afternoon i am jennifer cop and i'm here on behalf of joe ross all i'd like to reserve three minutes of my time thank you in two thousand and ten mr russell was sentenced to nearly sixteen years after he pled guilty to distributing less than one half gram of crack cocaine in the time sense mr russell has transformed himself into a man of remarkable accomplishments the government agrees that if he's eligible for a sense for adoption of the st step act that this court should remain on the case for further consideration that is a big if given the briefing being fully complete in this case and in particular whether the penalties for b one c were modified by section two of the fair sensing act it's mr russell's position that b one c was indeed modified by a section to the fair sen act in snow this court told us that when were to terminate whether penalties for offense for an offense were modified by the fair sentencing act we look to the ordinary meaning of the term modify and i'm the court quoted from several dictionary sources and i'm just going to start with the st ones that to modify means to make partial or minor changes to to alter in respect to some of its qualities to cause to vary without radical some paragraph b one c in several respects it altered qualities with respect to its text its cope and its effect starting with the text the one see was altered in the sense that it contains an explicit clear cross reference to some paragraphs a and b and through that explicit cross reference some paragraphs he is already modified by a and b so that when section t d how would the the determination of offender status affect that analysis an outcome if any so i judge donald i think you're of going into the individual well the answer to that question is really two part the st part is that to determine whether an offense is a covered offense we actually are just looking at the offense as a category so if you want to see as a category if the penalties for b once you were modified by the fair sensing act then whether he's a career offender or not is actually not relevant to that question and in being it this court actually said that it's really just happenstance about what happens to someone respect to their career and their stat the question is about what statute nixon was and whether that statute of conviction the penalties for it were modified by the fair sensing at so in in in at least the statutory sentence it's irrelevant in reality in practical purposes for mr russell's perspective it makes a big difference because the way that the fair sensing act modified to see and also the way that he was sentenced to the there's a relationship this is sort of one of the rd ways that the once he was modified in its effect in the sense that the anchoring crack cocaine that amount of crack cocaine in relation to the statutory benchmarks looks different now both in relation to the statute and as the guidelines play out so that his guideline drug offense level in relation to the career offender range is now very different and that difference in any case in getting any career offender case is relevant to how a person is ultimately sentence judges frequently commonly take into account span between the ordinary job range and the career and the range housewife's help me i guess i get the idea they don't look at the personal look at the statute ye if the statute didn't change the statutory range for any person wouldn't you say that that's kind of hard to say that the the modification i think that this court in snow said one of the definitions ordinary definitions is to alter in respect to some of its qualities one of the ways that it was mollett modified is that in it has an explicit text to cross reference to a b and in supreme court in nielsen versus pre op said that a statute like that exists in the state of modification by the by the other provisions that are excepted out of the scope of the regular  get the same range there's just more people that are in that category is that right or wrong actually that that is incorrect and i want to answer that in two ways the st way is that the scope of the one c was changed because before the sensing act it covered offenses involving less than five grams of crack cocaine or an unspecified amount and now it it covers offenses involving less than twenty eight grams of crack cocaine or an unspecified amount so that modification categorically of it's go now i wait a minute before you say that if i'm my question goes to exactly what you just said let's say you have all the people who were under sea before the change had less than five right by definition what you just know because you can also be convicted under b one c with no quantity specified so they could have and that's actually a great question and it's very important i would like to answer in this way because i don't think it's been answered yet in any of the decisions especially not in the rd just circuit's decision in burke out in this circuit and in several circuits after harris was decided in two thousand and two a person could be convicted under be one and not have any quantity specified in the diamond or have a quantity less than five grams specified in the indictment to which they but they could actually be subject to a mandatory minimum under b one b or b one a based on factual findings by the judge by the popeye preponderance of the evidence this was a very common occurrence that this court said that was fine as long as the sens didn't go above the approach but in reality there are lots of people who are convicted on to be one c but sentenced under the mandatory minimums of b one b and b one a those people's statutory mandatory they were under sea or they were under b and were convicted under sea there's a whole body of case law in several circuits before apprentice that allowed this kind of conviction under c one c where people were actually sentenced no because they got in their range was actually raised at the bottom by the fact findings by the judge