proceed to the first case on the calendar united states versus plea agreement was based on the sentencing guidelines and the a political guideline has been lowered by the united states sentencing commission in a subsequent retroactive amendment this court's decision is governed by the supreme court decision in freeman versus united states sense briefing in this matter this court has issued two decisions regarding freeman united states versus leonard a published decision issued this december and united states versus mccall an is the controlling opinion in that case you know in united states versus lenard it's clear that this court has not decided that issue in our opening brief if if it is judge sort of yours and then your argument is much more difficult because he has said that he had to be a particular guy and here are two guidelines so  it doesn't really fit nicely in in what she said would be permitted injustice so to miers opinion she said that in order for the reduction to be available the guy at the eleven sequence the agreement had to be based on the guideline and that a decision a sentence within a range a specific sentence within a range  that's arrived at by a guideline calculation would be eligible for a reduction in this case your honor the parties carefully calculated the vertical axis of the guidelines in the criminal history category and agreed that the guideline the criminal history category was anywhere from a four to a six the appellant has no control over the drafting of the plea agreement the government understandably did not rely on justice sort of my your refers to the first ground she gave so that invent respect it is dicta it is not speaking to this so that everything that she said w respect to that with respect to whether it would apply here and off is not holding and therefore we can decide for ourselves whether under v are indeed eligible for adoption if the guideline range of pluggable to them at sentencing has been lowered that is exactly what this court found in us vs lenard and us vs one hundred the guideline range found by the district court turned out to be higher than the one contained in the guy eleven c one c agreement ultimately the district court did sentence within the agreement of the parties but here the government gave up one charge having filed its five fifty one information the agreement express acknowledges that they don't know whether the criminal histories of four or six and then proceed through the discussion although it does reference the guidelines says notwithstanding the  agreement by the parties that is reached by some other mechanism why is that a sentence that is based on the guidelines i'll answer that in two parts your honor with respect to the eight fifty one notice respectfully we believe that's a red herring in this matter saying a rosa was set to go to trial on the entire conspiracy charge and it was the government who ultimately offered the resolution to allow him to plead to the cocaine charge which is in fact the only thing he was willing to admit to in that respect the eight fifty one notice does nothing to mr arizona rose a sentence it changes the mandatory minimum from a five to a ten but that is still well below the guidelines even as currently amended with respect to the guideline calculation dancer that again in two parts first the parties resolve the things they could resolve under the guidelines specifically the type in quantity of the drug the nature of this defendant a role in the offense using the guideline provision to arrive at a to not a three or four acceptance of responsibility again to arriving at a to not a three and in the end because the criminal history category a phrase that is a guideline concept  construct only of the sentencing guidelines is a matter that simply is it is what it is aren't there are many many many many cases from the northern district of new york which use exactly the same formulation notwithstanding the above referring to the guideline calculations and then come to an agreement where the government has consistently agreed that when the amount of the guidelines based on the amount of the drugs changes the defendant is entitled to a reduction we say too many of them from the western district in or in our case yes the government has conceded that point in the interview the majority of they could actually me if i could follow up just directly for that's looking at the plea agreement that was the basis of the opinion in leonard as opposed to the notwithstanding language that plea agreement says consistent with the above calculations it is the  the parties suggesting the option of the guidelines calculation in a way that this notwithstanding language is in tension with it seems to me don't you agree that that is an important distinction the court who is looking at the actual decision for me but i would point to us versus mccall that does in fact use the notwithstanding language that me try to understand visit bit more there is certainly a difference  that that is can be based on a guideline is right my understanding that in at least some of the districts where government has conceded that here they are not conceding it but that there is  something that that language has been held in any number of cases by district courts to be to allow it to mean a reduction yes your honor and we cite to many of those cases in our final footnote in our opening brief i feel that your argument is unless we are barred by something and just is sort of my yours opinion and just as sort of my yours you pinion is of indeterminate if one we can decide western but is this before language in the western district of new york notwithstanding yes your honor and our footnote cites to western district of new york so the final footnote never opening brief less than many cases in our district you honor in fact we do sometimes handle appeals out of other districts and i find there to be a complete difference in the way plea agreements are drafted in other districts but i can't say that i've ever even seen an eleven c one c agreement from another district  to circle back just to judge carney's question regarding the criminal history category i would also like to point out that the inclusion of the higher criminal history range i think actually was put in because of the appellate waiver provision at paragraph eighteen there the defendant had to agree to waive his right to take a direct appeal within that higher range again a provision of this plea agreement directly referencing the sentencing guidelines in this case the higher