grant by the district court of the thirty five easy to see to motion granting a sentence reduction based on the guideline and seventy eighty two in this case it's the government's position that there was an abuse of discretion by the district court because the district court improperly applied the law as the court is well aware questions of law subject to an overall review so we have to know every view on the issue of what the law is and then if there is error that is an abuse of discretion by the district court in this case we have josh smith who was sentenced originally back in january of two thousand and twelve and that the original sentencing the district court varied from the guidelines and the variance was from the eighteen to one ratio between cocaine and crack cocaine to a one to one ratio it was cops going to say there wasn't a variance the district judges kalki made a calculation of drug right and that's really the issue here the entire issue comes to was it a variance or was there a factual finding that there was a drug quantity in this case we have a plea agreement the plea agreement is docket record entry sixty two in paragraph four of the plea agreement there is a factual basis of guilt which the defendant and the government stipulated to the facts and also that they need not be proven either at the time of the plea or at the time of the sentencing and this is on page id numbers one twenty four and one twenty five at that time the party stipulated in subsection c of paragraph four that the defendant distributed one hundred twelve grams of cocaine b which we call crack subsection d distributed the defendant distributed three hundred eighty one point eight four nine nine grams of cocaine and sixty two point four three nine grams of cocaine be also known as crack in subsection the the defendant distributed four hundred thirty seven point nine hundred five grams of cocaine those total one hundred seventy four point four three nine grams of cocaine b crack and one hundred nineteen point seven nine nine grams of cocaine those are the quantities that were in the play grammont stipulated to by the paired these as with the quantities accepted by the district court when the ex when the district court accepted the plea agreement which occurred in the sentencing transcript record entry number one one two page three twenty two that's also the quantities there are listed in the pre sentence report in paragraph forty two and fifty and that record entry ninety nine at page two sixty nine to seventy two which there were no objections there was no objections by any party as to sentencing quantity listed in the pre sentence report and the reason for no objections is because it was stipulated to in the plea agreement and then we get to the centering and at the time of the sentencing after agreement including the stipulations the sentencing court stated not that she found a specific quantity she accepted the quantities she then stated so that leads to my calculation of the guidelines which are somewhat different from the calculation by the probation officer i count collate the offense level based on a one to one pound or two crack cocaine ratio leading t offense level of twenty five and the criminal history category remains the same at four and then goes on to recalculate the guidelines this is a recount of the guidelines based on a change between the eighteen to one if you find that it is a power see disagreement which the assistant isis twenty recognized in making an objection to the one to one ratio at the time of sentencing and for which the district court did not correct the record and agree by saying thank you then you have to go with how do we venture beat the thirty five eighty two in this case we have to go back to this court's decisions in both garrett and taylor and determine what was the applicable guideline range before the district court very and then we determine was there a change in that applicable guideline after the amendment seventy two to something lower in this case there was the government doesn't dispute that the guidelines were lowered so if you used the correct original guidelines and there's a two level reduction the problem comes in is that because the defendant or the district court beery using a one to one ratio the district court to me at least sentenced the defendant to ninety six months that ninety six months in prison is lower than the amended guideline marine set forth by seventy two and i would suggest to the court the easy way to look at this is to ask if the defendant was sentenced to day what would his guideline range be his sentence of ninety six months is already lower than what this defendant would be sentenced to to day which would be inclusive of the seventy two amendment and therefore this defendant is getting a did in fact get a windfall at the original sentence and got a lower sentence than many defendants across the nation because of the use of the one to one ratio which was within the district courts parag it however now we're in a situation where the district court does not have the parag to continue on with that one to one ratio because the sentence reductions under thirty five thirty two are very circumscribed and must be in accordance with the law and with the powerless e of the united states sentencing commission and in this case the policy of the united states sentencing commission found that united states codes that excuse me i see it sentencing guidelines section one be one point ten is that any disk determination must be vague without regard to departures or  the one to one ratio was a variance and it is not allowed for consideration i would answer any of the questions that you might have  cab from grand rapids michigan representing mr smith for purposes of this appeal by appointment so i cannot take any credit for the good work that the lawyers did regarding his sentence before me  i would have to disagree with my friend