case number nineteen dash two thousand four hundred and forty five united states of america versus michael henry arguments not to exceed fifteen minutes per side mr clark may proceed for the account you the morning your honor is a may please the court under us clark on behalf of michael henry with me a counsel table is my son in law partner john clarke and i preserved three minutes for a bottle yes thank you the st step back should be applied to appellant henri's re sentencing because his sentence was pending at the time in the district court as defined by the act in a conclusion that the nine hundred and twenty four c convictions were pin doing before the district court except to the extent that i mean the district court could clearly consider th seeing him and allowing the district court to consider the mandatory minimum sentences applicable to him and when the case came back to the district court from your court the mandatory sentence is facing defendant and then in light of persuasive precedent the district court further held in a sense a court must necessarily consider the mandatory minimums applicable to defendant to fully consider its discretion under dean the court concludes the fenech can properly raise the issue of is eligibility for relief under st ass thanks i don't i don't think and really i'm really not questioning whether the court could consider the st step that i'm really not questioning whether the court could consider the fact that he already had those mandatory minimum sentences what i'm really asking you about is that the district court do you have a different view of what the district court was limited to doing sentencing it enclosed as separate sentences for each of the six counts also x and then subsequently issued an amended judgment a written amended judgment which was of course the new sen any prior judgments any prior senses and what it had and the sentence on all six counts as a result of both the sentencing and the men the judgment is the effective sentence for mr henry today and new is that a significant problem for your position i don't think so your honor because again the court at different times in the same opinion said that the reason the remand was four  previewing we're reviewing that district court so why don't we get to the language of forestry because that seems to be the critical language of identifying applicability to pending cases it's and that section sentence that the amendments which are but you really want to have happen here shall apply to any instance that was committed before the date of an act and that this act which is of course true here if a sentence for the expense has not been imposed that such state of an act and so do you have a case or cases that you would rely on to suggest that that language if a sentence for the offense has not been imposed as of such consider the length of mandatory minimum so in deciding the sentence for and separate count yes your honor i do case we cited in our brief and then it twenty eight j letter th circuit has recently on bonk affirmed the district court in illinois in us versus you are today and this case was just decided by the application to pending cases congress took great care to ensure that defendants who had been convicted but not sentenced would not be denied the benefits of section four of three congress make crystal clear the four hundred and three reaches all defendants the sentences had not been imposed before an act meant even those who had been convicted and finally the text gives us no reason to believe that congress excluded from this expansive reached certain defendants awaiting sentencing just because those defendants previously had received invalid sentences e's one more reason why what was done below was appropriate and that is because of the fact that there was an intervening change in the law and that's exceedingly important and this circuit and many others have repeatedly talked about that in fact cost one of the opinions that we rely on for that again to answer your specific question are there other cases out there we have  cited many different cases we've cited the high schools meet the jackson case from the northern just go a high oh the crow case from the eastern district of michigan and also this acosta case western district of new york speaks directly to this where they quote this court the th circuit in saying the general rule is that a defendant should be sentenced under the law in effect at the time of sentencing and at the same time this camp court has said in us vs campbell and many other cases that the district court's ruling is is consistent here because of an exception to a limited limitation  when any re sense and a presumption spend but when there's an intervening change in the law that can be an exception to any limitation under the law the case doctrine or a mandate recognized this rule throughout the country the nd circuit specifically we cite that in our brief and clearly that's just another reason why there is really no limitation on this recent thing when because i don't want to take up too much to the reason that judge clay land imposed reimpose the senate in manama was because he had to have at the end of the day a comprehensive judgment that respectfully i i believe that the reasoning of your art tape and the other cases cited specifically this year are take a suppose on talk about how the only case that is against us if you and dicta because what happened in hodge again the only case that's cited against us there wasn't even it's so different because taj was convicted on three federal counts and seven territorial cons because the case came out of the district court of the virgin islands and what the rd circuit said we're sending this case back for the limited reset and sitting on the territorial counts not even the federal hounds so the hard case is totally different for those good morning in may it please the court my name is kevin mulcahy i represent the united states in this case this court should affirm the district court's judgment for two separate but equally strong reasons the st is that when this court remained of the case remains was this intervening supreme court case of deem which allowed the district court to consider mandatory minimum sentences under one hundred and twenty four dollars c when sentencing on the predicate offenses in this case bank robberies and so this court concluded the very last sentence of this nd henry appeal stating the narrow remit as quote for the limited purpose of re sentencing henery in light of dean so this court sense of