range as opposed to nearly twice as guidelines now the court me multiple errors in denying certain priest motion issuing its orders which were discussed in that briefing and i plan to eat address each one of those in turn starting with the most glaring error which is the reliance on their arrest records and assessing his criminal history this court has long recognized it will rely on their arrest records and evaluating criminal history and making a sensing determination is improper and the reason for that is that their arrest are inherently unreliable and are not considered reliable evidence that yes and it doesn't rise to the level of the preponderance of the evidence of the evidence standard that's required for sentencing actors and in this case the courtroom might heavily on resulting firearm resisting an officer of flight from an officer in the below the arrest records the barest i see his conviction behavior including eighteen times in gauging in sexual acts analysis which is the government's burden of proof that that basically this court has to be certain the same result would have would have a great outcome and i think for that question it's important to look at this court's previous decisions in both winless defendants criminal history appeared quite different when it's improperly considered arrests were ignored and in this case while he does have prior convictions that are properly considered and he does have disciplinary record that is allowed to be considered as well if you look at the arrest both the most the largest number of i guess elements of the criminal history that were to be assessed as extensive and it's also with the exception of one of the juvenile commit dictions it contains the most serious allegations and the primary allegations of any kind of violent conduct and so the court's characterization the criminal history although there are other elements of his history that if you look at and you know make an assessment it's clear that if you remove those arrests there is a different picture that  drawn on this particular defendant and i think for the foley case as well and that case there were other considerations that the court announced when it was making its replication decision it wasn't exclusively relying on the bear arrest but the found that it was a dominant factor in the district court's decision in relying in assessing the criminal history so i think that's kind of where the best answer to your question is this is where why disport can't find they are harmless in this scenario because they were treated all the same exactly the scenario that we have here that were basically everything from the p s r that was under that criminal history section together even though the vast majority of it were bare arrest with no information no actual circumstances and a few of those were actually in fact refused or no prost does that answer your questions yes i think so in discussing foley i guess that kind of leads me into another point about why it's important to find her in this section world war context i know in the government's briefing it doesn't necessarily seem to disagree that this might be her it doesn't seem to take an affirmative position on that it just focuses on trying to impose this plainer standard that doesn't written section four who are specifically it's clear that this has to be treated as if it is a traditional aboriginal sentencing proceeding and i understand you know obviously hedge would help that you don't update the guidelines  retracted legal changes but the court did hold that it's considered imposing a sense as opposed to reducing water my flat white because all of the conditions of the original sensing are kept in place and it's just that single legal change so under that precedent had to it it wouldn't make sense to then say that the court can then go outside the scope of what it's allowed to consider in traditional sentencing and look at any evidence that it feels you know that it basically makes it inclined to  leave the other problem that's you know kind of a broader policy issue because if this were allowed in this context and if we were to say well even though we typically find bare breasts to be unreliable evidence it's you know the court can rely on it if they want to deny or leave that would basically open the door for district wants to rely on any information no matter how unreliable or how speculative and denying reductions under section four for use me and that's clearly not what congress arrests i don't i don't understand the basis for that he lists juvenile offenses you less adult offenses you less then what you're calling the bear arrest and the mean lists a large number of prison and fractions so how can i look at we're also talking about whether it's harmful right so that how can i look at this and say well ok you look at their arrest but there's a lot more so the barest harman's holmes or i think important distinction to make is that this court's responsibility isn't to look at it and say well you know looking at this record even if i took them out maybe i would maybe i would still deny him relief on the merits on this issue the question is what the district court didn't hear the district court clearly factored that into its analysis and that's what the problem is not why this court can't be certain it whatever law it would if reach the same conclusion especially given the extreme discrepancy between the guidelines ranged and mr du preez current sentence and especially given that the most serious allegations and the most apt violent serious crimes that are alleged and there are the bare arrest it's both the majority of the criminal history and it's also the most serious crimes and it's really the evidence that supports this conclusion that were reached that you know his entire criminal history or propensity for violence those are based heavily if not exclusively on this series of arrests that occur they