we agree with defense counsel that the purpose of the fair sentencing act here was to restore fairness to federal cocaine sentencing and that the st step back was intended to extend the benefits of the fair sentencing act to defendants sentence before it's an act meant but when the purpose of a law is to fix inequities the touch to interpretation of that law should not inject in that what he's into it that is not the defendant's theory does it deems any crack cocaine offender who was sentenced under the penalty in eight hundred and forty one the one day or  section four a for any defines a covered offense as a violation of a federal criminal statute or the statutory penalties for which for modified by section two or three of the fairest sentencing act of two thousand and ten that was committed before defendants convicted under age forty one he won a free and b one b three eligible for it didn't need that term it could simply have said something like any defendant convicted under a statute for which the penalties were modified by section them would make them ineligible for section four a forward option or looking at relevant conduct when it should have been the conduct involved in the offense or i think also looking at whether the defendant's base offense level was really is that by powder cocaine st us versus courts had held differently this court took a different tack and that was actually affirmed by the supreme court in its davis decision so while of course decisions from other circuits may be persuasive we don't think that these are and in particular in particular where mentions violations of subsection a that have been committed in particular ways namely violations involving specific quantities of controlled substances triggering specific penalties that distinction between violation and penalties appears  also in section eight hundred and forty seven and sixty four they talk about a penalty imposed for a violation of this subchapter and notably the federal courts of appeals including this court have wildly recognize the distinction between the elements of underlying dr there's a distinction between the elements underlying this day and age forty one a violation and then the sentencing element which we agree that the government also after you know at a trial or have the defendant it met in a forty one dollars b so just a distinction in that case and example of somebody the government would agree it would apply to let's say you had a defendant pretty fair sentencing act sentenced under section b one b and their amount of their  involves seven grams of crack cocaine we would agree that following the fair sentencing act of section four of four of the st stop act that defendant because the threshold penalties and the u n be were changed from five grams to twenty eight grams that defendant would then be eligible potentially for a discretionary reduction on the part of the district so we wouldn't really consider that to involve the guidelines determinations so much as a step back to essentially says people who are sentenced of crack offenses before two thousand and ten when we're under a different paradigm about how serious these offenses were are eligible to go before the district court and seek by the st sentencing and that corresponds to their offense we read in section four of four be that we're talking about a court that imposed a sentence for a covered offense we're talking about offenses we're talking about statutory violations as i think judge mannion you were trying to get at we're not talking about the underlying criminal conduct we're talking about what was each defendant in our case mr young what was he convicted of he was convicted under twenty one dollars united states code section a forty one a one and section forty one b one a because the government alleged and proved beyond a reasonable doubt that the distributor he possessed with intent to distribute more than fifty three craft now under the fair sentencing act that violation that offense is now punishable by a lower statutory range because in order to get the is possession with intent to distribute more than fifty grams of crack cocaine under the fair sentencing act that's not punishable by file over statutory range which means that the court that imposed that sentence for that offense may now impose a reduced sentence as if the fair sentencing act were in fact but the whole regime sets of really a discretionary sort of system it's up to the district judge to weigh this we had a very interesting discussion we've had a lot of these motions in our district with chief judge darryl recently where the government made a century the same argument but on discretionary grounds sort of in the alternative to say well look even if you accept what the defendant is saying here you're going to cause disparities there's going to be an inequity if you know we don't apply these mandatory minimums that you know we would have charged them with something more we would have charged them with the new offense and that's a discretionary call for the district court to make to say on the one hand the guidelines are much lower the guidelines maybe go below the mandatory minimum sentence that was established earlier but on the other hand the government saying we would have charged them with the same thing we would have tried to establish the same mandatory minimum sentence it's up to the district just a way that here the district judge reasonably weighed those factors and determined that a sentence reduction was appropriate so the main i think the main dispute is does a violation of a federal criminal offense referred to the actual facts of what happened or does it refer to a violation of the statute the further restraint or some further to that so these cases are coming fast and furious across the country i referenced to ms boyle the three other appellate decisions our court is going to pronounce on it we've got three different sets of she five different sets of circumstance given all the argument or source of authority you're asking us to go to to decide that certain canon or a certain would be a case because the cases are over right right right i mean so currently that the other circuits are in agreement with us that we mentioned in our brief about ninety percent of the district courts have agreed with us so in terms of what's what's the reasonable reading of this we think our ours is the better one but are to argue with ninety percent it's hard to argue with ninety percent but as miss miss well directly points out you know one hundred percent has been reversed by the supreme court so that's not dispositive but when you look at the i hate to say plain language because obviously we have different readings of this but when you look at the supreme court cases that talk about what is a violation we cited and a number of recent supreme court criminal cases ready for example talks about what does it mean to violate section one hundred and twenty two  earth and so i think that that's really the best way to see it is what are the elements of the offense here because there are there are so many different considerations that might go into whether you plead guilty whether you go to trial eight mr young had no incentive to contest that this was more than two hundred and eighty grams is only incentive was does it mean fifty grams if it does then i should plead guilty we'll see that later in mr groos case in particular  but when we talk about what does it mean to be a violation of a federal criminal offense supreme court has routinely said it is conduct that meets the elements that are prescribed by the statute  the government's best case and this is the sit deem a case which comes from one thousand nine hundred and five it's a civil rico case and even it is saying that when we talk about violations we're talking about conduct that fails to live up to to the legal requirements so it's not just conduct violation i don't think has ever been interpreted to mean just conduct a violation of a criminal federal criminal statute means conduct that meets the elements of that statute and so that's at the end of the day it's quite simple i think senator durbin who authored this this bill put it pretty simply which is we just one individual eyes are views this is a district court discretionary sort of review the other thing that i'd emphasize too is there aren't the limits that we typically see with sentence reduction motions so over the past decade we've seen these sands reduction motions come up in drug cases over and over those were because the guidelines changed and so when the guidelines change there's a mechanism that is subject to a number of rules about whether a court can reduce the sentence and to what extent the st step back just very different it's a it's a piece of legislation from congress rather than an amendment by the sentencing and it's open ended it really places no  constraints on what a district court may do in terms of reducing the sentence all it says is that the district court has to impose the sentence in accordance with the with the fair sentencing act any point in terms of reducing there's no increase through it here there's no increase right exactly it's and that's why you know we get into is it a sentence reduction is it a reset and saying it falls somewhere in between those two because they're there's no there's no threat of an increase but  clearly what congress was doing here is saying if you're convicted of one of these offenses before the law changed go to the district court you can ask to have your sentence reduced they can say no they can say yes so long as it's within this statutory range that applies so we'll have to a chance to speak a little bit later but we would ask that the court affirm this judgment judge meyer scoffer reasonably release this person after twenty one years there's there's no sense and putting him back in pri