thank you your honor may it please the court counsel yes it is an unusual position for the government to be appellant only the nd time in my seven year public career that i have been the opponent but in this case your honor i think your honors i think it is sentencing act there is no such modification here because the cap powder cocaine object mr wenders a forty six drug conspiracy conviction independently supported the ten to life statutory penalty mr winters was convicted by his guilty plea for the multi drug conspiracy charged in count one in violation of title twenty one united states code section eight hundred and forty six his offense involved both conspiring to possess with to distribute five kilograms or more of powder cocaine and fifty grams or more of crack cocaine as with any eight hundred and forty six dollars conspiracy the statutory penalty for mr winner's offense was determined by its a three little eyes for fifty grams or more of the crack of crack at the time of mr winters of finance the penalty for each of these objects was ten years to life each pill to provision both for the powder and for the crack great deal on toward the decision of the government but the specific one the judge was referring to is whether to have a multi r p conspiracy or to have two different what do you make of their wives should you agree those terms on charging decisions of the government of so it was ability for relief turned out and so how well i mean your honor the charge in the indictment obviously determines what the statutory penalties the defendant differently to those two situation well if if there had been two separate charge conspiracies then the senate's on the conspiracy possessed with it it should be back could be altered but overall sentence but i think in this case because congress was clearly only intended to address the crack senate and if the cocaine sentence was higher and was supported by the cocaine then i would submit that the total sentence would not be affected if it was a single conspiracy involving two drugs then it could not have been charged as two counts because it would have been depleted if you would have had the same conspiracy charge in both counts but just in two separate counts but just addressing different drugs and i think the defendant could have prevailed on a motion pretty trial to have the two counts consolidated because it was deflected of if this if the conspiracy is as it is in most of these crackpot or conspiracies the possession of powder cocaine that is later converted into crack cocaine then i don't see criminal statute the statutory penalties for which were modified by section two or three of the fair sentencing act and those sections only modified the quantities of crack cocaine necessary to impose the enhanced penalties the government would submit that it is irrelevant that the same statutory penalty was also triggered by the crack object of his offense section four hundred and four of the st step back to ask if the penalty for the defendant's criminal violation was modified by the fa sentencing act and mr winter when or statutory penalty was not it was ten years to life before the fair sentencing act was passed it was ten years to life after the fair syncing act was enacted this would have been the case even had the  decriminalized crack cocaine he would still have faced a statutory penalty of ten years to life based solely on the powder cocaine involved in his offense and i would like to discuss an example slightly different than mr winters case to help further prove my point or at least argue my point let's assume that instead of a conspiracy involving five kilograms of powder and fifty grams of crack both of which would have had it into life statutory penalty we were discussing a conspiracy involving five kilograms of powder and only five grams of crack prefigure syncing act the powder penalty would be ten years to life but the crack penalty would only be five  so because this defendant was convicted of a conspiracy involving five kilograms of powder that would be the statutory penalty for his offense it is the higher of the most serious proven controlled substance this means that this hypothetical defendant was facing a pill to often to life and they've quantity of crack involved in his fin his offense was totally irrelevant at that point yet if the court adopts mr winters argument this defendant would be eligible for recent saying under the st step backed even though the quantity of crack involved in his offense absolutely nothing to do with the statutory penalties that he actually faced at i think that is of a more clear cut example to show if the court rules in mr winters favor than defendants who said it says we're not at all affected by crack only because the crack was an object of the conspiracy would be entitle to relief and i don't that's not i don't submit that's not what congress intended and i don't i don't think that's the purpose of the fair sentencing act or the st step act i willing now is it becomes one way or the courts have analyzed this is to and it turned out because of the other object of the conspiracy at the same range for the overall d conspiracy exists and there would not be any eligibility opinion on this subject i have not researched and read all of the hundreds of district court cases on policy it appears to me that it appears to me that a cover defense is if the statutory killed these were in fact modified then it was a covered offense and i know that's damaging to the government's position to say that but that seems to be the at least the tack that the appellate courts that i've read have have addressed circuit they held that the defendant who had been convicted of a multi drug conspiracy had committed a covered offense and the government would respectfully submit that that decision was wrongly decided that holding rested primarily on the th circuit  that section four for the st step back does not expressly exclude multi drug conspiracies but section