say you lose it anyway so don't you tell us good morning your honor and yes it's always a good afternoon to receive a letter from the government agreeing that you're correct and of course that comes along with the argument venable did not make this error below and the government's understanding and therefore the late session that this case should be subject to play an aerial view based on the government's concession this court should reverse and remand the government abandon the opportunity to are you planning or review and the case that cited in its letter on this court united states versus ashford is squarely on point in that case the court found that a twenty eight day letter days before or argument raising plane air review was simply too late and did not was not in accordance with the federal rules appellate procedure and it should not be conceded at consider at that time and the case the more recent case the sierra club will can easily surpass that hurdle and the government is essentially conceded the air and that it's plain and only argues that and well it's not really a miscarriage of justice but the government seems to continue to misunderstand that  mr venables statutory maximum as well as his guideline range would have changed as revocation hearing in light of the change in the  is still underneath the crack guideline range but and the same issues that the court looked at the rest of us morale us about how it would undermine confidence in our proceedings we can't know for sure what the district court considered for example just the court may have said the guideline range mr venable was thirty to thirty seven months because he got this really long state sentence i was going to have that sort of thirty months i'm going to give them fifteen but presented with the argument that in fact his guidelines range was twenty four months the district court may have half that instead we simply don't know because of the late argument made by the government this case we didn't have the opportunity to request the transcripts and try to figure out what the district court actually did consider do you can see that if we were to remain in the case  case and so the government's twenty j letter about it is simply not pertinent to the court's reasoning here all the court would do is say we're reminding for the court to impose a sentence consistent that a case by case decision as to whether you  change the final sentence comes from three thousand five hundred and eighty two b one b i just don't think the court has to decide in this proceeding based on this record which is only about eligibility whether a full resentencing is required or all that we really need to hear and you have to  reduction context and the court's instructions from the dell and case and all that line of argument should be imported into this case i don't think that's correct because the three thousand five hundred and eighty two c two drug reduction context is limited by the sentencing commission policy statements which just aren't sentencing factors and that's all the court need to do it instruct the district court how to proceed on these facts and i would also note i don't think the court has to reach this given the government's concession but the government now has agreed with me part of the way we now we want to say well yes the court can amend the revocation sentence but the original sentence is different but there's really i'm happy to have this try to explain the logic behind that but once the government has agreed that the unitary sensing theory which is clear from the supreme court's decision been your motivation best languages for joint appendix page twenty the very beginning of the motion before the attorney spells out and the number of paragraphs and the background of the case where well i think that mr of animal ass a district court to change a sentence and whether the district where change the original sentence which would have the impact of the bureau of prisons potentially crediting him for over serve time then that would apply to revocation sentence or whether the district  authority on both counts and i think that even if the court finds that the grounds the government now agrees to was not properly rates below plan error test is satisfied here because they got the both a statutory maximum choose but those were before the court here we've got a sultan just appear yes or never before was our order to consider that  the law is that if a party ways an argument before the lower court that it is subject to plain error review subject to potentially subject still two exceptions and if it's just fundamentally unfair mean in a normal  act authorized reductions and revocation terms because it is part of the unitary sentence we continue to hear position that it does not authorize reductions in are completed sentences or portions sentences the statute is silent as to that point we think it's clearly implied in most instances and already serve sentence it would be moot to reduce it and for the for a number of policy reasons we think the court was correct in determining it did not have the authority to reduce the already served term of imprisonment for the purpose of creating bank time to offset a sentence that was a term of imprisonment imposed for subsequent conduct i will alert the court that we argued yesterday before a different handle the case of united states versus jackson which raises squarely the well we would submit that the court does not have the authority to consider the motion as written to the district court but the motion clearly asks for a reduction in a term of imprisonment that it's been completed in order to create a pool of time that the bureau of prisons would then credit to the defendant to offset a future sentence they did not ask the court to reduce the sentence on the revocation term so the district court would submit that the district court was correct in ruling in its ruling on the motion before it which then takes you to the question of whether the court will impose a plain error of you if the court declined to impose plane air review then united states has conceded that a red cation term can be reduced under the st step act and the court should sore a modification isn't that a that that rule needs to be set or it would be the same regardless of the case and yes of course the district court can look at the factors that are case pacific in exercising it encourage the court to reach that question to provide the district court with the framework in which it should consider the motion that determines of the mandate is appropriate anything else you were told if i if i could just expand briefly on our argument that if the court applies playing air review why this error does not seriously affect the fairness integrity or public  this forty one feet the rotation term of imprisonment is impose for breach of trust and that is a separate question from just what the on the underlying offense and when you combine the different purposes of the with the very discretionary meter of the st that acts it leads to the conclusion that it is not that we're not producing that revocation term is the correct outcome is fully  justified the defense is arguments restaurant merrily on this idea that the statutory penalties have been reduced and the guidelines have been reduced but that is not how the st act operates it allows the court to consider whether to grant a reduction as if were those are in place it doesn't actually replace the statutory penalties or the guideline range and so it is not accurate to argue that there is a serious unfairness because his penalties have been reduced because it is not a full st that could have been passed to make the fair sentencing retroactive to all defendants and reduce those penalties and that is not what it says it leaves the discretion and leaves it to the discretion of the district court whether to apply it and we think that is a very critical differen is a binding decision on the score i don't see any authority that changes that so the guys the government's argument now based on a different case and a different context about chevron deference i think doesn't undo what the ashford court has held and and i'm going to respond also judge has to be there in person and can allocute and the slates wiped entirely clean none of the prior law of the case decisions from the original sentencing apply everything's up for grabs again and mr venables simply hasn't our view in this case that any of those features of nearly as possible to suggest that these are minor modifications and that the courts bound by a sort of the dillon constructs of just kind of operating within the amended guideline ranges and can't change anything else that's just not presented here all that's really presented is a need for the court to after the st at bat and you can't consider a nd motion someone's already made one had one bite at the apple someone's already been sentenced in two thousand and twelve under the current laws they can't make a motion but that all the st that says so the government's efforts to try to get the