the morning your owners may please the court brennan sample for the appellate mr eddie david cox i want to focus today on three errors that the district court made which warrant reversal parts a relates to the jurors actual character of eighteen u s c thirty five eighty two c one being that statute which was an act as part of sensing reform act bars district courts from modifying a term of imprisonment and less to the extent otherwise expressly permitted by statute that statute under this court's precedents is jurisdictional part b deals with the application of section thirty five eighty two c one b to the particular facts of this case which are essentially reduced to whether re sentencing by an original sentence in court following a grant of section twenty two forty one relief by a district court in another circuit is in fact a modification to the extent otherwise expression permitted by statute it is not part c addresses the government's contention that the district court was free to resentence because venue was effectively transferred to the district court as a result of co request for recency contrary to the government's arguments the district court still lacked jurisdiction to rescind its cox assuming venue was transferred because the district court lacked jurisdiction under section twenty two forty one consistent with this court's precedents second we argue that the district court's nine hundred and sixty six month sentence on an eighty three year old man who has been in prison for thirty years with credit for good conduct time is substantively unreasonable and third the district court lacked authority to resentence dyno vo because a section twenty two forty one grant of relief was limited to counts five and eight to section thirty five eighty two c two which deals with the retroactive application of amendments under the sentencing guidelines unless the requirements for relief pursuant to that statute are met section thirty five eighty two c one b is equally jurisdictional character like section thirty five eighty two c two because section c one b constrains a district courts ability to modify a term of imprisonment  to the extent otherwise expressly permitted by statute in fact the tenth circuit in a series of cases has held that section thirty five eighty two c one b is a jurisdictional statute and cox would ask this court to join the tenth circuit in holding the same so how do you account for twenty to forty three is rather broad statement of allowing the hey be a score to dispose of it as justice in law requires there's no dispute that behaviors court has broad remedial thirty under twenty you see twenty two forty three but that is a separate question about whether this eighty eight thirty five eighty two c won't be is a jurisdictional statute which we view as being a threshold issue and starting the jurisdictional issue the inter relation between twenty eight you see twenty two forty three and whether or not it constitutes one of those statutes when i approach it expressly permits re sentencing is a separate issue and to to answer that the court's question that statute does not apply to the western missouri district court because that court had no authority to be able to do anything in the first instance the way the statute twenty you see twenty two forty three is written it's in very very broad terms it allows a hades court to be able to dispose of a case as law and justice require and so if we ju apose that to thirty five eighty two c one b congress has said that it must be to the extent otherwise expressly permitted by the statute it's too far of a stretch to say that the broader authority afforded to the section twenty two forty one court also somehow confers jurisdiction on an original sentencing court that otherwise would have no ability to do what was done by the central addition of illinois we you know it is the the district court here it had no ability to be able to act pursuant to twenty you see twenty two fifty five it had no inherent authority to be able to modify the sentence and if if this action had court should not permit that westerners could missouri to affectively do an end run around the savings cause jurisprudence that's here can you go back for just a minute how was he able to actually bring this under twenty to forty one  honor i mind my recollection not having studied up on and recently is the two actually at tack the sentence you've got to go back to the sentencing court under twenty two fifty five mr cox has a long record of litigation challenging his sentence both in the district court and in this court and essentially what happened was is that after the johnson decision was handed down mr cox sought leave to file a second or successive twenty to fifty five motion from this court and this court without explanation denied that motion in the motion mr cox had argued that he was entitled to relief under johnson because he had a kidnapping prior that was no longer qualifying but he also argued in there that when you knock out that one prior there's another prior that was also not qualifying but it didn't come into play under johnson and that is that he was convicted of a controlled substance off and under the predecessor statute to the controlled substances act and in essence he argued that because all the while up into johnson there were the requisite three predicates to support the a c c a unhan then the issue was not right about the ability to challenge this priest c s a prior the use of it to support the a c c unhandsome it intil johnson was handed down and so after this court had denied authorization to file a second or successive twenty two fifty five mr cox filed twenty two forty one