as a career bender can qualify for a drug reduction under eighteen u s c thirty five eighty two and the sentencing commission's policy statements and amendments that govern who's eligible for drug reductions whiting is eligible for reduction because the terms of the past tense it does not say the guideline range that applied at sentencing is what's relevant it says a political the present tense so it's the unique facts of this case where what everyone agrees the a political guideline ranges happens to differ from the guideline range that was used at the time of his sentencing now of course mr whiting have to acknowledge that the second sentence sentencing guideline one be one point ten b one when it instructs the district court how to decide what range pleasurable it says that the district court can substitute in the new and the new guideline range in this case the new lower drug weight guideline range but has to quote leave all other guideline application decisions unaffected and and it was this language of the district court concluded meant that the court was unable to fix what everyone agrees is the erroneous cross reference to the career offender got mine because the district court interpret it to mean that he could not delete essentially from the pre sentence report th cross reference and i think that the court should find that the policy and the rest of the statute and the rest of the amendment seventy two and one the one point ten show that whiting is precisely the sort of defendant w expected and was hired to be able to receive and take advantage of the sentence reduction and that it would be erroneous and not a sensible construction of the statute to find that the district court cannot delete what is an error from his pre sentence report and so i think that there's two other ways the court could potentially interpret this language quote shall leave all other guideline application decisions on affected end quote that would be consistent with the statute and the rest of the scheme and that would allow mr whiting to be found eligible for this relief the first way is to view this language about not not at leaving all other guideline application decisions on affected consider what i got an application decision is when a probation officer prepares a pre sent determination by plus two minus ones those of a sort of factual determination this court could find this language applied to that when we come for a drug reduction hearing we don't want to relive again well technically it was a threat of violence used or not maybe he should've gotten a minus two for his significant role in the offense and the reason that this matters as the court knows there is a limit to how much of a benefit a defendant can receive when they go before the court for this drug reduction the district  only reduce the defendant sentence as low as the new amended guideline range allows so that's pacific number is important and there's good reasons why we don't want to really get at that point what the guideline range is and that's consistent with the supreme court's decision in dillon not entitled to a fool re sentencing when it comes to two thirty five eighty two drug reduction motion and that's what the court to fix and the mechanical mechanically fix the pre sentence report in this instance to remove iranians cross reference  sentencing i think it's important for the court to look at what actually happened in the dealing case to understand what that language about re sentencing means in the dylan case the defendant was sentenced under the mandatory guideline regime prior to the supreme court's decision in booker and in the interim that crack cocaine drug reduction came he applied to the drug reduction and also said now that booker has happened and my guidelines are advisory i want the court to look at all the thirty five fifty three factors and not just sentence me to the bottom end of my new amended guidelines range i want to take advantage of those factors and have an even lower sentence and the supreme court found we can't do that that's not what the statute authorizes that's not what the guideline advisory language authorizes we can only sentence you as low as the bottom end of your drug wa guideline that's a very different scenario than the one that mr wedding presents which is not seeking a reset and saying he's asking the court to fix an ambiguous error and i think that this court could consider as relevant hits prior decision i know that here on the united states versus williams case and i think that there's a relevant principle from that case which is a it's a different context the court considered does somebody who had a drug wait guideline range underneath there are mandatory minimum minimum qualify for drug reduction under the language of thirty five eighty two c in that case the court found that even though the guidelines say that the guideline range becomes the mandatory minimum  by the retroactive drug amendment that the defendant still qualified because it was within the obvious policy and intent of the stans a commission to have defendants who receive substantial assistance motions still qualify so the court can look at the full cont of one b one point tent and the obvious policy that it was and intending to implement and find mr whiting qualifies i've also suggested in my everything that the rules lenity can apply in this circumstance because of the ambiguity as in the statutory scheme there are several ambiguities the court can consider first there's the ambiguity the difference between whether or not someone's present tense guidelines what's a political in the present tense  see one be one point ten with the language it's used and thirty five eighty two see it where we see that the congress is using the word based on was the person sentence based on something the