there was a lot of discussion during that last argument about forty four b but i think in order to understand forty four dollars b we have to understand what's going on and for a for a and as judge pryor pointed out there are three really textual arguments here that c el are reading that it's the statute of conviction not a violation that's being modified and one of them is the were modified to ten past tense of that clause were modified under the government's reading nobody would be eligible for sensing reduction because the fair sentencing acted not modify the statutory penalties for any violation that was committed before august th when i say i agree with you about what difference does it make when we get to subsection but for this particular defendant we can say that the statutory penalties that were modified sections two and three for the fair sentencing are don't make a difference write for a for b in a manner that would render the eligibility determination in for a for a academic so i think it's a signal that respectfully the way you're looking at for for being is not correct i mean this court has had a lot of three thousand five hundred and eighty to see to experience and i'm afraid that that sort of approach is infecting the way we're looking at forty four dollars b forty four dollars b is not telling just records to go back in time to the time of sentencing and substitute in the fair sentencing act and leave everything else on affected if effect at the time the covered offense was committed directs the district court to look at we agree we're not suggesting the court should do anything else but i think what's happening in the as if language is that is simply making the fair sensing act a political to a category of defendants to whom it was not originally a political and that's why that statute uses the date of commission not the date of sentencing because the date of commission is when the penalties are incurred and so that is why it's using that date to capture everybody who was previously sentence for a covered offense if you look at the policy statement and one be one point one which governs three thousand five hundred and eighty two proceedings it's using the date of sentencing and it's explicitly telling courts to go back to the time of sentencing make a limited substitution to see if the amended guideline or interest changed and leave everything else unaffected if congress had wanted to employ that same approach here it would have presumably done so instead what it's doing it's telling district courts that they have discretion to impose a reduced sentence for anyone previously sentenced for a covered offense and there to do so using the fair sentencing act penalties now that's all that's going on there we're not asking for we're not challenging the drug quantity findings that were made by a judge we're just saying that the are there are relevant to eligibility but the course we're not disputing that they can be considered at the discretionary stage under four for being a district judge can even deny relief on that basis on that discretionary basis and that discretionary denial is going to be virtually on reviewable appeal so we just think that the quantity comes into play at the discretionary stage not at the eligibility stage and indeed we think it would be in congress for for congress  to vest so much discretion in sentencing judges under four for b and four for c only to prevent them from exercising it with respect to a large category of crack offenders who are the intended beneficiaries of the staff of the statue i want to say something else about  all but we do think it comes in under forty four dollars b because under four for be the judge has to make has to calculate the statutory penalties using the fair sentencing act and we simply see nothing in the statute that is telling courts to calculate those statutory penalties and a matter that would be blatantly unconstitutional now there was some discussion remember given that given that for for the we don't have a jury finding very much would you say that in every case yes under for for being when when the discretion or at the discretionary stage the judge has to calculate the statutory penalties and we think that that has to be done in a constitutional manner so therefore it would only be using the quantity found by a jury by a the judge found earlier if i understand your honest question we're not saying we're acknowledging openly that at the discretionary stage the judge can consider his earlier judge found quantities in deciding whether in his his or her discretion to impose a reduced sentence we're just saying that the amount found by a jury is what is going to set the statutory penalties for that discretionary determination but then in his or her discretion all sorts of other factors can be considered and relied upon to decide whether a particular individual should or should not receive relief but i do i do want to be clear that we don't think that i guess there was a suggestion earlier that there is no apprentice problem because the sentence can only go down and and not up and we don't agree with that because we don't we think that apprentice in the land of those cases have to come in whenever there is a calculation of statutory penalties we're not looking at whether the ultimate sentencing act right so the court's got to calculate them again and so that's happening in the present day and at the very least your honor we think there would be a significant th amendment problem if the court were to read forty four be that way and under the can see to and that is why the supreme court found there was no th amendment problem there and we have course agree with that here though we're talking about statutory penalties and that is precisely what the th amendment precedents of the supreme court go towards and so we just we just don't see how courts in two thousand and twenty are going to be calculating statutory penalties based on judge found facts now again that doesn't mean that they're going to can you know it won't have to calculate sions already occurred the only thing they're considering is whether to reduce the sentence that's already been imposed your honor but but that has to come in light of the fair sentencing act which is which change the statutory penalties and we know that from four for a so a district court under four for b has to say well ok i'm going to decide whether to go to give him a reduced sentence but what are the statutory what is the statutory range that i'm looking at here and to make that determination you know he's he's got he can only use facts that were submitted to to the jury and found beyond a reasonable doubt no doubt not judged on facts that's not to say that he can't consider those judge found quantity facts in deciding not to grant a reduction the judge can say wow this person had a lot of quantity or this would give rise to a disparity don't and in my discretion i don't think it's appropriate we agreed judges can do that we just we just do think however there would be a serious expand them a problem to start calculating statutory penalties and