range in accordance with the statutory penalties that attach to his offense of conviction so low the district court correctly concluded that mr broadway was eligible for a sentence reduction under the st setback and i think that brown dictates it recalculation accurately calculation of the guideline range but it does not require the district court to change or modify a person sentence but if this case there was an inaccurate guideline calculation and so our position is that remit is require so that the district court can come to an accurate calculation of mr broadway's guideline range  considering the other factors that it is permitted to consider underground in calculating the guideline range could the court look to the quantity that was personally attributable to separate from the calculation under the career offender guidelines and in this case a calculation under the current offender guidelines and as instruct the drug quantity calculation because the career offender guideline calculation would courier offender guideline calculation guideline range based on the new new guideline range and sentencing range and then have them after it started with kind of lesser amount tied to the  guideline range and you know that is sort of natural corollary to that is that perhaps if the ringback guideline range had been lowered appropriately it is your court's decision would have come out differently so i don't think just looking at the cl language of what the district court wrote in its order i don't think that a hamas an error error analysis is appropriate in this in this particular case so is it your position that when you're doing your forum type analysis yes yes and i think that that's consistent with this court's decision in brown that the district court as in any other case must you know the starting point the district court can initially ringback correctly calculate the guideline range and that will decide st whether or not it wants excuse me wants to exercise its discretion and secondly you know how that guideline calculation would be different and last but that doesn't seem bare to me to give relief on that basis and so i'm going to make jeremy responsible for he had mounds of  going i mean i think procedurally that would be more in line with this court case and you know but that's not that's obviously not what happened so i can't really speculate as to any additional persinger all issues that would have nose is would you agree that if there isn't a change in the guideline range that the court does not have discretion to change this then to modify the sentence  will i don't know if that answers the court's question now let me ask you i have a follow up where in the process do you see it being relevant what the quantity the drugs the person maybe agreed to in the p s r as they're actually on t v as opposed to the indictment quantity where is that considered by the district  but i don't think that it's relevant in terms of calculating the actual career offender rage is if i may i would like to reserve the remainder of my time for rebuttal counsel you may want your government that this idea is impossible to reconcile with the remainder of mr broadway's argument and the reason for that is that mr prado is argument at its crux is that based on the text of four hundred and four b and the presence of the term covered offense in that provision the district court is not permitted to to consider any quantity beyond the minimum amount that was charged in the indictment because of that if this court reverses the decision will amount to holding that it is an abuse of discretion and therefore legal error for a district court to look at the actual amount of drugs a defendant has explicitly admitted to when it performs the four a four b analysis that's true not just in case involving the penalty penalty range if it had been committed after the fair sentencing act was passed it is extremely important to recognize that this idea is a logical fallacy and once you realize that the rest of this or broadways arguments unravel so why is that incorrect the reason is the grammatical structure of section four for a as at least eight circuits have now held when you look at the text of section four thousand and forty eight the freeze the begins the statutory penalties for which that phrase does not modify the word violation it modifies the words federal criminal statute so what that means is that when this district court said that mr broadway's crime was a covered offense it wasn't saying that the statutory range or the statutory maximum for mr broadway specific crime had changed all the court was doing was performing the categorical analysis in other words recognizing that section t of the fair sentencing act had modified the text of subsection be one a little three which is the provision that sets forth the penalties for mr broadway's violation and because of the unique way that section eight s you know you know like the previous case we got quantities that are you know way above you know any at statutory minimum xin you know so it's on a sense looking at the actual amounts here is you know it's kind of simple that you can think of other cases where you know where the amounts are a lot closer to these ranges and you know the amounts might days if it was fifty grams or more and you're looking at three or five hundred grams or so there's not much point in trying to spend a lot of time reducing those amounts but you can think of a case where it where it's closer and you know defendants really didn't have that much incentive to to contest amount because you're never going to get it down to fifty but and you can think about their cases where it might make a difference so why shouldn't we start with you know with the kind of the statutory minimum and then use that for our guideline regimes and then when the court when the court gets the right the right guy by mange then it can look at the four or five hundred grams of as part of it of discretion right so if we had a very different case where a defendant you know maybe we're looking at two hundred and ninety grams of crack and there you know unlike this case where the facts are really the police found the crack they tested the crack it was four hundred eighty seven grams it would have been very difficult to test that you know maybe we're looking at a conspiracy we're looking at something else if the district court in you know in its discretion wants to say i don't feel comfortable relying on that mount i'm going to start at this fifty baseline and see what the parties can prove to me that's fine but i think that's an abuse of discretion what the defendant is saying is that it is an abuse of discretion any time the district court looks beyond the minimal amount charged and that's what we find deeply problematic i also think that it misreads the statute to think that the district court is limited in that way i think the defendant's argument again relies on this understanding of what the word covered offense does in four or four b and i think again very important to look at the text of for a for b so let's talk about what the