minutes for would not only let me tell you what i'm not going to be arguing about this afternoon i'm not going to be arguing about whether michael jackson's original sentence was based on the crack cocaine guidelines within the meaning of thirty five eighty two c two that's what this court decided in a prior opinion and although the united states disagrees with that conclusion my argument this afternoon takes that as a given so i'm not here to rehash that point  the court has questions instead i want to make two points the first one is that jackson's that that it's just black and white at the reduction in jackson sentence was not consistent with outlook of all policy statements and the second point is that this court's prior opinion did not decide that question it's not consistent with the whole policy statements as we've put forward in our brief for two different reasons first of all is because section one b one point ten says that a guideline amendment has to have the effect of lowering the defendant's quote unquote applicable guideline range which one b one point ten and this is the version that's in effect for jackson the two thousand and eleven version has changed by amendment seven fifty nine defines that applicable guideline range as the range before any departure or variance there is no dispute in this case never has been a dispute that the range applicable to michael jackson before any departure or  e is the career offender range one hundred eighty eight to two hundred thirty five months now there at the original sentencing there was a variance and it went down to one hundred fifty months and the court in its prior opinion said well that's the crack cocaine guideline range and so we're going to decide that it was based off that range ok but that was after a departure variance and before the departure of variance the career offender guideline range is disagree with the rules or even before you are remember those cases i don't your honor i apologize that i'm not familiar with the particular cases that the court is referring to i would love to have an opportunity to address those cases perhaps anyway i would try to use i don't appreciate that judge meriton united states would be very happy to follow up in response to those authorities i'm just not familiar with them as i stand here this afternoon i would say that there is a second point regarding the applicable policy statements also set out in our briefs and that is a a limitation on in as to whether and to the extent of any reduction and that is the policy statement that says hey what the court supposed to do the sentencing court is to calculate the amended guideline range substituting in the new crack amendment and leaving all other guideline determinations in place and then you can't go below the new range well the problem here for mr jackson is that if you substitute in the new crack cocaine guideline it still ends up getting trumped by for the chapter for career offender adjustment so notwithstanding the new crack cocaine guideline the same  following the instructions to keep all other guideline determinations the same the bottom of his amended guideline range is still one hundred eighty eight months so the court couldn't reduce if he was been sentenced above hundred eighty eight months that would be one thing his sentencing guideline range would be one hundred eighty eight to two hundred thirty five months under the old guard that would be under the old guidelines except substituting in the new crack cocaine guideline for y sentenced to one fifty and there was no appeal from that so it seems kind of anomalous to say that you could reduce it below one eighty eight when you're already at one of the fifty or is that just happened to be the way the system works well that's the way it works i mean  it could be due to let's see that would depend on a couple of things i believe that he could have i think he could have gotten reduced then under those actually went through all these calculations on remand went through so i don't have any dispute with the numbers so when you say he went through all these this is where he actually stated at one fifty and then there's another round of argument yes he says ok i'll  no other two years down the district court actually went through and recalculated the guidelines on the record under the two thousand and eleven edition of the guidelines manual and so how far down to go how many  right and his justification for that you know was it's good so it's a good thing to do his justification for it was that he didn't feel like he'd be able to give a good reason for staying at the same place assuming no constraints because all the things that caused him to give a variance the first time were still present the second time so and again whether the united states agreed or disagreed with that i mean we we didn't think he should get a reduction as a matter of discretion but we're not raising that issue on appeal you're saying to the key fall from you're going to use when he said if you were free to do it and you think he's not free to do it because of w past the amended guideline range which is still the one hundred eight so those are perhaps two sides of the same coin in that they are both an argument that the applicable policy statement which is incorporated into section thirty  you know it's he didn't say explicitly he said that the career offender issue was there and would stick with them stick with jackson forever he said that he did think that there was a crack powder problem that was he thought was a legit issue and the government didn't appeal the one fifty and we've been we've been on this rodeo before that point he was there  fifty one the last argue did and you had an appeal that's correct in fact if you've been at one twenty six i don't think we would have appealed that either but we're here in a different situation and a different issue from the government's perspective it's argue no but that means that this thing that this change he could have sentenced him to two months and it would still be not appealable on your argument that's true the second argument is based on the law of the case and the traditional law of the case argument states that a lower court must abide by the ruling of a higher court and that also applies to the  might also be described as a waiver and that is that the law of the case includes not only issues actually decided in the prior appeal but also any issues that could have been raised by the party before oral argument the government filed a letter of supplemental authority raising section one b one point as amended but the guidelines as amended and they can find their argument regarding the amended version of the guidelines so only to the eligibility question which was decided adversely to the government after the jackson one ruling the government also filed a petition for rehearing again raising you mean by that that