led government to take this you with the fact that your mitigating arguments were not provided to the district court until the reply what's your response to that several responses your honor don't want litigants to raise issues or more precisely new arguments in reply briefs is to prevent sandbagging to add to a vision see here the government had every opportunity to put up that you have a question mitigating factors and secondly because that wasn't the process that was main undertaken in your district right your honor is you know it was an evolving process it to get across the country to what was happening and we would then either through a hearing or is in this case the reply pretty quick those three thousand five hundred and fifty three a relevant facts in front of the court so you know there could have been a world certainly briefs were very thorough and very fulsome so they had their three thousand five hundred and fifty three year arguments in to then we had the situation pretty much exactly as we did in martin someone was eligible purdy's put up their arguments and just as in march the court went out of his way to say that martin's case was particularly compelling there was amount of mitigation evidence that the court simply could not blow off by saying little or nothing and i'm not you know suggesting that there wasn't anything presented in these cases but these these certainly are not martin cases and in the sense of the mitigation evidence being a strong and in the sense of the sentences in this case when these cases were not as here is the one that martin was  was faced with so what what about those distinctions might be enough to simply say that in this case simply checking off a block indicating that the court did consider their own factors and granting in fact court did grant relief partial relief in these cases the that that's enough your honor i respectfully disagree actually with a couple of your premises if i may mr mcdonald hit two hundred and seventy six months and yesterday he had a three hundred addressed and i think critically for both of these guys they were sentenced under mandatory guidelines so a lot of what underlies this course would reap resumption a lot of what underlies even the world in which you have advisory guidelines that when thirty by fifty three becomes relevant mr macdonald's piece he had no criminal history and less than one percent of the drugs for which that through his guideline range were to be saying to really be focusing on the fact that there was post sentencing mitigation evidence and that that's what took lee greene out of the picture more or less just that you couldn't go back to the original sentencing in that case because that evidence had been in front of the original the judge at the original sentencing and you have that here to write the post sentencing mitigation yes your honor we we have the post sentencing mitigation and i would say in addition to that we have mandatory guidelines having become advisory you have night and i appreciate that point to i'm saying you said at the beginning i think if i'm remembering right you're from this your st sentence was that this was non frivolous mitigating evidence is that your you know which i know you're getting from our blueline of cases and it is that your understanding that under martin right you might not have to the judge doesn't have to explain everything that's offered in mitigation but if it's non frivolous if it's a bad angel enough  think the blue line of cases and the the sentencing cases from this court the talk about non frivolous arguments is you know murder itself so and because those are present here it again i think in a couple instances in terms of th security does it nation the obtaining or getting close to obtaining the ged that are basically merton's facts this court does not need to do anymore they really do something the government hasn't did to my knowledge and you know my colleague may than whether the reply brief issue matters ojt you know it is a very natural and logical extension and i cannot think of a way that martin could not be extended visit sort of we raised we brought this up after the district court issued its order late ever does not obviously require us to be psychic in that regard and i actually do want to say one thing that i  in your brief an argument that martin's explanation requirement would not apply to st step back motions under three thousand five hundred and eighty two dollars c one b from the merits part of your brief i got an argument that martin is wrong and i got an argument that martin is a suggestion and not a holding but if we were to assume just for present purposes that martin is correct and it's a holding is there any reason why it wouldn't apply in this to this subsection of the statu i think that the department of justice this position is that there does not need to be an explicit on the record individualized explanation i recognize that that is in tension with martin but i don't think that that it's not just in tension with martin it is irreconcilable with martin so for this panel which is bound by martin is there an argument that martin doesn't apply to this to me bring subsection of the statute i would agree that it is a logical extension  simply signed a form order in fact indicating that he in fact that considered all the relevant three thousand five hundred and fifty two a factors which would seem to imply that notwithstanding the late submission of the relevant mitigating evidence in the reply that he considered it what evidence is there in the record that he didn't consider it the st there's the post i'm drawing a distinction between whether the judge considered the information that was placed before and i think that everything in the record indicates that the judge it was in the reply brief therefore the district court was an obligated to consider but there's no indication in this record that the judge relied on that rule of law to not consider the evidence and the only question is whether or not the district court judge in fact complied with his obligations to delineate it procedurally reasonable sentence by taking two into account though those factors so what's the evidence that the judge relied on the rule that arguments i don't think that there is something in the record that says that the district court relied on not in terms of determining the extent of its explanation i will say however that like really speaks to that point the three talks about how in the absence of full explanation does the judge need to provide any explanation in your view in some cases the form order will be a sufficient explanation ok in this case where the mitigating factors