no here with us he's sat with us several times and as i said yesterday we really appreciate the work of senior judges who work for free and shoulder a substantial portion of the workload of the federal judiciary and we've appreciated him coming here before and i look forward to working with him again and appreciating it and being here this week we have three cases to hear this morning we're familiar with your cases counsel we've read your braves the authority cited in your briefs at least portions of the records in the limited time available to you you should feel free to go straight to the heart of your argument make the most important points that you would like to leave with us this morning whenever you're not able to address but it is addressed in the briefs will of course still be before the court you don't waive anything by not addressing it here we're probably going to have some questions please don't treat the red light as aspirational when it shines it's time to wrap up but of course if you're finishing an answer to a question from the court you can finish your answer but mindful of the clock so our st case this morning is united states versus thomas and mr lawrence was no lawrence that was appointed to represent mr rick thomason was currently on of the custody of the bureau of prisons on two august two thousand and twenty four the district court abuses discretion in failing to hold a sentencing hearing recent in seeing hearing with mr thomas a present prior to imposing a modified sentence a resentencing hearing in this case is a critical stage in this criminal gurnall proceedings on the facts and circumstances of this case on the due process clause and  we said that when a court must exercise its discretion and modifying a sentence in ways that it was not called upon to do at the end and initial senate saying that i rescind it seeing hearing may be necessary but it it seems that in the in the circumstance that we have here where there was no change and they guideline range that at least in our unpublished decisions we've said and that's not the kind of situation that requires that exercise have discretion for recent seeing hearing and now realized as her unpublished decisions but  guidelines was significantly less than it was back in two thousand and three in addition the sentencing landscape has changed tremendously since march two thousand and three when mr thomasson was sent originally sentence that was three months before the break you versus washington almost a year before book of found found and also the residual clause in the guidelines no longer apply it was excised th objection to the to that while the the court did not the the court did not entertain any of that before just simply summarily ruling that this is the this is where i am this is what i'm going to do there was no record motion f rehearing our motion for reconsideration with regards to not i thought his guideline range was calculated by applying to k two dollars b and his criminal history category was six neither of which would have been affected by the arm career criminal act where it would have been if you look at for instance the paragraph from twenty six to thirty probation officer did was compare what the calculations came out to be quite incorrectly as as the as the government has noted to the court of twenty a j last week that the calculations pursuant to two k two point one were higher than the level thirty four that's called for by the aca guidelines and therefore they're going to go with the two k two point one calculations if they had done it correctly it would have been less than the in the pre sentence report this is a classic case of brown where for all intents and purposes even though brown involved one and only one count of conviction this is simply one count of conviction even though it was eight of them they all concern the same statutory provision which is the nine hundred and twenty two g or the nine hundred and twenty two j where the punishment is seeing that was done in february th in the original sentencing the district court utilized the range that was required by the guidelines after computing the aca induced sentence and he did not discuss the guidelines are the eighteen u s c three thousand five hundred and fifty three factors there's no notation in that in the minutes and the guidelines was not as i indicated corrected or recalculated the district court now is using the reasoning for the departure as the new basis for the recent unsing and and it doesn't recognize all the changes that have occurred since the sentencing back in march two thousand and three we're at a loss to figure out where how the judge came up with the two hundred and ninety three aggregate apart from the fact that it's within the guidelines because if you divide the two hundred and ninety three by four that's about seventy three months for each count if you were doing it wrong the government asked for three hundred and twenty seven months that would have been eighty two months for a count but the court simply said aggregate them but the court is no treating the guideline as sentencing the district court varied upward from the guideline range which would suggest to me that the district court understood that the guidelines were not mandatory otherwise it would have sentenced within that range well there's two different portions of that the guidelines was mandatory then there's no question about it back in two thousand and three it was two hundred and thirty five thousand two hundred and ninety three that's what the court found at that point the court then departed in one level for the criminal history from  at the st time and at the nd time did not upwardly depart and sentenced within the range how what is there to suggest that the government that the district court thought this time around that the guidelines were mandatory well i don't know what the court was thinking this time but he's treating it as mandatory out how to the extent that he's just