b three the presence of an uncovered powder cocaine offense does not change the fact that the defendant like mr taylor was also convicted of the covered cocaine base event this is true for several reasons the plaintext the section four for the jones opinion congress is purpose in passing the act in the rule of winning it was the corporate st start elsewhere all began with the texas action for four under the plain language of section four for mr taylor's conviction taylor's case the as it causes the jones panel noted yourself judge jackson said this quote because does not permit reducing the movement sentence if you receive the lowest statutory penalty that would be available to him the lowest statutory penalty for mr keeler's crime is ten years in prison he did not receive the love of statutory penalty sentences thirty years in prison for about that floor so it's not that the case for him but he received penalty that is why mr jackson one of the defendants in jones was denied relief but that does not apply here for mr taylor again the text of section forty four is on our side the text says plain and simple if someone's violation for a statute fell under a forty one b one a three or b three he has a covered offense that was true of all four defendants and jones and it's true mr taylor the parent jones told us where to look to find out whether or not a particular defendant does have a covered offense the panel told us to look at the docket the charging document the judgment in mr taylor's indictment and his judgment  the government asked this court to write an extra limitation for section four for the congress did not choose to write in the statute what about this conspiracy to include the nd drug well if congress wanted to exclude crack cocaine offenses neither of those monetizations have anything to do with the presence of a nd violation or a nd drug in the conspiracy count a couple of unicef have mentioned jones nothing in that stands in our way here the panel and jones did not opine about whether a two drug conspiracy count would qualify as a covered offense it's twenty to twenty ha whether a couple weeks ago the government tried very hard to argue that by negative implications we should read the minds of the panel injunction assume that the panel would disapprove after this and you today but again all the panel didn't jones was no mr jones that particular defend the mandatory minimum of ten years in the maximum of life and suppose the district judge had given a three hundred and sixty month sentence for each of the two substantive offenses and render them c currently and then the law change with a fair step back and your client challenge to the r sentence and said it was entitled to re sentencing on the least with respect to the the crack with the district court give him a wee sentence on that when the law plainly did not change  sentences under the sentencing package doctrine happened how could he have the opportunity to review is it a sentence that was tagged specifically the power st step back to change that with regard to that in my hypothetical that sentence would remain the same so why would we possibly fuss with the other thing it would seem to me the most you could do is suppose the judge  includes two parts that makes all the difference here your hypothetical includes two separate crimes entirely there we have a single crime that includes a violation of a statute that was amended by the sentencing  the cocaine these portion it does it the fact that it includes a nd portion the nd element the powder cocaine in the same single crime makes all the difference here this is a covered offense mr taylor was convicted of one and different way suppose the district judge in this case involving mr taylor when it came to the time of sending sad it's a single count  the only thing here was power in this amount and five kilograms or more of power i would give him three hundred and sixty months the fact that he did based all increases my desire to give them three hundred and sixty months so i'm giving him three to sixty but even if this was just the power case i would still give them three  would we send it back then yes i agree we don't have that here but suppose we had something as explicit as that here with a b any reason why we would send this back for a reset yes  hypothetical doesn't prevent us from crossing into the gateway this is a covered offense however in your case our odds of success remain and may be very very slim but that question of entitlement is for another date for the district court court only to decide eligibility that entitlement because we have it covered offense it is not at all clear in this case that mr taylor will receive the same sentence if it's he is given an opportunity to return to the district court in fact circumstances have changed judge or not if the object of the conspiracy was power you couldn't go back that would be clear you wouldn't be eligible right if the object of a conspiracy was exclusively part of your honor yes o i judge just grant i do disagree that many of the issues have been resolved for example i think it's settled now that we have a covered offense which is the only issue the government is argued from day one through now and that the question of whether  definition of a covered offense is whether section two or three of the fair sentencing act modified the statutory penalties as the court held in jones a covered stance is an offense which is made up of elements including a drug quant element so the question of whether a particular movement was sentenced for a covered offense or not is answered by injury court analysis what were the statutory penalties for the moment's offense before the fair sentencing act and what were then after the fair  going to look at the actual conduct we look at the violation of the statute which is the elements and the elements of a crack only offense at that time would have been fifty grams or more or five grams or more and that's all we're going to look at and we are not asking the court to revisit that even at the beginning of his argument today that he had two different offenses a powder cocaine offense and a crack cocaine offense and that whatever you might say about the pot or cocaine offense  that the fair sentencing act modified the statutory penalties for his one single offense and his motion is probably denied i think the jones court obviously did not reach this issue directly but it implicitly recognised that you object conspiracies require a different analysis in particular the court looked closely at the record in jones case because mr jones like mr taylor had originally been what they do object conspiracy where the quantity of powder cocaine believe it was he didn't sentence him to the mandatory minimum on ten to life for powder or at the time ten to life for crack he chose to give him three hundred and sixty months he gave him three times the mandatory minimum he gave them thirty years how do we know what he would have done if in fact he had the option in front of him a sentencing him to a whole lot less for the crack offense th he had that opportunity at the time that our show doesn't that suggest that at least with respect to crack that was a cover to find the conspiracy to possess with in  as in far would preclude relief from the court really would have to necessarily reach the question covered offense because we would it wouldn't be immaterial but the st act doesn't ask this court or district courts new district courts weren't even on the bench at the time to event doesn't judge grant and then the problem with that argument that under jones a defendant with one kilo of crack and cocaine would still be subject to the same range as he was before but would also be eligible distinction is that isn't that a difference with meaning that is to say if a defendant were convicted of a possession with intent to distribute crack and the devil before that changed and he had a separate charge in conviction for power and nothing changed with regard to power the court couldn't do anything couldn't address the sentencing on tower but quit on crack  object one out or one crack and there's no question that the sentencing regime changed as to crack and there's no question it didn't change it's a powder is that the same circumstances the government continues to ask you to write an extra exception in a section four for that congress didn't write the government has just told us that we should look at this conspiracy and ask whether the statutory penalties across the board for all elements reduced under the fair sentence not just the cocaine based on it but that's nowhere to be found in the text of the statute or injunction fact section forty four dollars uses the phrase a covered offense over and over again not the covered offense not the entire offense but a covered event this crime clearly includes a covered offense because mr taylor's conspiracy was sentenced under b one a three or b one b three it has a cocaine base element that we need for section forty four in the jones therefore we have it covered offense on top of this our view is very consistent with congress is merely original purpose and passing the fair the st step back to the passage of the act is meant to remedy an old scene regime that created disparate impact on african americans through the st step back then it's broad language congress is giving the power to district courts to at least decide in a given case whether or