you first of all what's the standard of review because as i understand it your client and his attorney stood moot when the government and the court had this court judges across the country making that terrible law and if we had doubt the rule that you advocate for i think it will be to the den of to the detriment of hundreds of defendants because when they announce a amendment change they do not necessarily make the decision as to whether it's going to be retroactive until after it becomes effective on november one so defendants who are getting the benefit of the two level reduction will not be getting that benefit they'll be sitting  detention facilities waiting till november one hoping they get the benefit i mean the practical result of what you want here was terrible for the criminal defendant defense bar first i'd like to said i'd like to reserve time for rebuttal because my  to answer your question i represent one individual i'm not here as to i mean maybe this will help or hurt other criminal defense but the way that we do it is case by case that i'm just talking to but i  all i'm saying as you said there was an air of law bait i mean this is done all the time no that doesn't mean it's right sometimes we do have things all the time that we wear decide or are not legal to do but it's a it's a common practice because fenice want to get out of the county jail or whatever the tension facility is get on to serving their time and no defendant ever wants to say don't give me a two level reduction i'm going to you know my client believed that the sentencing the actual details of it are not at issue in the appeal but there was some fairly inflammatory facts about his life before he was arrested he would like an opportunity to go back to court and  again explain that he is a changed man and he can do that if the law was applied the way that i submit it was designed to be applied and that is he comes in later and has  two he was sentenced to of the sentence he got and then he behaves very well in jail for the next two or three years would he be entitled to come back as for resentencing based on his good behavior in jail i don't believe so i think this is in a way windfall yeah you know there's the say if it had been done properly he wouldn't be allowed to make this argument you get your sense you get your sense and your award for behaving well in jail is you get a good time i appreciate there's some irony in argument my client with strong land yeah and in your client's case the facts don't really aren't really all this strong in your client's case because he's been in jail for several years and yes so he had twenty of time to demonstrate is his rehabilitation so you're basically saying he's in jail i think was four years and you're saying is he couldn't show after four years of good conduct that he had been rehabilitated but if if we waited three or four months it could have attacked his original sentence and in fact he has asked this court to direct the district court to go back and add the two levels back in and under thirty five easy to see and the supreme court's decision in dillon that can't happen so i think dylan squarely precludes the argument that he has raised with this appeal which is i don't think that's exactly his argument i think his argument is that what that what he got was either a departure or variance  therefore he should get to offer that departure variance well and if i may i think the more precisely what he said is that that the district judge live jurisdiction at his original sentence and to make this two level departure v e i do think that it's probably properly characterize this as the departure or of baryons because i'm not quite sure where else to put it but that said i think where we got off track and where judge simon got up track because of the way the parties advanced this argument is that mr melham on his original guideline the applicable guideline range was a thirty two to and that was one twenty one to one fifty one months and application no one a the one b one point ten says that when you're looking at eligibility for reduction based upon retroactive guideline amendment you look at the guideline range the applicable guideline range without any departures or variances so for purposes of our analysis our starting point for our x axis if you will was one twenty one to one fifty now he received a variance down to ninety down to the ninety seven to one twenty one month range and he received a one twenty month sentence now when we look at seven eighty two seventy and thirty five eighty two see the statute directs it to you then determine the applicable guideline range applying the new guideline and here that's ninety seven to one twenty one so i think where we all got off track in terms of the eligibility question was in comparing ninety seven to one twenty one to ninety seven to one twenty one which was the sentence with the variance so if we compare ninety seven to one twenty one to the original sentence without the v it is in fact lower seventy two does lower his advisory guideline range which then makes him eligible now we would argue that judge haggerty when he was initially presented with the us said i already gave it to y so you don't get more i think that's that's more of a discretionary call than an eligibility call so we would agree that because the term of imprisonment that was imposed one twenty one is higher then the low end of the new advisory guideline range he is technically eligible to ask for the court to consider reduction and thirty five eighty to see unlike twenty two fifty five there are no time limitations there are no numerical limitations so there's nothing to prevent mr malam on from returning to the court and raising what i think is really the correct argument which is my seven eighty two guideline is lower than my original guideline and so therefore a judge exercise your discretion to consider whether i should receive a further reduction in light of my post offense rehabilitation and we would argue that that he shouldn't for all of the ultimately that's going to be a the discretionary question as opposed to the eligibility question so my suggestion to this court is that you affirm judge simon because he correctly rejected this jurisdiction to determine eligibility based upon these two variant applicable guideline ranges judge simon was presented with both parties agreeing that the applicable guideline ranges were the same ninety seven to one twenty one ninety seven to one twenty one so that's why i don't believe judge simon has every ever fairly presented with this question that i'm raising which is as to eligibility i think ultimately he's right just not for the reason that he's advanced here argument you make that's the argument that i would make in the united states would not oppose that we would not oppose him saying i'm eligible now we would oppose that we would argue that the court should not exercise its discretion to make the reduction but if he were to file a new motion saying i'm eligible for this reason we would agree so and then your then your position would be that one of the reasons the district court could exercise a scratch and not to grant a further reduction is because they already gave them the two level reduction that's correct that's within the discretion of the district court absolutely and within the discretion of the district judge to say i can see your good behavior in prison but sorry that doesn't convince me to lower the sams yes but