congress refers us to the sentencing commission to give us guidance on for something to be based on the guidelines that we have the sentencing commission using the present tense what's a political to that effect there is also an ambiguity over the term based on that the supreme court is still considering actively as i mentioned in my twenty eight day letter the court will hear two cases on monday that will potentially be relevant potentially not to the language of what how broadly based on can be interpreted mr whiting's case does not depend on either of those cases the court can find now that under the statute as it exists under the guideline policy as it exists that the court has the authority to correct an error of this nature without waiting for those decisions but it is possible that that continuing a behalf of my client i can't say that it's been applied frequently but it is still there are cases obviously that support the court's ability to apply in a case like this where a clear error was made and we don't have to have a broad rule congress in this circumstance sentencing commission and interpret the statute accordingly but i do think it's important at this rule would not open the floodgates for other defendants who would still be the case that people who are legitimately career offenders there  mr duncan i pronounce that correctly government agrees was in error how is that justice without getting too deeply into the weeds of the twenty two fifty five merits although i'd be happy to spend all the time the court wants discussing the merits of that are essential argument on the merits is that what comes up let me let me kind of a practice a little bit so that the first issue i believe before the court is whether thirty five eighty two c two by its terms applies here and affords a relief then you get to the question of the rule of lenity if the court find statutory construction now the question of the twenty to fifty five the government's position on that is not only was it filed i believe three or four years too late but also that as to prejudice while we agree there was an error the prejudice prong under a strickland analysis this error was was made at the police negotiation stage and this was a case where you have to kind of step back and take a fifty thousand foot view and say ok this was a defendant who was facing mandatory life and he proceeded to trial the government agreed in order to secure a guilty plea to allow mr whiting to or or to dismiss the eight fifty one information has to one of the prior drug that allowed the court to depart downward from that and get to the sentence eventually reached in this case which was one hundred forty four months now if counsel miscavige your witness excuse me discovers your witness he question if he receives the benefit of a thirty five eighty two c two reduction he would receive a reduction down from his guidelines range under two do you want one which was one hundred fifty one to one hundred eighty eight so he would then receive the was that the defendant is arguing that if his counsel had been effective he would have caught this career offender error and that governments are just i think that there are i think that case is going through all the steps of the analysis of twenty two fifty five and strickland prejudice the government was party to the error the prosecutor was culpable the judge or the court got it wrong you just absolutely but the question for prejudice under strickland is if the error had been caught if the counsel had been effective would the result have been different and in this situation if counsel at the and the government's point on prejudice in addition to well let's let's stick with the point that i was just making which is if the defense counsel had been effective he would have realized at the stage that mr whiting was not a career offender upon realizing that the parties would have come to a different agreement of some sort and the defendant nor the government can show what the agreement would have been what we do know is that the government consistently felt that a sentence somewhere around one hundred seventy months was appropriate for a defendant facing mandatory life for a defendant who had substantial assistance and the defense the government was willing to file the five k to allow the court to depart down from mandatory sentence and upon realizing that the career offender designation was no longer available the parties in all likelihood would have renegotiated that plea deal and may have come up with a totally plea agreement such as a c plea such as a c plea that would have made and a sentence in about the range of one hundred seventy which is what the government always thought mr whiting deserved all that would have made that possible  policy statement indicates that thirty five eighty two was not meant to apply to a situation like this and i think that the first place i would obviously look is the text of the statute we think that the text of the statute is clear and unambiguous when it says that an amendment that to the guidelines that the sentence was based on has to have changed and it refers the court to the policy statement and the policy statement is clear that if you're doing any sort of reduction under thirty five eighty two you only fix the guideline section that relates to an amendment that was made retroactive you leave all other application decisions of the court undisturbed and dillon is a great example where the justice essentially assumed that the errors that the defendant was raising were were valid the court didn't say well let's let's see if these errors you're raising that happened in your original sentence have merit or not the court said thirty five eighty two c two does not allow us to correct other errors in the sentencing proceeding so whether it was