and the bone of contention is really over the application of the sentencing package doctrine which ironically or some ironically three leading case said this circuit is a united states versus honda mr well can interrupt yes one of these that concerns me about your argument is it seems to me that there's a difference between how the counts were grouped and whether or not all of your arguments are ultimately going to make any difference as i looked at the p s r and read that the district court's statements during your hearing counts one and two were grouped together count three was separate because it involved the mandatory firearm in count fo seems to be a standalone but one and two provide for a range of what is it thirty to life or something so even if we granted you the relief is that going to make any difference seven month downward departure did you know at sentencing and it seemed to me from reading to gilmore's remarks you got a heck of a break and she didn't seem to indicate that she was going to do anything differently and that's why she didn't order a reset but that involves an exercise of discretion and so at the time of sentencing the mandatory minimums that were applicable in triangle's case totaled twenty two years but the but the guideline range is still the same for the counts one and two group are they are not it wouldn't be on recent saying it would have been if at the time the reason is that trayvon is no longer a career offender so it would necessarily involve a different exercise of discretion to get to the same result which is a possible outcome but i'm really confused by argument the sense you impose was below the low end of the guideline that's right but it was also informed by the fact that the minimums total twenty two years and so i think it's a different context if you're sentencing on a guideline of three hundred sixty to life and the mandatory minimum is twenty two years which it was here and your sentencing let's say the guidelines did the same which i don't think they do but if and if you years plus the mandatory one count three right no to no as it's on him for the filner position or the other twenty two includes count done it was fifteen mandatory minimum on count four which is the case where we got relief and it was seven mandatory consecutive on count three of the twenty one twenty two one twenty four c and so in that context the judge came up with a twenty four year sentence which does represent a downward variance in the context of a twenty two year mandatory minimum a twenty four year sentence in the context of a seven year mandatory minimum strikes me as a different a different thing altogether and that's why we think that there should have been a recent say and if it the resetting the court came to the same net result would you have a hearing before judge gilmore she said i remember this case i remember it very well so wh that's right which and she was well aware of this where was the abuse of discretion because she didn't say i'm i'm i'm going to i'm going to bundle these and i'm going to bundle these different it's insufficient her to say i remember this case and i i knowledge johnson and i'm going to give you the same sentence and there's worse what's the error well first of all i don't think the abuse of discretion is the correct standard review it's a question of right or wrong the government has argued that subversive discretion on the application  doctrine but i think the sense that package doctrine is mandatory and it's not zero your position that every time the district court grants partial twenty to fifty five believe in a recent things mandatory is that what you're arguing if they sentence represents a bundle sentence which this one does the answer is yes you are arguing for a mandatory recent thing there is no discretion anymore under your view if you have a bundled sentence and your definition of bundled me is what is one which applied the a different sense if the judge had decided to impose these and run them consecutively which she did not count which she had to do with count three but if you decide to do that with counts one two and four you would have ended up with forty one years instead of twenty four years not that's doesn't indicate what i'm trying to get accomplished that doesn't that doesn't necessarily make it a bundle sentence just because a judge has decided to run something concurrently instead of consecutively well i don't think the sentencing package doctrine proper operates only as a one way ratchet if you look at the hundred case there hondo was which was actually the same district judge hunter was sentenced for possession with intent to distribute and a consecutive nine twenty four c sentence after the bailey decision by the supreme court to distribute the government appealed in this court apply this sense of back in stock and say you know the two things operated together as a package sentence and the court can go back and redo the possession with intent to distribute  count and imply adly give a higher number on that because the consecutive one twenty four seasons has gone away and i don't think that it was intended by this court in honda that that only operates whether or not we should apply the same standard of review in twenty to fifty five that we apply and to a few fifty four and twenty fifty four when we clearly said abuse of discretion the choice of the remedy in issuing a conditional writ is abuse of discretion and the low her case that was decided by the government which was a lot of irony here too that was my case the question was in order to remedy the  problem which was low her had ineffective assistance of counsel on appeal what is the proper way to deal with it and the court made some statements about how the conditional bit might be be done  but here we have a straight sentencing question the real question is did this represent a package and if you look at the judgment you look at the statement of reasons and you look at the p s r it strikes me that it's pretty obvious that it did if that's true then he's entitled to reset and saying even acknowledging as i do that the district court could reach the same result but try not to have a hearing at which he's entitled to bring before the court those things that might have changed since the   prison or you know he's got a fair record in prison and your records on not a perfect one but i was not a perfect one a part of the problem is that he's been identified wrongfully as a cooperator that's caused him problems and court my name is marion purcell and i represent the united states in this matter it is completely clear that the standard that applies here is abuse of discretion section twenty two fifty five b itself sets forth therefore options that a court may follow in a situation like this and of those four options the two relevant ones are recent and sing one correction of the sentence and twenty two fifty five specifically says that the court should choose the remedy that as may appear appropriate that's the language of the structured this