one hundred and ninety eight months we're appealing from an order from the district court denying his motion to reduce or for compassionate release under eighteen united states code section belief at this point looks like the court denied relief based exclusively on the fact it believed it lacked the authority to determine that the circumstances next presented to the court were extraordinary and compelling reasons that justified or called for a reduced sentence under the statute the court's reasoning is based on it's a it's clearly and in the court's order there's a the court recognizes the circuit split or excuse me the current split among the district courts very little circuit authority on this issue but many district courts are finding that the sentencing guidelines  commentary kind of that defines what a judge can do in terms of interpret what extraordinary and and compelling reasons are in particular section one b one point one three end of the opinion but i recognize there's been a change in the law and even if it's were it were not found i still would deny relief based upon the lack of extraordinary and compelling circumstances well because that a fair reading of the district court opinion that's not the reading that i have the reason i see is that it begins and finishes with the commentary of the guideline analysis it recognizes the circuits it sides with exceed the district court split indeed but it sides with the other district courts who said that the commentary is binding and controlling in this instance the court  does for lack of a better pay lip service to nixon's claims you know but essentially the basis for the court find even though the court said alternatively or maybe i don't even know  causes you to assert that the judge did not realize that he had the authority to do otherwise well that's the entire reading of the order if you read the order out right it's like i said the majority of the the  covert the court talks about the fact that you know these you know his his conditions are being controlled and he's not essentially on his deathbed at this moment he's only fifty five years old he's so far away from these these these points that are in the commentary that the court relied up still relied upon that commentary an issue he missed decision and relied exclusively on it and i might add why can't that be interpreted as and what i'm  judge saying you know whatever the situation is your situation tip to my mind is not so exceptional extraordinary that you deserve it rel because you're young you're conditions are treatable you still got a lot a sentence left and that doesn't sound like judge not being aware that the church could do it if you were inclined that sounds like the judge is not incline well the judge may or may not be inclined i'm not sure based on the order i mean you know clearly if the court considered these factors unconstrained by the guidelines and unbridled by those and with the authority to consider these conditions and arguments that were presented you know the court may very well come down on the other side for instance the court does not even address at all the fact that your next argued one of his extraordinary reasons and circumstances is the fact that if you were a sense today you would not be considered a career offender you know he's convicted he's pled guilty to a conspiracy to distribute controlled substances after have is that that c philadelphia you know we filed this motion months ago when there was an outbreak now there is there's you know seventy one inmates as up today that are infected twenty two staff members this mister nix hasn't is fifty five years old yes but he suffers from in the conspiracy and the amount of drugs involved you did mention his status as a career fender i believe in a i think you mentioned he was a career offender he's definitely doesn't have a big conduct the war in iran or he's he has prior convictions and this is not a saying that he didn't qualify at the time but under current law and i'm not asking any court to apply the retroactively either it's just an extraordinary circumstance that and i think of many believe me the best when you're latching on is the fact that if you would maybe no longer qualified as a career offender and that may have affected his sentencing that's correct you know that's really ancient current sense  outside up outside the sentencing range even if you took away the current fender consideration there i believe it would be very close he ended up at one hundred and ninety eight months he would yeah i said i my impression was that he would still fall within the range in other words the sentence he's currently serving would still be within the guidelines range even under the factors you think the court should consider potentially that's the case but  again the court never got to any of these factors and that's the point of this argument i think it i think if we're going to have you know it's at some point there needs to be an even understanding across the board as to what a judge can do and  you know i know the court is aware of all the different decisions i know he cited a multitude of them and both are briefs and they do come back on both sides but here are the it's more than just a question of whether or and the other things that he cited in his brief however the court relied and relied too not just i can't say exclusively but to such a significant degree on the sentencing guideline commentary that it career offender level do we know whether if there were to be a review of the sense again whether the career offender level or determination would even be at play  and i correct about that the career record the career offender determination could not be applied under habeas at this point because the conspiracy fence it is just simply not a controlled substance and since but the adjusted office level would still be the same as it these motions based upon extraordinary compelling circumstances and these d prisoner reduction motions that this just opens up certain saying to the way things were and assess before we even had idolised that the district use in a number a wide range of sentences and we would end up once again with a little system such as you know that something that we should be concerned about i think is some to be concerned about and i think in this circumstance it could be fixed remedied very easily  ancing guidelines simply need to be amended to conform with the statute that you know that that's that's the issue two you know other than a judicial determination now yes as the statutes currently written and i would say it's not i and that particular part of the statute is what gives the court the authority to do this and because that part of the statute and the fact that inmates can now bring these motions that that  should united states of america i'd like to start with the text of the statute before i do that let me talk briefly about how the career offender guideline affected or didn't affect defendant sentence  know i thought ok and i don't want to get you off but i just want to keep this kind of logic where you've told us about the agreed upon sentence and the range and i know that there's one argument that well having been since the day you know on the st step back it would have been a different sentence you calculate what the difference in this would have been if it would have been a different sentence had he been sentenced today in the st i don't know that i can calculate what the sentence would have been ok it's the government's position that one hundred and ninety eight month sentence remains appropriate well i understand it and that is within the guidelines range that would now apply to ok and is it your position also that that it was appropriate for the church not to consider any st step potential application to the extent it involves post sentence legal developments yes because those are conspicuously absent from an application that one to the opening line of the guideline text