so you could have someone who actually got a mantel a minimum of ten years and a maximum of twenty years because of that fact finding and those people have talked about what they actually got because of the fact finding about about what the range was that they were convicted for from the crime and they were convicted for nine point names who see this court held that they were subject t mandatory minimums under the want to a and b one after paris because it was not considered to be an element at the time that it's just something that actually happened but just even going back to the capital this comment if i could just interrupt for a nd i have a practical what do you have any objection to our waiting until the supreme court has ruled before we rule in this case well obviously mr russell would prefer for this court to rule in his favor and sooner rather than later he get relief sooner and then the nd you think you would the circumstances are so she could get relief center there when the supreme court would rule in cherry the circumstances are such that it would be certainly his argument he served ten years which is already quite a bit more than what his ordinary drug range would be today so and there are numerous people across the country been like mr woodson for example who were released a time served when for circuit and ruled quickly to remain and the case and didn't actually issues opinion for for some time later or so they actually order he was coming to them look under the  don't even know that his career offender range changed but i know that his underlying drug drug offense level would have changed and he was released atos his career offender would still be the same range i believe so case most of the people of probably already served most of the people have probably already served what their ordinary dr range would be and in keeping with the practice in most career offender cases and especially drug career and or cases mr russell skylines range was one hundred and eighty eight months to two hundred and thirty five months he was sentenced at the bottom of that range which was one hundred and eighty eight months he would still be a career offender to date and he would still face exactly the same guidelines range today now he is ineligible for relief under the st step act for two reasons st he was already sentenced in accordance with the fair sensing act and nd he was not convicted of a covered offense and i'd like to take two in order if i may st he was already sentenced in accordance with the fair sentencing act in accordance doesn't necessarily mean with knowledge of it means consistent with or in harmony with and we know from the initial appeal of his sentence that his sentence was consistent with the fair sentencing act by the time of the appeal it was clear that the fair sentencing act applied to russell sentence he raised a fair sentencing at claim on appeal and this court rejected that argument and or firmed his sentence i think the conclusion is that his sentence was consistent with the fair sentencing act and the st step act is is clear that the court cannot entertain a sentence reduction motion in those circumstances and this court should affirm on that basis you didn't raise that below now your honor we did not we are urging the court to affirm on a new ground supported by the record let's start with the text i think what smith's and woodson and those cases get wrong is that if you want to see is not a quantity driven offense it applies to any unspecified amount of cocaine and that is true both before the fair sentencing act and after the fair sensing act so the fair sensing acted not modify the onesies upper boundary because b once he does not have an upper boundary any amount any unspecified amount  of cocaine may be charged as a b once the offense that means that in practical terms the effect of b one c is also unchanged the question the statute tells us is whether the statutory penalties have been modified by the fair sentencing act and i don't think we can say that the statutory penalties have been modified unless we can identify some hypothetical defendant somewhere who face a different penalty today than he did before the fair sentencing act so so what do we and so it really doesn't make a difference what we make of that that come into should we make anything up that you're on i think the best way to read that comment is that the parties were talking about his base offense level and it is true that under the fair sentencing act his base offense level would be lower than it was before but that doesn't change anything here because he was designated a career offender and his career offender guideline is exactly the same as it was before the fair sensing act and that's exactly the l reasoning this court followed on the initial appeal from his sentence to conclude that the fair sentencing act had not changed anything and that therefore his original sentence was consistent with the fares and the russell sentences group and about the korea  ineligible for relief because he was already sentenced in accordance with the fair sentencing act so i think there are there is a clear grounds for affirm is here that that doesn't touch on the issue in the terri case what is what if we disagree with you on that point perhaps we say that you you know way i'm not arguing what would the government's position then be should we wait on terri or should we go ahead and rule certainly i think it would be reasonable to wait on terri i do think that the case will  decide the issue the court could also rule in the interim my to the discussion of whether it's likely that this defendant could obtain relief in the interim i'm not i'm not certain it's certainly just to be clear that the proposal is to to remain for pending terry yes and that's the that's the argument i believe she raised telling me that the case in the courts circuit where that was the route taken your honor not to do that simply because there is a compelling additional