nay oh yea all persons have any manner or form of business before the honorable the united states court of appeals for the th circuit are admonished straw lying get their attention for the court is now sitting god save the united states in this honorable court more deserving offenders are not the policy statement also injects unwarranted scenting to distil spirity it's into the sentencing process by undergoing a district court relative weighing of culpability between code for a sentence reduction and mr sprue holland was not the gap between their sentences doubled to five years the supreme court and labonte today held that where the commission has enacted a policy statement that conflicts with the authority congress gave the commission by statute the policy statement must give way to the congress's directives the eligibility bar in this case and one b one point one that prevents defendants who receive non cooperation variances and departures from their guidelines ranged from being eligible for a later reduction conflicts with the purposes powers and duties of the sentencing commission as congress set out in the relevant statutes there's two sources of conflict i want to direct the court's attention to today the st is the way that one b one point one conflicts with the purposes of the sentencing commission that are set out in twenty eight u s c nine hundred and ninety one in that section two and specifically to avoid the unwarranted sentencing disparities now we know that the th circuit was incorrect and the government is incorrect in this case to argue that these are merely aspirational purposes and quote a stablished general policy and promulgated such rules and regulations as are necessary to carry out the purposes of this chapter so the specifically and numerated howard the congress gave the commission  directly tied to the purposes and ninety one a so we've only had of course for an agency powers the congress as the debate we delegated in this circumstance they're directly linked to the purpose but there's a nd reason that we know and i'm happy to explain the two mistakes i believe the th circuit made the st is that the th circuit held that the the purposes of the sentencing commission and nine hundred and ninety one as a were just aspirational but they didn't consider at all the fact that the powers of the commission and nine hundred and ninety five are directly tied to those purposes and they also didn't consider the fact that the word purposes has to be interpreted consistently across the relevant true in the th circuit it is certainly not true in this circuit under this court's precedent and the specific precedent i would direct the court to is the martin case which came after the supreme court's decision and  mitigation evidence a defendant presents and that's all relevant and required in a sentence not a vacation proceeding so it's not the case in this circuit that they're entirely on late ultimately i think that the government and the jury trial did not apply in a sentence modification proceeding there are of course many kinds of proceedings where a jury trial right doesn't exist and this is just one of them dylan doesn't say anything to tell this court how to interpret the conflict between the directors of congress on one hand and the policy statement that the sentencing commission and acted on another hand well ma'am the supreme court did say in dillon that sentence reduction proceedings under thirty five e to how the court sees these two provisions affected or not affecting each other that's correct rather i certainly agree that that's the holding and dylan which makes sense considering that dylan was deciding whether or not a defendant had the right to prove new variances at sense is not the case in proceeding but it doesn't speak to the notion of old barry and says that the district court already found to the individualized determination that a just report already made and in fact when  affirming the general principle that a district court should strive to isolate the impact of the guideline amendment and leave all other determinations intact it would suggest instead that the all the original determination the district court made should be consistent with all pertinent provisions of any federal statute but as a baseline requirement for anything the sentencing commission does they must be consistent with other federal statutes and this case of course the federal statute that i think causes the get where you want us to go with an aspirational statement in the it's so how do you develop that for us now an opinion i was like to think of how we're going to write it if if we're going to adopt your perspectives so how would you develop that of course your honor i would suggest the court would develop in this way that it's important for agencies to know what they're telling by what they're not bound by when congress sets out statutes giving them authority and giving them a role to play so we should err on the side of assuming that when congress says something that's what the congress once the agency to do so when congress sets out the purposes of the very existence of the sentencing commission in ninety one day it expects the commission to comply with those purposes in all of the things the commission does and so because there is a court to rely on the language from the bomb which looks for the plain meaning of the language in the statutes and compares that to the language of the policy statement and when there is  aspirational and i would note that the sentencing commission themselves your honor just not think that they're really aspirational the sentence and commission said specifically that it was trying to avoid unwarranted sentencing disparities when it implemented the amendment so one b one dollar it's basically said that in its explanation for what it was trying to do so even the sentencing commission does not think that it's can do whatever it likes to do i think it would be a very clear case and i doubt the government would even argue this case said go ahead we want you to create disparity then we want you to ignore the nature and circumstances of the offender we want you to ignore the nature and circumstances of the offense that would be a clear conflict and that anybody would argue that here we have the same result without the language and this court should find that where there is a clear results and as the th circuit found in its case that were sentences that were initially tailored to avoid unwarranted disparities and to account for individualized circumstances end up converging at the low end of the many guideline range but that same result is still a conflict and so i think i did want to also have a little bit time left and just go back to why i think it can't be the case at ninety four you trumps everything out to ninety four you is of course where congress told the sentencing commission that i could determine the manner and the amount of a reduction a defendant my children can have snacks of those snacks have to be fruits and vegetables and then if i have another policy and tell the babysitter you can decide what time of the day snack time you can decide how many snacks they get how much they eat but those policies together and i would suggest it's particularly important that this court be the one to review the policy statements that the sentencing commission has set into place in this instance because of course policy statements don't have other review they makes it particularly important to have judicial review and reason for this court to apply labonte to a very clear precedent in this circumstance there are questions on reserve major my time for about oh thank you thank you very much not a specific directive like the one that was at issue in the levant a case and we of course agreed with that i would point out in