safety please the core steve say he perceived avery this case involves the construction of a statute designed to give sentencing judges a second look at the sentence they impose when extraordinary and compelling reasons such as terminal illness warrant a sentence reduction the court should hold that the bureau of prisons by itself making the sentence reduction decision exceeded statutory authority by depriving the sentencing judge of the judicial role of deciding the length of the sentence in this case under the statute the jury pete that you're saying that the bureau of prisons it depriving the judge of his discretion yes of the opportunity to exercise the discretional where do you get the bureau of prisons and that statute has to do anything i get it if it is on motion of the b opie yes that's it that's the only one right a statutory regulation that provision i disagree your honor i think that if you look at the surrounding statute and most critically what that all regulates the judge how the judge conducts himself on that review but the judge the get that review until he gets a motion from your president not according to the rules of statutory construction articulated by justice scalia in the sensor and in cheap by chief justice roberts in dean there's a making concurrence in consecutive decisions with a without reference to the bureau of prisons there's no reference in that statute to the bureau of prisons correct the bureau of prisons asserted that under thirty six twenty one b they were given that authority once you give me that no  question becomes what is the role of the b o p and that is what has not made a motion to make a motion but when it's not the same language as forty two and five it says at any time that's not what it says here it says that upon motion so when do they get to make a motion and that is you won't delegated their will to us to decide when they make it they say no i want you to decide that when there is an express delegation to the sentencing judge to make the decision about sense reduction to the bure to the sentencing commission about what constitutes extraordinary and compelling reasons that when those two express delegations occur there is no implicit silent delegation to the bureau of prisons to make a substantive decision where is the numbers game what that means that application of express delegation there's an express delegation to the sentencing judge to decide whether should be granted that inferentially says there's only delegated in one circumstance where there's a motion is extraordinary compelling reasons and here they are agreeing so they don't exist the predicate exists where the predicate exists they have only a gate keeping duty they have a important function that function is to make a determination whether the conditions outlined in the application of one of one b one point thirteen exist because that's where the express delegation led to the sentencing commission by the bureau of prisons yes in the language your quote the language isn't ninety fortieth's says that the sensing commission shall provide the criteria and examples of extraordinary and compelling reasons for then what there is no very clear says we would encourage b o p s to do this because they have knowledge they have no control over b o p at all they only do because there is judicial review and the jury is judicial review because this is not an  it's a decision where there are standards how can extrude ordinary and compelling reasons be defined according to statute by the body that was delegated to do it and then have an entirely different extraordinary compelling reasons th tyrant within their discretion it is a thing here in no it's not because there is a set of rules there are rules that are set out objective criteria the objective criteria one b one point thirteen the bureau of prisons either follows it or it doesn't if it doesn't they subject to administer remedy if they don't is subject to review by the court to decide if extraordinary compelling reasons exist the only by a process of elimination where there is a delegation to the s judge to decide so it's reduction and a delegation to the bureau to the sentencing commission to decide define what constitutes the only thing left is for the bureau of prisons to do the administer serial role of giving the judge the opportunity that the sentencing commission is empowered to bind the bureau of prisons when when by the way since commission came by anybody anymore i think what is the statute or to define a term the trial of a savage has not the question the question is what statute requires the b o p to follow the sentence in commissions these by process of elimination that is the only thing left for them to do if the sentencing commission tell you that dr oz of it on the nation i did that mean there is nothing right because what you're saying is you're we should infer it but what i'm trying to ask you is what is it and you say well you only get there by process of elimination that suggests to me that you don't have anything for that question what i would ask you to look to is is there any delegation to the your prisons of power to spruce the sentence the answer is no and then you look at the their administrative decision we are denying ourselves reduction how do you let an administrative agency operate outside the law when congress this is about congress they created a statute they said here's the terms they said this is a term that needs to be defined and it needs to be provided examples this is the agency we're asking to do that once that happens there's nothing left for the bureau of prisons to say oh we decided that extraordinary and compelling reasons should mean something entirely i'm reading congress regular court make it says the court may reduce the term of imprisonment etc on those conditions you're talking about yes but it says it may act in that area only upon the motion of the director of your presence if it does say the girl presents has to make such a motion or has to be guided by those criteria so that the core is a subject may reduce the term up of course i think the basic flaw is that you're looking at a phrase outside the context of the surrounding stat static the same reasonable stature got the whole thing right here you can point to meta language you sort of keep ducking my question i'm not where is the statutory language that congress imposed duty on the bureau of prisons to make a motion under any criteria they said the district court may reduce a sentence on the criteria you outlined but it doesn't give back or a party to do that unless the prison starts with emotion so he has a process to have a statute that is operating by rules that everybody can understand wh court there is no language that gives it to the bureau of prisons to decide whether it says the district court may reduce the sentence it doesn't say to your prisons may reduce the