schechner that what the district court did here was very i think calling this a variance is contrary to what the district court did one to one are almost by definition variances so you have to convince us why why it isn't as i understand your argument is it wasn't varying she was actually making a different drug quantity calculation so where do we find in the record that she rejected the drug calculation as opposed to the ratio and and if so what was the new drug quantity that she followed because we can't that doesn't seem to appear in the record the way i read the sentencing transcript is she came out on the bench she had a pre sentence report in front of her that said we think sentencing responsibility is eight hundred grams of powder cocaine one hundred seventy five grams of crack cocaine which leads you to a certain base of his level judge naf said i have the pre sentence report this is how it calculates the guidelines they dealt with leadership which on which there was testimony and that type of thing she found that the leadership enhanced minified and then she said so that leads me to my calculations of the guidelines which i am calculating differently than that which is in the pre sentence report and i'm using a one to one ratio because she had a policy disagreement with the calculation made by the probation officer she didn't say that she said i'm calculating differently if she had said she had a policy based disagreement with it i think we would be in a different boat if she had if this had been a case where it was all crack cocaine and not predominantly powder cocaine  we would have been in a different boat if this were a case where mr smith himself was found in all these with all these quantities of cocaine and such that we were having to estimate what the sentencing responsibility actually should be i think we would be in a different boat but all of these factors without any expression on the part of the district court that it actually was a policy based disagreement leads to the conclusion that she was making a finding of what the appropriate level of responsibility was under the guidelines for mr smith at sentencing only ask it another way and i may say this wrong i ma you more confused but let me try when you got the drug quantity or whatever it was the new you do certain things with that drug quantity to end up calculating or a guideline range your argument is she didn't accept the actual drug quantity it seems to me she did except the drug quantity she just simply used a different ratio that was applied to the quantity that's that seems to me to be significantly different than finding the quantity was different i guess i would disagree even applying one to one it's the same quantities that you would stipulated to is in the billiard room are all numbers i'm grant so why don't we then calculate what the guideline range would be based upon that for purposes of seventy two well because she didn't that's not how she did it and when we talk about you know variances what we're usually talking about well we always are talking about her the definition to dorothy in the corner and under the guidelines is when a judge calculates  the guidelines going through the technical aspects as it must and then decides that it's excessive so then recalculates it or alters the guideline range in some way to come up with a new guideline range or a new sentencing just a very very from you can you don't make a new guidelines for yourself you know but in a situation like this she could have said i do agree that this is the correct class calculation under the guidelines in this schechner suggests and then i am re the proper calculation the quantities that you agreed to tie the ratio that was biggs existant at the time that she chose not to use because the authority that i read from this court is what we want to look at i thirty five eighty to see for to see to proceedings is what the court found at sentencing so then it's really just kind of a plug and play situation what was a quantity use that sentencing and had what was that what the sentence is based on and has that now been changed because i get the sense from reading opinions out of the court on these descendants modifications that what you're really not wanting to do is go back and  what's a big or evaluate the best case that you have the year that you are that supports the interpretation that you're giving us as well i have you say you're reading our cases and this is what this is how you interpret what we're trying to do i'm thinking about balance valentine cases mckinney those cases where they're saying look go back and see what did the district court do so it's valentine and mckinney is the answer those would be those would be the ones that say this are what you what the court really seems to want to do is now worry so much about how they got there in the ruling rule levon see plea agreement in garrett but but where they got to and then be able to take that take that base offense level upon which the sentence was based and plug in the new numbers so that that is my my sense from the court seems like we're in that interesting quandary here because it looks like this is a variance but you say well she didn't say it was a very it's ok i agree with that so you then say therefore she's adjusting the drug quantity but she didn't say she's doing authority to vary across the board based on a policy basis agreement and i can't disagree that this whole concept of a one to one ratio and those magic words are used  authority that the government cited as well as spears and i'm sure other there are cases if the court has seen do you agree with me just a moment ago that she didn't really tell us exactly whether she was veering or making a drug quantity i think you did  well she didn't say she was burying and she didn't say she was making a quantity determination in fact she reason that it was a reason i am asking you is you want