is clearly discretionary language and as i believe the court has already pointed out the district judge in this case considered those options took them seriously understood full well that she had discretion to hold a recent in sync if it were appropriate concluded that the change to account for had absolutely no effect on the sentence in the other three counts what how do you distinguish and swisher which would seem to suggest oval review swisher it was as if i recall correctly a case involving whether relief should be granted not which remedy was appropriate once once relief has been granted choice among the four potential remedies in this case it happens that what drove the bus here so to speak was the career offender guideline and not the fifteen year mandatory sentence but having a ten year maximum sentence so the correction of that sentence was exactly the right approach for the judge to you know i disagree with mr wolf's statement that guideline range would change change not because of the loss of the a c c account but because the guidelines themselves have changed since the time of the original sentencing and he's ignoring the fact  g one point two which court which is entitle to sentencing on multiple counts of conviction every single time a district court sentences a defendant based on multiple counts of conviction the district court has to go to section five one point two and figure out what to do that doesn't make them bundled in the sense of the sentences having an actual effect on each other and in this particular case they didn't have an actual effect on each other  right that's correct so how does that relate to this issue that we have before i think it it underscores your honor the fact that the sentence was not driven by that fifteen year mandatory minimum even if it's been fifteen years i certainly wouldn't concede it but here the fact that the sentence was higher than that fifteen year mandatory minimum again proves that the court was considering the whole host of thirty five fifty three a factors and not dependent solely upon that and not tied to that mandatory minimum the seventeen is a significant downward departure from three sixty which was the guideline range for three of the four it made that decision i've been completely unable to find any nor has opposing counsel i don't believe that there is a single case that provides that the sentence packaging doctrine is mandatory what it is is a very appropriate option for a court which believes that based upon the loss of one of the counts the sent that this was discretionary this would be a different case if she thought she had no choice then perhaps remand would be necessary in order you know order to determine whether she would have exercised the choice she didn't know she had but here she understood what her discretion was she reached a conscious and verbalized her reasons for concluding that there was no reason to revisit the sentence on the subject  just in order to reach that that this is a vagueness challenge would i believe so i think my adversary thinks that there's another way to word it i think the banks didn't shut that option down saying that there there is no other basis other than void for vagueness for reaching a conclusion and that is certainly for cause by bec if the court has no further questions i will take a seat i think the eleventh circuit's decision brown which we've cited indicates the way that the question of the application that sensing package doctrine ought to be examined  and what i think the eleventh circuit has said is if the district court necessarily exercise some discretion when it opted to maintain the total twenty four year sentence then that really meant that the sentencing doctrine applies and it needed to have a reset and sing and so i think through so the decision to go to whether or not to render a reason not discretionary once the court grants some form mean basically europe as well not exist not quite this close to that but if it's really that if in maintaining its current sentence which is the same sentence the district court exercise some discretion then really there was a recess and call for i think that's a fair reading of the lessons of brown i'm not sure that's any different i mean that to me as well so it's mandatory under your view of the law and i think in this case it is because if you reach a twenty four year sentence when you're dealing with a twenty two year floor below which you can't go that's a different exercise of discretion when you reach a twenty four year sentence and you're dealing with a seventy year floor below which you cannot go i guess the problem i'm having with the argument is if it seems to me that it puts the computation of the guidelines as preeminent over fashioning an appropriate sentence for this particular offender the guidelines are supposed to be advisory right it looked to me like what just to go more was trying to do was to try to figure out in the face of a recidivist offender how much time  appropriate and she i think departed downward substantially because she wanted to give him some hope based on his age that if he was able to successfully navigate the bureau prisons that he'd still have some time left to live life as a free man and and shouldn't that be the most important question for the district court in the exercise of this just perhaps but i think that if if you imagine the arguments that could have been made or would have been made if you have two cases one the case with a seven year mandatory minimum consecutive and one with a twenty two year mandatory minimum if the judge is approaching the twenty two years because e c c request fifteen and the one for the foresee requires plus seven the government will be arguable wait you're not giving the guy any sense at all for the hobbs act robbery and if you have that same sentencing and what you're dealing with is a seven year mandatory minimum because the a c c case has gone away which is what's happened now i think it's necessarily a different calculus and so in determining that she wasn't going to change her sentence based on granting him a c c a relief it's my view that the just necessarily exercise discretion in doing that and when the court exercise discretion actually what she was tell you at the hearing was look i considered the first time around when i sentence mr troil his history and so on and i fashioned a sentence that i thought would be appropriate under all the factors i have to consider right and said in essence you got the break that you're going to get the first time around and it's not going to be any different the second time around i think that's what what she was trying to say right and when you when you do that you're exercising discretion  right what what she had to do was to say i'm i rescind saying you and i'm going to recess you to what you had before she has to have a hearing and and as to give him an opportunity to be heard he was you know in the prison she said i don't need to hear from him and i don't want to come here and they didn't