a book or error of treating the guidelines as mandatory or an error in calculating the defendant's criminal history category which were the errors complained of in white ink thirty five eighty two c two does not address those issues you can get a an application or reduction under thirty five a to c two of your to the one point one guideline error was made and still the district court found correctly that he was constrained by the language of the statute that it does not authorize him it does not authorize or another avenue of relief then i think that it's important you can fix things  government can go in and move under rule forty eight to do to do things that are need to be done ken and i think that there are a variety of avenues for relief in a situation like th and it's important to i think separate the question of are there any avenues for relief today that we can do from the question of was mr whiting or was a defendant in mr whiting situation afforded examine whether waiver of the timeliness issue is appropriate in this particular case it's not appropriate in this particular case and this is the same argument that we've made before the district court because although everyone in the courtroom on the day of sentencing made an error that error would not have happened if the defense counsel had not been inadequate and that is the twenty to fifty five argument ineffective assistance of defense counsel and if defense counsel had been adequate is not that this is the defense's fault versus the government's fault but once once the defense counsel if the defense counsel had been effective if the government had been effective when they were negotiating that police realized that the result they were trying to reach which was somewhere in the neighborhood of one hundred forty to one hundred seventy months which you can see based on their negotiations they started out with ok let's have a three hundred month see police sentence with the possibility or the consideration  five k motion the court the district court came back and said well you've got to see a plea to a particular exact sentence and now you're saying there's going to be a five k you got to pick whether it's a simply or whether it's a part whether it's just an agreed sentencing  or agree that certain guidelines apply and then do the five k once they did that they came back in the agreed essentially to a situation where the guidelines range was two hundred sixty two to three hundred twenty seven months out of the five percent thing although there are things that the government could do to correct this the government will not correct this is that correct that accurate there are there are things that the government and the defense can do when a case is brought within the timeline of a twenty two fifty five motion or the timeline of a rule thirty five motion but because of because the government's position has been before the district court that  the defendant can't show prejudice from the air or in the plea negotiation because we don't know what what agreement the parties would have come up with to replace the career offender guideline we don't need to know that when we know what the guidelines themself say and what the career offender enhanced that was in appropriate did to add on to  proceeding we have now or in the twenty to fifty five i would say i would i have i haven't looked into what other options mr whiting may have but i would say mr whiting is not that differently situated from mr mr whiteside e honest i did not come to this argument prepared to discuss that rule but i'm all up on what judge or you just ask there are of course and i think that it's important to recognize that if the district court if if we agreed to waive the issue on the twenty two fifty five for instance and said ok let's proceed let's let's let's let's get to the merits and the court said ok we have to throw out that plea agreement that you all reached because the defense counsel was ineffective and it was prejudicial if the court finds that then we we would be back to a pre plea agreement stage where you've got the situation that existed before the police you've got a defendant facing mandatory life imprisonment because of the age fifty one notices and you've got the government has the defendants take when they file twenty to fifty five absolutely absolutely but when the question is ok they take the risk  n doing that and i think the problem that comes up in this case is that the government's apparent extreme reluctance to get to the merits in the southern proceeding troubles a court well i will say that the government goes through an analysis and an internal discussion every time there's a case where there's a twenty to fifty five f time limitation violation and there's a case that might be meritorious the government has to look at a variety of issues including but not limited to the potential merits of the case although we argue that that the prejudice here would not me look better than the government would be covered in here moving that everybody got it wrong everybody got it wrong in the courtroom and and part of the integrity of the judicial process and it may seem unsatisfying in some cases together all its own and congress could have said when they wrote twenty two fifty five f and i see it run out of time but i to finish my response congress could have said in twenty two fifty five f or in thirty five eighty two c two here are the rules here's how it works but if your case is really egregious lee wrong it doesn't apply variety of cases from this court and others that say on the twenty to fifty five f question that is how congress designed it to work whether we like it or not and when we start to apply a statute beyond what congress intended because we personally feel that the result is unsatisfying then that's where