four of the st steps off i'd like to take a step back and talk about what i think that action based on the language and the statutory keys in the structure and headings the congress gave us the eligibility determination i believe the sept  limitation in the statute if you don't get a nd chance no two bites at the apple that's it and i think it's very important to remember that this statute came after a decade of litigation  over the exact limitations that the government is asking this court now to impose on such a fool for if the if congress had wanted to require that the defendant statutory minimum didn't congress could have used the policy statements and one b one point one that mcquire the f s a actually lowered the sentencing parameters substitute only the statutory minimum and maximum they could they didn't do that the congress could have directed the sentencing commission to draft a new policy with more and the extent of police but it did not there is nothing in the fair sentencing act and seeks to isolate the limited effect of the mandatory minimum instead it simply gives the entire class of offenders a chance to go back and ask the district court what would you have done  recognized and miss the statutory minimum the maximum have to have a benchmark to have an anchoring effect on the sentencing judge this court has repeatedly held that the distance between a particular sentence and the statutory maximum is a measure  reasonableness so again this is just a paper motion asking the court what you have done something different what knowing that the statutory that it was acquired two hundred and eighty grams of crack cocaine instead of fifty have made a difference in the sentence you gave to this particular offender the government's argument somewhat ambivalent wasn't two hundred and eighty two dollars found the same thing your honor two hundred and eighty seven here's one point that i think hasn't been discussed one of the strongest reason to assume that a covered offense is more of a violation unless i'm just a statute how could it if we assume that a violation of the federal criminal statute we see in that criminal statute is really what that's getting that can you commit a criminal statute before august or two thousand and ten i don't think you can can you well i'm not sure you're on about i'm not sure i'm modified by section two or three of the fair sentencing act of two thousand and ten and you've suggested that that phrase needs to you and your colleagues do just as that that phrase needs to modify only criminal statutes and not violations but wouldn't that also mean that the next clause which reads that was committed before august rd two thousand and ten also would have to modify federal criminal statute rather than violations i don't think so your honor because it's the nearest it the statutory penalty is for which were modified then you would just have the term covered offense means a violation of a federal criminal statute that was committed before august  may be overridden to the earlier clause i guess agree on i think i think that was committed the st of the term offense i don't i don't think that i think that's an equally fair reading of the statute and to the extent that the court you don't i mean there's no need to to go to the nearest tree single reference can and to determine what you know phrases like statutory penalties for which were modified what what is that modifying what is that phrase modifying you have to read violation of the federal criminal statute that was committed before would have intended to create a definition after the decades that we have had defining what it what an offense means when we are looking retrospectively to incorporate relevant conduct without for those two i would also just make a point but if i may that this was a a systemic injustice the crack powder ratio and congress was trying to fill in gaps left by a decade of piecemeal changes and so it makes sense that they would enact a systemic solution there's no way congress would have could possibly have nearly equalise the pre and post f s a offenders if the government has argument has additional two years of defendants who in many jurisdictions including this one were sentenced before sentencing judges who didn't know they were permitted to consider the crack powder ratio in their sentencing decisions these are all important procedural defens is that congress only wanted this limited its allies on purpose and the point i'm trying to make is that congress couldn't possibly have equalized broad distinct classes of offenders and so what they chose instead was this broad resolution imprisonment because it's offense involved in these two hundred and eighty grams of cocaine statutory rulings and that's what this court found previously in one of his one additions and what we're asking this court to find again today  congress's clear purpose in for poor was to address the fact that the fair sentencing outperforms didn't apply to prior defendants only those defendants who are helped by that reform should benefit to treat people previous to the reform and it wouldn't help him and it certainly would not have helped mr jackson and he can't be someone who is eligible for relief today i want to talk to this question about the leanings i think it really is important for tween judge could make findings so the salish mandatory minimum nothing about section four of four changes what happens to those people and exactly the same way nothing about section four court changes how those facts are the amount that was the amount of drugs that were found at his residence the only question was his responsibility for that if he's responsible for the drugs the only amount was two hundred and eighty seven point two grams and left behind when the fair sentencing act was not applied retroactively counsel says that you don't want to have this complicated procedure at the eligibility stage that all the only thing we should we should throw it all to the discretionary phase and let decide under all kinds of changes in the law that were not part of the nd forty four would be granting a huge benefit to people prior to the reform that is available to the people after the very reform we're trying to give them the benefit  so that that kind of ruling is so expensive and so far beyond what section four or four does that it can't be read in a way that would throw the entire question into the discretionary phase and not make it a threshold eligibility question as to whether a defendant's sentence would be different based on only the change in the triggering amount not how the amount was found not whether was found the modification proceeding where the penalties cannot be increased they can only be produced both still in the supreme court and this court agreed have found that six to member jury rights to have findings to determine what amou case they are not necessary he admitted that amount that triggered his statutory penalties then as his court has already found in his previous litigation and should be the same result here someone who has admitted there are amounts by be all defendants are eligible and then we throw at the discretion if that's what the court in worthing and jackson in the th circuit found and the problem another problem with that and there are cases pending in the circuit on this issues in that case even people who were literally charged with a higher amount it's a case pending before this court called bolden and there may be others if you if you're saying that everyone charged sentenced prior to two thousand and ten is eligible achievement and quoted in the senate decision your honor to go back to your question about violation i do think that that was mentioned by the th circuit in the grant decision where they had knowledge that would be a more difficult question but the to go back to sentencing you need be a pretty aleem rule either incorporated in the statute or somehow it you need the benefit of that correct your honor i believe incorporated into the you're looking at a ten year to life statutory statutory sentence right your honor i believe the guidelines were i don't have them in front of me mr mr so you're telling me that if he got what you wanted his guidelines he would not be a career offender but he was before he was never a clear offender you want to be a career offender guideline i cal fire all right so he's is really far more towards principle that than could help mr jackson with the exception of reducing a supervised release but i just i just want to say you know both the original sentencing judge and the current tried to find this case recognized that the statutory court looks at that he case it's very clear that with out an indication to the contrary when come with uses the term offense they are talking about elements of conduct and i think even if they use the word violation in the context of the statute they