good morning your honor my name is dan notre i represent the appellant mr ralston williams your honour's mass incarceration of drug defendants is one of the most pressing issues affecting the criminal justice system now especially affecting and disproportionately burdening poor persons of color in twenty fourteen u s sentencing commission promulgated amendment seven eighty two which was intended in large part done in such cases this court and as well as by statute section thirty five eighty two seek to establish procedures for how a defendant such as mr williams are supposed to go about getting a sentence reduction in this case and i would submit your honor that those procedures were not followed in this case is that should have been under this court's law and under thirty five eighty two and that that requires a remained in particular from what do you what this is do you say that the district court failed to consider that her explanation for the sentence that she gave in the new guidelines range was brief but i'm not sure that  fair question your honor i think i actually it's on page four of the reply brief i have the entire verbatim reasoning that the district court gave if you want to sort of look along with me you see it is almost entirely boilerplate everything that the district court says that she's considering took into consideration the factors at fourth and thirty five almost everything except that it specifically excludes any of the mention of the post sentencing conduct that this court has stated is necessary i think sort of under the principle you subject specifically exclude you mean it just doesn't mention what i think it sort of th is principle here and yeah so so when when when practically every single thing almost going down a boilerplate checklist is there and the this one thing that isn't there especially when it's something that if it were considered would seem to have been powerful support for mr williams having the reduction in his sentence that he sought and more been nothing but you know a model prisoner in terms of seeking to remedy himself and your main complaint here isn't it district court judge didn't give a full enough explanation of why on the first sentence the sentence was placed on point in the guidelines range and the second sentence was placed in other point guidelines that's certainly a major issue but i would say that the major issue  let me let me put it in the easiest way to describe it let's say you are overcharged by say thirty five dollars for something you go to the store to get your refund and the store gives you say fifteen dollars back on the thirty five you want to know first why the court or why the store is not giving you the full refund that it seems that you believe you should be entitled to here the reason for the so called refund is this finding that across the board is a class drug defendants have been over sentenced by approximately three years in all these cases mr ralston who has been a model prisoner since his original sentencing with the government not opposing any sentence reduction you know comes in he has a new recalculated guideline it's about three years less than what his guideline was before he and you know he was sentenced to the low end of the guidelines one hundred sixty eight months before and it's not unreasonable for him to expect coming in that he is again going to get the low end of the recalculated guideline the one that no longer suffers from the  again i say it's we did not fundamentally raise the substantive challenge in this case it's fundamentally a procedural challenge that certain things were not considered we believe that the district court should have the opportunity  consider these things in the first place you know or at least to indicate that she has considered these things and then if after that there is still a substantive issue to be raised that leasing is a kind of presumptive entitlement to sentencing at the same point in the ranges the individual was initially sentenced and absent that the district court has to provide an adequate explanation to support to rebut the entitlement i would say the second part i would agree and i would disagree with the first part of what you said i do not think there's any presumption regarding that but what i do say is that the is that this court his frequent has has said that when the court takes a completely different approach than it originally took without providing the explanation for why then that can be an abuse of discretion and what we're saying here and that's why there's a focus on the procedure here is to it is to provide the support for why the court has now decided to take this different approach than the court took the first time around what the court had to do is say notwithstanding the prisoner's exemplary record while incarcerated i still find that his earlier display of lack of remorse makes me believe that this is the appropriate sentence for him had the court done that i think i would have a much weaker argument than i have now that's for certain he has a right to appeal i might be raising different issues or raising this one in a different way but the fact that the court did not do the that the district court in this case in reducing mister mr wilson's story mr williams sentence by sixteen months committed no error let alone reversible  district court has two obligations one first to make a determination whether then it is a title to a reduction based on the amended guideline range in there is no dispute this case that mr williams was entitle to eight months then at that point once the person has qualified for consideration reduced says it's up to the district court to consider thirty five fifty three factors to determine whether or not one a obligations under thirty five fifty three and made a determination based on all the facts and circumstances this case having tried mr williams and having sentenced him initially and see his lack of remorse at sentencing and his efforts to downplay his responsibility for the distribution of heroin which led to the death of a twenty three year old woman  decision that the court made comports with the discretion that sometimes that the district court isn't titled in this particular case when the initial sentencing was imposed the court determined that the lowest sentence that it could impose on the fan that was one hundred sixty eight months subsequently after the event was to the seventy seven eighty two amendment came through under thirty five fifty t the district court changed its decision and reduced the sentence to sixteen months i submit your honor it's implicit at the district court in the district courts that it considered the thirty five fifty three have direct factors proposed should be explicit i mean we've said that in determining modify a sentence the judge must consider not only the traditions sentencing factors but also the cost sentencing behavior why it would be reasonable to require a judge to address that when you're of this court his prison has presumed and the number of cases that the district court carries out its responsibilities and considers all the thirty five fifty three factors unless there is some indication in the record that the court was remiss and doing so there is no such evidence in this record there was suggest the court did not follow all the fifth thirty five fifty three this court has also not honor it was really dick that there really didn't pertain to the issue that at hand a subsequent case in for example the wilson case was decided in the government's brief as well which was several years afterwards again reiterated that under one b one point ten consideration of posts and some conduct is a may decision for the district court not not necessarily shell but either way the government submit that under one of the records of this case and the only factual changes from the time the initial sentence was imposed to the time of the court if it's reduced sentence was the fact that the dish that was the guideline