there's no current or thank you just so it may please the court this case presents two fundamentally different views of how the district courts are supposed to exercise their discretion under the st step back in our view the district courts are supposed to do what they always do they calculate the guidelines range correctly they consider the mitigating and aggravating arguments and they select an appropriate sentence based on all the facts and circumstances in an individual case if you  aren't you pitcher waiting in the air of the we preview she said that's exactly right under the government's view this error which we all acknowledge more than quadruples the effect of guidelines range has to be actively ignored by the so let me i think you win either way this case would have to go back so what do we tell the district court judge i'm sure so our view is that the court must calculate the guidelines range correctly now just to clarify four is the properly calculated guidelines range and we don't see anything in the st act that restricts the court from correctly calculating the guy life range and marks an important contrast with thirty five to see two where congress has imposed the restriction that the government is asking you to impose in this case by saying that all guidelines applications decisions and i'm listening must be left in place when congress passed the st step back to it so in the context of thirty five b to see to it knew that existed it could have used that language if it wanted that same restriction to apply in this context but it chose not to do that and so it's also important to highlight that congress passed the  act not only in the immediate statutory context of thirty five dollars to see to test these restrictions it also passed it against a larger backdrop of supreme court cases for more than a decade story with goal stating that the correct calculation of the guidelines range is the loadstone the anchor and the starting point for the sentencing courts in exercising their discretion so when congress passes a statute against that backdrop it grants broad discretion to district courts to decide what is the appropriate sentence in a particular case congress's understanding would be that the courts follow that same process they correctly calculate the guidelines range and use that as one of the important data points in their analysis of what position that this is a plenary re sentencing and doesn't matter it doesn't matter and so i would encourage the court to reserve that issue for a case where while it's matter tell me why it doesn't matter your honor doesn't matter for the reasons that judge locke set forth in the black decision in the enjoyment case in connecticut says well which is that to correct what is an undisputed legal error we don't need a pointer reasons and we don't need to bring someone back we don't need all the person i go trappings that come with maybe it's a question about  so it doesn't and the thing that's important to understand about that as if language is that its purpose is to make the statutory penalties here retroactive and that's why the language is used about when the time that the offense was committed because the general principle as they would apply today and you use that as a starting point or as at least one data point in the court's analysis so in other words if someone was sentenced in two thousand and five and under the guidelines would have basic career of under provision like here over two hundred and sixty two months and today if that same person committed that same i do to the offense a similar loop similarly situated defendant but because of changes in the guidelines would no longer be labeled as a career offender mostly this comes up in the context of burglary which was removed from the curve under definition tw sixteen because the sins of commission made a determination that if you had a prior burglary conviction actually not a very good indicator of your recidivism rate and so they took it out and so it's a sound a little bit like of the sentencing i'm afraid because act st you apply the new statutory penalties that means in no circumstance may the court go below the statutory penalty that applies under the very essence the act so that's one hundred and twenty months or ten years in this case so we believe the court is constrained even if it thinks that a sentence was in the groove in the range of fifty seven to seventy one months would be appropriate based on the facts and circumstances we acknowledge that the st step act says this new statutory penalty as the lower bound of the district courts discretion but it provides no other women patients or what the court of the person you don't get another bite of the apple and similarly says if the court has given you a complete review of the mayor it's and nine your st setback motion you may not file another one nothing in there if congress had wanted the same restrictions the same guidelines limits that apply in the thirty five to see con to contest it knew how to write them it could have done with it in c two which is delegated the sentencing commission the authority to place restrictions on  someone would not be treated as a career ender today but was under previous law we think it's important for the court to acknowledge that because it brings in the thirty five of the three a six factor disparity between otherwise similar situation and so we think it's an important point that said we acknowledge if you want to draw a line between retroactive and non retroactive cases you can certainly do that reserve the other one for a future case which we say that a court's required to consider that  the air the sufficient by itself for the courts to open an otherwise final sentence but this is a different context where congress has already said finality interests are as important here as getting the sentence right we're reopening these cases giving the district courts discretion to consider an appropriate nd case he does that and this goes back to my question about discretion versus required i mean might the answer be that when it's a retroactive legal  your point is that at the end of the day you're coming up with the guidelines number and it's a once discretionary whether you're going to sentence within it or not right it doesn't make much difference so our point yes at the end of the day is that it doesn't make much difference we do think it would be it is required for the court to at least consider it as a interesting and i think could be a model for other districts to do which is that he laid out a chart that said ok here are the various statutory guidelines penalties that have applied over time in this case all of the time of sentencing would have been this and this is the one time that would be this and this you know if you correct the curve and there