they may please the court there is twenty two defendants have all been deemed categorically in the eligible for a sentence reduction even though their sentences were based on a retroactive guideline amendment that lowered their offense level nvidia d s this court rejected arguments that the sentencing commission's policy statement one b one point ten b to a which disqualified all defendants who received variances from retroactive guideline amendments they rejected the argument that it was inconsistent with federal sentencing statutes and the fifth amendment the question for this court is whether the intervening authority of hughes undermines that authority and renders it not governing this case h concern that specific question the current very closely related question the question in hughes was whether under a sentence imposed under rule eleven c one c was based on the retroactive amendment and the question was whether the amended guideline was that weather was based on it so that is the exact same question here let me listen to exactly because the text of amendment seventy two allows the court to reduce the prison term only if the reduction is consistent with the applicable policy statements and the most applicable one is still one b one point one zero be the question is whether it is applicable after hughes if hughes has undermined the reasoning could it not be applicable the amendment refers to there has to be based on a sentencing range based eligible to the extent there if such rejection is consistent with applicable policy statements issued by the sentencing commission so what use didn't have was it was interpreted what based on but it wasn't in turn putting whether there was anything wrong with any policy statement that ideas win on the assumption that all proceedings under thirty five b to c are not constrained the words of the opinion by federal sentencing statutes hughes is completely inconsistent with that so so what do we do with dylan that is not well first of all dylan involved exactly the situation we think should apply which is that it did apply and specifically says a page a twenty seven that we  sent guideline applications in place and that you could comparably lower if you got a lower sentence the first time so that is exactly what we're saying should apply is the dylan rule under dylan the part about active learned if you finish that sentence they're saying it's a congressionally act of lenity saying that it is a veil before persons who sentencing level was reduced and what hughes did is it adopted the position of party a d s that was rejected before which is molina and pew both cases the talk about what constitutes based on applies in the thirty five eighty two c context that was not the in conflict with nine ninety one b that is the general purposes of the said yes and then there there wasn't really an argument or i don't thing about the based on language was there it was an implicit in the ruling because we were the whole argument was about molina martinez and pew saying that that was created statutory eligibility the sentencing commission has never been a given authority to change eligibility and that's what they did here it's an eligibility decision that would choose now tells us they were statutorily eligible the rule at seven hundred seventy  places but i think most clearly the general rule is that the ultimate sentence that means with variance is based on the guideline range absent clear demonstration my thing yes let's say yes that's true but then there is a god and they the same statute says if but only if some other additional factor is met right and so based on isn't the whole game right rejection can be is this pretty variance lowest of the amended guidelines count then the question is why is that an invalid guideline which should not use was a ban big because that guideline is inconsistent with the status if you are statutorily eligible the sensing commission has no authority to change the assumption of the entire case is that when we're talking about based on and reducing levels it's it's defying the guideline range before variances and what the evolution of the supreme court this benefit to a person who was sentenced based on a sentencing range that's no longer in fact that's fine and agree with you that that may have here but then the statu says if such reduction is consistent with applicable power see statements issued by the sentencing commission so even if we're looking at it without the deer being based on is only half the game it still has to be consistent with the applicable policy statements and the most applicable one is the one you don't have the what it's not that we don't like it's that under look beyond it's in id that's what we're asking the court to make a determination of it is invalid in light of hughes because hughes has provided a description of eligibility that wasn't there before and it could compilation with c based on a changed right inch you can get a benefit but only if the amount of the benefit is consistent with these policy statements so it's not about eligibility it's about amount my don't see anything in of the guideline range you are eligible but was based on but it doesn't say how much you yet and what the statute tells you is to step aside if you get zero or more than zero you look at the policy statements that are specific to that question but this policy statement is not making a uniform decision it is isolating out certain persons and saying that they are categorically ineligible even though they said situation it's not a person that's best i mean that the persons who sentences were based on are the eligible pool and then in determining how much you look at the policy statement and tell she what the policy is not about people but whether there is an appropriate reduction or not is never in the history of the guidelines ever been a situation where the limitation is directed at a group it is uniformly applied you always have an effective date or you only have this much you can go down but you don't end up categorically excluding a group from eligibility that's what the court did not approach because they said that the sensing that they're not constrained more importantly they say we are not constrained by sentencing statutes that's expressed then that we now know that they are constrained and in fact ninety four of says that they that the guy that policy statements shall promote with and one thing i can tell you with some assurance is that the based on language had nothing to do with that case we've never challenge that any of these twenty two defendants received sentences that were based on the guidelines and that in each instance the court simply departed or varied to such an extent that when the guidelines were retroactively reduced they simply were not eligible for a further reduction now the standard that applies here is not sentence correct correct and they are eligible because of the based on which exactly they were they were certainly eligible because of based on but is that as this court has already identified when you're looking at thirty five eighty two c you have to look at the entire statute