reason to affirm in this case that it is independent of terri and that is simply that he was already sentenced in accordance with the fair sentencing act he's received all the benefit of the fair sentencing act that he is entitled that's true that the district court did not think he was acting under the fair sensing act i believe the term in accordance with his best read is not requiring knowledge of necessarily of but requiring harmony which is the dictionary term of  the district court correctly identified the guidelines range that applied both before and after the fair sentencing act this is a case where as to this individual the fair sentencing act had no effect on the guidelines range it had no effect on the judge's own warrants the best indication of his thought process at that time whether he acted in accordance with it or not if his belief was that he didn't have the authority to to do that isn't that something that ought to be given some weight and something to the ration well your honor i agree that the judges words are the best indicator of what he did and if we if you look at the sentencing transcripts and this is pages seventy five dollars seventy six cents of the record what the judge says is that if the fair sentencing act applies there'd be there were some leniency but immediately after that all the parties agree that this is a case where it's driven where the guidelines range is driven by the career offender range and that the fair sentencing act would not change that career offender range so if the district court was very clear that it applied the correct guidelines range when it sentenced him initially and this court was a clear on appeal that that guideline change would not change and that his sentence was therefore in accordance or or consistent with harmonious with the fair sentencing act  is different than the one i offenses and b one b offenses because the lower thresholds for those provisions have been modified there are some defendants would face different statutory penalties but that's not true of the one c offenders and and i do not think we can fairly say that the statutory penalties for the want to see offense have been modified absent anybody receiving a different statutory penalty after the act you clarify something for me i may be misread this from the record short the district court here was doubly barred from considering russell's for step back motion both because russell had already received the benefit of the st act step back and because b one c is not a cover defense and therefore are may now i'm thinking about your response when the charging decision was back so in short i don't think he is eligible for a sense reduction in this case and i urge the court to affirm on that ground any further questions for m people's eligibility would then depend on charging decisions by the prosecutor and also like to go back to your to a question you asked that i don't feel like the answer adequately which is when you said that  penalties haven't changed so therefore he should not be eligible there are a lot of people who pled guilty to offenses involving more than two hundred and eighty grams of crack who the government agrees are eligible for  reductions so and there's actually a case pending in this court that i cited in my reply united states versus when in which the government conceded that he was eligible and that was someone whose offense was a b one b offense before the fair sensing act and because of the way it was charged and convicted was a b one b offense afterward but i'd like to turn quickly to the government's argument that he was previously sends in accordance with the act i think that it's the only fair way to look at those is that the judge was back out by circuit precedent to send sentence him in accordance to pre act law and that's exactly what he did and that's what this court said he did  court of appeals it's the fact that the judge sentenced according to pre act law is so clear that the judge didn't even think he should apply the various sensing act amendments under the guidelines even though he was required to by law on that day so what mr russell missed out on was the awareness of what the actual full guideline calculation once yes it ended up at the career and a range but the drug offense level is not irrelevant it's part of that calculation and it's often taken into account and that's why counsel for miss russell tried so hard to bring it up to bring these calculate these amended calculations i'm trying to understand i the that would be there that the judge now would be more likely to carry downward from the top lines that say your argument absolutely yes that is a very common reason for  varying downward from the career and a range is the distance between the drug offense level and the career offender guideline it's very common for judges to select a selective sentence either within the ordinary dr or some kind of complement rise place in between especially when this is just a regular ordinary drug career and the case with nothing spectacular about it that somehow change that changes the perspective of the district judge as to the status because the judge believed wrongly that those guidelines amendments were not retroactive and mr mr russell would ask this court to see that he was not in fact sentenced in accordance to the fair sensing act that  eligible for adoption and that the district court procedurally erred in denying his motion and just just one other question this company so let's let's assume that you're correct hypothetically if he had been sentenced in section under section two d one dollar of the guidelines his offense level is based fence level would be sixteen based on nine point one grams of crap he got you get three levels for exceptions of responsibility for a total offense level of thirteen and that is a range of thirty three to forty one months and he's already served ten years so he has a very strong position for requesting a downward variance specially in light