are x and if you don't correct that it's why and so he's like i'm considering all of these data points and in light of them i'm selecting what i think is the appropriate so i guess let me just stop in a minute but i guess i'm not understanding under thirty five fifty three  what is even the relevance of the original guidelines range which we now know was erroneous and we've held that decision to be retroactive this guy was never a career offender why is it any more relevant than a title that had been his original r so what does it tell us that there was a mistake made tells us nothing like what i had or ate up on that i agree it shouldn't be a consideration i think congress and the general public would be shocked at the idea that the congress has passed this act to remedy what i although i thought we said in worsening that one of the reasons the eligibility criteria was so loose in this statute was precisely to reach people who had been whose sentencing guidelines range didn't change saying this right there original sentence wasn't based on the sentencing guidelines because they had this really high career offender right you know what i'm trying to say and the point was to reach those people who had been designated career offenders who couldn't guarantee finder seventy two because plausible to conclude that the reason congress wrote the statute so broadly and didn't delegate to the sentencing commission the authority to impose restrictions as didn't see to context is that congress wasn't happy with how restrictive those limits th in haywood the course is the question presented here is whether this requires a point a recent thing is you know we said in the opening riff we don't think it does that said in all you know to be completely candid we absolutely think that the statutory analysis in  wrong we don't think it factors in the immediate statutory context which is the contrast see to we don't think you considers the broader legal context of all and all of the supreme court cases but we also don't think that it addresses a retroactive decision as opposed to for all those reasons we think that what is wrong i wouldn't necessarily characterize that as a circuit split i think you know i think this mr general's office would say it's not because they're holding they're not saying that they're both about intervening changes in the career  guideline and yes i mean in part though the one difference being this is a retroactive one that one was not ordering the other difference being that the defendant there for whatever reason argued well the only way to get this is a pointer to sentencing and we think that's sentencing act or in effect that's it it's limited the th circuit got it right the th circuit got it right in its unpublished decision the th circuit has gone essentially the same way and all of those decisions are respecting the language this is not an opportunity as the supreme court made clear in dillon this is to impose a reduced sentence means not to open up everything it means to impose a reduced sentence based only on other context where there have been new cases that have been decided and i would note that even for defendants who were sentenced between or committed their offenses between august of two thousand and ten when the fair sentencing act was in effect and two thousand and eleven when this court decided some of those defendants don't get this result under the defendant's interpretation of the statute there is not equity and this is not a i'm sorry once we say that a decision is retroactive we are saying it applies post conviction it applies in collateral proceedings and i know that it has a one year statute of limitations but to the extent there's ordering is built into this it looks to me like it's coming from and once we say it's a retroactive decision it is supposed to theory apply to everybody and because a lot of people at the pass but you know that that's an echo problem or not a problem it's entirely appropriate but one way or the other the kind of arbitrary thing you're pointing  to reduce the sentence does not mean you get the benefit of booker you get the benefit as symonds you don't get the benefit of those things so basically the position is we want the district court to say i'm denying you a reduction in your sentence because you would have been sentenced the same way under the guidelines or only asleep at the time of your st it would be any different if it were a typo what if there was just a typo in the p s r like look i'm sorry the p s r back then said six hundred month reason he was denied a reduction is what used to be your eligibility argument and it's now your scope argument what does it mean to say you're eligible even though you would have been sentenced the same way but you will be denied a reduction because you would have been sentenced the same way it means that at four o four c the district court still has the and even abby this court has the discretion to reduce the sentence and you think that it can you point to did this district court think he had discretion to fix this and i believe so because i despise why would he have gone if the if there were a typographical error than it would to the court could consider that you could but it would have to know it doesn't have to because the congress doesn't say you get to correct every error that occurred in your sentencing proceeding that is not eligible under we're saying we're still arguing that they're not eligible in other circuits but that has nothing to do with section four a four b and the scope once one becomes eligible and so the court says you are expressed limited only to the forget about the language of plenary re sentencing the point is you don't get to do anything except what congress says and what congress said here is you're going to apply sections two and three of the fair sentencing act as if they were in effect at the time they the district court didn't think so why would you send it back i don't think that the district court is authorized to do an end run around twenty dollars to fifty five dollars or the other statutory limitation authorized to consider this nice error or it's not it's all the right it's not authorized to fifty factor and i think that's part of it i think so too i mean i think that the court can consider it in the context of considering that but at the same time has to consider all of the rest of it and it doesn't it is not an unwarranted sentencing disparity with respect to others who were sentenced at the same time and so you sort of have to think it's appropriate and ok for a court to consider it in the context of the three thousand five hundred and fifty three a factors it is not ok for a court to simply come in and say because that's just not the authority that congress gave the district courts and say what a substitute this