the issue in this case is whether ms for under section one b one point ten b to be for sentencing reduction comparable to the below guideline sentence the district court originally imposed at the government's request to reward her for her cooperation and assistance to authorities or whether the maximum reduction for which is set by subdivision to a at the low end of her mental guideline range under section thirty five eighty two c two a sentencing reduction ordinarily can go no lower than the range the low end of the defendant's amended guideline range subsection b to b however sets out an exception to that general rule where the defendant originally received a guideline sentence at the government's request to reward her for her substantial assistance we present two arguments for why the extent of misfit reduction was set by subsection b to b and not subsection b to the first is generally a factual argument the sentencing record in this case establishes that the government moved for a sentence to reward ms for substantial assistance to authorities are second argument is more of a legal argument that is subsection b to be should be construed especially post book or to include extensive cooperation section thirty five fifty three a variance is granted at the government's requests i think that  fairly good job of laying out both arguments so i'm happy to address any questions that the court has otherwise i would like to begin with the first argument subsection b to be comparable reduction is triggered when at the defense original sentencing hearing three things happen one the defendant received the below guideline sentence to the government requested that below guideline sentence and three the government did so in order to reward the defendant substantial cooperation we believe all three things took place in this case based on the record the term of imprisonment that the district court imposed in this case was below the defendant's guidelines the government requested that guideline the government went first at sentencing and actually requested that sentence in accordance with the p s r and three it's pretty clear we believe from the record that the government did so in order to reward the defense cooperation and we would say the defendants substantial assistance  this is this case on whether or not the government made a motion i think it's hard to say that the government didn't make a motion this case i mean there has to be a government motion but government didn't make the motion so why why just why do we have a problem why this is the guideline doesn't fit what the government didn't write make a written motion certainly and we can see that the government didn't file a written five k motion like they did in the co defendants case but the district court in this case concluded and we arm and did make an oral motion either well we believe that the government's conduct in this case did constitute an oral motion no motion how do you see how do you get that action equal motion motion means motion somebody brings a motion but there was no motion there how can we i know i just didn't get your argument that what happened there was a motion by the government because the government didn't do anything with a motion made the government made a request certainly for a below guideline sentence well  comes in and the government did not make a motion the government didn't do anything how is there not doing anything equal a motion well at the sentencing hearing the government argued for that one cent sure which we can we assert is the same thing they argued that the pre sentence report was correct but how is that a motion as described specifically in the guidelines well the guideline doesn't say a written motion or even guideline just even say a motion pursuant to five kate one point one or the right three or rule thirty five the guy we all know the government has to bring a motion before you get do zero and where the government doesn't have to get to bring out the government no longer post booker asked to bring a five k one point one motion before you can get below the guidelines after booker or the government could come in and say we're making a motion under thirty five fifty three a asking you to sense the government that sentence the defendant to a below guideline sentence based on her substantial assistance to authorities there's no longer any requirement that the five k one point one procedure be followed to support a government motion even a government motion for substantial assistance to authority so the government does nothing here other than approve the pre sentence report now what do you rely upon that that in action equals the triggering mechanism whatever it is there's not a case that specifically says that but i do know that in ellis which is cited in our brief six forty one f third at four nineteen the ninth circuit said for a prosecutor to tell the judge sentencing that he concurs with the p s r is an argument for in sentence in accordance with the p s r so if i don't think we can draw a distinction between a motion and an argument in the sentencing context the court the government has moved the court to impose a below guideline sentence in this case the court that the government here did not object and said that they agreed with the present so how does that be a motion where do you get the motion that there was substantial assistance given and therefore they get the lower sentence i believe what happened in this case is the government did more than just not object to the p s r the government could have got up and said you know we've read the p s r we agree with one hundred seventy two month sentence we're not going to object to that but the government goes first in the sentencing here and they affirmatively argue for the correctness of that hundred seventy two month sentence it's the government that initially brings up the defendant's cooperation in this case so that's basically the first thing out of the government's mouth of substance in this case is look judge i think you should know the defendant came in she cooperated she came in early that we are some other court of appeals or the supreme court he was to them to have said that this scenario that you just gave us is sufficient to trigger the benefit you want for your client i don't think there is a case i think this is an issue of first impression and the meaning it's happened before you know it's happened or you mean your motion is the first time in there but the strength to this book is you know i think that this is this is a very unique set of circumstances where first of all the government you know the government moved or asked the court to reward her cooperation the court did so and the court did so just to the extent that the government requested i think that's important to the government asked for a hundred seventy month sentence and that's what the court in this case gave the defendant with one hundred seventy two months sentence and the record in this case establishes that everyone agreed eight that the variance at least in part was based on her cooperation and be everyone agreed as to the quality and extent and worthwhileness and meritorious news of her cooperation and then after that we're at a point where now there's a sentencing guidelines amendment and a motion for reduction so i think this this may not have happened exactly in this sort of circumstances before you ask a factual question because i don't know if i'm getting this case confused with another one is this the case where the government said to the judge we're not in a position yet to make to bring a five point one point one yes that was one of the one of the that's why i thought so why doesn't that just absolutely do your argument that the government in fact made such a motion when it explicitly said it was not making such a motion well i think that the government can say that but what the government the government's actions in this case i think belie the truth of that though is why not only the government was lying i think the government could have come in and said look we're not making a five k one point one motion because this hasn't led to anything yet and sat down and had that and that but the government then goes on to say we think you should get a below guideline sentence and part of the reason for that we think the majority of the reason for that that the government asserts is her cooperation government asked for a capital but other than counsels the term