united states there after he was sentenced there after the sensing commission lowered the guidelines for all drug cases essentially by reducing the offense level by two levels pretty much across the board he saw every sentence in the district court opined then if it was up to her she would definitely reduce a sentence proportionate to what to the way in which she had all previously treated him of the original sentence but she felt compelled by the new guideline policy which said you cannot reduce a sentence below the guy the amended guy going range that sticky at the time that he was that he committed the offense and  hernandez in what in what respect would that have covered him as are free one b one point one zero as it existed at the time that your client was sentenced it only spoke to an under one b one point one zero c only spoke to amendments covered by this policy statement and it lists a number of amendments which of course did not include the amendment that covers your client because of that amendment had not yet been made so i don't see how this provision guidelines amended for drug case but it did have the other provision that allowed a court to do a proportional reduction you are going to be your friend to be excuse me when you said have the other person allowing a argue is the manner in which the ex post facto clause applies you apply the guideline or the law in effect at the date of sensi and you exclude that portion that is less favorable to the defense that is less favorable than this version of one b one point and that's at eight twelve of your brief which was in effect of the time and my question is how did back treat him at all let alone more favorably than under the law at the time of the reasons were there were the part of the policy statement to treat him more favorably was the part that said when applying what are what he what mr alvarez seeking is to have the current one the one point ten apply to him with the guideline we duction for drug cases but not apply the provision that came into effect in twenty ten which put kudos are we duction below the amended guidelines so he's asking apply the current guideline with the amendment seven eighty two for the drug amendment but do not apply intervening change which was in twenty ten after he committed the offense which precludes that we duck she that's available now has any federal court done now there is a case by judge  district of new york which was not has not been reversed in which the judge essentially said what the current policy statement does is it changes the way i'm required to  know she went to one hundred eighty months when his grave was three hundred twenty four something correct so she could have got here she said her hands were tied which i understand but originally she could have gotten even lower than one hundred eighty correct there was a ten year mandatory minimum at the time of the original sentence so she could have sentenced down to ten years but judge kessler in my experience hidden to the law and she calculated the guidelines and she found the appropriate guidelines to be above the fifteen year sentence that she imposed she reduced the sentence as she believed she could but what she said at the recent sensually i believe is had the skylines been more when i originally census and i would have granted a proportional reduction which is exactly how this policy is a woman worked until twenty ten always had this ability of the district court to do a proportional reduction to say ok i sense you this way when i believe the guidelines are x now have the guidelines or below that i'm still going to  is reasonable and to all the circumstances and all it just the ex post facto course now the commission in other ways seeks to limit or seeks to limit the application of the x factor clause and i think that that goes well beyond the commission's role it's up to the courts to determine how expose factors should be applied and again i go back to the two primary cases by the supreme court where the court did not look to see essentially it was a good time credit reductions the court at that moment the defendants did not have sort of the vest did not have a sen reduction they just had the possibility of getting a good time credit to me this would be one point ten provision is quite similar to that good time credit parole provision that the supreme court considered  versus scream assuming that the provision that you are pointing to were still in effect today that would not support a downward variance every sentencing in your client's case whether it would allow the court the discretion to sentence has to consider the term to consider the chair and it would have impose except for undersea amendments covered by this policy statement are listed as follows and the amendments that lowered the guidelines range for your client is not listed are you saying that is that all of those are included but not exhaustive of no list of amendments that would be affected no there's no question that the amendment that benefits my client was adopted by the commission twenty sixteen after his sentence referring to other guidelines changes and not the guidelines change that lowered the range for his offense the amendment that was made retroactive by the sense in commission was an amendment that apply to all drug i sense right but i'm saying that the more beneficial guidelines version that you're referring to as your touchstone for your ex post facto analysis even without the subsequent this would not actually apply but you're saying so to the floor the new floor that's constrained the judge's discretion also wouldn't apply and therefore she'd have discretion what i'm saying so it's not that the discretion will be facto grounds the provision that limits the the ability of the district court to grant so yes i'm asking the court to pick one from column not pick one from column e apply the guidelines in effect now but not that portion of the current guideline that damages him in a way that wasn't that would not have damaged him and there's no question that it's the way the most courts of appeals but i don't believe in this time of the case most of the court of appeal cases involved i see my time a self involved career fended case this type of discretionary sentencing will give you th good morning may it please the court kirby heller for the united states in expos facto law has to prevent a sufficient or significant risk of increasing the punishment the twenty a levin amendment to section one  one point ten doesn't do that by its very nature section one b one point ten