may place the court beth covert on behalf of the defendant appellant jason holloway this is probably one of the st cases the court gets to consider eligibility under the st step back from two thousand and eighteen as a as it makes under section and four sections two and three of the st sensing act retroactive the act quite clearly defines a covered offense and i think we both now both parties agree that mr holloway was convicted of a covered offense because he was always convicted of  violating a federal statute the penalties were changed under the fair sentencing act and because his offense was committed before august rd of two thousand and ten as a result of that he's no longer facing the penalties under age forty one b one and he's now looking at the penalties under and forty one dollars b one b i put in a twenty eight jail letter because since the briefing in this case there have been four circuit courts that have decided eligibility finding that it's soley governed by the statute of conviction  as opposed to looking at anything else at looking at the present investigation reporter to looking at whether or not somebody was a career offender the idea is if he's not already been sentenced in accordance with sections two and three of the of the  the court has not already denied a motion under the st step act on the merits then he's eligible to be considered correct those are the only limitations that are in the act under four hundred and four dollars c and and the district court here specifically found mr holloway not eligible for reduction and so we wanted some guidance from this court to go back to the district court to say you know eligibility turns on the statute of conviction and therefore you can look at whether or not mr holloway should receive a reduction and use whatever argument you know the exactly what relief you're looking for now so it's my understanding that mr holloway has been released from the opi custody at this point that's correct so there's this discussion of move notice and all that it seems like if i understand correctly the parties agree that it's still a lot of controversy as to whether mr holloway gets a reduction in a supervised release term rain wrecked are you also seeking a retroactive reduction of his prison term or not i'm not seeking a retroactive reduction of his prison term but i am seeking our remained consistent with the receipt which is for the court to look at whether or not what it would have given mr the fact that mr  holloway is eligible for a reduction that it might have reduced the term of him present at the time that the motion was filed but that's really a factor in how much of a reduction in release you're now looking for because i agree he can't go below the than minimum that would be required but we are in excess of that so the court could consider what he otherwise might have sentenced can i ask you about that when you see the court campag go below the minimum of of what well we had an argument at the district court men's i mean i understand it we'd like to know does the sense in court ought to know what's the starting point beyond which he otherwise would not have been able to drop but now i'm missing something here but there's a five  stop out well yes but i'm not so sure the government would agree with that your honor because the even though there was a five k in the mandatory minimums drop out i'm not sure that they filed their five k with an expectation that the minimum on supervised release would change well i don't but it is good i agree so let's get your well we'll hear from the government about their position is your position that the government has the power to file half a five k no i don't believe they do your honor i believe when they file a motion under th on how to determine eligibility under the st step back because if you if you believe what the government argues they said well we conceded eligibility the district court level i certainly didn't read it that way and i don't believe the court read it that way the court found him not eligible reduction and i would point to your argument is that we should join the other courts of appeals all of which have ruled as you read the statute in order to give some guidance to the district courts about how to how to interpret the act yes morning ma'am please the court my name is tiffany lee and i represent the united states i st want to address that in terms of what we agree with mr holloway on and for the facts of this case we believe that mr holloway was didn't fall within section for all four of the st step act and this is in compass not only by the terms of the statute but by the fact that he pled guilty to that the amount of cocaine based that we feel falls this court will be hearing an argument about what constitutes a covered offense in a matter of a few weeks in the case of united states versus monet davis monet davis is not this case we're saying mr holloway specifically was did fall with within section four for the st step in terms of being able to come in and say before with a fair sentencing act i couldn't i was boxed out in terms of trying to apply for a retroactive relief but now the st step act has opened that door and now i'm permitted to apply for an retroactively and just to be clear if i understand this because the  the factual basis is what sixty six grams of that no matter how you slice it if you take the government's view that it's sixty six grams or you take the defense's view that it's yeah part of amount is is there on the statue which is what twenty eight dollars either way under either of your views we're dealing with and what is now a b one b case act exactly so i just want to make that clear because you know i want to preserve our arguments for money davis which is a completely different factual scenario so what it comes down to particular and in that case the receipt involved what was in essence are two appeals st was it was a white collar case i believe the district court judge imposed a sentence that was above guidelines and had a variety of bases of which the nd circuit panel determined only two were permissible that he sees and said go back and do it all over again and also consider you know supervised release in the mix and when it came back again the district court did not basically in essence didn't really redo the calculations and just kind of just said i had these two permissible bases and therefore you know i should be good to go and this this court basically sent said no you need to kind of calculate everything in total again this is not that case the case here is basically the exercise of the district court's discretion in whether or not to grant a reduction under the provisions of section two dollars and three dollars of the fair sentencing act and so while the order does talk about eligibility we think that that's court was operating under because that was the national marching orders i thought i think of the probation office was getting as soon as the st step back rolled out so well looking under that paradigm it was like ok in my exercise that discretion were  you know there's no basis for me to so ok let's let let's assume for the sake of argument that we would want to read in the minimum remand and ask the court whether that's actually what the court was thinking even though it everything he said seemed to be indicating that he was operating under a c two paradigm and not a c one b let me ask you a couple things there number one is just i wasn't clear from the government's brief would you now agree that at st step backward actions are not governed by c applications so that just tell us so the district court should exercise its discretion you know without being cabin by thirty five even just again and maybe let me just be clear i'm i'm asking a very narrow question about what the government's view is  you're not prepared to i'm not prepared to and that's what i well of i can i can definitely submit a supplemental a letter within a week's time just to you know articulate the government's position i don't and then you're also in your disc t would you object to the district court in the exercise of its discretion considering when it's deciding whether and if so how much supervised release we're going to reduce considering how much it could have reduced the defendant's prison sentence under the fair the st that bet i guess we would we would we would we would say that the district court has its sentencing discretion under you know its normal sentencing factor so it's considered would certainly consider it were you know it's going to consider everything so again it would be the guidelines would end up being the same you answered my question yes yes and we well we when we would consider yes we would we want to allow the the whole idea is the st step back through the fair sentencing at this basically allowing the district court to take a look at all the factors and determine whether or not to reduce the sentence doesn't know some of that could be else like you're basically in agreement but on the statutory question do you mind submitting us that that letter as you said a week from today mandatory minimum term one otherwise apply to supervise release again this is a question i really have not thought about and i would like the opportunity to kind of discuss with you know  the trial attorney below and terms of what our position would be under those circumstances because certainly below we argued for for consideration that we said that the court could reduce the trauma supervis which again my instinct would have been that that means that you can debate all day long what the otherwise supply man man would have been but that certainly would no longer be binding on the district court at this point now if there is some reason why that's that's not so i think it would be good to know what the party's position is on that one or the other i don't know if that could be any all right that could be added to the supplemental letter that the  any further questions thank you  in part out through a probation under the bus because they said it should be be governed under that provision but also the government in their response made reference to the abbreviated supplemental pre sentence investigation report said the guideline range didn't change and therefore the defendant was not entitled to relief and i think that's where the court then found that he was not eligible we understand this is one of the earliest probably one of the earliest rulings on the st step back so it's now into didn't happen with the benefit of rulings from many of the courts correct and in addition to united states versus worst thing i had cited himself cited several other cases district court decisions in my brief that said thirty five a to c two did not apply and thank you both and we will await your further brief submissions i think this should take more than five pages will probably take considerably less thank you