a lated was changed by the st step back and he was sentenced before two thousand and ten and has not yet received a reduction we believe that his case falls directly within the language of the statute and every circuit court that has decided on the language and eligibility question including the st four th and th circuit have agreed with our position or  reading of his eligibility because the girl medical rule of the nearest antecedent which doesn't the penalty clause modifies federal criminal statute or even if it modifies the entire phrase violation of a federal criminal statute we believe that his violation of a credit federal criminal statute has a penalty range change as a result of  the st step act also two the word violation can properly be divorced from the restrictive clause of a criminal statute violation has no meaning by itself if only more questions regarding even counts that were not affected by the fair sentence you know so i think it was very fair for the th circuit in that case to say he is asking for a plenary re sentencing and that is not allowed i think that all the circuit courts that of address that have also agreed plenary sentencing is not required i should say it's not required by the that at the end when we compare what the further that kind of procedural question then of what process is required by saying you know what this is actually a this is a broader grant of authority than three thousand five hundred and eighty two c two or thirty five sentencing guidelines does not apply to three thousand five hundred and eighty to see one or other statutory grant of authority to reconsider or to impose a reduced sentence and quite honestly there isn't anything that is one hundred percent and now i guess are equal to this st step x a grant of authority to reduce the sentence so we're using an elegy so i think it's fair to say as compared the plan ery re sen consideration because it i mean what is complete mean then and i think that's the question the court has the court is saying what is a complete review for mr boulding a complete review allows the court the district court and i think requires the district court to consider his sentencing objection that he raised that if counsel said were frivolous that if counsel specifically told the court not to consider that the court did not decide at sentencing if you look at the language in the court's sentencing transcript in his spoken opinion he said if i was asked to decide this is what i would do that is exactly language that you would associate with dicta it wasn't in front of him at the time so i know he's given us a heads up about where he thinks he would go but that matter wasn't briefed by counsel it was raised by the defendant over exactly over the objection of counsel and was put on the record in order to preserve his rights and whatever way he could in that situation so because the st that act requires the court to sentence or reconsider the sentence or impose a reduced sentence as if the fair sentencing act was in place i think that a complete review of that question requires an accurate scoring of the guidelines and at the time mr boulding sentence was imposed the guidelines were equal to the mandatory life sentence that he was going to get because of the statute now that that mandatory life sentence is removed the rest of the guidelines goring of all of those things that he objected to suddenly become relevant again and because mr bolding is entitled to sentencing based on accurately or guideline this seems to me to be to rise to the level of a process kind of question he needs that process in order to actually follow what the st that that requires which is that complete review of his motion and i will say as well that that mr boulding request that the opportunities to address specifically and i'd like the court to understand the context of the conversation that we're having this bolding case was if not the st like the  nd case of the western district of michigan decided and judge yonkers order was an invitation to discuss a process that he should use and i was in the position as  counsel below of trying to determine it seemed impossible with the limited communication ability that i had with my client with the limited access to the record information and or all of the discovery that the st attorney would have had it did not seem possible to make those arguments before knowing what process we were going to use so reasonably i thought i requested additional time to speak with the client and to raise those issues before the court decided the st step act question the court declined by simply issuing an opinion  whether that was because there wasn't anything out there and we were trying to get things moving i don't know but knowing that the judge and the court i took that to mean we've you know i thought about that we're not going to do that you're not going to have the opportunity to evaluate so that i interpret it as a no no you're not going to have that opportunity to evaluate it that's the context that we're we're living in in the practical  facts of the case on the ground to determine what kind of process is necessary the court has already said you know what that process is going to look different from factual scenario a factual scenario which is why i just keep coming back to this factual scenario where mr boulding raised the arguments he they were never decided we raised them again this seems very much to fit squarely within foreman's use of just discretion and or we've given the court an an opportunity to say you know what that was an abuse of the discretion because it is essential to valuate you cannot make a decision about what the guidelines would have ben what you could rely on the parties to identify the issues that were important to evaluate in that case so i red flagged this issue we have the sentencing issues that is an appropriate then use of discretion to say behalf of the government and we have a cross appeal so i'm going to start with our our issues st and then move to the due process issue which is raised by defense the government is challenging the threshold issue of foldings eligibility for a st step to actually reduce sentence the court is well aware there's been a number of circuits that have come down on this issue  and the court is correct these circuits have been siding with the defense in fact some with the district court in this case where they're coming to a categorical analysis which basically is if you were sentenced under age forty one b one a or b one b you automatically qualify as a covered offense the government continues to believe that this is a wrong analysis and so i want to tell the court why i would like to put it on the record section four all for a states that the term covered offense means a violation of a federal criminal statute the statutory tunnel for which were modified by section two or three of the fair sentencing act of twenty ton that was committed before august rd tw in the cases cited by the defense and i think referred to by the court primarily sean smith and worthing out of the th st in four circuits based their approach on canons of statutory construction specifically the last antecedent rule or the nearest reasonable reference can but these canons of statutory construction while applicable are not controlling particularly when they're used to ignore basic english grammar so the grammar can and clearly establishes that words are to be given the meaning that proper grammar and usage would assign them a violation of a federal criminal statute is a noun phrase the noun phrase is a phrase which includes both the noun and optional modifiers violation is the noun of a federal criminal statute is the optional modifier and the purpose in pointing this out is an optional modifier can be removed from the sentence without changing the meaning the government disagrees with their interpretation of this i would like leach put this on the record for purposes of further review if the government decides to take that course and so i realize i'm pushing a boulder appeal to look at what this court actually dead in this case the court sent