thousand and are eligible to be considered for discretionary relief under the st step the answer to that question is yes from the plain reading of the text of the relevant portion of the  sentencing act of two thousand and ten so you st identified the federal criminal statute under which someone was convicted that statute in a case such as this is a section eight eighty one distribution or possession with intent to distribute or drugs then you look at the statutory penalties for that offense the statutory penalties are provided by section eight  statute to reduce crack cocaine powder cocaine disparities in their entirety and so congress changed that entire statute by changing the threshold at which mandatory minimum penalties are provided if there was no mandatory minimum which is the basis for saying that when they made the juries the intended to object of those sentences which did not have a man treatment which is the case here there are several reasons your honor st is that congress intended to reduce power cocaine and crack cocaine disparities in if somebody has a two grams of crack cocaine say before that was like two fifths of the man did the minimum now it's a much smaller fraction of that so congress intended to  disparity the nd is if you just look at the penalty provision by changing that threshold the entire statute has been changed there's nothing here that says only look and see where the mandatory minimums have been changed the issue is have the statutory penalties been changed the penalties if you look at the numbers they were zero or two hundred and forty to twenty after they were five to provision has been changed by a change in the thresholds where there was no mandatory minimum to be in with what is the basis for saying that when they were obviously trying to change mandatory sentences that they intended to change the jury i respectfully disagree with the premise of the question they that they intended to change mandatory minimum sentences they intended to reduce crack cocaine power of cocaine disparity and so they modified the statute by changing the threshold for mandatory minimums but the objective was to reduce all th reducing penalties for everyone that's certainly the way that the sensing commission understood the fair sentencing act where they went back and changed the guidelines not just for mandatory amounts but for all  there is no nothing in the text of the statute that suggests an intention to deny the least culpable individuals the benefits of this action it was a change in the entire  so that text is a cover an offense means a violation of the federal criminal statute the statutory penalties for which were modified so you ask what is the statutory penalties refer federal criminal statutes so what's the federal criminal statute here it's drug distribution how the statutory penalties been modified for drug distribution yes in the case of crack cocaine offenses so how that's correct but the statutory penalties for heroin were not modified by the fair sentencing act it's only the crack cocaine annele ts that were modified by changing the threshold for crack cocaine mandatory m heroin penalties for unchanged by the fair sentencing so it seems to me you need to look at modified you look to see where the one has been modified because b one is what provides the statutory anneliese the government basically says the federal rules criminal after the fair sentencing act was passed but the truth is you're smelling a little bit into the government's argument when you toast but to determine whether the penalties for a have changed we need to know what drug it is that is correct well that's getting close to the government saying and yes to determine whether this is a violation of a for which the penalties of paying we need to know what the amount was you need to know what they were say here with this statutory penalties were changed by the fair sentencing at the penalties for a change for all crack cocaine weights not for certain crack cocaine that's i think the distinction asking but the penalty wasn't changed for this violation but the the argument is you should look at that particular violation you should look at the statutory penalties the other t time modified there is no need here for some sort of drastic change the question is simply has there been any sort of modification even a minor change counts as a modification and surely changing the tiers in order to reduce crack cocaine sentences for everyone is a modification and there's nothing here that suggests that congress wanted to take the least culpable of founders and exclude only them from the relief they provide ba change the threshold for b one a and b one b b one c is the catch all provision it doesn't even require proof it is crack cocaine it just requires a controlled substance of an indeterminate amount is wonderful by a zero to twenty years that was the more people can fall into the indiscriminate category into the indeterminate category than could before because they could have been charged under b one b or b you want to name but that doesn't change the penalties the bottom line is there's been a clear answer on that but i think the better way to think about it is each offenses its own statute be one see after a lame its own statute its own offense if the fish burst  and he said yes matter who we were point of view i take it it doesn't matter no under the c section c section says if you are fired if you are committing any of the actors  actions in a one for any controlled substance i just get a one or two you are subject to be sentenced to twenty years doesn't matter we don't have to prove that it's heroin fentanyl crack we did have to prove it's a controlled substance under schedule one or two and then you're subject to zero in twenty years that was always the law before the fair sentencing act after the fair since the air no change was made to the fair sentencing act if you go to the text of the fa statute because clause entitled penalties so i look at that and i see who've this penalty section is different now so i'm going to be applying a modified version of the penalties section that actually doesn't affect this case but it affects other cases but the penalties for that violation have been changed and nothing in the statute says that the fair sentencing act only applies if the if the whole purpose was just to protect people who then hung up on the minimum could should have got a shorter sentence than they did notice nothing for all those who put the five year minimum the minimum most of hurting them and it was the whole premise of this act was that someone did something they really should only get two years but there's a statutory minimum so they can five that analysis doesn't apply that would be a very  violation of a statute when you possess you know that one gram i think the question is whether it's been a modification of a federal criminal statute the modification is a b one a and b one i think we would say no it's not fair or i think the other side will say it is there or there is a dispute in the law or right now about what you once you're through the door what do you get there is a dispute about that and we would take a more limited view  i think defense argues that once you're eligible you would be planetary sentencing we wouldn't we would say that it's more limited than that if you just make a change you're not entitled to a full consideration of all the actors sentencing packet argument i suppose and we get you know we would say that no the judge gave this whole sentence the crack cohen i guess we would say the crack piece had nothing to do with this the sentence was you know the military minimum which is what the change was had nothing to do with it because you know there could be arguments made to say that it's a limited kind of relief but we'll be fighting about that there's no question in these cases where i continue to say there's been no change in the law or by the  on three quick points one the key consideration here is the panelist noted is that this is only about eligibility congress wanting to address racial disparities in crack cocaine sentencing by reducing the disparity the fair sentencing act just says judge take another look at this individual the judge in this discretion or her discretion can grant no relief this is just about getting your food in for eligibility and the court noted a long time has passed so we're really talking about a small category of individuals who despite not having a mandatory sentence got a lengthy sentence the nd point is that section