section four or do we have to look also to section thirty five to see one yes we looked at both i think so so i think the way it should work is so congress has carved out a handful of exceptions to finality one of them is compassionate release need to look at that language to see if there's an express grant of remedial authority to revisit a sentence which section four of would be provides and once you're revisiting a sentence and considering whether to reduce it then you automatically track the considerations and generally govern in the case law there is a discussion of plenary sessions obviously if we were just dealing with the verb modified then it would be upon ourselves right you're asking us to address if you have the modify impose words are chosen by simply by congress there are two different word choices there does one lead us a limitation but that limitation almost functions in the same way that a stat that a statutory maximum would it doesn't mean that the court's discretion can't be informed by the very same considerations that a court uses every time your position is that we should follow the th and th circuit with the th circuit say was the right thing to do well they they read the as if language as limiting report to the period of time when the the events occurred and why is that wrong because that would be saying it's wrong had to get it wrong well because if you do that you can't you're not applying the law in effect at the time you're making a decision will court this court is that got me to where you just you're not addressing the very thing you just said what is the as if it means that the statute section four of corby has retroactivity it does it doesn't mean that you look at it in the context of what it would have been as if that had been in place  quantities and the person delegate will well now you're in step two now you can determine whether you want to modify revisit re sentence or impose some sort of new judgment on this person a lot of things go into that consideration and happens every day  saying the whole range of stuff that might have changed it's got to go right from scratch as well cut it what in the what in the legislation or otherwise tells us that that's really what they meant to do well i think there's a certainly the legislation is less than clear on that but it certainly doesn't limit record but it gives it a broad grant of discretion if anything i think there's nothing to suggest that a court's determination of an appropriate sentence after  be a guideline it just meant you have to adhere to whatever the sentencing commission says is policy statement so it's not what you can stronger case for requiring the kind of plenary sentencing that you're you're advocating because there is at least expressly says consider it and in one b whether we think that we are looking at that as as a guide or that that four be four or four is channeled through i c one ten saying the sense will be conducted as if those two sections were in fact that the time to cover events supports the congress did not intend that other changes were to be made as if they too are in effect or that when you say there's nothing to suggest congress meant that ye how about the specific language as if and then directed at those two sections just like the th circuit said but but it's as if in terms of eligibility so that a person is able says as if those two sections were in effect it doesn't say as if the whole problem with that interpretation is it basically takes out the court's consideration all the things that informs that and even if all of you could but most seem to be and this may be where we're talking past each other is it possible to be focused when you're paying attention to the recent seen on the changes made by sections two and three of your sensing and at the same time say i'm going to be but i can still be informed by three thousand five hundred and fifty three a factors can those are those things mutually exclusive or can they happen at the same time they could happen at the same time but then what you're doing is limiting sentencing information in violation of th that's what i want your help on when you try to define plenary sentencing on the one hand and the considerations of three thousand five hundred and fifty three a on the other i'm trying to figure out what is the difference  practical terms when you're sentencing because when you go through the seven factors they cover just about everything because you know if you're thinking about god lying disparity well a si all get you all are bad as you consider others who are similarly situated so tell me if you would what do you think the distinction between plenary is on the one hand and the consideration of thirty five dollars i think there they different and so are the considerations of government governance background and character and i think the government would want to be able to say well look at all these misconducts the guy who was in jail maybe we shouldn't give him that one for close that as well because you would be allowed to consider anything that's be arguing that the state of the law maybe i misunderstood you by plenary reset saying everything is open everything is open well you why isn't it you stopped a minute ago and said well that would violate  just that or considerations are basically confined to this the statutory change and the conditions that existed at the time of the offense then yes you are limiting information is coming in about the defendant what he's done since he's been incarcerated your argument that the district court is actually required to consider all of those factors or that it's simply permitted to do so required if you're imposing a sentence that's those straight up language agree if if and if we were to conclude that it is not required then given the default thirty five easy to see that it could not be permitted that the district that you wouldn't consider the other factors and that's i don't think that's consistent with the statutory text or the sense not generally