which is a cover depends it's a modified under the bare sentencing acts whether that continues to qualify as a cover depends because another object of the conspiracy is product ok how to cocaine and that those penalties were not modified i'm aware and mindful conspiracy is that the jury found right and if the jury finds a b one a quantity of one drug the penalty is was before the ban sentencing act was and is today whatever is the higher wrong so i i would disagree with that judge because i think that the penalties still apply to the individual objects and is a quid of the b one a quantity that was also charged as part of the conspiracy then of course the statutory penalty for the crime of conviction is the be one  object in a conspiracy with up to what those penalties are and then and then if if congress had meant for the for the remedial purposes of the of the st step back to be constrained in the way that the government is arguing that it would have used different language in four for a in terms of the limitations of it and it well i'm having trouble understanding what's wrong with the language the congress use it says if the penalties for this crime was reduce the penalty for the crime of convictions has not been reduced the penalty for the crime of conviction was as of the what is provided by the one a and that remains the case after the passage i'm not talking about that i'm talking about the fact that the penalties the statute directs that the penalty range is determined not by a subsidiary penalty and you're suggesting cri guy twenty years or do you want to lower that and if if the fact that there was also a conviction for another objective prevented that hyper review the concern would be that what the ability for just to correct what they've now say was more serious crime because it involved multiple drugs or you know there's going to be some disparity associated with there in our interpretation really all covered in the step back where at the tail end of these cases and and but for them all tie object conspiracies and the b one c issues there's very little left in terms of guidance that we need from this court to resolve the remaining cases so i would hesitate to ask the court to like a determination on count one is important because of the fact that to the extent that it goes back on counts two and three which we can see that in and of themselves are violations of the criminal statutes for which penalties have been modified by sections two and three of their sentencing act the reality is you still have to count one out there and it would be difficult for any district court to determine you know  we in that case this court determine what constitutes a cover the fence so what constitutes a covered offense is any defendant who committed all the elements of this offen on the conviction right and the conviction includes all the elements not the statutory enhancement so it doesn't matter what he does not defendant sitting in the clear doesn't like what you did or not because of the fact that the conspiracy above the sentence that ne ne to find that it's not and it's not dependent specific the way that offense statutory offense and penalties were structured  involved in the conspiracy it's basically what we're what are you looking at in terms of which the statutory penalties for which were modified when you're looking at the statutory penalty the statu like basically the b twelve was five kilograms or more of powder cocaine and by fifty grams at least at the grams of crack here it was the cocaine nothing has changed with respect to poking and again this court noticed it was that it's not just the amount you know just because that there's crack involved doesn't confer eligibility what congress was looking at was a category of statute because the the penalties that you happen to be subjected to under this that you may not have changed but if you're looking at if you're looking through the conspiracy charge to every object of the conspiracy and you say well the ip was convicted of a conspiracy to distribute crack then why isn't that something for which maybe it did maybe it didn't affect the sentence or maybe it maybe it didn't affect what the sentencing discretion of the judge was but it was in a sense in which one of the objects of which he was in  the statutory penalties for which were modified by sections two or three of apparently when you're looking at the statutory penalties for this conviction which is a conspiracy to you know involving  kilos of powder cocaine and at least fifty grams of base of crack that nothing the statutory penalties have not changed for any defendant pre or post they will still be facing the same statutory range and that's where at you're very kind of comes in on because that's the same reason why if i think about that i just want  the cases that are out there i think about the way the cases are read out there is they're saying that basically you have to consider the statute tory penalties to have been modified when delineated a class and it all relates to the statute and the statutes for which the penalties have been modified and ultimately we're coming down to no matter who sentenced at the bottom there is no war like at the bottom of the non covered offense there's no more room there's no authority for the district court to go any further because section of a if correct if he if you if you go with the fact account one is a covered offense but we're saying that basically when you're looking at this at the whole thing from the statute to the penalties involved in everything just because one crack covered offense is involved such as here in the still object conspiracy does not modify in fact for statutor is penalties would not have been affected the only thing that might have been affected is the judge's attitude towards practice but the statute would have been he would still be facing the same three of the fair sentencing act in terms of the statutory penalty space for someone who has committed a forty six where the objects are five kilos or more  question is what has been modified right or and so here is the thing is there are two things going on with their spec to the statutory violation and they have they have to be  what the fair sentencing act did and he was sentenced under the fair sentencing yes because i mean the st step back relief is a reduced sentence as if sections two and three of the fa so i mean that's that's where this whole thing is a step but i guess we can assume that that person had the benefit of being able to argue to the court that congress no longer thinks crack is that that because they've made the they've changed that story penalty review and therefore even though yes some way in before or the week before for whatever year before the fair sentencing act does not get the benefits does not get the benefit of being able to argue that congress had changed the bill because congress only changed the deal just indicated who was sentenced after the fair sentencing act convicted and sentenced after the implementation of our sensing act would would still be under those same higher penalties where somebody like one a davis was getting discretionary relief under fifty grams or more of of crack whether or not the sentencing penalty range change doesn't change the fact that he was convicted of an offense the penalties of which were modified by the pair sentencing act with respect to the