understanding of the facts about his prison record and while aware of what the guidelines would be if you were before her today that's it when asked for we sensing rehearing we've done in the papers but i mean so you're saying that ju record this idea that he recently recently possessed a dangerous weapon so that's that's the st there and then the nd error is this idea that he's a career offender which is sort of two components both of the label of him as his career offender and also of course the  and the you know that this court can't review without the additional judge saying something about it so if the judge is the denied that would be required for that i ask you and it's kind of a twofold question about the preservation of t claim here because i think you have some difficulties given the fact that the defense below in its filing to change press actually asserted that he was curved fandor so i have a couple problems and you tell me why why is it not waiver is an invited error if you say to a judge here's my guideline range and the judge says ok i'll take your guideline range and let me make my decision why is that not an invited  and therefore a waiver just outright waiver or let's alternatively say that we're more charitable and we say it's under plain error and let me just focus on the nd which is the obvious of again let's assume it is an error for the sake of argument we have never held back i don't think we've actually had any opinions any sort from this circuit whatsoever about the st step act so in the absence of any law at all how on earth can we say that the error here was plain more obvious in the sense that the district court and then viewing the light of the current law now before the court there is no there is no decision from this court at all i think on the st step that it is plainly erroneous if you look at the language of the four that the statutory language about what the district judge is allowed to consider in reducing assent since playing that way let me back up there and then and i'll look beyond the circuit isn't it true that i don't think it's true from other circuits and i've looked at this which presumably are reflection of how clear as mud this statute is to the other circuits all think it is absolutely polluted that district court is obliged to recalculate someone's guideline range the this is it obvious to them let me ask you that i would say that the issue that they were pressing here has not been addressed by those courts those color let me just back up then and ask you if it's not even been addressed by another circuit court yes absolutely i mean it's there how obvious is that argument your honor is not an easy one but it's nonetheless one that says that the language of spirit in which it should be looked at were the land of equity here your honor the district that you arguing that the district court has the ability to go below one hundred and fifty one the stipulated range i refuse to play below the range of both sides agree to yes and that's not only my position that's the government's position which is why their argument that somehow there's a there's a limit in the sort of subject somehow presumptively reasonable all we're saying is that you know when a district judge makes this equitable decision about whether to reduce a prisoner sentence you should be aware of all relevant information and part of the universe and relevant information is saw and has asked you know i'm still not sure of the distinction you're trying to make about whether the district court in your view was obliged or not obliged to consider let's call it the amended guideline range if one were to consider townson because on the one hand i think you're suggesting that there's no geisha on the part of the district court to recalculate the guide right but on the other hand it seems to me like you're just quoting effectively the language of three thousand five hundred and fifty three a which has the discourse shall consider and then there's a list of things and one of them is the properly calculated guideline range so i'm trying to see if there's any daylight between the position you're arguing and effectively a position that a district court has to engage in a plenary sentencing where they just go through three thousand five hundred and fifty three again what is the difference between your position because the word consider is not a softener in my view is how well that's a little different from a sentencing is here you only have to consider it i understand it's all the district court has to do at sentencing because after booker there they're not binding so what is the daylight between what you're suggesting ought to happen the sentence would be exactly the same you know this idea of substance abuse on this would be exactly the same it's not in this case so i can't say it but i would also get again different you know when you you pose this question to my friend she she's going to say the same thing that the judge remain in for the sentencing district court has always taken that into account and again here we're asking for something even less than that even if there's not a huge amount of daylight we're not asking for like appearances before the judge this can't be done in the papers thank you thank you it please the court my name is anna scott co i represent the government on appeal and i also represented the government below both before and judge prescott and judge robinson this court should affirmed judge prescott's decision for three reasons st of all that any factual error was harmless in light of the overwhelming evidence that supported judge press the engine drop ins ins findings that this particular defendant had a relatively unbroken string of criminal offenses both while he was out of jail and also during his period of incarceration nd any argument about legal error was waived but even if it wasn't there was no legal error in calculating the guidelines range and i'll get to that in a minute court may appropriately consider in deciding whether to impose a reduced sentence is an open question that courts have decided differently that was and was case that was cited in our brief the circuit courts that have considered circuit an th circuit an unpublished surgeons now with respect to your question judge chin as to whether the district court judge could sentence below the bottom of the new guidelines range the government would say that in most cases a sentence within the new guidelines range is appropriate and is what is warranted however the court can consider three thousand five hundred and fifty three dollars and factors including post primarily the fair sentencing act and said that when you are recent missing somebody you don't go below the new guidelines range that is generally appropriate but we also believe that in taking into case but i was curious yes so that the hawks there as to why i'm saying that the thirty five to three of factors apply is because the st stop act authorizes the court to impose a reduced sentence as if sections two or three of the f s a were in effect of the they are sentencing act were in effect at the time the covered offense was committed and also that it gives the district court discretion in determining whether or not to actually reduce the defendant not we calculate the guidelines with intervening law in mind other than what's authorized by the fair sentencing act to do so otherwise would create disparate results for defendants that were sentenced before towns and in other words it would only be towns who would only be retroactive for those defendants who get the benefit of a remedial statute that has nothing to do with their career offender status and i ask it's difficult for me to reconcile the arguments that you can consider new facts but you can't consider new law if you're applying three thousand five hundred and fifty three right when you're considering all the why are some of those considerations viewed in the present and some of those considerations viewed in the past i think what we're saying is the guidelines are calculated at the time