mean please the court i'm hearing rests with the federal defender services of eastern tennessee and i represent the appellant ms kimberly taylor in this case i would ask her as are three minutes for this case deals with a retroactive reduction of sentence under section one b one point ten of the united states sentencing guidelines this provision applies whenever there's been a  reduction in the guideline range retroactively to a defendant subsection b to a one b one point ten provides a general limitation on the court's authority to reduce the sentence specifically it limits the reduction to the bottom of the amended guideline range however subsection b two b provides an exception to this limitation yes the parties did file a motion for reconsideration where they agreed that the maximum authorized reduction that the district court could have given would have been a thirty three percent reduction  it's up to the judge the other question where within that was appropriate i'm sorry on government did not agree that was appropriate the government agreed that the district court had discretion to do that but i didn't say that was the appropriate reduction i don't think the government's initial brief said that it didn't have anything other than whine incident disciplinary incident in one day and that doesn't answer my question i don't believe i don't believe that the government has affirmatively stated that it thinks thirty three percent is necessarily accurate i had trouble kind of puzzling through this case factually and i finally kind of think i have it figured out the district court at their initial sentencing did not delineate between the amount of reduction it was giving sort of for substantial assistance and the part of the reduction that was attributable to the defendant's motion for a variance correct i don't i don't think that's entirely correct your honor the district court at the initial sentencing back in two thousand and twelve first granted the government's motion for substantial assistance and i believe it specifically stated that that was in one thousand percent w nineteen percent but the court is not required to limit the reduction tonight ten percent tax or to grant nineteen percent that's some item totally within the scription of the district court correct correct your hon and then didn't the district court site was granting your motion for a variance as well yes your honor but it didn't it never told us how much of the thirty three percent  very departure it eventually get a was attributable to substantial assistance and how much was attributable to the variance is that right i think your correction of that there was not a specific delineation if i'm correct carette i'm trying not to take up by you to add i don't i just don't want to i think if you could look at the transcript and read that the district court did first supplied a substantial assistance reduction and then further now here we get to map question factually so that's where we are when we get to the recent seeing the district court says well i'm not going i mean the district court is not this explicit about it but this is what i am ready to district court is doing and i want to see if we're going green the district court says i'm limited to the a man out of substantial assistance i gave previously i'm not allowed to look at this again under the gavel and the district court in limiting the departure hundred percent it was implicitly ruling that that would represent what had been a bit substantial assistance departure before and the authority to go further down the ninety percent right absolutely your honor that the district courts are reconsideration order is limited to a question of whether or not it had the authority to go beyond thousand percent substantial assistance russian said no i don't have the authority correct this is a question about the district courts and if the government now thinks that it would be for tribute more another twelve or fifteen percent to the assistance of the defendant yes you're on it your honor and the parties are in agreement pursuant to a nationwide department of justice  policy statement that the district courts that section one be one point ten of the guidelines specifically subsection b to be can be interpreted in such a way as to allow a district court to consider not only the substantial assistance but also the any additional reduction that was given the other where you could count the additional fifteen percent broadly speaking substantial so we have no objection and we would like to see the reduction increased by twelve fifteen percent you could look at that work i believe so your honor at least the government could certainly argue percent to thirty five b that there is additional substantial systems that the substantial assistance could be valued more than it was originally and additionally the question of where to draw the line what does account for the defendant's been initial substantial assistance and what portion of miss taylor is reduction accounts for thirty five fifty three a or that or the defense variance there not an easy way to tell the difference between the two thirty five fifty three factors can be looked at by a district court judge to limit the value of the substantial assistance a defendant initially receives and additionally in ruling on a motion the district court has authority under rule thirty five fifty three a day to consider any attempts at cooperating or any assistance that it believes that the defendant originally the problem you have here with that position which i think is correct is that the district court is implicitly telling us that's not what the yes it doesn't say it explicitly i didn't do that but it said this is what i gave for substantial assistance back to your question your remark about thirty five b that would be an alternative sin source  that might or might not be in conflict with the gag lines yes you're correct ok as long as worse staying with the guidelines for just a second let me just make sure i understand this right it seems like you would have had a pretty good argument or a better argument for the other way to put it insofar as the guidelines existed in two thousand and ten but then they get amended in two thousand and eleven and if it least looks like the  commission is almost going out of its way to say that a district judge can't do what you wanted the judge to do here so how do you analyze the the two thousand and eleven amendments in the purpose either the language or the purpose there of your honor i'm the sentencing commission did and you're correct the sentencing commission did change this particular portion of the guideline and it explicitly stated that there were concerns with the prior distinction between variances and departures in that variances generally should not be applied retroactively where his departure should and in removing that distinction the sentencing commission emphasized that had been a difficult distinction to apply trying to parse out what is a variance what is a departure and therefore the senate in commission decided to have a single band gets all of its is in departures and additionally a district court cannot come up with a new variance below the guidelines now on to say quote except for reduction for substantial assistance dot dot dot and quote you can't do this yes your honor when there is a law to get around that when there is a