defense for the st step back and mr mitchell are used today that this court should follow that persuasive authority and for three reasons that it's like grab it and it's in line with the plain language of the statute uses the word at the hearing he uses the word limit limits the cli to the crack offense and then the judgment only references the crack offense you know i did i get the idea that you can make an argument that might help some other clients but isn't there a and there are grounds for relief for your client i have i mean yeah i would agree that the as in the transcript the district where it does typically that they're limiting limiting it to a crack cocaine offense i would agree with that dummy money another way to think about it is it's a pretty easy case if there had never been a a powder cocaine charge never a pleated however cocaine and no sentencing based on powder cocaine we would all agree he gets another shot in front of judge quest some trying to figure out what i bet isn't the exact case we have even though there are plenty of references to powder cocaine in the sensing hearing but i thought those could be attributed to the reality that the judge the only testimony about cocaine at the sentencing hearing was powder that's the only witnesses they had but it was all powder being used to create crack so that's what they called a hybrid offense in you know i guess in a way maybe it is but you could still have the police limited to crack and the powder references solely be about figuring out how much crack cocaine they use and while i'm mad at me just point out one thing the the findings of powder cocaine at that hearing are under five kilograms right there under the amount that would trigger this kind of mandatory minimum so i think it's a case that seems to be about construing the sentencing transcripts well i mean i would agree with you that he was sentenced based on a crack cocaine and a of the testimony about the powder croque cocaine that all that testimony related to that type of drug when it was for the purpose of whether or not the court was going to consider the drug quantity crack or powder which at the time made a significant difference in the sentence i'm not sure if i'm answering your question you're going to trying to but i believe that the whole quaint of all of the testimony related to power outage or crack was was related to what are we going to consider found that he was ineligible because this wasn't a covered offense and the district court's analysis was a round the fact that because he pled guilty to an offense that this high byrd offense that included powder that he was not eligible because this that story offense where the powder cocaine did not change under the fair sentencing and i certainly think this case will be simpler we just decided it was just that it was crack cocaine and i think i interpreted this case to have been treated as crack cocaine even though there was hybrid case and therefore we went but if you do we being dragged kicking and screaming want to call it i bridge case then we win anyway under this under this this where were the courts are all over the place as to what to do with hybrid tastes is that the nature of your are one so i think we win but even if we don't we win on the nd issue is that the nature of your argument yes yes ok then i just want to know which one you're at why you're making your art well i  of the lot we know what the law is it's just a matter of whether this is a case that only concerns crack right what supports the argument that only concerns credit there's portions of the sentencing st of all in the sentencing transcript the court says i'm going to limit it is typically says i'm going to limit it to crack cocaine and then there's a sort of that question what in the context the word limit is limit the clique right is not limiting the offense or limiting the sentencing to crack i don't believe that it's in one hundred percent clear this is a something that was in the sentencing transcript and it just says i'm going to limit it it doesn't say the  should resolve the issue but it i don't know that it necessarily does and so if it does that there are there are going now so i'm not i'm going to react the same to judge wright you're getting three questions now from three judges putting on a silver platter of victory and each time you throw it do you want it or not all right i mean yes i want it yes i would like it so what does it what does the word limit meet i here's what i thought it happened and i'd really be grateful if you could answer this in a way that made sense the judge did not accept the plea initially right back he only accepted the plea during the sentencing  pled guilty at the time of the plea to conspiring with other people in the indictment to distribute i hear a ground of powder cocaine  guilty to the conspiracy to distribute the five kilograms or more cocaine and fifty grams or more of crack and then the government was going to dismiss the remaining charges that with the agreement so what  when at the hearing he says uses the word limit i think i i read it just help me out i read it so me i get what you're willing to plead guilty to we don't have an agreement at the hearing he then i thought said i'm limiting the leak to the crack of science and that of course lines up with the judgment the judge grants reference so what am i missing that's that's how it looks to me i wasn't there of course i don't believe that's what he said your honor in and what you're talking about is not what happened at the plea but what happened at the sentencing right right i guess i got it but so just to back up again he says i want to plea guilty this that the other i thought the judge did not accept the plea at that point and i thought it was accepted at the hearing him are wrong about that except maybe that's what i'm getting wrong and i believe that he accepted the plea but reserved on the plea agreement that's our normal practice and i believe that happened in this case ok so that's fine that the police hearing ok so that's fine but then couldn't it be the case that when it gets to reserving on the agreement that he decides at the hearing i'm just going to treat this as a plea about crack another what isn't that possible i don't believe it is possible because that one it would he would have had to  not accept the plea agreement and the defendant could have then withdrawn his plea or the parties could have renegotiated at that point in this case that's not what happened i think what the court is referring to is a part in the sensing transcript after a great deal of testimony all regarding powder cocaine which the court then trance converted into crack with the court with saying i'm going to limit this to crack part of that is because you don't want to double count it that the court in this case stated and defense counsel was arguing there was seven kilos of powder cocaine seven kilos is way more than the five kilos needed but the court in this case because you have a power case which the defendant distributing is power but knowing that the people below him are converting it to crack and distribute distributing it so the court found that he was responsible not only for the powder that he purchased and then distributed but also for the fact because he knew that the that it was being converted to crack that he was  potentially cause a double counting if you run that this