guideline he would say that the plea appeal waiver also is a sign provides a sign that the guidelines for the basis for the agreement yes thank you very much we'll hear from the government original sentence that arizona rosa was ineligible for sentence reduction because he was expressly sentence based on a sentencing range because he was not expressly sentence on a sentencing range they have been lowered by amendments to the guidelines and particularly descriptive language which the judge used in denying the motion for reconsideration and taking an even closer look at what happened in at the original sentencing the judge said that the parties applying just this sort of my oars concurrence that the parties agreed to this sen sentence to defend because those cases i have hit i have not looked at all of those under a microscope but this case is different this case involves a situation where the parties were expressly uncertain about what the guidelines range was going to be the sentence that the greed upon was plainly within one of those guideline ranges but it was with within one of those guideline range signal definitively that the sentence that the parties agreed upon was based upon the guidelines why why is it that the government spends such resources on this case with this one history of all of these other cases using exactly the same language on which the government could have a law it notwithstanding the about how how is it that this defendant is somehow singled out by the western district because the situation is different in this case your honor in many of those cases and i'm familiar with generally  the difference can be only one of two that here very were who possible guidelines and the question of whether vat makes a difference or not is a question deal with and is not dealt with adequately by justice sort of my your because when she says particular guideline that he's clearly dicta because it had nothing to do with the particular case so the question of whether been a choice between one guideline and another means of it would notwithstanding language it moves outside eager guideline is a question of law for us to decide the other point which you are beginning argument  to may is what was in judge scraped knees behind and it may well be that judge script and he thought that this was not based on the guidelines but whenever he is correct in that or not is not for him to say it's not a matter of their volo that he has based or not he vent can give the same sentence or is no question that one and that if we think that this is possible it goes back to john's great need he can give his same sentence seventeen times over but when he was in his mind doesn't distinguish this case from the others so i come back to judge  c agreement certainly it's up to this court to make a determination as to whether he's correct or not but he does need to say that and he did say that pretty specifically in this case in terms of why it is different the reason it is different and judge i agree that there are plenty of cases where with that notwithstanding the calculations language that we have conceded ok this was based on the guidelines we agreed to  agree to a sentencing range and alike in leonard agreed that a sentence within that sentencing range was the appropriate sentence in the case under eleven c one c that's pretty that that that's that's that's more than what we have in this case why did you do that here you agreed upon a sentence which was within the week which was within one of the two guidelines sentencing ranges the one that provided for the lower for the lower sentence and you agreed that that was going to be the sentence the guidelines sentencing range was then reduced because we didn't know what the guidelines range was going to be and the parties expressly said we don't know you agreed to a sentence within the lower of the two guidelines sentencing ranges which was then reduced at both would have been reduced right and i and we we do concede in this case that the a political range has been lowered and leonard discusses also both the based on language and the language and in this case sure the a political range has been lowered but the sentence was not based on me ask you a broader question all this does all timidly if we decide again is to send it back to the same judge to decide whether that judge wants to put a lower sentence or no why shouldn't invest context of a statute of a change of the guideline be read broadly then he is of course if it is clearly not based on the guidelines if it  be and that's it there is no authority but we are very easy any doubt why shouldn't in a situation where all this does is permit the same judge to consider something which befor that judge was not permitted to consider why isn't that the appropriate sensible thing to do well is it i mean do you think in terms of of common sense not of how one reads  in a situation like because the district court in this case was was quite definitive in ruling was at this was not it was definitive on his view of what the law was not in his view of what  be should be if the law allows him to make it lower and that's a very different issue but if the parties agreed in i think we're we're circling back around your honor if the parties reach this this agreement and reached the agreed upon sentence not based on the guy who was standing yes and how would standing what the guidelines it and yes our plea agreements do calculate the guidelines that's to assist the district court the district court has the obligation under the statute to consider the guidelines outlook which gretna at the sentencing when he was addressing the defendant explained discussed here and isn't it somehow unfair to judge gretta need to hold out to the defendant the possibility that the guidelines would be reduced and applied retroactive and then when the issue comes up said i can't do it i don't think so your honor and the reason and for this reason that discussion at the original sentencing was brought up because the defense attorney  advocating for his client said look this is on the horizon why don't you just give it to him and the judge said no i can't there has to be an agreement i realize that my opponent has said what that was referring to was what there was the practice when when the sentencing when the amendments were on the horizon of us just agreeing hey look we'll agree to the lower sentence the parties are agreeing beforehand we'll agree to the and says that he feels bound by that because it's the now our opinion between that and the plurality