in this introducing to illinois and he argued there consistent with the seven circuits precedence that there was a structural problem with  twenty two fifty five such that it allowed resort to twenty two forty one in this specific kind of circumstance and that is that in this is in essence a basically re urging the same things that were said in the application  leave to follow second or successive with this court that this is his ability to be able to challenge the continued use of the preceding say pryor was not right in till johnson came out and that as this court had denied authorization to file a second or successive twenty two fifty five it in had also implicitly rejected the notion that he could proceed on that theory through twenty two fifty five which in turn allowed him to be able to resort to the twenty two forty one the government challenge that the government the government did not they they did challenge the notion of mr cox being able to bring the twenty to forty one they did not challenge the underlying issue about whether or not the precise a prior  counted but in essence the government's position in the hay vs litigation was that the cop should have raised this argument previously that he had all kinds of our opportunities to do so courts do not address issues that are irrelevant to the sentencing calculus if there were there were at the time of the original sentencing sufficient priors see the my point is that's how i thought we avoided this type of situation where we had two different courts sentencing or potentially two different courts sentencing is that twenty to fifty five was your only avenue for relief when you're attacking the sentence that's why i'm just curious how he was able to bring it under twenty to forty one under the seven circuits preceden it permits him to be able to resort to a twenty two forty one in this particular situation and if if that action were brought in a circuit it would not have been permitted to proceed ok that's what i thought but i'm not familiar with the seven circuit precedent yes your honor so then if you were so and your view under twenty two forty one twenty two forty three it's the twenty to forty one court that disposes of the matter is law and justice require and that would include either what sort of we more commonly think of twenty to forty one with a hey vs just released from detention right true hey b s corpus it also gives that twenty to forty one court the power to reset buttons absolutely so then what you know then you've got the ripped it's the reverse but a corollary of the problem that don't believe there would be a choice of law question that would arise in that kind of circumstance but to be frank i'm not aware of any authorities on this particular point this is so rare as it is and it also seems that in this particular situation i can understand why mr cox given what's happened here wants to go back to the central district of illinois but i wonder if sometimes you have to be careful what you wish for because you're going to a district that has no background information on you and has to reinvent a wheel that may not be may or may not be as attractive of a wheel as as you would have had in your home life a home your sentencing chord is that a problem that  we should be considering or thinking through some of the practical realities of of how this might work i mean i appreciate the court's question about the proctor practical realities i think though that first and foremost we have the statutory problem that we would know it although it's not in the record i would ask the court to take judicial notice is that the respondent in the hay vs action specifically advocated that if the western district missouri did not choose to sentence but sometimes you get things that you don't necessarily want i mean and sometimes you do and i mean there's i think though that the court is probably best served by establishing a bright line rule that addresses this particular circumstance because i know that there is another case that's currently pending before this court that also arose from the central district of illinois and this gentleman was recent as in the district of minnesota and he had also an outcome that was probably not what he wanted so has that been argued it as not your honor it's that united states versus ralph duke and so  this is i don't have a clear answer about that and i don't think there is actually a clear answer with respect to the so called practicality just out of curiosity do you know what the seven circuit precedent is that allowed those twenty to forty one to proceed yes there is a case called pole versus little riva which was the principal case that we relied upon in the central district of illinois in that case the seventh circuit had talked about  traditional savings clause test under in re davenport which basically looks at whether or not he had an unobstructed procedural shot to be able to raise the claim in the first instance or has there been an intervening statutory change in the law that wasn't available originally and poll versus the review of the court though it commented that the davenport test and there's another kid there's an inventor season called webster from the seventh circuit as as well review they said that those two cases represented examples only of how the savings cost test could be utilized and so in the hay vs court we argued for a further extension of th existing savings clause authority in the seventh circuit as applied to mr cox's particular situation and the district court there of course agreed and that was partly informed by a decision  comment by judge easterbrook and in a case called you nice first night i