because he's sentenced within the range now that he's treating five g one point two as something that he has to do pursuant to he does have to calculate the range correctly he has to apply the chapter five provisions right it doesn't have to apply the u s eyes are in calculating the range she has to apply chapter five right if you even get to calculate the guidelines and if you have to calculate the guidelines book or requires a district court to consider the guidelines that's part of the sentencing process now procedure procedurally so when the district two thousand and three i thought a minute ago that what you were saying was that because he did that he was treating it as mandatory i'm confused well i'm saying history is mandatory because he's still using the guideline calculation from two thousand three when the guidelines were mandatory in terms of the calculations for the adjusted oftens guidelines and then he went the additional steps on thing that was not considered or original sentencing which is consecutive simply say let's do it consecutive nobody asked for consecutive or envision consecutive of the original sentencing back in march two thousand and three and at that time the guidelines was mandatory now is advisory and we would expect the court would allow both sides to give an input as to whether it should go upward or go downward it's ironic that the gunman asked for a hearing if the court went downward they didn't object after he did go downward and still didn't give them here give the government and hearing in our case we're saying that he should have had a hearing in the st place and it's a busa of discretion not to have a hearing based on the factors that are involved in this case it is closely aligned to the jasmine four c that's not the case in this case ok well i think we understand mr aren't chief say five minutes for rebuttal i want to hear from the government whether it thinks the guideline range was calculated incorrectly or not i thank court on behalf of the united states your honor to answer question when i was reviewing the original guideline calculation i do believe the two k two point one range was calculated incorrectly at the time when mr thomasson was originally sentenced but the cab e got to that is this that error was not a johnson error it was not mentioned in any of the pleadings before the district court rather the in the th in the section twenty five proceedings the argument was that i was originally sentenced as an arm criminal but i don't qualify anymore and now my statutory maximum on the th felon in possession counts has dramatically decreased but there was never suggestion that the guideline range in any of the pleadings needed to be revisited it i was confused by this how should the guidelines have been calculated had they been calculated correctly this time this time if the district court recalculated the guideline  range i think it would still fall because mr thomasson if so if it was a full recent saying starting a new i think mr thomasson he didn't qualify as an armed her criminal any more under today's law and so it would have been a still a two k two point one calculation but under the it is the current guideline manual the base offense level would change because the god would use the current manner well and if the district court and its discretion orders a full recent seeing hearing where it's where it's going to revisit the guideline calculation i do think we'd use the manual but my response but my but for further clarification before you get there the district court has to decide instance question what's remedy it is going to order and the statute itself doesn't require the district court to order a full recent thing hearing rather it can opt for a more limited correction of a particular error which i think is clearly what judge collier was going for in this particular case and so the question is did was that an abuse of his discretion so your concession is that there was an error and the calculation of the guideline range originally that's correct but it's not one that was noticed on appeal or was ever or was ever the subject t so so that is an error that was never brought up at any stage either on appeal or on post conviction review that's right her john and i don't thing i even appealed so yeah so then the you know but it could it's could have brought it right up on appeal that's that's my point and so the air that was correct in under the arm career criminal act would not explicitly mention not in his order a but he did to take into account what he said it was the arguments of the parties and the part in essentially mr thompson's argument was that the court should consider his post sentencing conduct when deciding what how to modify mr and we come back the guy with a district that was operating under the same guideline range opted not to review the guidelines or conduct or order any pre sentence report but did solicit that evidence and i think that explains probably the the de reduction of that additional information require a hearing i know your honor it would not and so the question is obviously it's within the district court's discretion whether or not it wants to hear new information in this case given the new district court exercised his discretion to review that but that you know in and of itself isn't a substantial exercise in discretion or requires a hearing otherwise every time a district court did that in a thirty five dollars to two dollars proceeding right we have to have a hearing over it and those happen routinely and i think the law of this court is that a hearing is not required when a district court considers that information right it's how they're written submissions are sufficient as long as the parties can have an opportunity to use submitted no additional  error certainly it altered the structure of the sentence it didn't go to the substance of what judge collyer imposed back in two thousand and four i mean i don't think there's anything where