recognize our deputy clerk kelly knox who it's her last day today and we thank her for her service and we wish you good luck in her future endeavors you we will take the cases in the order on the day it we have two argument is united states versus as really  your honor as matt campbell for as really kelly going to try to reserve three minutes for rebuttal there are at least three fundamental problems with the government's arguments in this case and the st is that the government's approach sanctions the erroneous calculation of the guidelines for ms kelley and it does so in a way that it cherry picks which portions of four b one dollar it wants to use for this case and ignoring other portions of that in essence  based on the current accurate stat max of forty years however the government implicitly argues that for b one point one day where it defines how someone qualifies as a career vendor should be ignored based on the previous determination that she had two prior crimes of violence isn't that what the fairest act requires that we go back in time and determine what the laws were that were applicable at the time with just as well the st step back to does say that the court should impose a sentence as if sections two and three of the fair sentencing act were in effect i agree with that but they're nowhere within the st step back and four does it limit what else the court can consider and authorize it easer that it doesn't it no it does not explicitly say but all other determinations remain in effect however by analogy and this is another place where we disagree strongly with the government if we look at three thousand five hundred and eighty two c two which are the retroactive sentencing guidelines reduction cases and case law that section specifically is referenced in guidelines one be one dollar and in one by one dollar it specifically says this is not a recent and saying this is a whole outlines the situations in which a court can revisit or modify a judgment but then the fairest step act has a completely separate situation and doesn't cross reference three hundred and fifty eight it wasn't clear to me  you're i think there's admittedly i think the connection is a limited one in that three thousand five hundred and eighty two dollars c one b says if there is a statute that authorizes reconsideration or a new sentencing or whatever that's ok that's one to see to with the sense of the change it as an alliance in the supreme court's direction in dillon that we take this sort of two step approach but it's not directly applicable it's more of a an analogy but to those sections are written distinct from one another and they use important different terms within them and by analogizing the government is effectively saying although three thousand five hundred and eighty two c one b and c two are written differently they should be treated the to but even taking thirty five dollars to see out of the picture which as i mentioned it was hard for me to see what the connection was we're still left with this as if language which suggests that the one change we make is interpolating as if there step acting in place at that time well i think there is and saying act i apologise understood but i think that the problem is that in this case number one the st step act i agree it doesn't say and everything shall be recalculated but if we look to other provision and fifty three dollars a four supreme court's decisions in pyu gall in other cases it always says that at a sentencing the st step is to calculate the guideline range accurately and the problem that we have here is that the government's position amounts to calculate in the guideline range inaccurate only if you i mean only assuming that you recalculate it based on current ranges not it's not inaccurate if it was based on what was in existence in two thousand eight with the one exception of the st step act well is it this may be a summit i understand your honor's point and it may be a semantic game but here we're not dealing with a statutory change we're dealing with case law that recognized that certain offenses namely conspiracy to deliver under washington state law don't qualify and from a technical point of view that means they never should have qualified it's not that there was a change in the law that rendered conspiracy to deliver no longer a crime because congress a change of statute and so this kind of overrides the law generally where you have to appeal something to get the benefit or you have to a twenty to fifty five you're saying that this one statute which was concerned about high drug quantities and so forth and and reducing the penalties because the penalties were too high that law decisions that have been made long ago that they just get a whole random slate was that the intent of the at i think the point that i'm trying to make is slightly more narrow than that the st step back was designed to give people access to fair sentencing act that otherwise didn't get it because it was considered not to be retroactive in that they're entitled to a recent and saying based on the lower mandatory minimums but it is our position that they're entitled to an accurate recent incident and what the government is proposing here is not accurate because by all accounts as really kelly is not a career offender and i understand judge nelson's well it let me ask you to different way because the way you answered my question made me think what you're really saying is your client should have had a recent and seen regardless of the st step act because you're saying that basically that it's the intervening case law said that particular guideline never actually meant that and so in theory wouldn't you have been able to come back to the district court and say hey you you wrongly applied that because sentencing under the act itself is completely discretionary even though the act is not mention let alone mandate a plenary resentencing and even though the act itself is limited on its terms limited to recent thing re sentencing as if sections two dollars and three dollars of the fair sentencing act were in place the cases that have considered the issue the circuit court that have considered this issue have decided along the lines of the questions that this court has already posted circuit court or did you say courts because that as i understand there's only one the th circuit is that right the th circuit in hedge would address the issue in a published decision the th circuit has addressed the issue albeit in a non published decision i felt it twenty eight days later i apologize for the timing it was just yesterday that mentioned the the th circuit case and very annoying that they published they they put into an unpublished disposition i was clearly an issue of law i thought that as well as one reason they may have done it is that they decided the case st in it and the decision called united states versus alexander and in that case the defendant appeared pro se but then there was a subsequent case united states versus butler which is what the government side and i believe counsel did represent the defendant in that case but whether it's published or on published it would be persuasive authority to this court and i do think the rationale in the reasoning that set forth in both butler that talks about the discretionary language is significant are there any circumstances in which additional