phrase cover defense is doing and for a for b it does two things st it tells us which court can reduce the defendant's sentence basically the court that impose the sentence for the covered offense the other thing that it does is it tells  relevant date for what i've described as the counterfactual analysis and what i mean by that is for a four b says the court may impose a reduced sentence as if the fair sentencing act were in effect as if it were  thousand and seven what i'm trying to get at with this is that the st covered offense isn't doing any analytical work there if you actually take the time to you know diagram this provision and really analyze it there's no connection either in the syntax or the semantics between the words covered offense and the language that gives the court the discretion to reduce the sentence which is essentially the court may impose a reduced sentence so while the court could in its discretion decide that it doesn't feel comfortable relying on a number like two hundred and ninety grams depending on the circumstances that word may and the words as if give the court i think the clear authority in a case like this one to say no i'm going to impose a reduced sentence as if the fair sentencing act were in effect on october th two thousand or october th two thousand and seven based on this but if an implied guilty to four hundred and eighty seven grams you know the government charged him with the highest possible offense he pled guilty to the highest possible offense i think based on that the guidelines would not have changed and you know again there may be cases where the district court comes to a different conclusion and that is not you know whimsical or arbitrary but to say that what the district here did was a legal error is very problematic i want to talk about i guess a little bit more why that's so problematic and look to the structure a for a for a and for a for b and the entire motivation behind for a for b is this idea that congress thought that you know these defendants who committed crimes before the fair sentencing act was passed got got a raw deal some of them got a raw deal because if they had committed their crime five years later they would have been subject to a very different statutory range and that's why for four b it's presley tells courts that it has to perform this counterfactual analysis to figure out what the defendant's conviction would have looked like if it happened while the act was in effect and that's way for a for b includes those words as if i mean it has a subjective clause that's not a word i've used since you know high school but it's essentially expressly instructing the court to try and figure out what would have happened in this alternative universe so and to instead of what the defendant is saying you know the court is actually preheated from looking at what happened what w happen in that other universe congress is actually very clearly asking courts to do that to to conclude otherwise basically makes the four hundred and four be announced is exactly the same as a for a for a analysis it means that the court has to go straight to assuming that every single defendant who has a cover defense which is every every defendant who is convicted of a violation of you know a crack cocaine offense under a forty one  probably the one a three and b one b three that they have to assume that that defendant would have been charged one level below what they were charged with they can't they can't go beyond that no matter what the record says if we have a you would assert that he would have been indicted for possession of two hundred and eighty grams reward but doesn't that put the cart before the forces of sense because i don't i can't remember what the indictment phase sure and i you know i guess i want to respond to because i know some courts out there have have raised this conservative right that you know it's unfair to defendants to speculate about this but if you go and look at those cases all of it's discussing it in the in the context of for a for a eligibility and i agree with those courts that it would be unfair to deny a defendant the opportunity to request this or at least on the basis of those deductions but it's a very different thing to say that the court can't consider them out here where i mean you know the defendant has to stipulate to facts that satisfy the elements of the crime here the defendant's pixilated to four hundred and eighty seven grams of cocaine to say that it is legal air for the court in conducting this counterfactual analysis where all the district court did was essentially look at the facts that we have right we have the stipulation everything about what the just report here did is what congress intended for district court to do and that's not to say that there aren't other correct ways to resolve this case but to say that it was arbitrary or wrecked goes a step too far i do also think that it is important talk about the disparities that this would create as well let me let me stop you from and so you are proposing that for forty for a on for over four b statute the statutory penalties for which were modified so when we're saying out of the ability and we've already decided that yes just i agree but we're saying we all agree the secretary penalties for a forty one b so we're not we're not giving that word a different meaning it's actually it's the same in a covered offenses it's a qualifying offense it's mr broad with crime is a qualifying crime and the court may impose a reduced sentence as if the fair sensing act were in effect on the day that he th th circuits saying what that for is modifies it is those things are not intense and we're not you know the analysis is different yes but it's not different because i'm asking you to give those words different meanings into different provisions is different because of the way the statute and that's the you the court goes back and says if this is been in fact at the time of the original sentencing then i'm looking at it and trying to decide where his guideline would be exactly yes and then that you say the court is free to look at the actual attributable quantity rather than the indictment  honor you know and while i think there is some superficial appeal to the defendant's approach it does i think help to play through what a remained would look like here the district court would say ok well i have to calculate the guidelines as having changed because i can only look at fifty grams but in my discretion i am actually going to look at the full about here so technically the guidelines haven't changed so therefore i will not r your on your muted is eligible for a st step actually leave but i think that the reasons for rejecting the counterfactual analysis are equally important in this context chords of exclaims that you know st of all fifty difference between two hundred and eighty and four hundred and eighty seven is much less and so sure i doubt it's counterfactual analysis in this case i think is extremely problematic because the elements that he played she was fifty grams not two hundred and eighty grams so he never