please the court i'm randall unger i represent there and brooks the appellant in this case i submit to this court that the district court's denial of the defendant's motion to reduce the sentence should be vacated first because it was made in reliance on a amended offense level in addition it ignored the supreme court's holding in freeman stating that such sentence reduction motions had would never really be granted in cases of defendants who are lingering in prison pursuant to sentences that would not have been imposed but first since rejected excessive rains mr works for that category of persons who are lingering in prison he's serving a sentence of twenty five years for a nonviolent narcotics offense admittedly he has a very serious criminal records was impressed with his long history certainly does he's done time in federal prison he's done time in state prison he's he's not behaved well there's no question about that but the reality is that he is now a fifty year old man who i think his earliest release date given the sentence he's currently serving is twenty thirty one if i understand correctly the record rather strongly suggests where he doesn't actually determin but rather strongly suggests that the judge mike the the counsel before him and the probation department believed that the guidelines that the new guidelines that he faced were actually much higher than what they really were his neck right that is correct so the judge denied this motion in the past belief that the that the that the guideline reduction was much less of a reduction than  circumstances where the initial sentence imposed was right in the middle of the guy's writings that were in fact applicable and the judge it seems highly unlikely the judge would have imposed a three hundred month sentence if the maximum guideline had been two hundred ten months that and that's exactly the point under the original guideline that then applied at the original sentencing he was facing between two hundred sixty two and three hundred twenty seven months three hundred months is pretty much in the middle it's a little on the high side actually but taking that into account even a little above the middle of that range i mean now you have a person four levels to a maximum of two and and right and the p s r as well as counsel on both sides presented the case to the judge as if the the new guidelines went up to sixty to sixty is it something like they were under the impression it was between two ten and to sixty two to sixty two i'm sorry i was wrong yes as was i and i thank the government for pointing out the error that was carried along as a result of the group probation department miscalculation trial counsel government counsel and apparently the district court we all were relying on an incorrect offense level we know what it is now and it's hard to believe that the district judge would still add here to a three hundred month prison sentence which as you're on a has pointed out is ninety months above the top of the guideline range that currently applies to the offense he was convicted of i mean we're talking about i mean i mean at least this is the very likely thing the great harmless error given that huge disparity between what the district court believed the amended sentencing range was and what it actually was we have to say that there's no reasonable probability was entitled to the jags recalculating that all the entire sentence procedures and while he was entitled to an accurate recalculation first of all and he certainly was eligible for  the the relief he was seeking i don't think the government has ever contested the fact that he squarely falls within the category of persons would be entitled to make a go forward with the sentence reduction motion it's up to the district court in the district courts discretion whether to grant the motion of course but in exercising that discretion it's crucial that the district court have accurate information before it and unfortunately the probation department provided eight and a roni is offense level as amended in the guidelines and that's what this record unfortunately relied upon so there's no way to tell from the judge's  order that he would do would be sacked me the same thing and impose the same three hundred month prison sentence had he been aware of the accurate amended offense level so for those reasons as well as the reasons i had previously stated the what what appears to me to be quite exemplary conduct by the defendant while incarcerated it seems that particularly from the letter that was provided by a retired army colonel  that he had extraordinary praise for the defendant the letter suggests that the defendant's ready for release right now even though even with a generous sentence reduction at this point will still serve many more years in prison before he's considered for release from custody so given that the extraordinary rehabilitation of the defendant which i think was unfortunately ignored by the district court in making the decision to adhere to the original sentence we submit that the district court abused its discretion and that a remained of the case is appropriate you know we can say we don't have to we don't have to reach that point to for reconsideration absolutely you would have a basis to tell the district judge that he did he must reduce that he must reduce to some level that we would dictate no no i don't mean to suggest that and it's still  i don't want to predict this i don't want to be pessimistic about it but it's still within the district judge's discretion to adhere to that as draconian three hundred month prison sentence that was originally imposed even with the substantial reduction of of the fence level and guard