application of law dealing with the emotion for reduction of sentence pursuant to tyler eight hundred thirty two i think it's eighty four subsection c the order under review is the order dated july the ninth two thousand and five fifteen in which the trial judge denied a motion that was filed oppose a motion that was filed by mr ordain for reduction of his sentence and in that particular order the court states that no one the court having denied a previous motion for sentence reduction and thereafter a state that said motion is denied the order goes on to state that even if the defendant were eligible for induction of sentence the court in its discretion denies it primarily because of the defendant's status as a law enforcement officer his abuse of trust and his obstruction of justice mr again was one of several individuals who was  we got to counsel your argument as i understand it best argument you can do it be to wise is that the district court didn't have quote jurisdiction end of quote and i put it in scare quotes because i don't think it's required as a jurisdictional matter sure that you're arguing that we ought to send it back for the district court to find whether you'd be eligible or not because you can't win if that's the only finding i mean if we send it back and say all right we understand you wouldn't grant it but now tell us whether you have jurisdiction to decide when you wouldn't grant it or not you lose if they say if he says i don't have jurisdiction and you lose if he says i do have jurisdiction but i've already told you there's no m you've got to you've got to win own the no merits ruling was error right and they are you saying that the district court erred by skipping over the first step in determining whether or not the amendment applied to your defendant's case not whether he should once the a minute if the amendment applies it only gives the district court discretion to decide whether judge moreno skipped out with the first step is correct are you saying we ought to send it back because he skipped over the first step you know you i think it needs but i right where on the merits in your argument on the merits is he contradicted one of the initial sentencing requirements for purposes of determining whether or not he should grant you didn't explicitly go down them one by one you didn't do anything you wanted he just made the statement that was clearly your own use that well i don't understand that because the the while the july and i thought it did not explicitly mention thirty five fifty three or the factors there the court specifies aspects of the fence in the characteristics of ordain that supported its decision among other things the district court references ordains status as a law enforcement officer therefore that suggests that he considered the characteristics of the defendant the first factor is the nature in under thirty five fifty three is the nature and circumstances of the offense and the history in characteristics of the defendant the court also referenced the abuse of trust and obstruction of justice and wouldn't that suggest that he considered again not only the nature and circumstances of the offense that is to say the factors in thirty five fifty three one the seriousness of the  e and the the the need to to promote respect for the law i he didn't say this characteristic  fact is matched up against this thirty five fifty three a factor but did he have to do that wasn't it enough for him to say look at a b c and d which are factors inherent in this case that lead me to conclude i'm not giving this guy any reduction i don't know how you say therefore that he never considered the thirty five fifty three a factors unless your argument is he must say in height vrba i looked at thirty five fifty three a one two three four five six seven and here is what matches up and i don't think he's obliged to do that i'm not suggesting you want to and i would agree with you and i do agree with you on that he doesn't have to but as to be a  factors and i think one of the factors and i've mentioned i wrote about it in the initial brief and that is the need to avoid unwarranted sentencing disparities among the defendants with similar records who have been found guilty of similar conduct that would be thirty five fifty three eighty six did he know about that disparity that is had he readjusted the the sentence of the coconspirator at the time that he made his final ruling on o the nineteenth i believe it was that would have been about a month and a half prior there was no reference to or there was nothing in this record that could could explain away the difference of giving this  and been empowered by the state as a law enforcement officer to enforce the laws and given special privileges and authority as a law enforcement officer i'm not arguing about it i'm just telling you why i don't agree with you on that point and if you're welcome to try to convince me that i'm wrong then i would question your honor how how eliminating sentencing disparities can be ignored when mr ordain was i hate to see the former president the united states but it all depends on the definition of disparity our age your honor i'm talking about the facts here mr ordain was enhanced i believe by either three or four points three points maybe two to three points at least he had an enhanced meant because of his position if he didn't have that then it would probably indeed there were other factors that caused him to have a sentence of between three hundred sixty five months to reach to life that might be an expert and understandable and explicit your position that the court could not consider the abuse of the public trust the law enforcement position he held not only to enhance but also when looking at the thirty five fifty three a factors then you're not suggesting that's double counting that he couldn't do that your honor i'm not suggesting that but i believe that there needs to be a record explaining that that is the basis as opposed to just giving lip service to these different factors for example stating that in the i think it's the july order his obstruction of justice the there was no obstruction of justice in fact the trial judge specifically found there was no obstruction of justice by mr ordain but in this order that we're talking about now that we're talking the denial the july eighth or your honor sandra hofmann on behalf of the united states although the court has skipped past the one stage i would ask the court to consider one thing about the underlying question of authority rather than jurisdiction the court in hamilton set forth the standards for how to look at a case when you have one hundred fifty kilogram level thirty eight criteria that's now been changed to a four hundred fifty kilogram criteria