out a order to respond and the court specifically invited the parties to not only address the issues to court asked for but also any other issues the parties wish to address in response to that the defendant simply made the statement that they wanted a plenary sentencing so that they could address guideline objections and specifically in the defendant's brief mr boulding would like the opportunity to show us all the concerns that he had is a original sentencing and renew his objections to the sentencing guidelines which at the time of his riginal sentencing would have had no effect on the outcome of his sentence no indication what any of the actual arguments or objections to those guidelines were the objections would be found in the sentencing transcript objections that the district court did in fact consider and did in fact say how he would rule upon each and every one of the three objections works were to drug quantity role and possession of a fire in this case in this court i'm sorry in the kanto smith stated that to be fair it is tonsil that no one raised mitigation arguments at initial sentencing ricos all parties were aware that smith was subject to a mandatory life sentence but because smith failed to raise these arguments in his st step back motion he simply requests that the court to provide an updated sentencing a pre sentence report or hold a hearing  doubt was not good enough and the government makes the same argument hear the defendant raise arguments in front of the district court which the district court took the time to address now we come back and the  defendants are given an opportunity to raise any issue it wanted doesn't actually address any of the guideline arguments but simply makes out this general we want to be able to have a the court spent a great deal of time explaining exactly how the process would work in his courtroom and what he would review and and then at the end on page  and eighty four dollars set down that after its review of the record including defendant golding's toast sentencing behavior the court elects to exercise its discretion to reduce bolding sentence  he also talks that he reviewed the complete record as well as the three thousand five hundred and fifty three factors he also considered post sentencing conduct i think if you look on page seven hundred and eighty where the court says the court describes the process below and lists out the entire process that the court is going to undertake to review this there is nothing that the court missed and i think the point that the government is coming back to the court in its order to respond specifically told defendant bolden that the court would decide whether or not there would be a hearing not that there would be a hearing so asking to have a hearing and saying will may we'll tell you what we're going to bring up at the hearing then it is not what the court said the court ordered them to respond and saying i think i would not say it the way you're saying it out but i will say it similarly but kind of in reverse i don't think that the court precluded from reviewing issues that the defendant raises just as to any guideline issue and a party state or to raise an issue before the district court generally operates to waive that issue and issues raised only in a professional jury manner are also waived there is nothing more perfunctory th why i agree and i agree and defend him belding has still to this day even on appeal a year later not told anybody why his guidelines  in order to prevail there has to be some error bolding has put forth no error to date in any detail it is only that i want to have a plenary sentencing and re address all of my back to page seven hundred and eighty of the docket because the court sets out in detail that the procedure he is using to determine this and then if you go to seven eighty four dollars he actually applies it to bolding in his conclusions and he talks about all the things but one of the things he says over and over that guideline reign is not a constraint in any event in ruling on a st step act motion what that means is even if the defendant believes that the guidelines are incorrect or that they're computed correctly let's say but they're say in a case with where a defendant argues that they didn't get the the judge didn't know that he could lower the supervised release some and the court said no the court is well aware that it can do that i think judge younger in this opinion really set forth that he is well aware that the st step act gives him a glory deal of discretion and that even though as part of the sentencing process in terms of determining whether or not to reduce a census yes he has to look back at the old guidelines yes he calculates the new guidelines but those guidelines are not binding on him and that's this judge was the judge that had heard of this trial and had also sentenced other co defendants in this case mr richardson he this judge knew this record and made a record opinion so the did there is no due process violation here in addition to that the government is going to continue to assert that it should be a quantity driven and alice is to make th thank you your honor i just wanted to i think answer some of the court's questions to opposing counsel here and say that i do believe that post sentencing conduct because of various authority that's do think that they're an accurate calculation of the guidelines as they would have been at the time of the fair sentence the act isn't necessary starting point because of the call and it's defendant is entitled to have his sentencing be based and accurately improperly score guidelines i just want to come back to the the factual issues and  stay that actually at the conclusion of our brief to the court we did we did specifically say he's not waiving his presence at a recent tensing hearing and request that he be transferred to the district with enough time that he has the opportunity to meet in person with his attorney before filing any sentencing memorandum or objection to the sentencing guidelines and i understand that at the point of the fair sentencing that i arguable that mr boulding may or may not have a right to counsel but i don't know how i can prevent mr buildings arguments without having adequate time to discuss them with him and as i said this was an extensive record with extensive factual information that's actually not in the pre sentencing report and all these other things all the things that a defendant at a regular sentencing hearing would raise and have at his fingertips i did not have and so i understand if we can't bring every defendant back to the jurisdiction but reasonably i believe that i was requesting that the court even if they couldn't give me a full plenary sentencing would give me time in the ability to discuss these things and truthfully i needed to understand what our process was before i could understand how to make the appropriate argument so maybe that's not true from now on maybe from now on everybody should already know here's the process you're going to follow the better get every single thing written down and if you need more time ask for more time but that is not the world that we were living in when this document was filed like i said it was the st i think in mr and judge just as opinion there was maybe one other district court cited in his st bad act decision that had made a decision before that maybe two but it was nothing like what we have available now so please don't hold my inability to predict what was going to happen against mr  like we live in fear as defense attorneys of not doing enough are not doing the right thing i did everything that i could in the situation that we were in ted's hell the court this is an important issue for m apparently decided that the objections were relevant to his decision which that's his decision i'm asking the court to say no those objections were relevant to your decision and you should have given them opportunity because they asked for it to address them further questions you know this is the head we really appreciate your argument and your great thing mark this is a moving target