believe it's united states versus stanley where he had said essentially that in a situation where somebody tried to raise a johnson claim that if the if there was some other related issue that didn't become relevant until johnson that it might be proper to bring that in the twenty to fifty five and so the district court in illinois said that based on this court to the twenty two fifty five without explanation that that was essentially an implicit rejection of like judge easterbrook stanley example of permission of how it would be permissible to be able to actually bring that companion old bailey claim and twenty two forty one cor ultimately recent arrest on all the counts because it found that there were interdependent with the count that was vacated and he challenge make sense nor is it consistent with the broad remedial authority under twenty forty three which as the court already alluded to that part would permit that twenty to forty one court to take appropriate action and with respect to the government is they've also kind of said that you you basically got what you asked for you asked to be recent and since so ultimately you are recent it's over here in the west and just to missouri this there was no formal transfer morning mr clark good morning may please the court mr cox filed a motion under twenty two forty one asking the central district of illinois to order the respondent warden to deliver him to the western district in missouri for the sensi he i what he wanted that's that's what he asked for yes that's what he asked for the court did what mr cox wanted he granted his request and directed the warden to deliver mr cox to the western district  see the court's authority to do so under twenty two forty one is remedial provision under twenty two forty three which states that the court is allowed to dispose of the matter as law and justice require no western district of missouri refuse to accept it if it if it's an equal court to does this to the court in the central district of illinois what if it had said i don't think we have the authority to do that would would that in your view would the twenty to forty one court then have the authority to do the recent in thing i think under seven circuit law that twenty to forty one court and there's a case like that cited in the brief the bright case where i believe the middle district of florida said we're not going to accept we have co equal jurisdiction with you can't order us to be sent somebody and so we're not going to do that and in that case it would fall back to the twenty to forty one court to dispose of the matter as one justice require so it's not it's not your view that the twenty to forty one court doesn't have the authority to rescind it's just that the first choice should be  what's your there are there are there are and i saw a case in the brief the seven act case which is a district court case but there's a long discussion in there as to why it is more in the interest of justice and the judicial resources and the economy of those resources to go back to the sentencing court which has all the records on the defendant and as familiarity with the defended and that should be the court that changes the sentence of the yes and so would you have objected if the central district of illinois had just done that out of the gate initially as opposed instead of transferring in other words is that sort of in the twenty two because because of the broad language of the deal permission there are cases where like treason where the twenty to forty one chord conducts to be sensing there are other cases where it gets back to the sentencing court to conduct the recency at the treatment was the same an essentially the same court that was and it was maybe different judge but different same court yes but the twenty two forty one court did that we sentencing there and there are other cases where the twenty to fifty five where the where the original sentencing court ducks three cents you know but the question is not mr cox his argument is that he doesn't have jurisdiction to do that and our position is that for twenty there has to be some vehicle to get it before the original sense in court in this case went to forty one act court when a defendant attacks a multi count or multi conviction indictment there is one judgment that is issued by the court and then when he starts attacking portions of that judgment that  hear that wouldn't be in any case that is counted other words is there any exception to the rule of as you present it of the district court being permitted to unbundle because it's always one sentence  ultimately imposed whether there are not there's a nine twenty four c drug count connection are not well in this particular case the original sentencing court judge under sentence the defendant to three terms of life in prison outlawing guns five down eight not one was reversed on appeal counts five and paid are the subject matter of the twenty t forty one litigation the way that the reason that it is interdependent is because the it is clear that the district court the original sentencing wanted mr cox to serve a term of life present and if he had how the court reached a bad or is it just the idea that it was a life sentence so therefore the district court must have i'm trying to find some kind of guidance for determining when and when it is so interconnected and because it seems like the one twenty c example gives us something tangible to talk about what you are presenting a sort of well it was life that's what the judge wanted to do so let's do it again even though there are two counts now that don't  carry the same same term of imprisonment allowable and that's i'm trying to