based on is a given it's not until we drop to the very end of the statute where it says that the reduction has to be consistent with a political policy statement issued by the sentencing commission when we turn to the policy mean that a policy not if a policy statement were invalid absolutely and that's where both her sorrow and already examined all of the constitutional challenges that mr saidee has leveled against that guideline and said it's perfectly ok it survives rational basis it's good to go so if for example hughes which addressed eleven c one c plea agreements and the based on language for example if the sentencing invalidated an application and it would have prevented the precise situation that you have hypothesized which is gosh isn't it possible for there to be a sentencing policy statement or guideline that runs  or that would be invalid i presume absolutely but this deals with a situational question how much sentence did you get already which is not personal and as this card is already identified perfectly rational i'll note the application note except people who receive downward departures are variances for substantial assistance in this court has already said that's rational it will reward people who have come forward to provide assistance to authority so that in terms of all of the constitutional attacks on the guideline application itself have been squarely rejected by and yet hughes is readily reconcilable here because it involved based on and this case involves the final clause of that statute that the reduction simply were not consistent with the policy statements so  basis but we also know from this court's rulings on irreconcilable ity that the week three judge panel cannot overrule a prior panel you may disagree with the rulings that judge fletcher and judge are about fifty thousand inmates who filed sentence reduction motions under thirty five eighty two c thirty two thousand thirty two thousand of them in fact received lower sentences so the group that we're talking about is actually relatively small it's about twenty three hundred inmates who were deemed ineligible because their sentences were already below the amended guideline range my best pitch your honor in terms of why this makes sense is the sentencing commission i think on a fairly categorical call it a meat cleaver as opposed to a scalpel approach decided at that those people who had already see received leniency had already been relieved the burden of the drug guidelines were entitled to a second bite at the apple so what they wanted to do was to give those inmates to receive sentences that were guidelines sentences that  under the understanding that those guidelines were too harsh so those people who received those sentences that are presumptively too harsh now have the opportunity to go back to their judges and ask for an additional two level not someone who entered a guilty plea under eleven c one c could still claim that their sentences were based on the guidelines because as i'm sure your honor is aware when the parties negotiate an eleven c one c plea agreement they presented to the judge as we've agreed you should impose a one hundred twenty month sentence and so the court either accept or reject staton the question was was that still tethered up to the guidelines in order to deem these people eligible for this thirty five eighty to see reduction and the courts across the country were split on how to interpret that so the supreme court and hughes said we're looking at the plain language of the statute based on as a broad term they looked at black's law dictionary and they said based on is a very broad and since we know that district court judges have to actually look at the guidelines before they decide whether or not to accept or reject that eleven c one c plea agreement that fits within the says i understand your point but with regard to departures which are simply an application of the guidelines and which therefore are just result in a calculation  the rest up departures only departures ok i guess i'm not fully tracking your question here well my question is i'm going back to the merits of legal protection which i understand are not directly before us ok but i assume what we're going to get here next the revised guideline range whether it's a departure or a variance and i think as we all know other than substantial assistance there's been a great amount of blurring between departures and variances infrequently judges use those terms interchangeably so i think just as a practical matter it would be very difficult to have to apply this sort of an application if we were to say it only applied to variances but not departures so basically in your view the rational basis distinguishes it is people who got low sentences and lots of leniency already versus people who didn't i mean you know rough rough sense is that your point yes i want to encourage you to take a look at this case freshly and light a fuse for one basic reason and that is if you put the ideas case for cerro or all constraint said that the  by the mis the various interpretations of the earlier opinion it was a clarification that the quote from dylan means doesn't mean that it is an act that is separate from the guidelines that the guidelines are immersed in the policies are immersed and that the category a category of people who are a lot less culpable is not a rational basis is that creates unwarranted disparity in violation of the have totally re and do a new analysis because equal protection analysis depends on a legitimate state interest when we now know that the guidelines policies against disparities apply that that wire is a new and other jurist zooming that the people who are getting their reopening are going to get disparate sentences from your group that we don't know had a call and may be that all that the sketch show is to go before a judge absolutely and and may well be and i don't know whether the commission has looked at this that when the people who didn't earlier get wenna to go back to the judge the judge says you know what you know i'm not going to give you a lower sentence because in fact you can fit into any of the categories under a five five three a  which would merit a lower sentence and if these people came back and say i already gave you you know you already got the departure of the variance i am not going to give you another one so i mean that's that's me is probably the rational basis that it's more likely to be a futile endeavor it's not because the citizens who provided you with the briefing include that almost over ninety five percent of the cases of the motions are granted for people and so that what we're doing is we're creating a class of people who are not even getting consideration getting clean situation from a district court judge about whether the sentence is too harsh a judge course it's just a judge course it's before he was justice course that was quoted in rosales morel us as saying why in the world would we leave somebody to linger in prison if we're longer time than law requires now so you've you thank you time thank you we appreciate the arguments from both of you they've