don't have any factual information or  that's for a number of reasons the st being the plain language and purpose of section four section four of core was intended to rectify disproportionate and racially disparate sentencing penalties and provide an avenue for restraint and seeing for people who are unfairly sentenced under the section of the original sentencing with a new statutory regime in place and that was also recognized by the sentencing commission which is cited in the chambers decision that were circuit decision and they cited guidance from the sentencing commission that recognized that the traditional section three thousand five hundred and fifty three a factors should remain applied to one section world war because the congress didn't indicate that there should be any kind of different analysis under the sentencing proceeding and  place it would complete with the fact that precedent in hedge would to say that even though the court is supposed to basically replace the previous sentencing proceeding they don't have to consider traditional sentencing backers and making a decision about what is sufficient but not r long and so that's no less a public will hear it in fact is more important in sixty four proceedings then maybe any other sentence sentence modification proceeding that might apply because here as we talked about this is supposed to be our placement and provide a remedy for people who were previously sentenced under an unfair and discriminatory regime and so in this setting when this is a one chance opportunity for people to be resettled with the benefit of congress's correction of that regime it would make little sense to say that the courts don't have to go through the traditional assessment of the factors to determine what an appropriate sentence here is and turn to the facts of this case i think the most glaring omissions here is the court's failure to consider the guidelines or any of rehabilitative efforts and explaining why he thought he was entitled to a reduction in the district court disagreed and for the th time in the history of this case denied relief and denied relief basically for the same reasons and it reasons judged on can that you brought up in the order it's effectively his criminal history his extensive criminal history which the court at the original sentence sentencing called horrible found that mr dupree had no respect for the law and that he had not benefited from it for a few reasons one is that this court has never said that that cannot be a consideration in either this context or in three thousand five hundred and eighty two c two contacts in fact i think the salazar case that we cited in our brief says that the courts never addressed now the cases that mr coon is talking about i understand that a revocation sentence and in a riginal sentencing was a sentencing hearing those are two different proceedings then what we have here in both of those proceedings someone still has their liberty in place they are being removed from freedom into confinement and so that's a little bit of a different situation in the rights of protection there what you have here is the opposite someone's liberty is not being removed this they are already in custody subject to a final legal sentence and are seeking a reduction out of the legislative ability to allow them to do that so i don't think it's mandatory that they cannot required i'll also say that now i will say the benefit of a bare arrest is probably limited i can't i'm sure it's not as strong as anything else but i think that just goes into the calculation of what this court would consider when it looks at everything to decide if a if it has a firm conviction that a mistake was made but i by looking to one the order itself and then two to the history of the case remembering of course that this district judge was a district judge that handled the case from the beginning and st as you pointed out of course judge duncan the order is replete with why the court didn't want to do it outside of the bear arrest three an extensive criminal history going back to the age of thirteen i believe three juvenile convictions some of which included firearms and drugs aggravated assault adult convictions which included firearms and drugs this conviction in this case which had a firearm and a drug and then the very bad history in prison multiple reductions and it was the extensive criminal history and the failure to confine himself to prison rules which is why the district court said no into other reduction reduction denials of three thousand five hundred and eighty to see two so if you take the bare arrest completely out of the picture there is still more than enough here to  find that the court did not abuse its discretion in denying relief and i think that's legitimate when you look at the amount of discretion that a district court has in these cases this question is very wide and while i understand miscues argument that the st step back in the fair sentencing act are supposed to be a mirror of and give defendants the opportunity to be reset and that's all it does it gives them an opportunity it is not discretionary call abuse of discretion when i don't i don't want to you know honestly admit if something's come up i've missed it but i have not seen it i have seen cases where the district court has kicked it back for more information in fact i think the jackson case and robinson i think the court did that or if i may be wrong robinson it may have been winners or white or robinson right that's correct i think it may have been the recent case of whitehead and jackson but i'm not aware of this court finding abuse of discretion on a discretionary call and i think that speaks to the wide discretion not only that this court gives the trial court but that section four hundred and four itself gives the tr no and but i do admit they're probably worth less weight and the reason i'm saying there should not be a