are arguably defendants like martin amanda on the other and when you're on when you're closer to the chop as means the end of the spectrum the law doesn't require the court to say much if anything and i mean the supreme court in that particular case why did the court here say anything the court here used the same form order that was relied upon in charges so did it what words did that use it specifically says the orders about a defendant's educational pursuits while in custody and i think that we have to start looking like a council can i stop you there with sort of on the spectrum and everything i mean one of the things we relied on in league and the court happened at the initial sentencing and so the court re sentencing may have to say less but as we explained to martin that doesn't apply they can't apply sort of logical terms to post sentencing mitigation evidence which is very much at issue here we can't go back and look at the original sentencing to give us any context so i think martin has already done the work of distinguishing we agree for a case like this and  challenge so therefore there is less of an explanation requirement in looking at charges may sack the conduct at issue that the court was considering that as in determining whether there was a explanation was post sentence mitigating con then there was some but the court did talk in chavez maze extensively about how one of the big issues in that case was look can you go back and look at the initial sentencing to get that you need to look at the entire record but i would suggest that martin stands for the notion that there are some cases where the evidence of post sentencing rehabilitation is so extraordinary that it gives the court cause as to whether there is the same rationale now after the passage of time so i guess i think it's a continuum where you have individuals defendants like charges means that you have on the other end of the spectrum a martin  and if you look at the martin and their well case they didn't simply say there was evidence of post rehabilitation offered or he took some classes going through martin they talked about an exemplary prison record exhaustion of all education resources they focus on the complexity of the case there's language i thought i read some of that in the mitigating factors with these defendants i would suggest that it reasons for the decision and it it actually listening to your argument sounds like the government might be a little bit in the dark as to of the district court's reasoning here no i think that  martin focused on a variety of things the complex city in the case the complexity of the individual defendants they were all older defendants nonviolent offenders with minimum history who had performed i believe one of the quotes w know but we don't know we don't know what the court focused on here to even compare it to to martin when i think that is where the because because i guess one concern i have is that it wasn't even clear until we decided chambers a district courts were supposed to look at three thousand five hundred and fifty three a factors on one of these motions and it certainly wasn't clear as we held in chambers that you must look at post sentencing mitigation evidence so i have a real concern about i feel the lack of explanation in this case gives me special concern because if the law was so much in flux it really wasn't clear at that time exactly want to disagree it was supposed to be looking at how can i how can i sort of address that concern and i think the district judge should be taken at its word that it looked at the law it looked at the motion and it considered the thirty dollars factors and i don't think that there is adequate contrary indication to take this out of the literary presumption well didn't didn't the government sort of argue and that i actually can't remember so so please remind me i thought the government's main argument was look the sentencing guideline range doesn't change as a result of the st step back so you don't really have to do anything else that's enough that's a good enough reason by itself to deny or reduction and so my concern is that the district court may have agreed and not really you know again we don't know why we're all just guessing but it would turn out that that would be incorrect under chambers so that's a concern i have i think that the sentencing range they've been helpful would have been well i think it might have been helpful because that does seem like such a limited grant that it would be helpful for the court reviewing it to understand what the district court was thinking in reducing it by that and now we see these you know the lord since i'm seeing range in the medication factors and it seems a reduction by such a small amount it would be helpful to have an individualized explanation as martin indicates lower so i think that you know that is secure and i think it's a reasonable inference that the court concluded that it wanted to maintain the same term of imprisonment but it was comfortable reducing the term of supervised re and i do appreciate and i think that the dialogue that we're having here is very much like the dialogue that was between the majority and the just that and child as they say that it wouldn't be that hard to require more or to ask brief explanation is the fish and i think that these defendants they are our typical defendants these were all individuals who were sentenced in their thirty's they were involved in significant drug trafficking better themselves for taking the course at least the taking advantage of the dr rehabilitation treatment that's available to them but that's what we that's what we would want a defendant to do and i think that the system does reward by way of the good touched on this briefly about he just went over the quite properly load a lot of the defendants for taking forces while in prison so in charges made the supreme court acknowledged the fact that the petitioner in the case of taken educational courses in prison in the knowledge that the this report card to consider that it also noted that the defendant had broken a significant rule in prison and balance that and then said we think the judge here good enough so is it your judgment that these defendants fall closer to the top as men of type of defendants and the question i guess is how are we supposed to figure out which side of the ledger a particular defendant falls is this an ad hoc determination and that's not a very satisfying rule of law going forward i think that district judges are tasked with determining whether somebody or something falls in the heartland every day i do however think that there are some rumors this court could offer