substantial assistance is a term of art you would agree under the guidelines right it's not a very precise meaning and the government can certainly stand up and say your honor this defendant's cooperation hasn't yet risen to the level of substantial assistance but we will give her credit i mean she's done everything she could it just you know i mean it turns out that this doesn't it's not of any value to us she should get something for it but it's not at the point where we're comfortable actually bringing a formal five k one point one motion that's i guess that's what i read the record to set in there's nothing you can't say the government  disagree with that but we're not as i understand the limitation on us as a court we don't get to pry behind the curtain so to speak to figure out whether the government correctly assessed you know the government whether the offense cooperation rose to level substantial assistance or not that's a matter untrusted entirely to them as long as you know you some a constitutional basis for refusing to bring the motion and you don't have any evidence that they did that here or if it's arbitrary i mean that's the other the other if there refused follow the five k motion is arbitrary and the thing is i think that one of the things that's important this case is at the time of sentencing which was two years prior to the hearing in this case or almost two years part of the hearing in this case there was no reason really for the defense to argue about the government's failure to file a five k motion because they were getting basically the equivalent thing which was a motion for a below guideline sentence and i think that even if that is where we get to our second argument where it would be a violation of equal protection to say well this guideline one b one point ten need to be only applies to five k motions it doesn't apply to motions for substantial assistance that are brought under thirty five fifty three a which is even if the government saying we're not doing a five k motion in this case i think there's a reasonable conclusion that they did do a motion under thirty five fifty three a based on extensive cooperation which is the one point ten b to a to the low end of the new amended guideline range because of government did not move on behalf of defendant orrible departure based on a substantial  assistance the united states believe the record will show that the united states told the court and the defense at the sentencing the five k was not being filed we were not at a five k the defendant at the sentencing did not challenge that they did not say that the government's or the defendants information amounted to substantial assistance the defendant did not argue that the government's decision not to file a five k was improper there was no i mean counsel's right there was no reason for the lawyer to make that argument then so i don't think you can hang your hat on that why don't you respond to their contention that i guess that you as the government here were arbitrary in bringing the motion for the that the fact that we had upfront rewarded her initially because in the practice that was followed in the office our office at that time this was a couple of years ago now  filed enhanced mintz if there was a prior felony drug conviction this defendant had one we did not file that enhancement under title twenty one united states code section eight fifty three because  provided information right off the front and we gave her we agreed to forego the opportunity to file the enhanced months which would have made her a mandatory tool forty two hundred forty months guideline range to two hundred sixty two because we didn't file that and we gave her i acknowledge her information we have provided and acknowledged her information and cooperation right up to for not with the codefendant  also looked at the thirty five fifty three a factors in this when we decided whether a five k was warranted in addition to the cooperation and the extent of the cooperation and the timeliness the code the first defendant to speak with us she spoke to us two weeks before this defendant was interviewed that defendant southern talked about the wiretap identified forces on the wire p did not have a prior drug conviction was not the ringleader or the leader of this did not have the amount of drugs attributed to her had a four level lower  guideline excuse me target offense number she was a thirty one whereas for another was a thirty five and we've and had not been given anything for her coming in and speaking to us when she was first approached by the f we believe that was appropriate to give her some benefit that required a five k in our part and we did file a five k the thirty five fifty three a factors were much different for believe that it was clear we were not filing a substantial assistance motion it was never challenged it was never challenged on a direct appeal to the court it was in fact the defense attorney argument here though in the sense that this wasn't challenged on direct appeal we didn't we didn't make that in our brief either jeff ok well i'm just i mean it's neither here nor there that it was a challenge well because i don't think at that point the defense lawyer had any way of knowing that the failure to bring the motion was going to have this consequence you know years down the road so but i hear what you're saying i mean that you didn't make the motion that's their main pitch is that the sub's substantial says the united states are certain words of art that require the united states to move we did we did not move we explained that we were not moving and frankly it never came after that it bothers me about this case is the argument of counsel saying ok there you have to bring a motion but certain actions will take the place of incensing guidelines or are bad as they are and we thought when they first came off that we would decide a couple cases on appeal and then we'd never see them again but they keep coming up to us like like a popcorn machine and so we have enough problems where it is and i'm somewhat concerned that now even though you don't make the motion every defendant yeah but you didn't need to because of x y and z so i want to get your view representing the government over whether filing this motion is a mandatory kickoff or whether some arrack like happened in this case where the government agreed with the pre sentence report would be sufficient to be like a motion and have to bring the whole case before us arms position is or must be a motion that's made this court the district court found of course that could be an oral motion we have we have that i don't think so you're on i'm not aware of is anybody else i don't know your honor i know we've made oral motions in the district court level our office as you know so so if we if we decide this issue of whether there can be a substitute for the motion by some other act that would be a first impression case i i thank you you know you know i just want to state for the record that i don't think the government did anything wrong at sentencing in this case i mean i think they did what they thought was right and you know they didn't have to make a motion what we consider to be a motion for a below guideline sentence at all so and certainly we think that post booker the distinction between a five k one point one motion for substantial assistance and thirty five fifty three a motion for substantial assistance if they are made by the government is minimal this is one of the few instances where if this court holds that there is a difference that that difference will have any sort of buying effect you agree with counsel there's no no a case pacifically holding one where the other government came in had agreed to not argue for a particular sentence at sentencing and came in and basically said we agree with the recommendation of the p s r in this court held that that's an argument for sentencing and we don't i don't really see the difference between an argument and a motion there's certainly no requirement in the guidelines the text of the guidelines that says written motion there's nothing in the application no you know that's not going three well the case you know three doesn't say it has to be provisions that authorizes are thirty five fifty three easy five k one point one in rule thirty five but i don't think that's correct as a matter of law because i think it's also authorized under thirty five fifty three a ok thank you counsel thanks