figure out what what's the guiding principle here how do we figure that out i think you can go back to this as the court knows this case has a long history inappropriate and reasonable sentence for mr cox to have proceed so and it is and this court has noted that it is clear from the transcript of the regional sentencing court judge hunter's sentencing that  he knew this defend it he was experience with this defendant and that he thought that the only reasonable sentence based on the defendant's criminal history was a life sentence so in this particular case it is clear that the original intent of the original sentence in court also based on the thirty five fifty three factors which were mr cox is rather extensive criminal history so that's i think they're they interdependent in this case for that reason previously asserted the same position and interpretation of the statutes in other cases or is it unique to this case i do not know what i don't know what i n this case what the government argued at the twenty to forty one stage i'm curious if they conceded the twenty to forty one was a proper way of attacking this  the end or do you agree with with opposing counsel that under seven circuit law that is the appropriate well what the court held in the in the central district w there was it wasn't wasn't available under twenty to fifty five and it was available under twenty one i see that was a date certain would reach that opinion does is ok that's the problem i'm having  just doesn't make any sense to me my understanding is the only way you can attack your senses who twenty to fifty five and to allow it to be done under twenty two forty one leaves us this situation that i don't think congress really intended fifty five back to your sentence in court not where you're being detained well as i noted that there are other courts that have sent it back to the original sense in court or re sent it's within the remedial class i said the remedial provisions of twenty two forty three to dispose of the matter and so that's i think that's the reason why mr cox asked for that if it had been granted in other cases as another western district missouri case where did he cites and in his motion he requested that because it is already been tried and received the relief that he wanted which is got sent back to resentencing mr cox also makes a double jeopardy argument with respect to some of his counts of conviction that argument that he knows that this court has previously ruled that double jeopardy is he also argues that the court considered improper factors but if you take a look at transcript clearly the district court went through mr cox his criminal history and found the same as the original sense in court judge hunter that mr cox should receive a sentence of life in prison or what is in effect a sentence of life in prison under thirty five fifty three factors he did not improperly consider any factors in sente the mr cox asked for twenty two forty one relief he asked for this relief he got to relieve the requested the court sentenced him forty the court had jurisdiction to do that under twenty t forty one and twenty two and implementing that twenty two forty mr cox may not like a sentence that he received in the west or just a missouri but it is what he asked for and united states believes that power under fourteen zero four to transfer a case to another circuit not even on its own initiative and not also upon the motion of a party there has to be consent has to be consent between both the parties to move the case that this is arising from a case called webster versus daniel says the same here but if your client asks for it isn't that consent consent of both parties both parties the government has to consent as well to  happened in this case it's never happened and to also return to the government did the government oppose and say it should be sentenced right here in central illinois well it did oppose originally just in the sense of not wanting twice once relief was granted did it do anything to suggest that the sentence should occur in central illinois you know it's said though that it it was proper to be able to do that but then in the problem arises that if if the court accept the notion that transfer was proper and fortunate for him there are cases even post judgment that tend to support the idea that a case can be transferred then now you're assuming now you're saying that the west virginia missouri is is exercising authority under twenty forty wanted twenty two forty three but then you run into this court savings costers putins was says that it's a jurisdictional constraint abdul versus hedrick in enlighten me a little bit more on this twenty two forty one versus twenty two fifty five because it it seems to me that generally i think you'll agree that of attacking your sentence under twenty two forty one is not the appropriate avenue it's twenty two fifty five and this court turned your client down does that make it unavailable under twenty to forty one because we turned it down that doesn't seem to me like it makes it on availably was available but he got the nine if i may respond please please so twenty two fifty five has a savings cost that if it is inadequate or ineffective to test the legality of detention but why is it inadequate it is then this this court made a decision why should central illinois get to to say that that was inadequate it's inadequate because the central illinois implied that because cox could not meet the requirements to file for relief that meant that twenty to fifty five itself was not an available remedy and he was raising an argument that was not ripe into johnson was decided so then we have an underlying