census says that the district court has that power but that power is conditional that powers can cannot be exercised unless it has a motion from the b opie and the b o p can only the only function in the statute is to make a determination  the conditions exist that trigger the discretion i don't get what language you're relying on i rely on the exit there's nothing that says that the that the district court makes a finding it says that where the that it warrants so the assumption then from the statute is that there is no no that warrant all that is modifying the very first sentence court may reduce the term of impress us and david and i know you're a prisoner soon that has the right to reduce the term and it says if it finds that such reduction is warranted i will go on if they feel it we're just talking about straightforward language is not ambiguous it's in it's straightforward because it statutory language that's defined within the statute and congress has told us how it should be to define cannot be defined in a manner that is outside the scope of the what congress can do it this is basic administer of law made maybe i want to make sure i understand this twenty two forty one c three alesha of the law right yes what you're saying the law that you're claiming a violation ob is this thirty five eighty two c yes in addition to the a p a is that when unless there is a express delegation and a delegation and there's a violation of a delegation and here the statute says here is a standard just both to apply the not applying court may reduce the sentence if it finds certain facts if it finds that those facts warrant dissents reduction got to do with actual presence because of your prisoners is the one that determines whether the standards that are set by the sentencing commission have been met here they've been met and then they refused to file sensing in effect reduced refusing to denying a sense reduction which is a power that was conferred but on the judge and by thirty five and a to c itself states that a court may not modify a term of imprisonment except as the statute permits see one i goes on to say that the court one motion of the director the bureau of prisons may consider  appellate and the palance brief they argue the b o p s discretion is ministerial is ministerial only and that it must indeed file a motion if it finds those circumstances exist however nothing in the petition in this case filed under twenty two forty one is not to the right mechanism to seek relief thirty five a to c provides that the that the sentence reduction authority lies in the sentencing court and that court in this case  or the district or borgen mr avery filed his petition for relief in the district of north carolina where he's or his car or his car i can find so we will contend that twenty to forty one is not the appropriate avenue for relief even if the is not in that challenge to either the conviction or to the sentence it is only to the execution of the sentence therefore it's properly brought and that help me understand that in your your petition below the r that you suggested the best i can tell what you asked that work to do other than what justice requires is to order the b o p to file the motion or order the disk of oregon to consider a request without a motion that's exactly right and that's completely within the broad equitable powers under the heaviest corpus writ that those are we are not as goes of the to remedy as yours one of those two is what you're asking yes what we're saying is that the court should have the opportunity to consider where there is no question that extraordinary and compelling reasons exists that the finding of the bureau of prisons is that there's that terminal illness he's dying and criteria even though they're quite here differs from what dissents the commission says so the differences between those two rules are not important because on that aspect he does have extraordinary and compelling reasons he's dying of prostate cancer and the question whether he should go home is one that is based that we see as very clearly delegated to the sentencing judge only the questions that they that the bureau of prisons considers about the type of offense and the dangerousness those are all considerations that are thirty five fifty three and there are specific we delegated in the statute to the sentencing judge so when they are using those as making as many for making the decision they are usurping the role of the judge in making those decisions and we know that specifically how does the how does the district court act under your argument the district court says i'm sitting here i'm  happy to construe this thirty five to determine whether those conditions are satisfied and whether i use the sons but i also have a requirement have a motion from the bureau of prisons and i don't have that yet so what what is the district everybody with brown hair we're not going to give any boesmans and if you court reviewing it says no you know that's really illegal that you can't do that you have that us that's too arbitrary we're going to give it a judicial review the remedy then if there is a violation of the law this court gets to formulate a equitable remedy and the actual remedy here would be look at if he's got all those factors let the judge sentencing judge make the decision with whether it goes through the process of the where the so much is being withheld for an improper reason then we can you can even send it back and say look at do this right or you can say we're going to skip that step because the man is dying  every day matters we're going to send it right to the just because you've already found that the extraordinary and compelling reasons exist now it's up to the district court judge to find out whether those extraordinary compelling reasons were that those are found to be have the district court operate on the statute says i need a motion hero prisons yes and you're sort of saying that district court should impose on the bureau of prisons some kind of standards that are contained in the statute that know what they're going to do is the same thing that chief justice roberts said in dean where there's an expressed delegation to the judge to decide the thirty five fifty three a factors which are all those kinds of factors about the background how do you satisfy you never answer my question how do  your prisoners is not following the law you issued that rid of hate you for because not following the law they made the determination that appears to be totally legal under their own assessment it's not legal under these under the standards in the statute because the statute have given the job stress delegations to other parties and then they are taking it upon themselves to take the judicial function of whether judge denied the motion and the sense and the congress delegation to the sensing commission to decide what the definition of