substantial assistance reduction the sentencing commission in its reasons for amendment seven fifty nine explicitly stated that this exception for substantial assistance applies to cases involving a defense motion excuse me government motion for substantial assistance you're kind of saying that if there was substantial system that opens the door and then you can do all that that absolutely your honor but as i read the course of the amendments it seems as if the commission is making these changes to preclude i disagree your honor i think that the sentencing commission is making it this amendment to continue to reward and set apart defendants who provided substantial systems from other defendants and one of the main driving our factory really trying to prevent do overs basically well not in the case an individual with substantial assistance and the the court scuse me the sentencing commission conclusion to its extent would i be right that if there was substantial assistance and you didn't get an additional reduction for something else you could under your argument get it in the recent no no your honor we're only talking about how the sentencing commission defines what can be counted in the original percentage reduction that the defendant received i am not arguing or advocating that any new variances can be applied it's just a question case yes but that is not the case in all centering representing your client right yes your honor but this this should be interpreted the guideline applies across the board to all defendants and while this particular judge did delineate his the percentage that he contributed to substantial assistance as opposed to an additional variance other other judges don't do it that way and it's this the sentencing commission  a case that does this is a situation a scenario that does not seem to have been litigated extensively in the past specifically the question of how do we interpret the language of one one b one point ten  to should we consider that we're judge jordan did here was an exercise of his discretion for that he believed that he was limited by the law and by the nature of the guide to the what is it nineteen percent yes or no but it was not  a he was not exercising discretion and if he had discretion he might do something else exactly your honor he concluded that he lacked discretion that he did not have the discretion to grant any more than  that he had no discretion correct term in my right that if we go your way we create a circuit split between us and first in the second circuit i  on this particular issue of whether or not  there are in a couple of cases in other circuits that have looked at whether or not an individual can receive both a where they received an initial substantial assistance and an additional variance if both can be looked at nine of the circuits have addressed this question of interpretation in any depth so i don't think it would be a circuit split on the particular arguments that are present today right we'll hear from the for the united states to determine whether the district court correctly calculated the extent of the reduction that with austar authorized by retroactive guidelines amendment seventy two in this case the court has to interpret on by one ten b to b as applied to defendant like ms taylor who originally received a blow guidelines and it's based on the government motion for substantial assistance and some other reason one be one  one one b one point ted doesn't specifically address that scenario cases with a mixed rationale there are two facially reasonable and equally plausible interpretations as you've seen from the record at the department of justice selected one of those judges jordan selected the other because this court reviews interpretive questions to novo i'd like to take a couple minutes to talk about the arguments for and against both so that you feel like you have all of those i realize that puts me in unusual position hear me ask you this you explain these two in the room in eleven and eleven you say another plausible interpretation is the one suggested by the think that they use the jordan is not correct in saying that he was limited by a law here to one thousand percent that he could of exercise discretion about is that right what it says another part as way i read it anyway you are correct that the position that the department of justice has adopted is inconsistent with the position that judge gordon took however it's in can what's that with the position you initially took correct but the position that judge jordan took is not inconsistent with the language of one b one point ten and under thirty five eighty two cents reduction is only authorized if it is consistent with that so because judge jordan's rationale is still consistent with the language of one the one point ten i'm here in the unusual posture of i feel obliged in some sense to defend judge jordan there's nothing there's nothing  to support the department of justice is position now is there contrary case law i'm not aware of any that are definitive you don't you don't think the first in the circuit then the second circuit cases addresses i can't recall the first circuit case out of hand that sorry you're not prepared to comment on that versus hogan as the first circuit united states versus steel as a second circuit i recognize the case name but not the holdings i'm sorry here's here's the problem that with all due respect i don't think you're helping us ok and i don't consider this to be amusing and start the department of justice has every right to change its views of things and it may well be right in terms of making policy determinations but we don't make policy determinations we just try to figure out as best we can what thirty five fifty three a means and what one b one point one zero means which is why i'd like to be helpful to you and  it seems to me given the change from two thousand and ten to two thousand and eleven the better legal argument policy is that judge jordan was right and that's what i thought you were coming here to defend and it seems to me either you do that or you simply agree with her and you dismiss this appeal or you simply agree with her she dismisses the appeal and it goes  there's a policy argument and there's a fairness argument on both sides i'll be happy to take either side and explain them both equally marjorie interested in you taking both sides until you tell me what side you're on th the position of the partner of justice is that a defendant who received a departure for substantial assistance originally based on a government motion is eligible for a sentence comparably less than the amended guideline range to the same degree that the original sentence was below the then applicable guideline range even if the original sense was partially based on other another way out if it had to be you get there i mean where is that in the gag textual argument is from one b one point ten b to b it references the term of imprisonment imposed it does not talk about the portion of the sentence that is attributable to the government's substantial assistance mission it says if the term of imprisonment imposed is below and it was pursuant to a government motion for substantial assistance then the court can grant a comparable reduction well the record has told us that the term of imprisonment was not entirely attributable to the substantial assistance or emotion so it