lines range that now applies but you don't need us to tell the district judge that it's within his discretion to reconsider right well no i don't think i think that it was due to do anything with that at this point  fortunately asking for us to do is yes ok we thank you thank you very frank and it's all for the united states may please the court first of all on the procedural error issue i don't think there's much dispute the government concedes that there appears to have been procedural error here for the reasons that have already been discussed these are the the calculation and the resulting range appropriately calculated at one sixty eight to two ten verses in appropriately calculated it to that asking for this case to be remanded based on that reason it was denied by the judge no it was denied by this court so because of that and so in fact the order said that we would proceed in the normal course so i would write that same position well i take the position your honor that there was procedural error it is possible that i read too much into that order but what i concluded from that order was that this court was open to the possibility that while there may have been procedural error it may nevertheless have been harmless i think  motion score facing motion like yours might well say look everything needs to be explored things need to be explored the mere fact that there is this procedural error doesn't necessarily mean that we're going to leave it to they leave it to the pound but here's the case to decide what to do yes we're not going to interrupt the process because a perfectly good argument could be made that  well and that's what i took that's then in my merits brief that's the argument that i set forth that net debt despite the procedural error there is a credible argument that the procedural error if there was procedural error we're all assuming that there was and i think it's very likely that there was even though the order itself is silent on the guideline that was considered is it is it is it is it the correct way to approach this or at least a correct way to approach it for the judge on a motion of the sorra motion to reduce based on a reduction in applicable reduction of the guidelines for the judge to ask himself or herself what sentence would i have given in the first instance if the guideline had been up to a maximum of two ten as opposed to up to three thirty correctly calculate the guideline range applies that sentence modification proceedings so there's no dispute from the governor's perspective that a proper guidelines calculation is required at the city i don't know if i was asking  question relates to a different time that simply relates to whether recent rebadging for reconsideration of the question i'm asking is whether it would be appropriate perhaps for us to direct the district court to consider the question what what set this would have imposed in the first instance if the guidelines that had been what they've now been changed well your honor the answer to that at least in part i think lies to my argument as to why the error here may nevertheless have been harmless because the district court did say any number of things suggesting he may well still come out at three hundred months and stand up and if i may i will recites those first of all this the a direct appeal was taken to this court from a three hundred month sentence and this court in a published decision affirmed it it said this was three hundred months was a reasonable substantively reasonable sentence for mr brooks so we have that to rely on second of all at the stage where the district court denied the sentence reduction motion he wrote in the order reduction below the three hundred month current term of imprisonment is not warranted period period didn't we calculate when it was purchased that the guidelines it changed not to mention that they were in error oh well we've said that you have to recalculate when you are asked on your thirty five eighty two c two you have to recalculate your honor i  think that i think and i don't think that mr brooks disputes this that he did recalculate he will use the wrong calculation wrong he recalculated it to ten to two sixty two because all the parties at that point agreed that that was the amended range albeit wrongly so i think i do think he recalculated would be appropriate as mike my question is would it be appropriate for the district judge to go through this reasoning and say have my house not because of anything that anything the defendant has done subsequently not because of bad conduct subsequent to me i now in him and revision think that three again in the record based on what the district court said at sentencing he said it at sentencing his attorney argued for a range of two ten to two sixty two which was not the correct range ultimately but his his attorney said judge you should sentence him within two tended to sixty two the district court said he told brooks and he says i'm telling this to your face that he you don't deserve a sentence between two hundred ten and two hundred sixty two months i mean yes but that's suggesting but facing the question i posed to the list for the district judge the district judge would say i would judge said have the guy had a maximum of two ten i would not have sentenced him above that but i now think that that three hundred is a better such as on reconsider i do think that's right and that's why we made the motion to  far as what the district judge or should the district judge articulate what he would have done under the current guideline range applicable i think that's a good idea but in addition i think the fact that this seems to have been a substantial degree of rehabilitation on the