us to look at valentine valentine in your own brief says quote if the record indicates there was a finding of a specific quantity of drugs which it seems as if there was not either because the original sentencing judge made a specific finding which she didn't or because the defended mid to a specific quantity which she did then the modification court must use that quantity and determine whether applying the retroactive amendment has the effect of lowering the guideline range don't you lose under valentine when you have a win you have a plea agreement that stipulates us to a drug quantity in the  that these are facts it may not be proven at sentencing but the district judge has the ability to determine what guidelines apply and so only the district judge and there are no promises there are no agreements as to what the guidelines apply here are specifically it wasn't yet where is that it's you didn't say it was a variance but i didn't i don't recall she said it was at the end of the sentencing transcript where she's addressing a number of other variants requests made by the defense and she said in no uncertain terms there's no reason to very or to in connection with these other requests in connection with the other requests and then on the statement of reasons where they list this is why we're doing what we're doing what it says is the pre sentence report was adopted with the following changes reusing the one to one crack to powder cocaine ratio which reduces the offense level to twenty five from twenty seven and then of course the rest of the statement of reasons are all these boxes to check you know did you very know was this with any guidelines and since you know the irony here this guy was it seems to me he's your client already gotten the benefit of the reduction to one to one and now wants to double down on that reduction so i understand why only like that but why is why is that night what's happening at it as he got the already gotten the benefit for which seventy two is intended which was the use of the one to one ratio well i respectfully disagree with that because seventy two was an across the board reaction  wasn't just for crack cocaine it was for all drug offenses so whether it's heroin or or how does that help you well because he had it he was predominantly responsible factually for powder cocaine it's me try one more time seven eighty two was to give you the benefit of a wonder one ratio in the calculation i think seven fifty was the one that really brought down just the just the crack guidelines i see here and i needed to as being the one that did and across the board to level for everybody and for somebody that's responsible even assuming that what the government says is true for these this this down seventy two doesn't give you a cross the board reduction for things other than the one to one ratio doesn't that your argument ok well no i just i my my understanding is that every level that's how you respond to the double down argument well right because he hasn't gotten any benefit of the across the board reduction related to all powder cocaine for which he was predominantly responsible under any view of the i c ok think anything else thank you with regard to the statement of reasons the court specifically stated in the statement of reasons that the court finds the defendant's base offense level shelby county lady there one to one powder cocaine to crack cocaine level so even the statement of reasons shows that the court is not recalculating the drug quantity there is no different drug quantity finding anywhere it's in the the court accepted it it's in the pre sentence report the parties didn't object even the district court doesn't object to the pre sentence reports computation of the drug quantity and only issue is how are we going to calculate that in terms of a guideline range and giving it a number and the court is specifically stating they're using the one to one ratio this case it's in a kind of unique situation because it was shortly after the eighteen to one ratio had been adopted so we normally would see the one to one coming in when it was one hundred to one ratio but after the teen to one ratio was adopted by the sense in commission then we stop seeing the one two ones as much this case came shortly after that we still have this one to one ratio but it's a variance it's been recognised this court can take judicial notice of institutional memory going back a year th appeal this right if they did what it was these are some go out on the back on that we're missing here what why i say it's a one off it's a want as a matter of fact in in our district this particular district judge sometimes gives the one to one sometimes just goes with the guidelines and eighteen to one i was only mentioning the fact that if you there was some confusion in the initial pre sentence report because i guess the initial was prepared and it was one hundred to one then there was change it was made to eighteen to one so when the judge was doing the one two one this is a throwback when there was one hundred to one she still does do that occasionally go to the one to one so i can't say it's never happens it still does out there in our district the issue here is not what the court is eighty two is a very very limited remedy it's only available to people who meet the criteria and this defendant by getting the one to one has already gotten a lower sentence than he would get if he were sentenced  under the guidelines he should not be getting the benefit of a variance to one to one plus two more points when there is no way to justify that under the guidelines so we would ask that you reverse i think we've encountered stand both of your positions as we see that you're appointed under the civil justice act one appreciate your service to your client and to the duty your perform to the court here as well thank you that i believe completes our argued cases so please a juror in the court