seems to me that the district court's own precise ruling eliminates the textual  term of imprisonment completely ignore the end of the sentence it says a term of imprisonment opposed was less then dot dot dot to reflect the defendant substantial assistance you didn't have those words i'd say you're right so how do we how do we get around the last phrase in the in one b one point  and titled exception for substantial assistance i don't think we're talking about anything else are we we are not in a government commission is not talking about anything court to reconsider i mean the percentage for substantial assistance four years ago is not a scientific fact right now and we don't know exactly what it should be if somebody is opinion about it but we have a different opinion now if you have a different opinion now well there is authority for district court to make additional factual findings in a thirty five eighty two proceeding if those findings were not necessary originally i think of the drug quantity which whether that is correct or not correct and that turns on the definition of the phrase pursuant to pursuant to has two possible meanings it could mean only because of that's the interpretation the judge jordan took or it could mean based at least in part that's the position that interpretations this used in the department of justice position their support for that in the freeman case for example which talks about when a c one c sentence is nonetheless based on or pursuant to a guideline range explicitly expressly references it if they meant that why wouldn't they say based upon at least in part personal to at least in part that would be far more clear and i certainly wish we had that clarity then we would know what would happen the reason the department of justice changed its position and you're right we changed our position in may two thousand fifteen in this case was based largely on a policy determination that although the heading says exception for substantial assistance it was actually referring to defendants who have benefited this class of defendants who have substantial do you think that you don't think much of the sentencing commission's ability to draft do you i think that the sentencing commission has a very complicated task they could have made this much clearer but this is a very rare scenario that happens in most cases at least as they played it in our district is substantial assistance motion is calculated from a mandatory minimum and in those cases the only thing the court can consider is the extent of the substantial assistance so this issue never arises it has been presented with the first circuit to take this up in your view that because courts just start like in their own responsibility to interpret the law seriously and are just deferring to what the department of justice says or is it because it's so well accepted that it should be interpreted in a particular why not your way unfortunately i don't have the information to be able to tell you which of those alternatives it is i know that in many districts the parties have negotiated an appropriate sentence and they go to the court and say we believe that an appropriate reduction under amendment seventy two is this we have not done that here we deferred to judge jordan's discretion we agreed in our joint motion for reconsideration that he had authority to grant a reduction equivalent to all the productions they get originally received and thank so he didn't think so the question for us is does he have the authority to use his discretion which brings us back to the beginning we need a clear interpretation of one b one correct because it determines how we interpret this provision i go back a little bit to the questions i was at answered just the beginning of the motion you initially by this case was based on a flaw premise right because you said it it was limited to whatever percentage wise not to and the problem was it wasn't limited to nineteen because the district court didn't have to give the amount of substantial assistance decrease that you requested could have been granted less it could have granted more so then the district court supply had the missing link correct he needed that factual finding it made that factual finding and so we then according to the district court that it was limited to night proceed ranked on the  i want to go back to this textual argument again so i fully understand what you say is the legitimate alternative position now being espoused by the department of justice ok it says the term of imprisonment imposed was less based upon a motion for substantial assistance so we're focusing in on why it was less the motion was for substantial assistance right well pursuant to that ye let's assume following your argument that that doesn't mean that there couldn't have been other reductions for other reasons but then it goes on to say in such a situation a reduction comparable to a less than the amended guideline range may be appropriate i'm trying to figure out why or how somebody would read comparatively less refers to something other than what resulted from the motion for substantial system here's why the very beginning of b two b says if the term of imprisonment imposed that's what i started with the term of imprisonment imposed here was a seventy two months and that's which when compared to her guideline range i'm sorry her original third we choose now a third yes and that's the department of justice position that is the department of justice position and i don't envy your task in deciding here because manchin will do better than you appear to have done but i certainly hope you who you were representing the reason this is particularly complicated is because a disparity of results no matter which interpretation you select so the question is on whom are you going to place that burn i think your time's up thank an important factor to consider here is the directive from this court in the supreme court that ambiguity in a criminal conviction criminal statutes in the sentencing guidelines be resolved in favor of the specific limitation to only the percentage tribunal to substantial assistance and that this section can be interpreted in two different ways and there have been two possible ways of interpreting this given the role of leni y and additionally given the expressed goals of the sentencing commission in passing amendments seven fifty nine which was to reduce sentencing disparities and to somewhat of a shift in public opinion about that is enforcing to some extent the department of justice position yes your honor and i think that is also influencing the sentencing commission  its passage of the jobs minus two amendments the authorizing statute from the congress which is eighteen u s c thirty five eighty two seats you directs that any retroactive reduction in a sentence be applied to a defendant through the sentencing commission through section one be one point ten and that the reduction should be consistent with the political policy statements of the sentencing commission  interpretation of this section that we are presenting today does further the goals of the sentencing commission in passing amendment seven eighty two specifically in its reasons for amendment seven hundred two the sentencing commission discuss the importance of reducing the over crowded prisons of reducing the cost of incarceration and of being able to shift expenditures on