tony lacy federal public defender's office here in oakland city where i represent mister percy robertson would like to begin this by saying it's been a privilege to practice for this court for the last thirty something years and i will be retiring december st and relations and i will also say it is i'm a little uneasy to right now it's because i've been up since three o'clock this morning taking care my wife so  for some relief to which the district court granted in part and reduced his life sentences down to three hundred and sixty months and mister robertson asked for this appeal arguing and asking me to argue that the court never considered his disk the discretion of whether it could depart or very below his advisory guideline which all the parties agreed was three hundred and sixty t know based on united states versus many that the court has a print tremendous amount of discretion and may consider that there are three factors and in the consideration you would expect that the court would use that term e defendant is entitled to a reduction in his sentence this is not the law never has been because it's very clear in the st act that the court will determine whether the person has a covered offense and then determine whether or not they are going to exercise its discretion and reduce the sentence at all so whether it reduces the sense down to a guideline range or two since lower that was never addressed in the court's order furthermore in his decision relating to the career vendor application it is said what it has said in another case united states versus timothy johnson which is also just in remand in that the only consideration the only relevant inquiry is hell that the f s a reduced the  change the defendants go to jail sentence not so this is this is where it gets confusing is that there is not the only relevant to sit ration under the st step act because we know that part of the requirements is that the defendant has a full merits review so we're asking the court discourse to remand his case back to the district court in light of the united states versus brown decided on september the night specifically as to see whether he was is a career the offense that was used to make him a career offender simply pointing a firearm or whether it was under the residual clause which had a shotgun or something which would make a huge difference it would argue that your case is exactly like brown or do we know  what the firearm was in this case at the time of his initial sentencing the question of whether he was a career ender was never an issue because the sentence he received was the mandatory est in our reply brief that a rematch and of course is within this court's power and within its discretion but is not necessary d here because of the arguments that were presented before as we pointed out at the district court level mister robinson robertson did not make a challenge to the fact that he was no longer a career of been there or instead he said only that he might not be and the court should examine that as a discretionary factor and big government then responded that to the extent the judge was tempted to get into the legal consequences of career offender that was not necessary for two reasons one it was couched in discretionary terms and nd the st act proceeding is not a plimer re re sentencing and i think that explains judge language when the district court says the only relevant inquiry is d how the sentence changes as a result of the fair sentencing act and i believe that's what the district court me by saying that's really the only consideration other guideline challenges that could have or might have been brought or were already decided d remain decided and are off brown why was it not properly before us whatever the technicalities who precisely uttered what in the district court looks like the district court decided well your honor i do agree that the government raised that and that is what the judge found and that's why when we made a passing reference to whether or not this issue was preserved it was only that and it was really more to the fact that truly what the district court was asked to do is different than what  honor i would say overall no we are not fighting that it recognized at the beginning of my argument according as circuit if i was a district court i'd want to that's not unreasonable i don't think it is your honor and i i am confident that round was decided well after the judge's  understand that argument but that's really the only thing that distinguishes this case