i would just simply point out that you know anecdotally there but if you these guys it got mandatory life sentences twenty five years ago  d those of those individuals the judges of long since left the bench were passed away and they're coming back in front of the court wouldn't you want to be able to assess their situation horribly after twenty years as opposed to generally seem generally speaks to the finality of judgments and sentences and carves out narrow paths for when a court can go back to a sentence and decide to reduce it or change consideration if you consider the st part compassionate release and the nd part dealing with dealing with sentencing guideline amendments both of those provisions expressly reference three thousand five hundred and fifty three a and that the court must consider look congress did say is that it wanted covered offenses to get a nd look by the court focusing on the changes and mandatory minimum congress say and once we know what they said what does that mean so the question that i have for you is given that difference in language how are we not to import  isn't it uniformly bikies that it's talking about the kind of process that three thousand five hundred and fifty three a contemplates can you cite as an example where congress talks about imposing a sentence and what they mean is some foreshortened d curtailed don't look at the factors circumstance i do not or cannot cite to a particular example such as that but i respect we submit to the court that the fact that congress used the word impos three a we're not saying the district court is not allowed to consider those but forty four be expressly says you can reduce our a sentence if as if the crime was  permitted to consider the other factor then wouldn't the right disposition here be a rematch and starting from the discretion the plain language or for corby and where the instruction begins take the law as it was affect at the time and consider the sentence of the defendant and then decide if discretions with the court to decide whether a good option a sentence is appropriate starting with that the the court says and it's a pigeon multiple times nothing is changed here it does not walk through all the various factors associated with this particular defendant as what has changed but the court found this is exactly the same circumstance that the friend that was when she sentenced him ten years earlier but that supreme court required district courts to say i know i have discretion under the guidelines you're saying if the court is saying that nothing has changed doesn't that just reinforce that the court but it could only look at the one thing that hadn't changed because other things as defense counsel has argued did ha judgments that we can't impose an entirely new reset and same process for all defendants who were sentenced for crack cocaine offenses before august of two thousand and ten that that's not the plain language of what congress and acted by the  st step back there seems to be a respect for the finality of judgments but there was this series of steps taken by congress to provide relief to certain crack cocaine offenders who because of the disparity between crack cocaine and powder cocaine suffered that's more harsens you see you know we seem to be moving backwards i thought we've gotten past that and we were at the point where your government was acknowledging even if you're not acknowledging that the court is supposed to exercise discretion under three thousand five hundred and fifty three a that it could exercise three thousand five hundred and fifty three if that's the case if it's got discretion and there's no indication that it's recognizing you know that's that's where you may have a different view of the record than your opponent does and you clearly do and i guess we'll have to deal with that you've got a few minutes let let let me move you to another topic they think is very significant you take the position that in the recent sing the district court was free to look at the total amount of crack cocaine which was was actually  do we what are we to do with the th and th circuits rulings and we're seeing it in jackson why are they why are those circuit courts wrong because they are exactly contrary to the position your ta doesn't even purport to make that argument here that's correct or not let me ask you this question was a district judge confronted with a recent thing  context of the case involved so crack cocaine conspiracy if the thirty five dollars to fifty three dollars a factors aren't considered how does a district judge exercise any discretion because without context which is what the thirty five thousand five hundred and thirty eight factors will provide how can a knowledgeable individualized sentence regard to those two defendants and i respect this much the court that the district court did that in this case at the original sentencing of all three defendants who were part of this case and went to trial or sentenced and through subsequent modifications of sentences for the clickable reductions and the did the same here in this particular case she didn't express they say thirty five to three factors in all of those circumstances but she did say i sensed this guy she didn't say i'm not going to access my district because if she did that we might be having a different conversation and you want us to read into her statement nothing's changed all those additional things spoke we've got the government's position that we appreciate  number of ways so that information could be considered in there but it might be different if this happened in quite a few cases as the court can imagine the judges are no longer alive than these people serve one thousand five hundred and twenty or more years and you know they were teenagers they were young when they came into court now they're old men or women and they come back in a changed a lot the entire legal landscape has been revolutionised since booker and so those considerations i think are important to take into account