unfairness comes in because then you have the next defendant in the next defendant next to sign and saying well you extended the line for th defendant so why not me and there's not going to be a satisfying answer for that because it's going to be well known your case is just not a grievous or your case just not as bad when the line is clear and everyone knows what the l that's what the next defendants would have to say the government and the defense counsel never planned on getting it wrong but the twenty to fifty five percent are high on it yes yes and the twenty two fifty five procedure is  there because we're human because sometimes we get it wrong and the twenty to fifty five f time limitation is there because even though sometimes we get it wrong we want to stem the tide of just being able to say every time there's an error you may correct it and and again there are some errors that seem unsatisfying but congress designed the system so that not all errors  corrected and you know i don't want to get too much more into the prejudice argument but but again our argument on the prejudice argument in addition just reached unless you but when the question is why aren't you government exercising your discretion to waive the time limit on twenty to fifty five f which is entirely within the government's discretion the government has to examine ok is  situation where the there were cases in the western district of virginia where the u s attorney's office did waive the time limitation to twenty to fifty five f because cases were refer the federal public defender's office after johnson to see if they were eligible for sentence reduction and there was one defendant who fell through the cracks of that process and specifically was not singled out because he was in  another assistant it was not raising your of attorney and i've noticed that in your proposed plea agreement government you've said my client's a career offender i would assume oh gosh i'm so sorry you're right it's an error i'm going to admit that i made an error let's negotiate a new plead remit with this defendant who's facing mandatory life there were a variety of ways the parties could have gotten to a sentence that was similar to the one that the court eventually got to one of those w so i can't see the defense counsel can't say nobody can say what the parties would have negotiated if defense counsel had been effective if the government counsel had been effective and had caught that error before this about it but you've been sayin all morning here that you could say it would have made a difference there's no prejudice no and in the government's burden is not to prove it's not the guy and i apologize if i made it sound that way because that's not what i'm saying because it's it's not the government's burden to show a lack of prejudice it's the defense's burden to show or the petitioners burden of twenty to fifty five to show prejudice and in this case and that is an argument we're making on the merits on the twenty two fifty five fail to establish the government's position is unambiguous lee correct we applied the rule of lenity and resolve the ambiguity in the defendant's favor and when you stood up before you mentioned watson case and what was the other was what was the other one i mentioned united states versus watson and i mentioned terrace versus united states two fifteen sixty nine not there one is going to use the word leonard i checked unfortunately but they do talk about the policy behind the statute the  on and not making other guideline determinations and if the court can also find ambiguity in that part of one v one point ten where the district court is told to leave all other guideline application decisions on affected i could find that it's unclear what guideline decisions were talking about deleting an erroneous cross reference to a different guideline the court could find it's different it was not intended by the sentencing commission to be included in the statement at all other application decisions i  think it's because i can't help myself since the twenty twenty five has come up it's important for the court to also know that the government's prejudiced and helps this is her directly contradicted by what the government did with another  did not contain the crittur offender guideline and that case went forward without any new plea agreement nothing changed the government simply went forward as it is codefendant same situation that person just had crimes of violence that they thought would count pre sentence report ruled that that was relevant conduct so it didn't get criminal history points and the rules are very clear that if an offense is relevant conduct it doesn't count as a clear offender predicate either so this person has zero prior serious drug offenses that should have counted under the career offender got mine and yet the government has essentially required us to proceed in this way and try to come to this court i'm just seek relief under the statutory scheme and we're asking the court find that there is enough ambiguity in the way that the scheme works with the guideline that mr whiting can apply and receive the reduction and i think that the williams case i'll go back to that one more time since i have the opportunity to address both you judge acker and judge king can be relevant here we have a lot of w three two thousand and fifteen where under the strict language of the statute and the guideline someone who had drug got got mine range that's lower than the mandatory minimum got mine range so i forty month mandatory minimum doesn't change under the drug wake up lines and when we when you go back to say well was that was their sentence based on a drug guideline ring that change guideline range the change the answer is no it was based on the mandatory minimum but this court