicable penalty range for his revocation sentence of thirty six months that wasn't correct it was six years and he had been sentenced on that revocation to high end guidelines sentence of fifty seven months but i think here i want to reiterate what i've already said which is in this case in particular reading the court's order we know that based on those factors it did not matter what the change was going to be there was some really strong language in this order the judge said that mr gonzalez had demonstrated either an unwillingness or inability to follow the law and that really says something to your we don't we don't get that in every order where the court declines the senate's reduction based on sort of  post incarceration or bad behavior if you will on supervised release so the court here is adamant we know from the language of the order that mr gonzales did not warrant the judicial defendants i'll just take a note here to discuss corner a bit the panel has already made some of the points that i wanted to know about that case but i'll extend it a little bit certainly our position is that the corner court got it wrong but the reason is because it creates a procedure for st step act cases that the st step act itself does not require and of course i'm referring to section four for c which is a a limitations clause for the st step act that tells us when a defendant cannot see what amounts to a successive st step at motion but nowhere in there does it say that there is a requirement for a reviewing such a motion to st make an eligibility determination or that an incorrect eligibility determination based on any theory cannot to be cured by the proper exercise of the court's discretion we've got a right opinion in this case one way or the other so let me play devil's advocate with you with regards to some aspects of corner the district judge in this case so let me turn this case into a honor there we wouldn't know exactly how and why the court had exercised his discretion so i think that probably would not be enough this court doesn't need to require an eligibility finding at the start but it does need to know why the court declined to exercise its discretion but what i would say your honor is that this court should say should certainly adopt the saying well because we would be so we would be say the the court in corner said that not only did things have to be done in a certain order but that certain things also have to be considered like the difference in statutory penalty penalties that would be applicable to a defendant pursuing the motion but here and here are the district court did not say what the corner court says must be said in order to then have two minutes discretionary determination i'm talking about the very plain language of section four  that is where the court jets its authority and in section four foresee on which corner of law and we can't forget that it also says nothing within the section shall be construed to require a court to grant relief under the section and this court has said nothing means nothing but which i think is actually its rivet tagline because it really underscores the discretionary nature of the st step act proceedings and you have to decide what what this st step back application seems to me is in the case if it doesn't apply the next rules of law those not appl then you plug this case into that review model what do we know what he's from what he said that the other stuff well let me start my answer by sort of reaffirming white a relatively unique i think with those very specific facts set forth when we view that in conjunction with the court's order in this case were there that requirement to set forth what the actual penalties are and what that means for this defendant to the extent that the court here did not do that and its written order the effect would be harmless because if this were to this case it take it outside the realm of what the normal for stock act case but i think those quirks are consequential here in terms of analyzing what the harm was by not including some of those things in the thank you we don't know from the order because the court did not directly and explicitly acknowledged what statutory penalties mr gonzalez would face or not face how the fair sentencing out been and in fact at the time of his sentencing of course our argument is there was no change nevertheless when we read closely and we accept the court's proper exercises exercise of its discretion in step t which assumes eligibility and mr gonzalez has favor then we can understand that this court was not going to change was not going to reduce m gonzalez the sentence regardless of any change in the statutory penalties that applied to him so while your honor has asked a very specific and very well articulated questions i think we have to consider the very specific acts in this case all together all in conjunction with one another to arrive to the conclusion that this court properly exercised its discretion the facts based its decision should not grant a sentence reduction or amply supported by the record and under the st step act that is all that was required and the court also let us know by virtue of that strong language and by virtue of reliance on all of those critical facts from the record there remained here won't change anything it would still decline to grant mr gonzalez a son his reduction a regardless of whether the enhancement would apply but which of course we argue it wouldn't apply which goes exactly to the reason why it needs to go back to the war because we don't know whether or not the district court knowing that the st step back reduced is a maximum sentence to thirty six months whether he would have abided by the maximum sentence he gave mr gonzalez a fifty seven month sentence it changed he was at under age forty one b one b and twenty one united states code fifty one he was facing ten years to write and eight years of supervised release and then class a felony for those who have been sentenced for crack cocaine offenses and so here we can be sure that the alternate ruling was not just a conclusory common cause in for good measure it didn't reflect the so the supreme court has basically encouraged lower courts in a qualified immunity context to skip the merits analysis and to go straight through the clearly established law from a qualified immunity if you're familiar with it and i'm a some wondering why that sort of rationale doesn't happen here and likewise if we based a district court decision that said something like there was no constitutional violation here and in any event and then kind of tossed in the good measure in any event it wasn't judge doesn't gauge in what the change in the statutory penalties are then he's not really looking at the st step back he's just doing a modification and denying a modification or center and the st step back requires i think i'm past my time that in this instance and so the court i would respect respectfully ask that the court remain and so that the judge can make a fully informed decision of how he would treat this particular defendant recognizing he has the authority and then looking at the setting for penalties and seeing if the way of the statutory penalties invited mr gonzalez's conduct is something that he would change and maybe he would give him