factors could be taken into account at re sentencing other than just a st step backed in any circumstances and i our argument is that miss kelly is not entitled resentencing the government's position is that it does not allow for it except that sections two and three of the fair sentencing act would apply in a resentencing as if those provisions were well but if it's a provision that was in place  two here's what you need because they're asking the dischord to apply some intervening change but if there was a factor that was in existence in two thousand and eight but either hadn't you know it or hadn't been considered or had been considered and rejected would that be would that fall within a plenary re sentencing that would be precluded by the st step backed i'm not certain that it would the th circuit and its decision did indicate in fact that it's discretionary and imply that there may be some circumstances where you may have to go back as you've said just nelson is not an issue in this particular case but at the point i don't know if it's discretion that's where i'm concerned because if the position is it's discretionary that opens up a gate that you know in future cases could be debated about how far that is that doors really open up so i mean i don't know whether we need to decide cases so far seems suggest that some reconsideration can be given to factors that weren't there we're not talking about statutory i mean that not legal changes my it's clear in this case that in thicket because when you when you in a sense the st time you may have given a sentence based on the fact the range was way too high and you went to a certain place and now you've got a different range and there's nothing to tell you where to come out in the range so so clearly it's not that it doesn't happen automatic there's no way to do this automatically right and this stuff st act itself is silence with respect to certain of those those points and it certainly does raise issues that or may come in the future the rehabilitation would that would have come up separate and apart from when there was downward departure that's available to anyone for rehabilitation isn't there that wasn't tied to the st up act or was it i think judge through the way that he decided it at the district level as i believe he was looking at it perhaps from a st up back perspective but whether he was looking at it from the st st up back perspective or looking at it or more broadly a number of different we're just going back in time which is what the theory is for why you'd look at current case law are you making a distinction between going back in time as to legal rulings versus going back in time as defect to all developments because if you can consider factual developments that occurred after the original sentencing i can't you also look at legal developments that have occurred and i think it's a fair point i do think that again the court doesn't have to decide the issue to resolve this particular case because that again the court could find that miss kelly simply was not  think the only issue in this case is whether she's entitled to consideration of the fact that she no longer would be a career offender if she had been seen as previously that's really the narration we have isn't it and i would agree yes your honor that is the narrow issue that's before the court at this time and i would also note that the series of statutory interpretation that the defense spouses in this case including for instance the admitted case canon that is what is in the text does not provide what the tex provide as is not provided i think that actually cuts in favor of the government's argument in this case there's nothing in the text that mandates or even mentions a plenary re sentencing similary similarly the st act is so clear it says that nothing shall be construed to require a court to impose any reduced to sentence i think all that cuts in favor of the government's position in this kelly simply was not intitled to it reconsideration of all these factors under the st step act reconsideration of the guidelines range perhaps there was some discretion that would be afforded a no one at least one district court case the judge had actually left the bench and the new judge that stepped in had really no semblance of what that case was about and wanted to have a hearing so that he could understand and hear from the defendant but do not think that did he do a new plenary resentencing and he indicated that he was going to have a hearing i believe in the order and i can provide that authority supplemental authority if the court would like me to do report but they don't necessarily reconsider everything correct your honor yeah and the question is whether you would reconsider the guidelines and recalculate the guidelines if the defendant was not a career offender and in this case there was nothing in titling the defendant to that type of relief  if there are no further questions from the court let me just make sure i understand your position you're saying nothing entitled the defend and to a plenary consideration but nothing precludes the district court from doing that is that your position it's  a th circuit law clerk the decision to not publish a case was typically made because george wallace believed or the panel believed that it didn't make sense to publish that because it was not some earth shattering area of the law or perhaps it was not something that just  thank you thank you your honor want to touch on a few quick bullet points one disagreement we have with the government the gov is the government's phrase that the st step back to silent and i just want to make clear it's our position the st step act is not silent it uses the word impose and as we had reference those doesn't seem to get there i mean what i'm more troubled by is i came in thinking as if only allowed the st step act considerations and now the government seems to have opened the door slightly so i mean i'd be interested in your view  opened that door where's that distinction between what you can consider and not and why would your client be able to benefit from that well i do think that door was open even before the government opened it because the supreme court for example says that under pepper you're allowed to consider post offense rehabilitation and nobody seems to be saying that in making these discretionary reviews or post that was my question earlier i thought you could consider rehabilitation separate from any new recent unseen i thought that was always something that maybe i misunderstood where you would need a vehicle to get there and the freedom that would provide the vehicle but i don't think that would be a point that anybody could take and i think that works into our argument which is if the court has discretion to decide whether or not to give a reduction it has to have a framework to exercise that discretion post defense rehabilitation would be part of that framework but i think another important part of the framework is is the current sentence above the guideline range and that is part of our primary position here that even an exercise ahead to be able to consider what the guideline ranges in when you consider what the guideline range is you should be considering what the accurate true guideline ranges in here that's not what was done because everybody agrees she's no she's not a career offend