the first case is united states the morning richard reeves on behalf of anthony lewis i would like to briefly address the first issue that was raised and then focus i think largely on the second issue which obviously is less advantageous for mr lewis as a result of the up location of section two d one point one of the sentencing guidelines the trial judge determined that mr lewis is guideline range was three hundred sixty months to life there's really no dispute in this record that mr lewis cooperated with the government and provided substantial assistan however the government concluded that mr lewis in his eagerness to cooperate in effect over cooperated with the government embellish and exaggerated with respect to the one defendant who went to trial all the other defendants who were made aware of thought he law there is a disagreement your honor and it was our position that he did not lie i don't think the judge made an ultimate determination that he line any and then in any event the government did not issue a five k one no question about that your honor and i understand that under dylan there is a strict interpretation of that the only argument i'm going to make now and then i'm going to let it go is that this is probably not a very legal istic argument but in my view if it walks like don't talk specifically of a five k one motion the government did make a motion to drop the could have to withdraw the second offender and is a result of that the minimum guidelines the minimum sentence was not there i'm surprised that you didn't argue that that was a motion and it vera for legal listing clearly there was as i would have fought this rather than making your generic oh this is the same thing as in we can ignore the language you would have focused on the fact that a motion was made it isn't a motion that we ever talked about in any of your other cases that might be an argument but you didn't make it did you i did not make that argument and i adopt what your honor just said and i think that may have but you didn't make it court is correct that i have not raised that alternative ground and so i i'm going to move on to the second issue because i think that four months of four months potential reduction  and ten is correct may not seem like a lot but to someone who has been in jail since april of two thousand and four and who has a release date in april of two thousand and eighteen four months means a lot every day means a lot and i think that the critical language in this argument that the probation office overlooked that the government overlooked is in one b one point ten itself in the section indicates in this is that page twenty six of my brief to court the trial court is to substitute only the amendments listed in subsection  for the corresponding guideline provisions that were applied when the defendant was sentenced in this case there is no question that the career of offender provisions were not it's undisputed in if you look at judge kravitz ruling and the transcript but not just that his ruling on the first motion to reduce he uses two d one point one and not the career offender cognizable range for purposes of the first motion to reduce sentence which then he denied in his discretion number two on the career offender guidelines were one level higher they did not apply in the context of the sentencing the in effect the career offender issue was something that i think judge cravats could well have said under rule thirty two i don't have to decide this issue because it's not relevant for purposes of sentencing if you had said that then your case would be a very strong one but he didn't i think respectfully your honor he did need to say that and i think there are so many policy issues obviously at the time this sentencing proceeding occurred neither the government nor the defense had any none of us were pression enough to know there were going to be three  reduction passed by the sentencing commission and this would become an issue but at the time of the sentencing it really wouldn't have made sense for me to focus on the career offenders which were not an issue and i think if did in the way that the government suggests then which i have is the application of a new guideline provision which the sentencing court never really had an opportunity to litigate there was no need to litigate that the court is fully aware that the career offender issue has both factual and legal issues that surround it under this court's case is sad ten plainly call for the court at this juncture to look to the guideline range that would have been a political and there's nothing in this record that suggests that the career offender guideline would have been a political i mean you're asking us to simply pretend it's not there i'm sure and i'm missing something no i don't think i'm pretending that i'm saying that that the guideline in one b one point ten makes it very clear that you just substitute the new amendments for the provisions that were applied at the time of sentencing and that language is very very clear the judge did not apply the career offender guidelines to calculate in the sentence in this case and if you if you disregard that language then you have a situation where the court on the benefit of the probation office is making a determination about an issue that was never litigated that the parties never had an opportunity to litigate this is the very first time in two thousand and fifteen eleven years later that all of a sudden mr lewis becomes a career offender and that provision applies but no one has litigated the savage issues no one's thunder it was simply not an issue before the sentencing in court in any way and i think for that reason if you if you disregard the that language of what the sentencing court applied you open up a whole new can of worms i mean mr mr lewis arguably would he have a right now to appeal that determination after th rules he's never had an opportune to appeal to a potential misapplication of the guideline range you know there's all the departure issues that relate to career fenner there was absolutely no reason to argue stanley or any of those issues noteworthy that the sentencing commission just issued a report this year where they say no we've got to replace the career offended by lance you have to have at least one crime of violence have in fact all the time people arguing that if a person has been sentenced to who for two crimes that form a same sentence that one of them should fall because changes in view of or might happen that happens all the time that people do make that appeal originally just because we know a lot changes yes well i think the notion that that just because at the time it didn't seem to matter it wasn't worth doing is would would be a rather strange one given the number of times that people raise well i guess what i would say is given that the career offender guidelines were higher and the judge made a determination that specifically what would qualify as a motion for substantial systems and that's limited to five k one twenty one thirty five fifty three and if the rule thirty two motion to shit has to be something  for action from the court and the stand this was a unilateral withdrawal of something and it was introduced corrected on the government file the final the notice and then withdrew the notice and so there was no action i don't believe by the court in that regard and with respect to the whether the career offender guideline that is that i think it's there was a finding in the probation report that the defendant was a career of an equitable i think judge kravitz in his initial denial was pretty small clear as to where he was going to come out on this and judge shot me adopted that i mean that is i think the way that the judge kravitz put it is that mr jewis matters as well no my point is that judge kravitz looked at this case in the first application that the for his first order and concluded that he would have given the sentence in any event and noted that the defendant had received a substantial break from the have taken that second step and determine that they would not have reduced sentence and let's not more probably the policy argument that your adversary makes that the attention is not going to be focused on something like the career guidelines if they're not doing any work sentencing and there's a potential for that not attention to the results and errors that maybe the guidelines the career guidelines assessment would have been different if that's where the adversaries were placing their attention all i can say in that i would like to make three brief points the fact that there was a p s r finding does not mean the judge can cravats applied to the career offender that's the operative term applied he did not second another reason not to interpret the statute the excuse me the the the guideline in the manner the government advocates is that you end up with a perverse result that fo ninety nine percent of all defendants it is in fact a reduction which is exactly what the sentencing commission wanted to do they wanted to reduce the crack cocaine guidelines but for mr don't you think that you would be an appropriate thing for counsel when you have a judge who's finking that way to say one of the reasons for the high sentence should be given namely the career guidelines shouldn't apply if you had any reason to object to it the p s r says we did a r v and you know before a judge who you know you can tell if a judge is going to give you something that is below for some reason wouldn't you say hey look one of the reasons for a higher sentence isn't there so many whatever it might be in another case in visit case i would have that arguing bean applicability of a career guidelines would have been quite appropriate but your honor i agree except that in addition to the career offender finding the pre sentence report explicitly the defendant into the bureau of prisons and is relying on by the bureau of prisons except to the extent corrected or objected i think that's true to a degree however having said that i don't i didn't think at the time nor do i think now that the that the indication that he's a career offender impacts his his situation the brew prisons i could be wrong about that perhaps i should have made a a pro forma objection was not before the court and which was not being relied on but the only other point that i would make is with respect to the government's claim the judge crevice looked at this that's true but that was after the first amendment and the guideline range agreed to by the parties was two sixty two to three twenty seven the question now is if judge kravitz was looking at this he had imposed a sentence of one hundred ninety two months and now if the court accept my position the guideline range is one hundred eighty eight two hundred thirty five he has got no variance from that guideline range for his substantial cooperation and so i don't think we can speculate about which judge cravats might have done if he had had the furred reduction before him thank you very much thank you both take the case under submission