they didn't say anything about applicable and or human or not they raised one form of it as it applies to the question of mr jackson's eligibility for a reduction but the other component of the government's argument that it's making here today is that ok we're not arguing there we're not going to be the question of eligibility but it's going to be our argument the government's argument that the court even assuming jackson was technically eligible for reduction could not get a reduction because his one hundred fifty month and that's why i'm raising the address of the variation of the law the case argument doctrine which is also a waiver dot doctrine and that is that the government failed to make the argument that it's making here today when it could have been decided by this court so therefore the government cannot use a second appeal to raise an argument that it should have to reduce the sentence because the maximum possible reduction had already been reached now that's what that's the argument that it's making now is we're just admitting that it was handled the panel statement is we and this is from the majority we remain for the opportunity to consider the guidelines to a sponte we take no position as to whether any changes warranted due to the retroactive crack guide clearly states that a in the peeling party well any party to it and people must make all the arguments a bailable to that party at the time of the first appeal and not do things piecemeal and raise a previously available argument for the first time in a second appeal and that's what the senate back down in implication was he had discretion to reduce it depending on his thoughts crack cocaine penalties and in fact they reduced it from one hundred to one to eight hundred to one and then he could have used the non career offender guideline range which i believe is eighty four to one hundred five months as his guide post for departing overbearing downward from the career offender rate and and if that had been on the original sentencing he would have had latitude to do that that's true and so he used at the first sentencing he used the non career offender guideline range as is guidepost for giving mr jackson a variance although in principle he didn't have to wait in that sense he could have said i still think the hundred fifty is too high you know of the argument yesterday blew it and obviously we don't know how that's going to come out but if you have anything to say about whether blue it would affect this in any way whichever way it went no i'm sorry i have not given me any more i could frost asked the bostic question after he agreed to reduce the sentence by two years now under joining or then a judge now thinks that the one hundred twenty six months is the fair sentence that he would like to impose that's true and at the end he and what did he say his reasoning was when he when he did that well he is words were i don't see how i could be logically illogical if i didn't give the defendant a reduction in light of the fact that he would have started at a lower point under the career offender range as a result of the changes by the f s a so he referred to the fence consul thrown to hail mary pass and and it worked so basically he's saying well ok understand that mr jackson's career offender range under the f s a if he were being sentenced here and now would be much lower and previously i use that  as the reference point for deciding how much of a departure to give variance to give mr jackson and since the post office a career offender range has been reduced by a number you don't have discretion i mean that's when you know what i mean that's that's what the government is saying he doesn't have the discretion we would submit that he does and another player review i don't think that this seventeen percent reduction from the previous sentence affects the government substantial rights and certainly doesn't offend the integrity and public reputation and where your analysis of the lane error relies on kelly saying we object to the new analysis in the courts as that has been previously raised but ok we know that objection what did the court mean when it says we know that objection that's been previously raised other than the well the large event that's been going on i mean it's as i was i read the game but at the end of the game you're constrained that's true but i think we love it when we read the transcript as mr kelly really iterating the eligibility argument the government  the transcript as the government or da usa in the proceedings below making the argument regarding the extent of the variance in that case though i didn't see the one thing that michael jackson does not argue today did not argue in his brief and really has never raised is any argument that the reduction is consistent with the applicable policy statements i don't think policy statement in your whole argument has to start with the policy statement argument that's correct you have to say and that's exactly right in but you know the confusion i tried to get around this particular point but the problem is it's it actually is the same word as what i mean yeah i didn't say that we were wrong in doing so yet it is the same word yes thirty five eighty two c two says that if the sentence is based on the crack cocaine guidelines the court can reduce it if the reduction is consistent with the applicable policy statements that's one b one point ten the two thousand and eleven edition there's no way to read that and say that a reduction for mr jackson is in the you know the last paragraph of one b one point in the to the policy statement on eligibility i don't have it before me but in my head there is under what would be one point in after you finish the text of the guidelines a commentary in that commentary of the two arguments with respect to one b one point ten that is one of them with a specific time that you're talking about application one which defines applicable guideline range as pre departure or variance that is one of them the other one also within one gone point ten and also an applicable policy statement by virtue of being in one the one point ten is actually in the text of one b one point ten and that says you can't reduce a sentence below in the amended guideline range which is also defined so in that this case the amended guideline ranges one eighty eight to two thirty five a reduction can't be below that i see my red light is on i'd like to make one other point with the court's indulgence  it's just that the majority opinion didn't mention the applicable policy statements at all i don't think that the majority opinion wrote something that was clearly inconsistent with what those policy statements were i wouldn't be by just happenstance or implication and to say otherwise to say that there is decisional significance to a summary denial of a petition for panel rehearing would be a horrible way for this court to