that's when young from the federal public defender's office for the appellant hector rodriguez i'd like to reserve a few minutes of my time travel is watch the clock i thank you mr rodriguez appeals the district court's denial of his motion for reduction of sentence under section thirty five eighty two mr rodriguez was originally sense in two thousand and three and basic fence level at that time of thirty eight was determined by the crime quantity of crack cocaine that he distributed since that time there have been two amendments the fa sensing act which reduced the disparity between crack and powder cocaine and then also the drugs minus two amendment which lowered the drug's levels the drug levels further which brought mr rodriguez base offense level down to thirty two  panameno or something like that yes you're so this it looks like to me that it was a whole series of thirty five eighty two motions that mr adie has filed and one of the earlier ones in twenty fourteen the district judge dealt with the litigate that it isn't what he said earlier about the difference or the differential treatment issue on panameno it doesn't that pretty much deal with that issue for that particular comparer well i think when he's saying not just that he didn't address so if i can ask you about the other comparative absolutely so so can you just in a nutshell kind of explain where you think mr rodriguez fit in these of the the other people he's trying to compare himself with well i think mr  lower started out lower than mr rodriguez they were all middle management i think but they were in the lower category and so but were arguing that he should get the same benefits that they got which is the benefit of the drug reduction you're kind of arguing sort of for a  proportionality rule everybody ought to be reduced by more or less the same proportion by by why the reduction in their sentencing guideline range everyone had a reduction the sentencing guideline no i mean the way these things work is that is that for some people for some you know when you sentence people sometimes the guy first for some people the guidelines is more significant than it is for others and it kind of sounds like to me what was going on here is that the district judge didn't think the guideline range was is significant for mr rodriguez as he did maybe for these other folks well i don't think the record bears that out you want to because he originally got a low end guideline sentence as did the other defendants and i think it's more a question of timing the drew the f s a or the crack cocaine limits came down in one night in two thousand and eight and if you look in two thousand as a flurry of motions every other defendant without any problem got they were either stipulated to or the government agreed to it in the drug courts and with the government's agreement i'm going to go along with it so mr rodriguez sadly was left out of th motion wasn't felt in two thousand and thirteen so i think that it was more a question of timing that than he was differently treated because he was saying everybody got a low end guideline since the beginning everyone was tied to the guideline range when the guidelines w introduced everyone else without any question got the reduction mr rodriguez seems to have been left out of that and i think it was largely question of timing because he filed this so late and there wasn't any mention in his pleadings of the fact that everyone else had gotten the reaction so i think that it wasn't really that the court is saying maybe the district judge didn't realize he had reduced everybody else but i think it wasn't focused on and i think that there's nothing distinctive about him in that respect he got a low incidence just like everyone else got violent crimes a conspiracy to murder a fellow gang member the prior homicide conviction and the government argues that the other  with first of all let me address the the count thirteen i think it was with respect to the conspiracy to murder that involve just a telephone call that was the only involved with it was alleged to have had and that there were three other counts of conspiracy to murder that were alleged against another bargain mr rodriguez similarly would have been able to reduce that as part of his plea bargain so it was one one telephone call that never went anywhere so i would argue that that's not justification for a seven year increase in sense with respect to the conspiracy to murder count with respect to his prior i think there were mitigating factors clearly he deserved to be penalized for it he served time for it was part of his criminal history it enhanced his sentence but it doesn't mean that once he's in an elevated sensing level because of that prior conviction that precludes him from consideration for prior reductions when the congress in the sense in commission determined that the drug guidelines levels were excessively high and everyone else got the benefit of that there was no reason for leaving mr rodriguez out of that unless any further questions are reserve the remainder of my time i will hear from the government i believe the record will show this court of abuse of discretion or actually dealing with the disparity argument for those too not really your honor with respect to lopez anita and hernandez there is no specific i the record was excellently compiled by opposing counsel and there is nowhere in the record where that was a specific arrest but even by myself with respect to putting something in the record in reflection of course this was all and that's why we did know about amendment seventy two why not and then as time passed and these both eligible and i think that's the core could handle the number of the sentencing reductions and judge lou did repeatedly a very detailed effort to get all of his designed for nonviolent offenses involving drug trafficking as the count thirteen conviction he is brother with mr egregious pulling the trigger killing a rival so under question of the argument that the district judge didn't deal with the claim of disparate treatment visa be not panameno but the others is it are we supposed to say we soon the judge knew all of this stuff and just dealt with the family or were we to say that it doesn't matter didn't have to which there is it something else i think it could be a combination of factors if i may or are because  position of knowledge in this case and certainly that's the case of the district minor players they're a different group basically they were there they dance to the gangs to let me ask you about another aspect of this so the that the defense says that the the judge made an error in saying that well the be not be called substantial can you help them maybe that doesn't matter either i'm not sure where it fits in so can you help me out a little bit there it sure looked at myself and thought of a very use of the word that the court not a substantial departure thought about whether the court harder articulated by fifty three factor for if this is warranted within the guidelines and i think that it's fair to say that what because the court looks at the factors factor one weighs heavily against mr rodriguez thirteen the violent past is not a substantial or did use the word departure and that's the lingo doesn't make as much of a difference to me as the word substantial i think the four years the record reflects that the court committed an error in using that word either of the words substantial departure or the two words together a fair judgment the judgment that the helen does not share and even perhaps as the case is repeatedly said hardy perhaps other judges would view differently but this judge who had the grounded knowledge of the case that is not substantial event is not in my view and i think mister one was just prior the other was the conspiracy to murder charge i just want to point out for one thing the conspiracy to murder charge bore a guideline range of twenty eight so was much lower than the drug charge guideline also we're not arguing that mr or drinker should receive a lower sense that mr panameno we understand that there were disparities at the original sentencing based upon the criminal history and the offense levels and those disparities we think believe should be effectuated by the fact that the sensing a mission in congress has substantially reduced the drug i think what you're what drove mr rodriguez sends and although all the other defendants received the country common to benefit mr rodriguez did not and that's what we contend is and reason this this thing about the not substantial increase over the high end when i heard him figure out exactly how that fits in your argument well i mean that in other words let's say you and i were to agree that for years  substantial i guess the and without being flip about it the question is so what in terms of this case would have to fit in well i think it's seven years your honor from the that i'm talking about in the high end ok i think that's what the judge was talking about from the low end of one to the low end whether it's about seven years and it's it's just i think he kept on repeating as as just as mr murray his sentence got reduced or reduced and reduced by operation of these guidelines he just kept on saying it's not substantial i don't think he was really focusing on the fact that seven years i my question though is that let's say it was ok so how does that entitle you if that's all there is let's just assume for purposes doesn't that's all there is how does that entitle mr rodriguez to to some sort of a different result that one thing does i think it's  raise in other words if if if you know different judges would differ disagree over whether four years or seven years is is a substantial increase and let's just say that's an opinion or an assessment or view and that's the only thing that's wrong that wouldn't entitle you to to a new sentencing right just the fact that the judge thinks seven years isn't as much time is as you might think resigned might think well i would respectfully disagree i mean i think someone saying seven years in someone's life is not significant or not at departure i think that's something that this court should take into consideration is being unreasonable ok thanks