four hundred and four does define the types of offenses it applies to and it is those for him to actually kill these were because no one is arguing least i don't think any body is arguing in this market right now that a purely powder cocaine conspiracy would be a cover to undergo a vat under the raising of  offense is suddenly converted to a covered offense because it involves crack cocaine even though the crack cocaine conspiracy is arguably a more serious offense involving as it does by powder and crack just for so y can respond and this is not been i do will conspiracy had it been two separate counts one conspiracy with crack the other one possession with intent to distribute however  your position would be that even though the st count the crack would be covered offense recalls there is a separate conviction for the powder than the you your honors the whole purpose in passing the fair sensing act and the st step back was to eliminate the powder crack cocaine disparity that if in granting relief to does not exclude to a logic conspiracy convictions so long as one of the objects was a violation of a statute that was admitted by the fair since the government is asking the court to create an exclusion that does not exist in the text  under the text of section four of four and under this court's ruling in jack's nothing in the text of the app's requires that a defendant be convicted of a single violation of a federal criminal statute whose penalties are modified by the sentencing at nor does the text of the act require that all of the defendants violations be covered offenses under the act now a law i'll make sure based on the closing part of  your statement just now are you saying and i answer to the hypothetical apo presented to the government are you saying that it was two separate acts accounts i'm sorry two separate accounts instead of simply being a covered offense and one non covered offense i think that defendant gets through the eligibility gate he has been convicted of a covered offense so he's eligible for a section four for motion now the nd step of  motion is is the merits phase right and on the barents phase perhaps that defendant's entire original sentence was driven by the other prong and that judge is probably not going to reduce that defendant's sentence in the  makes sense right the whole purpose of the st step was to was to reduce the prison population and allowed to sit ins who were sentenced under and over seam of sentencing laws that are now pretty much rejected to have a chance to have their statute that was a minute by the air syncing act that's broad but the nd step is not broad and so that's why it makes sense congress wrote the eligibility broad but as this court ruled in jackson no defended is entitle the nd step is tough the court is supposed to look at the case on the merits and determine whether the defendant deserves a reduction and that nd step that's where many of the government's arguments properly law the arguments about cases where that's when the dish or court went through the government's arms the government argued in this case mr winters had way more power than crack mr winters was the leader of a conspiracy and the poor considered those arguments and then weighed those arguments against the fact that the winters was twenty years old when he entered the conspiracy he got his ged in prison he's had no right ups in twelve years and when the court made those those two arguments it gave credit to the government's arguments in this case missouri mr winters was asking for immediate release and they just didn't give him that instead the judge reduces sentence to one hundred and eighty months fifteen years which is still five years about the mandatory d minimum so your honour's back to your original example ju reasons in which many that if there are covered offenses in non coverage offenses then the disher court can reduce the sentence on a non covered offense if it was a part of the whole sentencing package and so we agree with that person could be convicted of a number of things that are not directly tied to conspiracy on crack versus powder cocaine yes there are i think that's true and i think it's is the discretionary part is long as the defendant has a violation of a statute that was amended he's through the eligibility gateway which is what we're talking about today but in the barents phase there are many examples where the not uncovered offense drove d this at one hundred percent there can be cases that involve the violent acts and drug acts and rico and fi car d and some of those cases there can be a drug conspiracy or the drug count always has no see that the case was not driven by the co in this case just james found that the case that the cocaine had an effect and i know the government talks about in their brief that mr winters had a significantly more conda i don't know how you square that with the fact that the judge is the pose that look at what the circumstances were what the along was at the time of the sentence can you reconcile it  me i hope so your honor so head would says that the district court is not required to consider those sentencing either problems or rehabilitation but it doesn't preclude the district court from doing that so i still think under this court's precedent it's ok for the poor to consider that on the merits phase but i do want to answer your as if question so i believe it is different for definitive the sentence prior to the st step back and after the st i mean p eight requires the court to consider the seriousness of the offense and before the fair sensing act mr winters stood before the court and when the court considered the seriousness of the offense his offense had two objects of the conspiracy both of which congress said were ten to life which was the most serious drug offense possible at the time now after the fair syncing act was asked mr winters would be standing before court considering the seriousness of his offen bat just raise i disagree i think