is a problem that always comes in when you have powder and crack a subtle so i don't i don't think that approach to what happened is implausible or crazy i carry on that it kind of makes sense but i also don't think it's implausible or crazy to think about it the other way that he just took it thought of it is a crock conspiracy that was the object right there were they were converting the powder into crack that was the object is was you know whether it's to get around double counting or something else he decided think of this a crack conspiracy and if that's the case if the judgment reflects that it seems to me just as fair to say listen this was primarily  been on direct appeal and no one can and then he there i mean the point is is clearly no one paid attention to the citations in the gentleman up until now but they but they are the basis of the sentence i'm struggling with i believe you were involved also in bowling and bolding says that eligibility for recent acing under the st step turns on the statute of conviction alone and the statute of conviction in the court because one because i believe that is clearly a clerical error i don't think anybody can look at the record in this case and not know that the b one b citation in the judgment was clearly error to be fifty grams or more crack which this case even if you argue it's only controlling in the written portion where the court spells out exactly what the offense is the court clearly states that it is five kilograms of more of cocaine and fifty grams or more of cra you continue to read in the transcript the the court clearly says there's seven kilos that's what the defense counsel was arguing there were seven kilos of powder cocaine and the court clearly states that even if you take the seven kilos of cocaine that was argued by defense counsel that that was converted to more than one point five grams of crack what the court was doing in this case because if you were if you recall this is a multi defendant case so the you have some of the top who are basically just the cocaine people involved with the distribution of cooking but then you have a lot of people down at the bottom who are involved with receiving the cocaine converting it to crack and selling it on the streets for crack so the vast majority of people were involved in the actual distribution of crack the defendant was not one of them but he knew that that was the whole purpose of the conspiracy so when the court is looking at this and talking to the people that's why you have to find out how much counter did you get the court made a very conservative calculation trying to determine how much power each of these individuals co defendants had received and once he made that very conservative calculation headed towards crack he then converted it again he took  ten percent sort of across the board even though it was questionable there was even that amount but again following a more conservative basis we come to this  powder i don't care at this point let the descendants of defense counsel if you're under such emotion don't get the same mantra i know this is true but i don't think you can say that from the sentencing transcript and i don't think you i mean basically we always go with what a defendant in minute or one in jury found in terms of beyond a reasonable doubt in this case the defendant and minute i think that must struggle with that is that's not the place we are in making changed but the st step in your argument i have a role but we're not at that point we're at the very beginning of eligibility and it seems to me that the law is clear on the what i see where you're going your honor the problem i have is that in this circuit you have only one penalty range for the offense of conspiracy whether you have one drug or multiple drugs it is only the highest drug range that counts so if you can only have one penalty range the question is in order to determine whether or not this there would be eligible he use that word eligibility in this case you would have to determine that the sentencing range was modified by the fair sentencing at the fair sentencing acted not modify any sentencing ranges having to do with powder cocaine  struggling with this idea that you can go back and start from scratch you want to go back into the records you want to go back into negotiations you want to go back into discussions when when the st step turns on something that is more objective lay determinable and here the objective documents show qualifications for to be covered by the st now the court my side you are covered and i'm not going to give you a minute are you asking this court to go back thirteen years and examine it try to say it just was an error but that wasn't an error well that doesn't seem to me to be a very practical practically applicable test when the goal i thought of this legislation was to would be rebalance so if there was fairness and chaos sentences were undertaken and given so we go back we look what were you for you qualify now the court gets to take it up and you make all those arguments miss to nd i don't want to pile on but i am a little bit but i have a practical idea my practical idea is this i think all can agree that if there was a clerical error in the judgement that ought to be corrected ok so that means this has to go back to the district court anyway if this has to go back to the district court anyway it seems very strange not to allow the district court to look at all potential components of the issue in regional judgement seem to suggest he does have authority under the st step back if he wants to say judge quest wants to say every man lives that's a mistake corrected now  he's free to do that it's probably would not be a terrible idea for him to do that and say even if i did have this of the already i don't wish to exercise it or to say i do have this authority and i wish to exercise it it seems to me it's got to go back anyway i mean if you've admitted it's an error and if it is an error that has to be corrected on a minimum so that just strikes me as a pretty reasonable way to handle this that doesn't add a lot of benefits in c and if the judgement needs to be corrected it gets corrected judged quiznos how this all works he's free to say in the alternative if i had the discretion i would next resize it or if he wants to say if i had the discretion i would exercise you can do it wishes it up but i'll bet there's a way to fix this pretty quickly honor if i could start with the the words in the sentencing transcript regarding limited if you look directly behind that sentence the court says that's the charge which that is to which the defendant pled guilty he says i'm going to limit it in this case to to commit the crime of possession with intent to distribute or distribute fifty grams or more of crack cocaine that's the charge to which the defendant pled guilty so if you look at the entire paragraph at least that portion of th said there was some discussion about whether or not this was more than more or less than or more than five kilograms of powder crip cocaine the judge in the sentencing transcript the district court specific lee said that he was excluding some amount of powder cocaine that was as far as the whether or not this is a crack cocaine offense which i believe it is a crack cocaine offense and it is under the mess in the fair stuff it is l it is a covered offense but whether it's a crack cocaine only