we can get around it obviously the senate would have to be reconfigured because the statutory maximum dramatically arm for criminal act didn't the johnson era didn't affect the original sentence that was imposed so and certainly in this circumstance when there's no suggestion that the the johnson error influence the district court's original sentence in any substantial way or influence the guideline range in any substantial way it wouldn't be an abuse of the district court's discretion to opt to modify the summits in a way that and and if the  appeal didn't have anything to do with the way the guidelines were calculated it because because of the two k two point one range so the other criminal history category  the statutory minimum and then on recent saying imposed the sentence at the statutory maximum right the judge in both cases opted for sentence well the st case opted for an a departed sentence above the guideline range and then came back and opposed a sentence within the guideline range and so and thomson thomason didn't make any challenges with respect to the guideline range there was really no reason to revisit any of that information even when the district court said i'm not going to hold a hearing submit your whatever you'd like me to consider the only evidence that was submitted was evidence of the submissions and if there was if there had been something presented to him in writing about the calculation of the guideline range presumably he would have considered it presumably he i mean exactly your honor but there wasn't any and so in this circumstance the government's position is when the guideline range wasn't affected by the error the district court doesn't have to revisit that range if it is specially if it's not invited to or argue to you it's certainly the courts i think you know they know better than any of us what what they consider when they're senate saying and certainly maybe it would be perhaps within his discretion to do that if he wanted to but the question is why not just collyer you know abuse discretion in this case and given the facts and the circumstances of the answer and government's view is no there wasn't a beast of discretion here the other point i'd like to make is well really so we've touched on the post and it's in conduct that was considered that's can certainly hold a hearing is not required written submissions are sufficient so i think under that precedent in this circumstance written submissions would be sufficient and the other exercise discretion that we had which color in this and the recent well the senate's modification was the decision to run concurrent originally ran concurrent sentences and to run them consecutively the nd time to to manifest the district court's original sentencing intent and i would point the court to the jackson decision which is discuss our brief where the change was was subsequently similar right to the statutory penalties had been changed and so in that case the district court ran sentences that were had originally been run concurrent chose to run them consecutively so the result was the overall sentence was lowered but the structure of the senate's had been changed and i think in that circumstance the court held due process doesn't require hearing for that type of remedial modification right and i think the reasoning for that makes sense right it's it doesn't go it goes to the structure of the sentence right but doesn't go to the substance of what the district court was thinking when it originally sent the defendant and so in that case it wouldn't be an abuse of discretion unless the court has any other questions i will yield yes rest of my time and ask that the court  let's make sure we get some things right here so it is your adversary stated it right that whatever guideline error occurred occurred the st time if there was an error in the calculation of the guideline range it was an error that existed in the st hearing it's not something that the modification of of the senate is based on of being thirty six and so they said we'll just go with thirty six rather than the four hundred and thirty four it's a converse if it wasn't if the calculations were done correctly then it would he would have been a category level thirty rather than  and less the same everything was done right at the st year ok and you and you get rid of the crack the aca air then the guideline reign doesn't change if everything was done right that if everything was done correctly but in this and nothing was presented to the district court here in writing to suggest that the guideline range had been miscalculated or or  so it's our position the general rule in fashion a sentence is that the district court should consider the guidelines that are in effect on the date that the defendant is sentence in this case it would have been if you have a resentencing if you had a resentencing been something filed with judge call here to put him on notice that the original guideline range had been miscalculated and that that was something that needed to be considered too he might well have considered that and might well have granted a recent seeing hearing but he was never told that that is correct there's nothing to record and it seems to me that it's and in that circumstance it would be hard for us to fault a district court from everything that he knows the only thing that has changed here is the johnson air and from everything that he knows and it doesn't affect the gardyn range and to say that it would be fair to not hold a recent seeing hearing in that circumstance because the original guideline range had been mouth miscalculated in a way that was never brought to his attention that that seems to me something we should not be telling the district court and that's just one facet of it i'm not suggesting that it should be determinative but this reverted to and the fact is that the court has exercised tremendous discretion in running the the counts consecutively without a hearing is that right ok