applies to leniency reductions in sentences when the commission determines after the offense and after sentencing that an amendment to the guidelines should be made and it should be retroactive the amendment in this case simply it simply limited the court's leniency to a certain group of defend course mr alvarez when he committed his crime and we certainly his base offense level was thirty eight his guidelines range was three hundred twenty four to four hundred five months of imprisonment and he was sentenced to a variance sentence well below that to one hundred eighteen months there was no course one be one point end of even make sense in this context as it applies to post offense impose sentencing amendments but in any event if one  possibility at the time he that there would be this that he was entitled to leniency is that right what would the judge not have been had leeway to following the sort of general principle of the v for the amended version of one b one point time which placed a floor below at the bottom of the new guideline range if that hadn't been in place doesn't really matter does it that the earlier judge still could have varied lower but for the new floor that's correct your honor and that of course is what that policy statement does that the court is required under thirty five eighty two  only reduce the sentence if it's consistent with the applicable policy statement one b one point ten at the time of this reduction the commission had determined that there were certain circumstances in which we grant leniency but not to defendants who sentences well outside of the amended guidelines range expose fact it was simply not implicated in the case where the court has the discretion after the fact to grant leniency provided notice that they could be eligible for leniency after the fact it was taken away and their senses were effectively lengthened that's not the case here we x post facto looks at the time of the offense at the time of the offen but there was no leniency that was then taken away place isn't that isn't that not quite right and just to push that point at the time of the offense if criminal defendant was thinking well there's a general trend toward guideline lowering drug offenses and maybe something's going to come along that i'm going to benefit from and given my individual circumstances at least as the sentencing judge saw them i my actually get a lower still sentence taking into account proportionally the variance that she gave me and then along comes the amended version of one b one point and put a floor under that that prevents him from benefiting at all and so in a sense it's taking away an opportunity for a kind of you know reduction credit as in lance and as and weaver well i think the situations are different defect those petitioners in the two supreme court cases actually did have the opportunity for me to see mr albert and didn't at the time of his offense you know possibly the commission seven years later would reduce drug quantity guidelines but that was not in effect at the time of his offense at the time of his sentence what he knew is what his guidelines were one of the one point had actually had no input no effect on him because with that after the fact reduction but even if you just look at the terms of one b one point ten it didn't apply to him and the law all the surrounding sentencing law also said that that any  reduction had to be consistent with the applicable policy statement so so is it the government's position that a new law that places him there to in a political ball limits on reduction of sentences can never be ex post facto and that how is that how broad your position is that that any new law that that limits eligibility for reduced sentence cannot be ex post facto a new law that limits eligibility for leniency that didn't exist at the time of the offense yes that would be our position and that's the position that the courts of appeals have uniformly taken in looking at post facto challenges to one the one point ten i don't read them that broadly i mean they go through a lot more detailed analysis and i think it's because they don't just look at the number and say well this was all an offer to you for leniency close close case they actually go through looking at the frame of reference at the time of difference and looking at how the last changed in asking whether there's been some opportunity that's been taken away well yes of course broader class of defendants to whom it with applicable didn't include amendment seven eighty two that's the law on the effect at the time of the offense at the time of the sentence modification that category has been narrowed seven applies but it just limited leniency again we have to remember that the only thing that could happen in a sentence modification is at best a reduction of sentence at worst no changes no increase in the post facto clause simply applies when there's some as i said at least a sufficient basis for increasing the punishment nothing that happened in the court in twenty sixteen was a sufficient risk of increasing this or else for instance he just didn't get the leniency that he would have like the other courts of appeals have taken a range of different approaches in terms of reasoning to the as you know is there one or more of those that you particularly would urge us to be guided by i think the seven circuits approach in digs is very straightforward logical approach the only court that i see is taking a somewhat different approach arriving at the same result is the second circuit which applies this one book rule and and look sat by applying the guidelines in effect at the time of the offense or the time of sentencing and the guidelines in effect at the time of the sentence modification to term and whether there was a sentence increase and again in ramirez which apply to these very amendments the court said there was no expos factor because that defendant sentence also had not been increased and have we not also apply the one book cocaine penalty across the board but anyone who got a departure in twenty in two thousand and six will not get the benefit of the reduction of the new statute that applies to every defendant and we're going to make it retroactive to every defendant except those who got a departure in two thousand and six which is essentially what this policy statement what the skyline retract from and this i think that happened after he was sentenced and without any notice that he would be treated differently than all other different this is the skyline amendment was a general application and