the as if is a part of the merits i think cover defense is the eligibility gate and that's what has to happen st and then once the defendant shows that there's a covered offense the nd step is the speculate just because i don't and i'm not saying that we should pass it up or not apply i think that's a part d of the nd step of the countless i think when the judge looks at as if the fair syncing at was in effect that  put him in the same position he was being at the time of the originals and only with respect to the mandatory minimum sentence only with respect to that senior mandatory minimum but other other things as if are different when the judge is considering sentencing mr winters as if the fair syncing act was in effect that changes a lot of things under a sentencing calculus it changes how serious this offen that seems to be what you are you're arguing in this case if you tell me it's ok for the just look at this post conviction on the when he's supposed to be looking at what the facts and circumstances were at the time of the sen a not get past that so you've got five minutes left don't worry about me but judge agrees i am worried about it is that it there's there's nothing in the text of section four for i think that has a procedural mechanism to reconsider a sentence which the st step back a lousy course to do but john i just want to make sure i didn't try to say as clearly as possible that when the judge does the as if announces when they put themselves as egg would set as back in the place of the original sentencing changing only the fair sentencing act statutory change i think the as if is the statutory change i don't think is talked about post conviction on is the statutory change in head would it was about her finger changes in the law those don't apply in st because it's only the statutory chang's the statutory change here affects the defendant even if the old mandatory minimum  because as when the court is sentencing a defendant is not in a vacuum three thousand five hundred and fifty three a requires the court to consider different factors at the original sentencing and those factors are different we look at how the st step back changed how judges in courts and the criminal justice system look at crack cocaine convictions mr winters in this case only had a little more than one kilogram of crack cocaine but when he was sente judge was being told by congress that that was one hundred times more serious than now when we applied the st the fair sentencing act and the judge says as if that was in effect at the time of the sentencing it's no longer one hundred to one it's twenty eight to one that may make a difference it may not that's the merits analysis right in some cases the judge may say it doesn't make a difference the district judge notice jackson said it make a difference right but in this case the district judge said it made a difference when i look at that one hundred to one ratio change to twenty eight to one so so judgment and just trying to err is that i think that it it matters to the sentencing calculus even if the old spare minutes were minimum doesn't change and what's most important is the text of section four for does not require that the ultimate minutes were merely changed it only requires that the defendant was convicted of a violation of a statute that was changed by  takes for mr winters to get through the eligibility and in this case the government did not appeal the merits behaves they did not appeal the discretion exercised by the judge to reduce the ultimate sense and so i think mr is of the conspiracy is a violation of the crack cocaine laws that remanded by the fair syncing act in that if in its eligible to ask for a reduction and then the news report has discretion to decide whether they deserve it or not but that's all it takes for   i find it striking that mr talbot's argument did not discuss the fact that his the ultimate penalty st class offense was not affected in any way by either the  after the fair sensing act his statutory mandatory minimum was ten his desperate count sentencing rankest him to life because for a conspiracy the greater offense controls the greater p to controls so this is not we're not asking the court to graft on some extra textual exclusion we're asking the court to apply the definition in the statute of those for those defendants who can obtain a benefit martha but the penalty for the crack cocaine would not affect the overall penalty for his conspiracy conviction but best and that's a different argument to me the penalty i'm asking whether or not you agree with this you agree that the penalty for crack cocaine w question which is what the or the court has to impose a reduced sentence as if the fair scenting act were in effect at the time the offense was committed because here again his stash for a penalty remains the same and so therefore he would fail at that level to your honor it's clear whether you decide it based on the definition of covered offense or under your argue your honour's formulation of the argument while ago by text by spirit or by congressional intent this section four or four was not designed and to benefit defendants who said this was driven by the quantity of powder cocaine involved in their offense it was designed to benefit those who had been what was later determined to be unfairly harshly p based on the quantity of crack involved in their offense this defendant if you granted him relief would receive a benefit that no other class of the finot is entitle to receive he would be entitled to a benefit that someone who has committed convicted of a purely powder cocaine will not receive and this is the whole purpose of congress passing these statutes was to eliminate disparity not to create it and i submit that ruling in mr winters favor would just be creating an additional disparity that congress could not have intended and i would ask the court to reverse the district course determination of eligibility things from the court to both of you