and the court in that case said if you can look to the original sentencing factors the original determinations and make a decision about the four fifty that that's the starting point that the obligation is upon the defendant to demonstrate that he has been in fact eligible for it seems to me that the district court didn't make that kind of a difficult argument to assert the only reason i don't think it's a difficult argument your honor is because the fact will findings that i'm asking this court to all i had looking at this record is it looked to me that other than what he said up front which was essentially indeterminate that he never made a calculation of america if he did you show me where he did because i can't i absolutely do your honor if we go back to the one thousand nine hundred nine sentencing in that sentencing that there is a dispute over the drug quantity and through the course of the hearing in that in excuse me government's exhibit nine eighty five or docket entry ninety five the government lays out two hundred forty kilos grams worth of drugs directly handled by mr ordain and at least six hundred kilograms of cocaine handled by evan gheorge who is the the court after listening to this testimony or the argument at the sentencing referenced the p s i i the objections the responses by the parties and the trial testimony that that court had sat through and specifically found the testimony of evan gorge marie julie jean and others to be credible and then overrule the objection and then the in the statement of reasons specifically adopted the p s i i with the small exception of the obstruction of justice criteria so the i is i'm sorry i thought that appendix responded to the defendant's objection on the quantity and backed off of the paragraph that you're referring in the original p s i don't i didn't believe i don't believe so you believe that it it it what it talks about it doesn't remove the reasonable and foreseeable language at all wouldn't hold landed the probation officer filed the appendix with a different quantity you range then in the original p wasn't meant to supersede well the but those quantity range was still when you put the two pieces together is still more than the four hundred fifty kilograms range but not a funny no no but when the but the p s i has what i was getting at with you with my question if i have it right or dame objected to the amount attributed to him and argued that the trial testimony demonstrated that the amount was more than fifty but less than one hundred fifty kilograms he also objected to the p s i would you indicated that he assisted  john in transporting the drugs and introduce a gate of the drug traffickers the district court overrule the objection to the drug quantity finding the testimony of various witnesses credible but ultimately he holds ordained accountable for at least one hundred fifty kilograms of cocaine because that's all he really had to find yesterday so he didn't find him responsible for anything more than that does he know in the court sentencing transcript he speaks specifically of one hundred cases where is it that he actually makes a determination of the amount of of cocaine here i don't think he ever did it it may be that it doesn't matter here because he says i wouldn't give it to him anyway because of his position and that might be harmless error but is it not a fact that he did not make that calculation i think that is accurate the court did not specifically say step one is this criteria and these are my findings with respect to and that is a violation of how we've said you've got to com these thirty five eighty two proceedings you've got to do two things make the calculus and then you're free to say ok i'm going to do or i'm not based upon these factors but the trial judge why so it's harmless both based on the quantity of drugs that were involved when we look at the record as a whole as such then you're asking us as a judge ebell suggested by his question to make our own determination of the amount when the trial court chose not to do that i'm still looking just at the pleadings that relate to this argument as opposed to going back to the sentencing document seems to me the best argument you've got and maybe the only one  that it didn't matter to the trial judge he told us on ambiguously this was a profound abuse of trust by a law enforcement officer and whether it was one fifty or more he wasn't giving this guy any relief follow the regime and the protocol that he was obliged to follow without question your honor but let me ask about this did the government object to him not making the end step one determination in the in this context the governments of initial pleading that it filed laid out all of the stand no but he went ahead and said i don't have to do step one because i did not and step to the government then stand up and say we object to you not doing it under step one well we weren't present before it was done a paper  throwing around loosely the term jurisdiction and it most this is not i don't see any way in the world this is jurisdictional we use it sometimes as a as a synonym for authority carelessly use it supr court fessed up to doing told us to quit doing it to him we still doing it i was what i call it that's dicta and also telling the district court this is the way you do it step one step two as we did in dicta unless somebody can find a place where the district court didn't do step one but did it under step two denied relief and we reversed it makes sense to say you've got to do both steps before you grant a thirty five eighty two say because that's what the statute says but you can do not under either step unless and until there's binding caseload to cut to the contrary in and hamilton i'd like to think the reason i didn't object to judge paul saying that is it didn't make any difference in that case because we affirm the now so i don't think that he has to do step one unless he screws up i don't think he has to do step one but he can get reversed for denying erroneous lee under step two but referring to the obstruction of justice enhance referring to obstruction of justice as a reason for denying relief under step two when we've said repeatedly and these are holdings that you have to hope constant to your findings from the original sentencing now why isn't that er under step two and since step two was the only basis he denied it under we're required to reverse your honor the only argument i would make for why that that would not be an error that requires reversal is because there were grounds that know but he said and he said there's three reasons i'm going to do it a b and c he didn't say i would judge marino showed us in this case and has shown us in other cases he knows how to say it doesn't make any