and we might disagree about whether it's now or not and whether they're actually inconsistent in some important respects but it seems to me on reading his opinion that he felt bound by justice applying just the sort of my orders approach to find that this was not based on and therefore he was not free to reduce the sentence we might disagree with him about that or we might apply different understanding of what just is sort of my you wrote and in that case it seems to me that it's quite possible that if he were to find the kind of eligibility that's required for a reduction that he might be open to that and it's up to this court to make that determination certainly if you have to if you have to decide which of those two decisions whether it's the plurality or the concurrence that is controlling in freemen then certainly you left that open me let me ask you you would concede that if we were to find that it is a plurality that is controlling i'm very skeptical of whether we can make such a fundie but if we were to was influenced by guidelines would you concede that event or do you not concede that no and further because of the reasons that i put in my response to councils twenty eight j letter in looking at leonard and this court the panel in leonard of this court said we are looking to what the district court did and it was based on the guidelines because the judge spent seven transcript pages talking about why it was going to i'm skeptical of whether that is enough given just is sort of my yours concurring opinion and whether it is whether it covers vs case or not i'm skeptical of whether it is but if it is just a question of influence are you really going to tell us what the guidelines didn't influence this well the choice is required the district judges this court knows it's required to consider the guidelines and you have to get influenced well then every case is going to know what i think this is a case where we the plurality we don't need to say dominates but maybe justice out of my yours statements nobody here because it's dickhead event we have to decide what happens in this case that's correct but i think if you're going to say that the plurality that the plurality is to be read to say that it influenced the decision at all that the guidelines influenced position at all then i think you're going to have a situation where there's go no eleven c one c case or very few eleven c one c cases that aren't going to have that we have not in fact you know i was just giving you a hypothetical and she wasn't saying i agree with you that would be  why do you why do you consider it such a parade of horribles to say that in every eleven c one c agreement it would be open to  guidelines and it's still up to the discretion of the district court judge whether to grant the reduction the only thing you've done is to give to the district court judge the discretion in the constrictive ruling of an eleven c one c agreement are exceedingly small they appear to come up from the western district of new york in the few cases where the government chooses to resist the reduction of a sentence because the trial judge didn't think that the judge had the power to reduce the sentence and they ended up taking a lot of the judges time and this court's time to what end why is that such a parade of horribles judge i just had a discussion with miss mariano before we started getting up here and i basically said i thought we were finished with this but i don't think that it would be a parade of horribles i don't think it would be that horrible however you have the statute thirty five eighty two c which says that the sentence has to be based on the guidelines if you apply the plot freeman pluralities language that says if it influences the sentence it is based on the guidelines then you don't even need that language in thirty five eighty to see why do you even have to make a determination whether the sentence is based on the guidelines that language must mean something congress put it there so if you don't if you apply what the plurality says and say look you know any sentence where the guidelines influenced the sentence is based on the guidelines and you don't need the words based on the guidelines because the judge has to consider the guidelines and everything if you are arguing that arguing well i do think judge justice sort of my orse concurrence is is is narrower so i think that that's the proper disposition of that issue as to which which of those control air where other way which she speculates about what might be based on in some other way that wasn't necessary to vist her decision and so we can say we don't really know what just very specific guideline in criminal history category four with respect to justice sotomayor is concurrence although dicta i would say i would submit that the dicta actually explains her position specifically with just a of my are held with risp relevance here as long as the sentence range is evident from the agreement itself for purposes of thirty five eighty two c to the term of imprisonment imposed by the court in accordance with that agreement is based on the range evident does not dictate the specific criminal history category and in fact in footnote i believe twelve she talks about how a guideline range then cut in half by the parties ingrim it would still be based on the guidelines  clear that the basis for the specific term is a guideline sentencing range of political to the offense to which the defendant pled guilty as long as the sentencing range is evident from the agreement itself for purposes of thirty five eighty to see to the term of imprisonment imposed by the court in accordance with their remit is based on the range i think that language will fully cover the circumstance we have here my esteemed colleague has said that judge greg me has said it himself that this was not based on the guidelines and with respect to judge scrutiny for whom i have great respect he also said that any united states first mccall and although no published decision this court reversed i know that of specific specifics here because in fact scrutiny relied on his decision in mccall in denying mr arizona's roshon motion for reconsideration at joint appendix page two forty one you'll see the judge relied on a decision reversed by this court in finally judge carney i don't know if your honor has the actual plea agreement from leonard or if you're citing the case you know i have the actual plea agreement from leonard i pulled that thank you your honor i'd very much thank you we have the arguments well argued