categorical no to it is because of the expressed discretion given from congress and the minute you put more and more rules of what the court can do the minute you start presuming that the new guideline is substantively reasonable something this case this court is already said you're not going to worry about or the minute you start putting a rule that suggest a presumption of the current sentence is unfair we're starting to impinge on the discretion of the court and we're starting to provide an exception clause into section four of foresee and it's just not what congress said congress gave a lot of discretion here  n its explicit words saying nothing shall be construed now that's not to say there could be a time when this court feels that because of the reliance on a bare arrest became so prevalent that this court is left with a firm conviction that a mistake has been made so i'm certainly not saying this court can't take that into consideration but i would be has been for the court to put some type of rule that says that cannot be considered at all and i'm certainly not saying that discretion is limitless i don't think the district court could for example consider an unconstitutional modem such as race religion x but i don't think a categorical rule that says bear arrest automatically reverse which is what opposing original sentencing and it makes sense because as we point out and that even i won't quibble with the word whether this was a recent missing proceeding but no recent unsing occurred here this was not the district court imposing a new sentence it did not read impose the original sentence it chose to deny relief and leave the otherwise final legal constitutional sentence in place and it gave reasons for doing so and those reasons are the extensive criminal history and a constant violation of prison rules that shows that mr du preez having a problem following rules and containing order and that kind of leads into what what that means now opposing counsel said the certified that it did consider the three thousand five hundred and fifty three dollars arguments and that it did consider mr du preez motion and if that wasn't enough it gave the five page order listing all the reasons the judge duncan that you pointed out as well and those those reasons reflect the nature and character of the offense the history and character of the defendant they reflect the seriousness of the law talk about the respect for the law and the need for just punishment and protect the public even if the court did not say this this court has always found that it could implicitly found the court did consider that and that's evans and caulfield talk about that there's nothing difference here and as far as the new guideline being so far removed from the final sentence again this is not the imposition of a new sentence there is no presumption that congress created that the original sentence is unfair or unconstitutional if it did it would have mandated or could have at least mandated that reductions take place here it said no nothing shall be required to reduce the sentence concluding with that this is simply not an outlier case the district court here acted within the discretion congress gave it in for a foresee its reasonings work in season consistent preez motion mr du pree had his day in court as it's said in jackson the court chose not to reduce for specific reasons and those reasons were specific and individual to mr du pree the procedures here are blameless and there was no distance reduction here left in place an extreme sends a twenty year sentence for a single drug offense that carries a guidelines range of forty one to fifty one months and if i know that the government focused on you know the court the court sorry previous reductions but i think the important thing to remember here is that the circumstances we have in this case are much different than the previous circumstances and the supreme court has said that when you look at the adequacy of an explanation or adequa of consideration by district court you have to look at the specific circumstances that case and more or less can be required depending on the circumstances and here we have a case where every previous production the results of the court denial that took place a sense that was it was high it was twice the guidelines range but it was only a few years more severe i guess then to variance imposed at the original sentencing and the one that we have here is much more extreme than that and s required in that kind of circumstance just revisiting briefly to bear arrest record i think the standard is getting a little bit muddled you know the harness a standard is the government's to prove and it's not just a standard where you look at well you know is there evidence in the record that supports a denial in this case that's not getting through the inquiry is can you be absolutely certain and went to specific record evidence proving that the court would have done the same thing if it  know statements i guess made by the judge making his decision but it found that the dominant dominant factor was the criminal history and south because this was such a big factor in that criminal history analysis that's what you know i think the best case that's of course the harmless basically just infer consideration because the court had all the arguments before and then permission was available and surely he could have considered them similarly in henderson and i believe that in that case the court will to the lack of acknowledgement of the defendant's mitigating arguments in his briefing to say that there is no evidence that the court actually gave due consideration to all that information  factors or at least considerations related to the defense arguments here mr du pree presented a lot of new mitigating information in his his motion and the court didn't acknowledge it at all it simply relied on its previous reasoning and i think that if the