good morning my name is molly corbett i'm with the federal public defender in the northern district of new york and i represent the appellant keith jennings the district court committed legal and factual error in denying the full reduction to mr jennings under thirty five eighty two c when he made the application before the district court henri man from this court in doing so the district court revisited factual findings that the original sentencing court had made more than at that point nineteen years earlier to find that the conservative estimates that were used by that judge at the time of his research and saying and then also affirmed by this court later in two thousand and two were aggravators and presented enough aggravation that the court could not reduce the sentence down to the three hundred sixty months that were that was requested by mr jennings in doing so the court placed the thirty five fifty three a factors that were being considered under one b one point one zero as part of the request for the sentence reduction and an imbalance and elevated th aggravating factor of the the conservative drug estimate of the sentencing conduct that mr jennings had presented to the district court he was an exemplary prisoner he had no disciplinary record he had a valid himself of every program and educational opportunity that was presented to him while he was incarcerated over the one thousand years that he had been in prison right before the original district court proceeding judge months and had made a determination in the face of the defendant's objections to the calculation about the drug estimates that he would use specific periods of time to calculate the drug amounts and that the that period of time was used in those drug amounts were used because that was the most reliable information that was available to the court at the time and specifically stated in paragraph twenty five and in paragraph one hundred seven of the p s r that those calculations were used because of because they were more reliable than what was being offered and in the period of time that conspiracy for the period of time that the conspiracy existed so prior to nine hundred ninety seven the court couldn't assess the amount of drugs that was being used in the p s r and probation couldn't reduction in if you were to look at the full record in making that determination and in what the recommended sentencing findings were in the p s r which were adopted by judge months and as well in face of the address objections that were presented by original trial counsel the period of time prior to nine hundred ninety seven the testimony during trial the overt acts that are alleged in the indictment  and then the overt acts and evidence actual evidence of seizures in amounts that were seized from individuals during the trial and cited to in paragraph twenty five none of the information and none of those facts contain incidences of drug dealing in any sort of act of that would be attributed to an amount of a drug or certain types of drugs prior to nineteen night roughly fact the the finding or adopts the conclusion that the most reliable estimate of the drug amounts occurred during a ten month period for the crack cocaine a thirteen month period for the powder cocaine and a seventeen month period for marijuana judge mcevoy in his determination for denying the reduction decides that there is some thirteen month period  that existed that he will use that judge munson had examined and that there was some other period of time before that in which those drugs were not accounted for in doing so not only did he revisit those factual determination but he also included in that finding in using the drug in finding that more drugs were involved amounts of drugs that specifically been excised by judge mont and under the risk of double counting so in attempting to adopt what i really reword the statements that were presented in the section in the p s r in paragraph one of seven addressing possible upward departures back in one thousand years ago he didn't look at what the current record was and the errors that existed in the p s r because of the changes in the law that had occurred in the in term between one to the original sentencing in two thousand in the request for reduction in twenty seventeen he had been alerted to the fact by myself that there were that there was a certain air about the mandatory minimum in that maybe an amended or us to the p s r might be appropriate but that had not occurred so in doing that what he did was he elevated the drug amount and made that an aggravator to the extent that it then threw off the balance of the other thirty five fifty three a factors that were presented by mr jennings in the hopes that he would get the full reduction which he had requested down to three hundred sixty months and in doing so he also contributed to a level of sentencing disparity counsel presented a similar set of cases with thirty five eighty two c you the court order for the united states the district court here reduced mr jennings sentence from life down to four hundred twenty months and that decision should be affirmed in arriving at his decision judge mcevoy made no new factual findings and in fact he had no authority to make new factual findings he was limited only to applying the amended guidelines and that's what he did here the operative drug quantity was the originally estimated two hundred seventy five  quantity and that was what was changed as a result of the guidelines amendments there are some it seems to be the statement that the defendant receive the benefit of conservative drug quantity calculations is a mischaracterization or a reworking of what happened in the originals and missing first of all that was a characterization that was found by judge munson the original sentencing court and it was accurate at the time and it remained accurate at the time of the sentence reduction proceedings and just to clarify to break it down a little bit it is twenty five the pre sentence investigation report that describes where this estimate came from and each of the three drugs involved in for the period of time was ten months within the three year conspiracy powder cocaine was thirteen months within the same time frame and marijuana seventeen months pre sentence report noted that there was not reliable information for other than those periods of time so there was no effort to extrapolate those numbers or to put any quantification on periods of the conspiracy that weren't within those time periods and moreover determined that it would was a conservative estimate there was a misstatement in the original sentencing decision where he said this doesn't even include drugs from prior to august that was a misstatement because for marijuana and actually when are correct but  nevertheless it didn't change the fact that in fact it was a conservative estimate judge months and who did originally sentenced mr jennings had also presided over the trial he was certainly entitled to accept the facts in the pre sentence investigation report which he did and then of course judge mcevoy at the sentence reduction stage was required to follow the factual findings of the original sentence in court even if there had been an error he would have been bound by them but in fact there was no error here appropriate range three hundred sixty months with the absolute farthest that he could go down on he did not have any authority to sentence mr jennings below that guidelines range in these particular circumstances he looked at achree aggravating and mitigating factors here and he determined that it was not appropriate to reduce his sentence all the way to three hundred sixty months but given his good conduct in prison his d portability and other factors that he considered it was appropriate to reduce his  down to four hundred twenty months which he did there was no abuse of discretion there unless the court has further questions the government will rely on the papers for the remainder of its points and asked that the decision be affirm just very quickly i just want to follow up with the contribution to the disparate sentence mr jennings cited to the united states the rivera riviera case or rivera case and alerted the just a court to that  case as decision that there was air in thirty five eighty two c re sentencing when the court relied on a p s r that contained an error about what the mandatory minimum and then the currently a possible mandatory para one hundred seven equally relied on erroneous recommendations it would have been a better course as was recommended in rivera for the court to have requested an amended or supplement to the p r there was some confusion at sentencing whether to have been done apparently the court had received a confidential probation recommendation which the defense was not privy to and as a result we were not put on notice that the court would be using  the the the previously not use drug amounts as part of the aggravating circumstances to refute the exemplary conduct that mr jennings had had carried out