response to my colleagues arguments that the labonte or labonte  two proceedings were congressional acts of lenity they are limited adjustments to otherwise final senate says and i would say they are just different along that line can i ask you are there any statutory or constitutional constraints on the commission's ability to promulgate holocene as relating to sentencing reduction so i think that the provisions that we've talked about and when i say we i mean my colleague going in for argument with the court certainly the foundation for this argument is not ninety one people are the purposes the government is certainly not saying that those purposes are meaningless they are what they are they are a statement of the purposes of the commission and  specific directives of congress so if it is not a specific directive here then i don't think there can be the kind of head on collision that caused the court to reach the ruling that it did and look what all but said if that language is at odds with the statute it must give way and perhaps i can argue that regardless the commission's language i think when you look at the reasons that the commission stated for the amendment and for the policy statement that  posts that were set there by nine hundred and ninety one if those in fact were considered to be a specific directive from the commission said that it had determined that in the specific context of one of the one dollar a single limitation applicable to both departures and very it's furthers the need to avoid a more into disparities and avoids litigation and individual cases that ties directly back to ninety one b they further went and said that the limitation that prohibits a production below the amended governing range the differences between five k defendants who have cooperated and noted that they are sit differently situated than other defendants and should be considered for sentence below a guideline or statutory minimum even when defendants who  otherwise several are but did not cooperate are subject to a god want a mandatory minimum and the final sentence underscores this point for there when they said that applying this principle when the goddamn range has been reduced following the guidance or purpose statement or goals expression of goals that are contained in the ninety one b and only the guideline or commentary language directly contradicted us or violated the statute would we have the kind of head on collision that the court found problematic and look on we just don't have it whether it's because it's not exactly a directive or three thousand five hundred and eighty two is different and is not constrained by ninety one dollars b or the general said it's in policies which is the argument that we make or alternatively because in fact the commission's language is not inconsistent with not ninety one dollars b for any of those reasons i think the government not know of any other courts either other than those out of the th circuit looking at this issue we think the analysis from that case is the appropriate analysis in the two pronged nature of that decision st addressing whether or not ninety does not translate that proceeding into a full or even plenary re sentencing and again dylan statement that thirty five dollars maybe two percent ngs are different that they are simply acts of when a day and allow limited productions to otherwise final stand it says i think still  carries the day and would argue against martin having any impact on on this case otherwise with regard to the rest of counsel's arguments i think we would rely on our brief unless there are any further questions i'd be happy to answer don't think we have any thanks very much thank you  in ninety one are not meaningless but on the other hand they're also not directives and they're not binding but at the same time while the commission did try to follow those same purposes and policies and so we shouldn't be too concerned so i think it has to be one of the other either those purposes are binding and they have sought and that this court has the ability at their judicial review just say that policy views or guidelines that are enacted by the commission are conflict conflict with those purposes because they have some actual deeds to them or they mean nothing and there was really no reason for congress to write them down in the st place i don't think that there can be room for a middle ground either have to mean something or they don't and i think that the government suggestion that while the commission was trying to follow purposes that out of ninety one dollars b so we shouldn't be too concerned there is no direct conflict that focuses on of course the language the understood in the terms of what the amendment was trying to do prior to the amendments one being one point one distinguish between defendants who had received below guideline departures and defendants who had received below guideline variance  produced a lot of litigation where people were trying to argue that it was a departure not a variance and that was confusing to district courts and so in a sense it commissions that were trying to make things simpler and to avoid litigation they were getting rid of that distinction but then they created another distinction that has produced the disparity at the heart of this case so the sense a commission's rationale that my colleague just pointed to you to be understood in that context and the actual product of the policy is what this short argument as to what level are we looking at the commission statement of policy in other words is are we looking at this from five thousand feet where it's an overall directive a best practices goal or are we looking at it with a level of granularity you're suggesting that we it has to conform each and every case to the specifics of the dependent sentence and that seems to me to be the flaw in your argument that a broad statement has to fit every single case with the particular sentence imposed by the district court where the previous favorable treatment had been given l bar where people are not eligible at all to go to the district court to argue their individual circumstances to make their case for why reduction may or not be a broken or may not be appropriate that is where if it creates not just mr spurgeon but for an identified class of people this disparity this removeable of a district court's previous individualized determinations that is where this court should exercise its oversight and find the conflict and it's critical to her i'm sorry but let me let me consistency people should only get really one treatment that could bring them below the guy and then the guidelines range and if you got that treatment in your original sentencing or you got that treatment later on  wouldn't really matter we just want to make sure that everybody gets one shot at a book at a sentence reduction and i know that that means that some people are going to be too treated  for sentencing that it's not enough to say that you have the opportunity to argue for variances and departures once given that the anchor that the guidelines provide even for below guideline sentences and in this very case the district court did hold its opinion below that the guidelines played a role in determining the sentence in this case the below guideline sentence given that role it's not enough to say ok you had one opportunity because if the guidelines have that anchoring force which this court has consistently held that it does and then the guidelines are shifted down that should only be appropriate for the district court consistent with all of the practices and purposes of sentencing to be able to consider the lower anchor in constructing what is an appropriate new abstentions and whether or not a reduction is appropriate thank you thank you thank you for your argument and we will take