difference and he didn't say obstruction of justice doesn't make any difference he said it's one of the grounds i'm denying you know i do not disagree your honor if you go to the first order though in the first order the court said no we're only here we're here on the second order ok so for looking only at the second order then the court is correct that judge mariano reference the obstruction of justice the other two grounds would have been as a why should not be reversed and sent back and said do it again my argument is solely that the other two grounds were sufficient on their own merits so it is  waiting for you to argue well it's irrelevant because he didn't get an enhancement but even though he didn't get an enhancement it was offered as a affirmative reason for his decision the only reason therefore it's still relevant even though it didn't calculate into the sentence itself the only possible argument i was going to have made would be that at the sentencing and originally in one thousand nine hundred nine the district court sustains the defendant's objection to the obstruction there were two different paragraphs that dealt with the obstruction the court did not that describe factually the underpinnings of the obstruction obstruction hanson and then there was the subsequent calculation paragraph the court sustain the objection to the on round two he imposes he which is the ruling he did in part because of obstruction of justice which is at war with a finding he made in round one it is arguably it is why isn't that fatal is all i want to know the on how do we get around it the only basis i had to assert to the court is the fact that you could dissect that from it and look at it for the moment agreeably he said and i understand it's all conjunctive there were grounds that were sufficient and you're saying it's clear from this record you can do the same thing anyway because they put struction of justice was the lesser of the considerations the essential consideration was abuse of cost absolutely or and and so we're spinning our wheels sending it back your the odds are the chances are that they'll get the same result i would agree your honor the court could is that the test no it was your that is to be the same do we have to find that in fact that it would have been the same that there was no no substantial possibility that it would not have changed the result well out your honor if i should be more technically correct and i apologize for my casual answer because the standard the court just said is in fact i think apple will in this case when you look to how this judge sentenced this defendant originally choosing to jump to life from three sixty and the strength for which he said the abuse of trust issues and the degree to which he respected the question of this defendant having had an oath of office he did it both in the sentencing transcript and he did it in the statement of reasons even and then to have referenced it multiple times i'll be it in the order or not technically here on the thirteen twenty six and then again and thirteen forty five it is clear this court as judge marcus just said is going to be driven if not largely certain not entirely certainly largely by substantially by the abuse of trust this is a law enforcement officer not just having t s a responsible is but absolute having the opportunity to carry a weapon which he used to we know that what the that we have to know that in order to reach the conclusion you would have us reach i believe you do your honor when you take go back to the original findings look at the court statement of what he said on the original sentence look at the statement of reasons where he reiterated it in a statement of reasons which he didn't need to have amplified there and then then when you look at the court's wordings in both in the thirteen forty five water and even the thirteen twenty so one other quick question i have what authority did this record have to construe the letter  surprisingly sophisticated this you know when he says all i want is a lawyer i'm not i'm not making the application here your honor without a question the court could have been had it not done so it would have let this defendant have an opportunity i want to know what if he already the district court had to convert the application for a lawyer which he could grant or deny and he denied it into a full blown application on the merits which he then proceeded to direct response from the united states got it and then denied here i have not a case that is on point that would address this what i had in your argument he had none i'll stipulate to either one but what you can't do is deny solely on the second one on grounds of obstruction of justice i anticipated some member of this court might say that ruling to me  that proposed really to me your honor and i can't address every point of that there are several steps in this in which it could have been done differently and we would be standing in a and we just be candid with the one thing we consider subconsciously at least some of us consciously as it's not going to take much to find out the answer to this you send it back to him you don't have to have another hearing next and i don't think you're not supposed to have another evidentiary hearing you can't so if if you're right about almost certainly have gone tonight anyway it won't take long to find out those are ok thank you thank your honour's as carol it looks like we've almost negotiated a taken back before the judge what does that mean translate that into english what is the matter what is the district judge supposed to do i believe does he have the authority to begin with to construe the application for a lawyer which he now has  to go to the merits of the thirty five eighty two i believe or should we leave that issue alone altogether and simply send it back and say you relied on obstruction and round to your rejected it around one we can't again i'm asking you what you think the mandate issue ones from this court ought to be what ought we to be saying to the dr you know based on the arguments that i made in my initial as well as a reply brief i believe the judge urge not entitled to a hearing that's for sure isn't it i'm not certain it is absolutely set new evidence is going to go in and be considered the government offered new evidence seems to me that's a different story you want i believe that if the district court is relying on the record extent i don't see how you'd be entitle to hearing i'm not asking for a new evidentiary hearing your honor i believe that the government's going to be coming back i'm giving certain matters that may i'm not saying be reversed in the case remanded thank you thank you and we know you a court appointed appreciate you accepting that responsibility