ok but the penalty is for the powder cocaine aspect of that charge renard and this is me judge he didn't opted the broadview the statute controls approach the one that the th circuit adopted immersing and we and we know that can't be right because this court in burt rejected that broad view and said that you must focus in on both the text and effect of the  change to be won a free and i don't know how you read into cover defense definition an exception if the statutory provision is coupled with a statutory provision that hasn't been changed  that probably would control but but we don't have that situation here do we we're not talking about in the title mint we're talking i mean we're talking about entitlement to resentencing not actually what the something exposure or what the penalty will  minimum sentences were not affected in any way by crack out a disparity they write date they had an amount of powder cocaine that was sufficient to justify the fence they got even if they had been acquitted of the crack object or even if congress subsequently maximum haven't changed right to go back to the language of birth right but it doesn't say statutory maximum it says the statutory penalties for which were modified and do you agree that the statutory penalties powder cocaine object and only one of those has been modified but is violation of a federal criminal statute the statutory penalties for which you have to read statute as meaning a three or eight to correct i mean there are different so you have to look at all the statutes under which they were convicted and i'd remind ration of a federal criminal statute all right i think i understand your argument i don't see  our argument basically yours that you need to have you need sure that both penalties not been modified in order to be more to be eligible otherwise you are him so you would read violation of federal still statute all of the statutory penalties interesting points but one that you didn't seem to raise was whether the district court abused its discretion that it sentenced women sentence the sentence to time served is that something you're not dealing with here that's correct great thank you i would just point out one of the things that i mentioned in my brief and then i'll sit down and let mr adams have a crack at it but i think that the let me ask you a cite to for that proposition that the crack did not affect it i thought i had asked for references to twenty six something like that where it showed that crack didn't really mean if you're talking good morning your honor as it may please the court christopher adams on behalf of all four defendants rodney mack ronald mack jesse zero for innocent hawkins your honor a plain reading a section for a four does not exclude  dual object or multi object conspiracy as long as one of the penalty provisions was amended by the fair sentencing act and that's sure for a number of reasons st is d a plain reading to be clear section a of four hundred and four d plainly and points out it doesn't exist faster than a fee for which so he reads in their violation of statute d all of the statutory penalties for which was that not a proper reading because the government's asking t  court to impose some extra textual inclusion the statute does not say that a single violation it doesn't say all violations it says a violation and the penalties in this circumstance where the statute w and that extra textual exclusion that the government's trying to impose on this plane reading statute flies in the face of d it's how it's written it's written broadly and with this also its intent the inten remedial and also the supreme court has actually spoken to this issue about extra textual exclusions recently in the title seven case in bostock and cites a long history of why it would be inappropriate for courts to alter or amend the plain reading of those statutes and also in jackson harrison this court's decision in jackson i would suggest that the extra textual exclusions inconsistent with that holding the court started it that that opinion by saying we begin as we must with the plain text and courts must presume that the legislature says in a statute what it means and means in the statute what's there and that is inconsistent with the government asking this court to take into negotiated a plea agreement like many defendants for section b once a because b once he has a far friendlier maximum statutory penalty for friendlies a far cry but it's twenty years as opposed to forty and life if it was  charged and convicted under b one b three which could have been since the amount he was in possession of was one hundred and eighty six dollars and a half rand then the rationale of bert would have had to bring the court to the conclusion that he honors that the rd circuit almost put an exclamation point on the opinion and by citing to dorsey and this spring court decision dorsey identified just those two provisions not be one c or anything else i do your honor i believe that the logic in perth applies because the logic imparts pinion read that it was almost trying to train him to to get a grasp of the defendant's argument in that case to try and distinguish it from the  st circuit and the court noted in part that if you take the the penalty provision for b one a three that's a decision that's a distinct violation of the criminal statute jury had to find that certain amount and it's and that's an element and then also the jury would have had to find the extra element for powder cocaine which it did and that's in the verdict sheet it's in the appendix i believe it's  it's a similar argument that the government tries to to find some refuge for this logic in the nd circuit and suggests that there's a split i respectfully suggest there's not the nd circuit in law and ash a very does not represent a split the  the winters court noted very clearly esha various distinction was that there or actually there was already at the statutory floor so if you already had that the st step back doesn't allow a court to ignore the statutory minimum sentence they couldn't actually very could impose a sentence below ten years here these four defendants had served nearly two times that story minimum so it could impose a statute without  the nd circuit i would suggest does not consider this issue for closed by law and by a should marry because they scheduled us vs jordan in march to address the specific issue that this court is hearing today your honour's i would suggest here that congress chose to draft a remedial statute with broad eligibility if you are a defendant that was impacted or or your statutes address the gross sentencing disparities that terribly racially disparate impact then you may and it goes to your question judge rendalen yours judge to garrus about eligibility that's what's before the court whether you may ask for a recent thing not the merits the merits the government takes great issue with  government to suggest oh well in this case the powder cocaine drove the sentence so you maybe you're on a you maybe you shouldn't impose a recent thing and that's happened here too and that goes to the absurdity argument there are at least three district court judges in this district who have agreed with eligibility for to a logic conspiracy but declined the merits election and that revaluation when the court looks at that if you're convicted of a covered offen and this here are convicted of a cover offense because the penalties modify d the government is suggesting that the statute should have extra language added to it to exclude what congress knew what it was doing and i would respectfully suggest john as a dual or multi object conspiracy that includes a cover offense should be eligible for marriage to view because of the plain reading because of this court's logic in jordan and i suggest that only because if esha vary and a lot close the issue for the nd circuit i could imagine that they would have a need to take that case and if there are no other questions i'll see the rest of my time judge the is going to consider that suggest that the coronet you very found the easiest way to affirming that in that case right the defendant had received a mandatory minimum so under the advent provision even if you've got a little under section you know for a covered offense the court couldn't go any lower because it got the mandatory minimum for the powder object or the non crack object would limit the court's downside movement so it's very easy to affirm their case that's coming up in the nd circuit will address the same question is very interesting case we're going to will take the case under advisement and we want to wish you and your families good health and thank you again for participating in this argument visit and we'll ask the court to call the