of the original sentencing no i get that and i'm so i'm asking why that is why i why are you not then logically consistently also freezing in amber the facts that they existed if you're basically saying the st step act is a time machine you're going back in time to the original sentencing and the only thing you're fixing is the statutory mandatory maximum minimum why aren't you doing if you and you're saying you basically have to do that for the guidelines are frozen why is it that the facts aren't frozen and once you concede that the facts aren't frozen why is that logic not also apply to the guidelines especially when we're not talking and alteration the guidelines we're just talking about case law that has s corrected version the interpretation guidelines yes so this is case law that reinterprets but at the time that the that the sentence was imposed in two thousand and nine that was a lawful sentence towns that had not been decided and likewise to ask a district court at this point to go back and revisit enhancements or any changes to enhancements or reductions for mitigating circumstances or role would be essentially a pl re sentencing whereas to consider just the intervening facts that have changed such as the defendant's conduct while in jail or any degrees that he or she has obtained while in jail more limits that the exercise of discretion in that respect and is the st step back suggest that we need to limit discretion the st step act because the vehicle by which we apply the st step back to explicitly says to the extent otherwise expressly permitted by statute or by rule thirty five here the st step back to is the statute and it only says may impose a reduced sentence as if section two or three of the f s a were in effect at the time of the covered at the time the cover  is literally is possible you're saying the only thing one can change is the statutory penalties that apply virtue of the amendments to the st sentencing act that's the only thing doesn't that box out all other changes in the law and all changes in fact that that's why i'm asking why is it that different facts are somehow which which in the st impact doesn't mention how is it that you can see that those can be considered if expressly really tight limit that you think it is because the st step back then in the next x and explicitly says nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section which all the courts that have considered that have said that is essentially telling the district court to exercise its discretion and the framework that every court has is familiar with and has approved as as the the framework for how to exercise that invent their own or new framework for how they're going to decide whether a reduction is warranted or not will again create mayhem and disparate results so i think applying a framework that the sentencing courts are familiar with is what the government believes is best practice what would have happened if someone had mentioned townsend at the the recent thing our position would be that the court can consider that but not in calculating the error here so the district court didn't miss a nd out there so there was no legal error because the argument is that townshend could not be considered i thought a moment ago you said that it could be considered fact no one mentioned it i mean i soon that wasn't a tactical decision that that that that people just didn't think about it and should the district court get another chance at this knowing that in fact under then current law he was no longer a career offender that might have affected whether she went below one hundred and eighty eight dollars right so what i'm saying the district court can consider it it's not in calculating the guidelines r but that fact was never raised before her and because it's a fact a three thousand five hundred and fifty three dollars a fact that is on the defense where the government to put before the court it is not an a method of calculating the guidelines range that that's there for a wave she didn't air and not considering something that was never put in front of her just like in considering any kind of well as it was plainer i mean it it if townsend did apply it would it would be a fairly significant mistake if towns a did apply to the guidelines range yes but it does not it is a factor just like the fact that he's obtained diplomas and had  infractions while in jail and that it is a fact that the parties did not bring before the district court therefore she cannot plainly err it's also not something that this court has clearly decided needs to be addressed by the district court at all in fact there are circuits as i've mentioned before that say that that should not be considered at all just if i'm understanding your argument correctly in plain air if this court say last week had held a district court must  consider townsend and in fact always recalculate the guidelines when considering a st step back motion you would agree that at this moment a week later that would be an obvious error but if we had never held that all these other courts have never held that it's  you know all of all of you have had a lot of just experience in the district court and you know what the guidelines would be for someone standing before her now is a big consideration even if it's not binding or even presumptive it's a big consideration of the message a district courts then is that you better do a full scale a complete redo of the guidelines no you know why not i mean because it's because if you don't it's going to be you're going to be accused of oh i see an hour later  don't know it's incumbent upon the parties and the probation office to have done that here and they have to do it you know you want it so yes i would say that you know it sort of defined it goes in my final point which is again we're in the land of equity here and this is this is congress you know essentially said look we're going to give these people a nd chance and don't tell you exactly how to do it but you know out of compassion out of this as an act of grace give these people know their chance what you said i know i hear you but what you're saying is that other chance means a full scale re sentencing except maybe the defendant doesn't have to be there well you know you're on the same is the distinction you've made and i'm saying in this case i'm but i've represented this call i know that but we're setting a rule that's going to probably be applied for more than talents and happened afterwards isn't what you're really asking even more than i think plenary resentencing what you're really saying is that even assuming that his guideline range was right you're supposed to then start calculating other guideline ranges that could apply or could have applied to him or could have applied to other similarly situated people sense the different points in time then compare them to see whether you're creating disparities between them it seems like you're asking for you  calculate his guideline range and various alternate guideline ranges that might have applied to them and then and that's something we never even to ask for in a plan or a sentencing will never demand well even if this isn't his guideline range think of what his guideline ranges might have been and then compare them and then decide you know you can vary and you can do whatever you want and that's really that's it's giving him even more than you would get in a plan or a very sensible that seems pretty extraordinary that controlled substance doesn't you know it's a criminal say on the th doesn't doesn't qualify as a controlled substance that that's not just that it's current law if that's the correct law so in fact he was actually sentenced under the wrong law that's the metaphysics of it and that's how the court thinks that when a court makes a decision interpreting a lot that's always the way it's been so in fact he was wrongly sentenced not all guns amendments are this way but that's how we're taught by the supreme court to think about these these new new readings of century it's always been this