the dean case is that the length of mandatory minimum can be considered by a district court in deciding what the length of the non mandatory vote i agree that it's tied to something that the remained was for but the district court was not permitted under the scope of the riemann to change those nine hundred and twenty four dollars c sentences and so while i agree that the district court had to consider the length of time that nine hundred and twenty four dollars c required it was wholly without authority to alter or change the th twenty four dollars c it could only view it as as an influencer if it viewed it as an influence no your honor i would the government would not be able to obviously make this argument this limited remained argument but under the plain language of the statute mr henry still does not get the benefit of the st step and so you're saying that i find that i'm sorry  missed mr mckenzie your position the government's position on that point seems to be that even if the senate is de cade it and really man did it's still imposed because   necessary argument for the government convincingly so i'll start with that that perhaps that last point st which is to say in this case your honor is absolutely right we didn't this court does not need to reach that issue because of the limited nature of the remap but comparing yury already to hodge which is the rd circuit case which stands procedurally in the same place as both your e r d and mr henry's case here to suggest that a sentence that's been vacated never took place is very different than to say that a new sentence must be imposed congress chose to use the phrase a straight i don't think congress is trying to strip the appellate courts of any of its right but rather what that what your argument would do no your honor our argument would simply recognize the historical fact that a sentence had been impose act and anyone who committed that crime so close in time that they had not yet been sentenced would also receive the benefit of the act but for others who had been sentenced the act one applied them and congress drove through that mind whether it's the right mind to draw or the line that the curb of us if we were a fifty five dollars person panel to create it would have drawn is different then whether congress drew a clear line in this case it did draw a clear line there in the government's ambiguity because of the two different circuits reaching different conclusions is there a legislative history or pam and terry from members of congress that would support or reject your position to answer your question i don't have that information in front of me i don't believe that that there is and i didn't cite any in our brief however is an advocacy brief in the th circuit where several different members of congress of both parties have taken the position that your interpretation is wrong so the strength of that of that argument would of course depend on whether or not the plain language of the act is ambiguous and our contention is that the words imposed have a heav accepted meaning and a sentence versus the sentence or final sentence suggests that congress meant to draw the line at a sentence imposed as a historical fact rather than requiring or rather than  some senses may be vacated by courts of appeals or otherwise importantly i think that when we're talking about your e r d versus hotch there's an important distinction that matters for mr henry here which is that in so isn't there sort of an intermediate session where one could say that a limited remained in white gene is more like a general ring and for purposes of this situation exceeding mr hutch in that this case had a limited remained as well there is that distinction it and turning back just more to your question shouldn't this be where a situation where if a limited remain in light of d m it's more like you're e r d just as the rd circuit had indicated to the district court and hotch leave the federal sentences alone and focus only on the territorial offenses this court's freemantle in the it relates to mr hobbs well i agree that this court that this course limited remained did ask the district court to issue a new judgment and issue and you could only change the sentence as it related to the predicate bank robberies and so unless or further questions the government would submit simply that there that there is a play in the plain language of the act certainly supports mr urgently lin's decision below but before the court even needed to weigh in on the plain language of the act the limited nature of the lead of the re man left the district court without authority to do what mr henry asked it to do and therefore this court should affirm the judgment and the sen thank you thank you mr clarke thank you your honor a few things to mention st of all in regard to the i just want to mention that the ruling by the court below was never cross by the governor secondly in regard to the hige case as i pointed out i know i'm emphasizing this but the facts are so totally different and the reman was so totally different and the actual what may pertain to the so clear on this that in this circuit and throughout the country that when there is an intervening change in the law that that can be taken into effect of to taken into consideration by the district court and particularly here on a re sentencing when there's an intervening change in the law that could be properly taken into consideration and indeed it was by the district court and finally that at and i just want to also mention that again the six circuit when you did remain under originally it was remanded for re sentencing and in consideration of the mandatory and finally i think is really very very important at this point because of the back and forth on this and the discussion about the what the law says and out applies i'm suggesting and strongly urging that the rule of lenity be applied in this particular case to the extent that there the applicability of the st step to pending cases could be considered ambiguous at any point history sentencings the rule of lenity should apply it's very interesting though we've heard quite a bit about actually  we've heard the name in the philosophy recently of justice scalia he was a proponent of this rule validity and in their own number of supreme court cases in recent years that have will not interpret a federal statute so to increase the penalty as a places on an individual in such an interpretation can be no more than a guess as to what congress intended and also the specifically the u s versus rockeymoore