says upon motion of the director of the bureau of prisons and the other is the st sentence of application note for which says a reduction under this policy statement may be granted only upon motion by the director of the bureau of prisons step back so we agree that those sections are obsolete and have no effect this court should strike them ignore them as it did in hate us when it found that language was incompatible with the language of a guideline it should simply strike that language but it doesn't there is no authority for this court to substitute different language and that seems to be what mister nix is asking the court to do so back to the language of the statute three thousand five hundred and eighty two dollars says a court can reduce circumstances and we have those here it requires this court to ignore that statutory language about an applicable policy statement and the nd circuit of course and brooke i said you said it's not applicable but you say it's not a political because the very st line and then the specific it is still applicable because the change that the st step back to made did not change any of the substantive criteria it only changed who may file a motion applicable is defined as capable of being applied or fit and right to be applied and the commission's policy judgments about which reason are in fact extraordinary and compelling applies equally to motions filed by defendants as to motions filed by the court congress expressed lee delegated to the sentencing commission specific examples sure the sentencing commission could someday amend the guidelines to include other categories if it wanted to do so but we see no basis for the court to find that it is simply merely because it in clay contains language which could easily be stricken without adjusting or avoiding clear congressional intent and the sentencing commission's policy statements treating one by one  binding for all three thousand five hundred and eighty two dollars motions no matter who filed them is consistent with the backdrop of the existing law and congress an act of the st step act and had congress intended to strike consistent with applicable policy statement of the sentencing commission it could and should have done so in the st act we know what congress intended to do by what congress said and because it under and the existing framework of stenson with commentary being dollars i submit that it is not the most faithful to the statutory text because it at the time congress enacted this it knew that there was no separate requirements for defendant file motions and it's i see no rational basis to distinguish between the person who files the motion when that's the only change that congress made in the st step act they say i gree that congress intended to expand and expedite and improve compassionate release but it did so by allowing defendants to petition the court not by one of the things in the policy statement so it is it is possible that the policy statement influenced the court's decision on that in in reading the opinion is it possible to  find that the district court did not understand that it had the right power ability discretion dollars obviously if the court rejects that assumption then the appropriate result would be to remain and for the district court to consider it under the appropriate standard but i see a lot of that the the statutory texts the history they backed up existing law when congress enacted the fair the st step act the text of the st step act itself i think all of these factors strongly suggest that the congressional choice was still to give the sentencing commission exclusive authority to determine what reasons were extraordinary and compelling and that there's no basis to gave the district court the chance to assess that for itself you know looking at one d for example which again recognizes other reasons but only as determined by the director of the bureau of prisons that arguably incorporates by reference to be a peace program statement which is more expansive and therefore more favorable to since i believe may two thousand and twenty that a defendant whose medical conditions placed them at risk of severe illness from the coronavirus namely defendants who had a risk factor recognized by the c d c can qualify under application no one a two as having a serious medical condition that might hinder their ability provides health care that's because the senate sorry the c d c defines severe the st part of that when you talk about c d c guidelines it seems like those guidelines were general guidelines that were not as severe as the hospitalization and c d c talks about things like you know is guidance over the past few months because again we're dealing with a global pandemic it's killed over two hundred and forty six thousand people in the united states alone the c d c defines these things as certain conditions necessarily increase the risk for any defendant with those conditions conditions we agree that they have established extraordinary and compelling reasons within the language of the existing application no one a two if that city say things like hypertension and asthma which mister nick said he had the c d c says those are only things that might possibly include injury in increase the risk and so we have not agreed that those amount to extraordinary compelling reasons because that's simply a possibility at this time that that's that that's the position that we've taken under for the reason and on the c d c guidelines those guidelines distinguish between people at liberty in the community and people in confined environment because those confined environments say we're living in a global pandemic with the situation changing bailey we certainly monthly does does that make any sense to just so in this back to the district court to make a determination on this motion in light of current the current situation in the prison or what we just have mister knox go back and start the whole  in fact by ending as the district court found and to affirm its decision on that basis  court's order ferrets that out and as a matter of fact mister nix's you know he tells me what his conditions are and he didn't know what the real words were so you have to thank god that they at least presented their the accurate medical records but the point that these conditions within the prisons are clearly more dangerous than on the outside i don't think there's anyone that can debate that if we're looking for certainty from the guidelines from the c d c everything's a possibility at this point you know so if the government's position and the bureau of prisons position is that we're if it's only a possibility you're going to go if you're going to die or it's only a possibility that you're going to go to a hospital  then we're not going to grant these motions brought to me that just doesn't make sense there has to be some degree of that possibility and if it's likely that someone is going to suffer irreparable harm or death as a result of succumbing to the virus and it is also likely that that person's going to be infected with the virus it seems like that's an extraordinary compelling circumstances many courts have found and you know you need his or you made those arguments the district court the analysis starting at the end of page twenty of the court's opinion that's page id number seven hundred and ninety six through the conclusion sure the court says even if it if it could recognize these factors the reasons defend cites are not extraordinary compelling well if that's how if that's all the court did was leave it off at that i would agree that the court probably you know would at least have said that it was considering it but then you follow up i see my time is done the follow up with the rest of the opinion it all relates back to the factors under the guidelines each one of the points that court makes goes back to the guidelines and with that we would ask the court reversed the district court's decision to send it back