this guideline range for the earlier guideline range you start always with the guideline range and what the fair set st fair dollars and three dollars to come up with what the guideline range would have been right for the judge doesn't start with well here's the guideline range that was in the p s r now let me see if i can tinker with it so if there's a typo and i'm sure that's out the window you see the judge starts fresh with looking at if two and three were in place well at the guideline range have been am i right about i think that is right thank you judge rushing i would say that if somehow the typo were relevant to that particular analysis perhaps it would but yes if they did judge looks at and does a recalculation and that's what's happening in these cases starting to present the probation officers are going through and looking at ok let's substitute sanctions two dollars and three dollars let's reduce the  that is accommodated in that process why isn't a retroactively a political case accommodated in that process to i just i simply don't understand that's what once we held it simmons was retroactive miller you are saying it's like a typo you want a career offender or it's not that you are now not a career offender it's that you write a career offender then just like the sixty was supposed to be six hundred or vice versa right congress he's a difference because there has to be an i don't understand why if congress has authorized the court to recalculate the guidelines i don't understand why that would include fixing typos but not include fixing errors that have been identif are i think as a practical matter it doesn't make much difference because in the end chances are good that the government would instead like just like that said the courts that the courts that have considered this in a discretionary fashion authority to reduce sentences it's not saying to courts perpetuate an error but there are many errors that occur and and it's happens regularly at least in my chair would be to undermine foot and all of the rest of because the whole point of foot was this is hard this is tough but congress didn't give us the authority to do this and you see the same thing here congress says i limited reduction the supreme court's language in dillon says when congress uses the word impose a reduced sentence it doesn't open it up to all kinds of errors it says to the extent that congress authorizes and here it said class actions two and three of the  change five grams to twenty eight changed fifty grams to eighty and then to late the guy my range if it has changed then the course starts from that lower guideline range when it exercises its discretion and decides under for not say now in fact if congress had wanted to it could have said redo all of it it could have said reset since the defendant said impose a reduced sentence and so chambers gets the benefit of that because he's actually eligible for a sentence reduction he's getting the benefit of the st step back to then it's up to the district court the only dispute here is how do we calculate the guideline range from where the district court's discretion begins westat guideline range we say the district court got it right and held that as a matter of law the only alteration they could make in determining that guideline range was to change the crack  the drug quantity calculations and that gives congress's intent effect now we could look at everything else of the whole congress really wanted to to right the ship everywhere but it didn't it didn't say we're going to apply johnson could have we're going to apply all the new that new guidelines under forty one point one could have said that could have said a defendant gets gives the advantage of all of these other changes retroactive or not did not actually your decision is if your offense was was and we disagree with that we can look at it and say i might have said something different but that's not the judge gave him the opportunity had the discretion chose not to exercise that discretion and for that reason the district is the statute what that means going forward is the lower bounds of the district court's discretion under the st step back are set not by calculation of the guidelines range but by the low end of the new statutory penalties which is ten years in this courts to perpetuate one of these guidelines errors i think one tells us unfortunately congress can't do that if it wants to and in c to do it in one of the one point tenders pacific language that says inconsiderable reduction in this context you may not make unfortunately we wouldn't be here congress didn't do that and we are asking this court to respect congress choice to make the st step back different than all these previous rounds of retroactive really over the touch hole of an issue that came up in the question by doing what i calculating the guidelines range in determining that it was two hundred and sixty two or three hundred and twenty seven months and in that analysis he cites they'll and this all makes sense because the forces doing a scope analysis under sea to is just that that's not the right an is under the st act under sea to may not go below the amended guidelines range that's what the court was doing here he misunderstood the scope of his authority and so that's the nd reason in our briefing the nd procedural error that we think the court committed here demonstrated did not understand that it could go below the floor and i think judge hears you ask a question about whether the government says you can consider post sentencing factual developments good or bad conduct within the euro prison three factors it's also clear in this case that despite the government's position now the district court didn't understand that discretion either and you see that in the three thousand five hundred and fifty three dollars analysis which is limited solely to the facts and circumstances that were present at the time of the event he did not respond to our evidence that mr chambers has been excellent in mean girls prisons he's done very well from completed lots of programs and had very only two i think very minor infractions so he's been an excellent inmate we think that weighs in his favor if you think that shows the court didn't really engage with our arguments about those simply medication he merely copied and pasted almost word for word the government's submission on three thousand five hundred and fifty three and i think what's important about that when you're considering the scope of the reduction consider kind of because of the time that mr chambers was sentenced the district court had no idea whether he was going to be an excellent inmate to compile a very strong record rehabilitation like he did or that he was going to be an awful inmate and commit lots of disciplinary infractions that w