briefing the parties actually explored spent most of their time on the st point which was whether or not the defendant was eligible for relief which would have been to do novo a question for this court that's no longer an issue for this court and the government is conceded in their rule twenty  consideration of the criminal history or teaser sentencing range would not be substantially lower the numbers he's talking about there are numbers that you only get to under criminal history category three hundred and twenty one thousand two hundred and fifty one months as a months even if it had been a level thirty or thirty two the numbers want to be in well more than what your chin was discussing when he starts discussing when he's clearly discussing the substantive determination but what's the appropriate now on a on a st step discretionary decision as i understand it the judge is not with choir to recalculate the guidelines is that correct and i don't i disagree here i don't believe there's been any sam in deciding whether or not to reset the decision here being no i don't see where there's a requirement that is a matter of analogous language in each in u s c thirty five a to see to the court explaining that the word may refers to simply whether or not he's eligible for only but once you determine the person is eligible for court and the court said yes this person's eligible for eligible for resentencing the st question the starting point is what is the guy going to houses to be able to chapter thirteen whether or not the original sentence i guidelines range before that or make that decision yes because the return whether or not it's it's reasonable to maintain the original one hundred and sixty eight month sentence in my view would be an abuse of discretion not to evaluate and twenty four c conviction had been entered prior to ortiz's sentencing in my case that putting it in the it suggests he understood it not but if it had been then your client would have had an additional three criminal history cloyd's and a criminal history category of the rate that wasn't to suggest that was his guidelines it was just suggest that his reach the real seriousness of the totality of his conduct where he specifically says even under an amended gun like brain when you consider his criminal history the range would not be substantially lower and then he lists only those guideline ranges that would be a put under category three missing some well for starters your honor when you can the question is is that a reasonable of at with the terminations as a subset of the question and i would say it's not reasonable because if he were to do that that would mean that he would have been sentencing the defendant instead of being one hundred and eighty correctly calculating ivan range and it would actually be seventy three months if we're going or a few months if we're going even higher here's the problem don't judge stein when sentencing in effect it were that subsequent conduct  no point recognizes what the guideline chemical ations would have been under rubble to nowhere no point all right so i'm going to ask you will submit something on united states versus war started in september sullivan judge raji judgment may it please the court the st step back gave certain defendants like nathaniel ortiz the opportunity to seek a reduced sentence but not the right to receive one rather as the court made clear earlier this year even where a defendant is quote eligible for relief he is not necessarily intitled to relief and quote and that's from holloway at six hundred and sixty six after all the st step back by its own terms does not quote require a court to reduce any sentence and quote and that's from section four o c of the st step for this reason as this court said in holloway the decision of whether to reduce the sentence under the st step back to quote is a matter left to the district courts sound discretion and quote if it district court is to have any discretion to deny a st step back sentence reduction motion this case is the perfect vehicle for exercising that discretion not only was ortiz the number two man the enforcer in a powerful and violent crack to strip usual organization in the bronx run by his brother but judge chin had the advantage of understanding or teach this crime in particular detail as he oversaw the trial ortiz's brother regarding this very organization additionally afterwards he is was initially sentenced he was charged with being a member of an armed and home invasion crew entirely separate and apart from his brother's drug and he pleaded guilty to that crime in a plea deal of credit cate on among other things the assumption that there was one hundred and sixty eight months sentence before judge chin and then this was really the missing on the cake there was ortiz's behavior in prison which was truly horrendous or teasing gaged in violence or possession of dangerous weapons and sixteen separate occasions while incarcerated this included violence while various sentence reduction motions were pending that is at times that one would think that ortiz would want to prove to the court that he had actual two thousand and sixteen denial ortiz continued his pattern of violence in prison hiding a six inch sharpened weapon in february of two thousand and seventeen hiding a weapon while stating that he would kill quote snitches in october two thousand and seventeen that same month telling prison staff that he would quote kill snitches cops and the guards possessing a dangerous weapon in july two thousand and eighteen threatening the staff in that month and then assault assaulting his cellmate in august of two permitted to exercise a sound discretion to decide it which is it's much easier it is hard to imagine when a judge could do so in light of the text of the st step back this court's clear directions and holloway and principles of discretion in a holistic sentencing all the more judge chin not only use the word if he talked about what the criminal history category quote would have been that's definitely in the world of hypothetical had in addition had the  in moore which was not cited in our brief because it didn't exist at the time of our briefs this court specifically said that in a st step backward action there is not an entitlement to a plenary sentencing and there is not an entitlement stine sentence not because of the sentence that judge signed opposed the analysis would have been the same if for example judge time had imposed a one month sentence to run concurrently or a thirty year sentence to run consecutively that is this didn't this didn't try to track what judge stein said rather the analysis which is the very concept of criminal history category is this shows a greater chance of recidivism because it turns out i didn't even realize this guy was continuing to commit other crimes on the side had i realize that and had he been convicted of that other crime beforehand his criminal history would have gone up and that doesn't matter what judge starr says other than that it would have had to be more than a year and a month because he said it would have been three points which happens when you have a year in a month or more that's under the sentencing guidelines for a one dollar so it doesn't matter what judge stein gave him although i think that there is certainly an appeal to the idea which judge did not specifically say but between and judge chin looking at this guy's conduct overall there was a decision that the correct total sentence for him was two hundred and eighteen months and i'm sorry two hundred and twenty eight months and i'm not a mathematician i apologize and by not reducing his sentence it maintain the sentence that both judges looked at as the correct total sent us if there are no further questions will rest on our briefs i guess i have a question why don't you want to give us to the correct guidelines sentence that is let me see what the guidelines are and factor that in to the three thousand five hundred and fifty three factors to determine whether he should get a lower sentence that is kind of gotten beyond the i think it's just inappropriate to to lower his sentence at all the correct guidelines range would have been driven by the offense level that judge chin came up with because this court has specifically said in united states read the rios but you can make more specific findings when you come to a motion like this as long as they aren't inconsistent with the original findings and his offense level calculations were consistent with his original findings which were anywhere between one hundred and fifty and five hundred grams of crack and so he was allowed to look at the record and say now that i have to get more specific i can do that but if you had gotten that far it would have been criminal history category t because the criminal history category does not change a reduction of sentence but the fact of the matter is if he didn't get there in the st place and i think that that was the point then i agree one hundred percent with judge raji he was playing with out as a hypothetical in order to explain why it is that he thought that there were several different approaches all of which led him to the same inexorable conclusion that this is not somebody for whom he should exercise a sound discretion to reduce  only have to st determine what the guy my range should be mr maimane is just been given the opportunity to state whether he believes a different guideline range should have been imposed and now for the rd time mr me a man has declined that opportunity in his district court have been at the starting point is the initial which is that number that now repeatedly everyone comes back to be mr amendment one or judge chin eighty seven thousand two hundred and eight months with respect to judgment  was that that's not my and my i'm not trying to say that because he got sixty months they're trying to adjust the sentences accordingly what i'm saying is that if one judge thinks the appropriate sense from the offense is sixty months he would and judge chin and evaluating ian's higher situation under level two i understand judge rush's point that he uses the hypothetical when talking about criminal history gregory three initially but then when he discusses how the ranges would actually be affected the numbers that he's that he's repeating only work under level three none of them come up under level two which again we've just heard yet again from mr memon from the government at level two is the appropriate