to guide that discretion for example the complexity of the case and that's something that was referenced in martin and i both say in these other cases and i think that this judge that the court can see that i think there may also be circumstances where the record allows for a contrary let the record just have a contrary indication as to whether the court as it certified in its order the other factors for example some of the cases cited in martin in hardy for example which is an unpublished case the judge in that case that it without the benefit of the original transcript and under those circumstances the court sent it back if for example in these defendants originals and sings the judge that i would give you a lower sentence if i could but my hands are tied here and then upon having the discretion to do something different it doesn't do something different unless there is something apparent from the record i think we have a country indication in the court would reasonable one i just don't know how i know that moment absolutely go ahead and appreciate the struggle here and i think that that's something that child has made that has decided that in some case that is typical he says where it's analytically simple issue and it's the same sentencing judge who has the full record before it sometimes that's just these factors and let's there's something compelling that suggests otherwise we defer to that and that i understand it's an uncomfortable position but i think that that's what the state of the law is for sentence reduction motions right now there and i can i am writing this address i know you're out of time and i apologize i apologize to my colleagues and everybody but i do have just just just some concerns  one just sort of and i think i'm picking up on judge diaz and so maybe it's not helpful to say it again but there's like a manager billet he problem here in a sense that we're going to overlay like we're not even reviewing yet the grantor the denial of a reduction like that's when normally we might get into well i don't know why cow great how strong was the mitigating evidence but before we even get there we have to make like a preliminary judgment about well how strong is the is the mitigating evidence strong enough to require an explanation and then we'll make a different judgment about whether it's so strong that there really should have been a reduction it's almost like we're you're asking us to do the job that the district court does when the district court decides whether the mitigating evidence warrants a reduction and it just seems like we're adding a layer of evaluation of the strength of the mitigating evidence that's going to be very hard to manage and it just it seems like this all stems from this functional question can we review what the district or did is there enough here that we can review it and it just you know if the mitigating evidence is so unpersuasive that we can be comfortable  g oh yeah like it's obvious why the district court didn't give this any weight who would give this anyway that's one thing but it seems to me that if there is more than that i just don't understand functionally how we can review this decision and the the evidence it's more as you as you agree it's further along the spectrum than what the supreme court was looking at and it's not so obviously non compelling that i at least can be comfortable likable of course the district court didn't address it because it didn't add up to anything and so i just i'm really struggling on how i could review this decision for an abuse of discretion without knowing more and the other point i wanted to make is that  review that if the defendant should have a large sentence i think that it runs into the clear wording of the act now of course i think in terms i think that the review would be for abuse of discretion so that there was an indication that it was arbitrary and capricious or rested on a factual mistakes are an improper understanding of the facts that would be different but i think that i don't know and i don't believe that this court has  and original moves in straight the legal the legal eligibility was straightforward they got in the door they were eligible we do not think that the you carry by fifty three or a arguments are  straight forward such that the district court could just answer it with a check and i think what's overlying all of this is what the court said in martin we are all in the dark here is a district court cre members think that it lacked the power to go down in terms of the term of incarceration because the guidelines had changed there's some evidence that actually did incorrectly think that because it went down with the supervised release or your point judge judy as did the district court believe it did not have the power were chosen its discretion not to rely on arguments that are reply brief we don't know because the district court didn't tell us did the district court for instance think that the  court did here we don't know if he exercised its discretion to deny these on the merits of his discretion then these guys are all bar raising another motion in however he thought he was legally barred say he made chambers error i can't consider this on the merits because under chamber preach a merger guidelines didn't change they would be eligible to come back so even for a war see it so it contemplates the appellate court were to parties having to know what the district court did and we did not get that here and finally i think this gets a little bit what judge harris was you know united states versus prevents which was out of my office and that was a sentencing case no they're all part and parcel and without knowing what the district court did and appellate court can't properly adjudicate you guys need to properly adjudicated so please send these back and please let the district court know and again yes i understand your concerns about this being ad hoc and this being case by case but you know we are there are facts in this case that were present in martin there are facts in this case that even martin didn't have in terms of mandatory guidelines and the like so wherever we are on the spectrum we are i would probably submit closer to martin in showbiz mates and finally in martin so the district legal issues so this court can do its job so we would ask for making the orders in reading thank you thank you mr berg nack and like every every good advocate you took a holding in a case provid argued as you know more than most we would typically come down from the bench and shake your hands we obviously cannot do that but certainly appreciate the the arguments you presented here today be well and stay safe and with that t