change based on the memo on the amendment but also that the court had been apprised one  conduct courses that were if you look at the progress reports suggest that he was attempting to develop some business skills that was one of the factors that the district court  quite concerned and at the initial sentencing mr williams he was engaged in dealing erewhon now because he was an addict not because he was feeding his own habit he just simply doing it from an for an economic point of view and he hadn't it and the record before the district court indicated that he had no no other means of income other than drug distribution so to that extent the fact that that he gauges these types of courses would suggest that perhaps he is trying to make somewhat of a change and i think the court then information was before the court in the it's implicit that in deciding to reduce the i've read your brief to suggest that that appellant didn't really have heat and due process right to address the court's renewed focus on lack of remorse and you just described some of the changed circumstances that in fact he now had a more fully developed sense of remorse but does he have a right to address that to the court need to tell him about that ahead of time and so did he have an adequate opportunity i would suggest that that's not necessarily that he had an absolute right to be apprised that three morse his lack of empathy was his was always in this case it was clearly it was clearly one of the driving factors the district court in the district  fact remains that i'm sorry it kind of lost my train of thought and that he had an opportunity to address remorse he did your honor and to the extent that the district court was well aware of that his lack of focused on that in a very very sparse explanation so didn't he have a right to address that before the district court reached a final determination about the new sentence i mean i'm not so sure that he did he have a right under thirty five eighty two that the court so a spontaneous can address a sentence based on an amendment to the sentencing guidelines and in this particular case you know the protocol that was adopted by the district of connecticut for all of these there was a standing order which provided that it provided various different scenarios but with respect to this type of scenario here where the probation office filed and attend i'm recommending that the individual was eligible for consideration the standing order simply provided that with the finding of that  addendum the party said twenty one days to make to provide any information in court and at that point the court would it could take  presumably based upon the defendant as he stood before the court then i mean if the defendant if the if the prisoner hand on hand or killed his cellmate that would be before the court and it would be a legitimate thing to consider on what happened in the in the end in the post sentencing eric both for assuring that the court has considered the current character of the of the person being sentenced as well as being conducive this court has always been very careful not to require the district court to have to it knew the defendant knew the defendant's demeanor and it made its reached its conclusions to send it back for further explanation certainly disagree but you know the fact that she could district court could have been more expansive doesn't necessarily mean that what she did say was was not sufficient at the toes of the board and let's go to the information  your just a couple of very brief points your honour's first with respect to the question my friend for the government suggested that that the discourse repeated statements such as in rivera were sort of mere dicta about the considering the post sentencing conduct that's simply not the case that wilson case for example that the government stated i'm quoting from the wilson case a quote a judge must consider not only the traditional sentencing factor set forth in eighteen u s c section thirty five fifty three but also the sentencing behavior of the defendant so that's when it wilson that's been rivera that's been in at least one other case nichols which was a summary order since then so that's i would suggest your honor that it's settled in this court that explanation is given as something of a robotic incantation and yet to see or does not include any reference to this the second point i wanted to make quickly regarded the notice to the defendant which came up although this court has not that the that the person have notification and a reason why opportunity to respond if there is going to be a new idea to be considered in the final thing i just want to note is that in response to the government's suggestion that this was all already just sort of part of the record already been considered this whole remorse issue it's true that there was in fact a whole sentencing hearing held several years ago and mr williams had a number of people speak on his behalf as well there was a very lengthy victim impact statement that the government submitted which in my opinion has a lot of improprieties to it but that's not at issue before the court at this point and as a result of all of this hearing all of this being in the midst of all this the court made a determination to sentence at the bottom of the guidelines in  the dillon case delivery united states which again the government sort of framed its argument by talking about this two part analysis of the deal and goes out of its way to say that we have lesser procedures now because we're not going to have a plenary resentencing it's not to start reconsidering things that were already considered as part of the real sentencing that you got when you had the opportunity to actually be there and present evidence and have you know your support and the other side has their support that's what happened several years ago that's when the when the district court considered all of the arguments including mr williams argument for a downward variance and decided amongst all of these things that that the sentence at the bottom of guidelines was sufficient considering if you believe if you accept what the government is saying now his real remorse or lack of remorse at that time as part of this constellation of considerations at that original sentencing it is it seems apparent from the record that that district where his considered that aspect in a different way now it appears at least we don't know what that is courted or what's different i mean i feel it is it is different because you know for a couple reasons one is that as to the extent remorse was considered it was considered among all these other mitigating aspects you know which and the court to the extent that she her initial determination was based on this remorse issue concern made that as part of the it's consolation of mitigating circumstances as well including all the you know his own remorseful statements you know and and the and the support of the various people in the community and his family who came you know and testified on his behalf i mean i  certainly don't especially in my rebuttal time want to be getting into something that isn't even in the issue here i mean this this is an issue that's forfeit now but that there was you know frankly he never should have gotten up in and spoken in the first place he did in response to a victim impact statement that you know had this been before a jury would have been you know constitutional error i mean here it was you know for the for the for the mother to be saying you know this is page forty of the joint appendix mr williams consequences should be maximum enhanced incarceration maximum monetary peano's ation maximum probation he should be mandated to sit in on drug rehabilitation and finally he should be should not be sort of double down on now at least there should be an opportunity for mr williams to respond to that concern now since it's his remorse now that matter thank you thank you both will reserve decision