that's happening today because the statute says may impose a reduced sentence that is occurring today the imposition of the reduced sentence is happening today in two thousand and twenty so i understand your honor has maybe a different different reading of it but that's that's our that's our position  f that was thresholds applied his penalties would not be changed and therefore the full court be provides no relief but i would be clear that that doing it that way would require a ruling by the court that even  two which is what the text requires was the amounts that trigger penalties the penalty ranges themselves of the same the only modification to section two created was to be amounts triggering it didn't was the st statutory special but the time the finding that sentence and during the original sentence and was over one hundred and fifty grams which was the guideline threshold at the time in subsequent collateral proceedings i think it was a twenty to fifty five seem to me that will we have to figure out is what the drug quantity funding was for purposes of a statutory penalty and i thought that drug quantity funding for the statutory penalty was the fifty grand is that right well that was that's what the indictment charges and there was no you know when it came time for sentencing and the question was what is his statutory range wasn't the drug quantity funding for that purpose that resulted in a mandatory sentence of life imprisonment you know because of his two prior felony drug we were doing this as an original sentencing and not a modification and we're looking at that and they're not a fair thing i'm not asking that i'm just asking assuming everything else is in effect that drug quantity funding we're actually going to have to do something that doesn't have anything to do with this i'm assuming everything else is the same if it and i were talking about this in to in in two thousand and six when be i mean it actually matters because at the time priya lean a did that penalty would have gotten them into a they want to and the judge would have made the mandatory minimum finding necessary prevailing that could have gotten him the life penalty so not asking for mr cohen i'm not asking who makes that determination i'm assuming that determination has been it's a fifty grand determination ok grand what was charged in the indictment has statutory penalties changed because he would still be subject to a gotten range of three hundred and sixty months to life the district court would not have thought that would have been the range unless he thought the statutory range and we can see that that looking at whether the guideline range changes it's not what determines eligibility and to the extent that system court did so that was mistaken under four for what triggers eligibility is whether the finding don't preclude looking at the facts and what the court did in green and how clear to me wow the district court heard mr cohen because it seems to me that the district court understood that the statutory penalties for this was and its discretion was that there's no reason to give this defendant ever do sentence or is that is that a misreading of it do we need to send it back because the district court misunderstood the frame don't do is change how this court has said that in a modification proceeding to the extent that findings were necessary at the time where that where is once you find over one hundred and fifty but we don't know exactly where over one hundred and fifty because that's what the court find at the time over one hundred and fifty but we don't know exactly where and in green and hamilton said specifically in such a case the court can make new findings and hear the defendant himself that's all fine so i want to challenge that finding he can under green in hamilton if when we're talking about a disputed unclear original finding like a over one hundred and fifty grams that he could challenge it but the it would be before the district courts to clarify what is the hamilton can say that this a court and determine eligibility to make a clarifying finding to see whether the statutory penalties would be changed whether the qualifying penalties would have changed based on the amount retroactive relief to the people the small time crack offenders who were left behind by the fair sentencing act and because he was not such a defendant the there is no relief that is provided for him and that's how the co supreme court looked at specifically people charged with lower threshold and dorsey but sentenced after dorothy we had people specifically charged under the old threshold and sentence afterwards and looking at whether the new sentencing statute of conviction approach for eligibility all the findings that were previously made throughout this you know if that cuts both ways say that cuts both ways and that that drug quantity funding for purposes of the statutory penalty has been made we don't revisit it for good or do but it would at least meaning maybe the district court as i understood what it was doing here and that  mr allen deserves another look because his statutory penalty does strange and he's at least eligible for early doesn't mean that he would get that that is correct that is our position that all of the arguments the government is making can be addressed under the discretionary stage under forty four b but what the government is trying to do to import into the eligibility determination  because those findings determine whether the amended guideline ranges change is changed or whether the range has been subsequently lowered by an amendment that is the procedure that the sense of commission set forth under one b one dollar b one and if congress had one of course to follow that procedure here it could have done so instead it trusted sentencing judges with doing what they do every day which is making discretionary an individualized determinations based on the particular facts and circumstances of each but he's a clear offender so we're going to get live so we have to ignore the nd step and say just a minute or less even though use and dismantle lie and in the sentencing transcript if you read it he says i don't have the category thirty seven so what do we do and just going to have him go back one more time is that what you want yes your honor it's not the guidelines don't change that but they are three hundred and sixty to life it's not a mandatory life said i'm the law to give you life what you basically did and then his later finding where he found half half a kilo of crack a week so we just pretend that we're going to sit down one more time and let me ask you this  vary downward having at least twice already said you're deserving your honor when he made those comments though he did not have the benefit of the new statutory penalty of ten to life he was looking at a mandatory life penalty when those comments right before you get the ten year consecutive ten years to life consecutive guntown right i believe that is right all right so you're asking to give below the crack guidelines three hundred and sixty on the bottom and then you've got ten years to li