should still be applied in a subsequent thirty five eighty two c tousen introduction proceeding it's mr holmes position that the term adjust that the word adjustment is a term of art in the same way that the terms variance and departure are terms of art we contend that because it the adjustment is something different than a variance and different than a departure it forms part of the guideline calculations and pursuant to dillon it is one of those determinations that cannot be revisited in a thirty five eighty two senates proceeding to reduce a sentence i believe kieffer from this court is on point key for talks about a mandatory minimum sentence and the way the adjustment works under five g one point three b is even if someone faces say a sixty month mandatory minimum pursuant to the one point three the district court can reduce that sentence and can actually say well this sentence is running concurrent it was part of the federal sentence and for that reason i'm going to decrease the sentence to make sure it's fully concurrent so even with the mandatory minimum a district court can sentence below that term pursuant to five to one point three so i believe keeper and if you look at mandatory minimums that provides a good example of how an adjustment works and how an adjustment is different than a variance or departure which would not allow a district court to go below a mandatory minimum subsequent to the filing of mr helms brief this court did decide and i believe authored by judge college in united states versus white i would contend that united states versus white is not applicable here for two reasons welp first of all united states versus white pertain to section five k two point two three that's under the sections of departures and it is not a controversy or proposition that a district court in a sentence reduction proceeding can't go below the low end of an amended range that's not disputed except for substantial assistance now as noted above adjustments are not the same thing as variances or departures now i would acknowledge that white does in dictum seem to indicate that five to one point three b is pretty much the same as five k two point two three but we w would contend that that dictum is not controlling and should not be followed based on previous case law specifically united states versus carter which specifically describes and uses both terms adjustment and variance two to describe the function of five g one point three core and card or the court applied a twenty four month adjustment and that became the guideline range  variance it refers to the one hundred five months and it's as a variance so what i'm saying is it's reference to the hundred five months and it's as a variance implicitly implies that the variance was above the guideline range which would be which would include applying the adjustment  well i think you've honed on specifically on the conceptual gap here that is really the heart of the issue here and it's our position that the adjustment is part of calculating the with well first of all i think the commentary does distinguish between the terms adjustment and departure and at least in the application notes they specifically used the term adjust adjusted and adjust not with which further recognize it is a distinction and that's the way they're characterizing the one point three the guideline range itself it's an adjustment  g it's under chapter g five case is under departures it's treated differently it's in a different section of chapter five of the guidelines i r characterization and we believe that carter supports this view is that this adjustment is a kin to a guideline calculation that was made at the original senate saying and not only should it be made here but our position would be that it is one of those guideline decisions that shall remain unaffected unaffected by it but based on the limitations of a sentence reduction proceeding we i i think it i think it's somewhat ambiguous but i believe if you look at the overall structure of the way the senate's credit is designed to work at it is part of the guideline range harm refers to a guideline range after or at least the ultimate sin it as being a variance so i think that necessarily implies the lower senate is part of the guideline range i do see i mean to my or i don't technically i've having a trouble conceiving of it of a case where a court would depart downward but then very upwards i'm having trouble grappling with that with concept i agree that departures and variances are outside the calculation of the guideline range but we believe carder and the structure of the guidelines does support a reading that the adjustment is part of that final range and if you look at the original it's different now but if you look at the commentary for five g one point three in prior guideline manuals if there's a reference to on the judgment in commitment you need to explain that this is a judgment this adjustment is not a variant or departure it's there to provide for jail credit that would not otherwise be provided credited by the bureau of prisons so i think that prior history although it's not there now i think that also supports the view that it is a guideline range we're talking about would like to reserve what little time i have left  please the court my name is phil can't be a represent the government in this case and i think the courts which questions is pretty much figured out what the issue is is this downward adjustment part of his guidelines range and the answer of course got in the book the answer is no it isn't and you know it cannot be when you stop at part of a chapter five of the guidelines you have done your guidelines calculations absent reversal on appeal or what not those are carved in stone they don't change now that's not the end of the guidelines you have approximately two hundred more pages but in none of those pages in none of those pages do you ever recalculate the guidelines and you know what happens here is i know there is some confusion it's almost like when you buy a new car and you have a traded and the guy wants to try to slop in and give you one price and not show you this is the this is this is what you're getting nanda the new car this is what we're getting giving you for your trade and you can't commingle those and that's sort of what's what mr month adjustment because the seventeen month adjustment that's the trade and he's already done that time all right when you get past part a of the guideline chapter five you are no longer recalculat anything all right and in fact what we're talking about five g one point three says that that adjustment is to come off the sentence so what the guidelines really invision is a three step process process number one you calculate the guidelines and once you calculate the guidelines those guidelines are fixed yes point three b adjustment which a court must reapply under one point be point yeah i don't that doesn't that doesn't follow i do i i know what they're saying but it doesn't make any sense it violates the structure of the guidelines because if i may be allowed to continue once you do the guidelines calculations then the judge is intrusted with using those calculations and the thirty five fifty three a factors to come up with a perspective sentence all right that's  that if they were to be appealed that's the sentence where the court would determine whether that's reasonable or not because you can't you can't mess up the calculations by back ian that in this case seventeen month  already served already gets credit for that all right so that's not part of the guidelines at all that comes off after the guidelines have already been calculated and jets collins opinion makes that very clear know mr moss says it's dicta basically you have an opinion that says here's the short answer and here's a longer answer and so the question is a threshold question is it is it really dick to i don't think so but but but you would agree that the more important issue is were you right because if you are correct then history must necessarily loses and our position is when you look at how the guidelines are structured once you once you get to part a of chapter five you are done with the calculations there's no more calculations to be done that that sentencing guidelines you can talk about departures you can talk about variances you can talk about down they don't impact the guideline range and i think it's further illustrated by the fact that when you look in mr moss's brief you'll see all of these guideline ranges these talking about after he's taken the seventeen month off of both sides because i don't i don't think they in elias it correctly i don't think they do the analysis judge that you did in the white case all right i it almost it almost looks to me i'm sorry it almost looks to me that they just assume that this comes off i don't see any real analysis here and i don't see them i don't see them talking about the language in in one point b ten b two because in reality i don't see them looking at the language when point b ten b to the language the says except one b one b one point ten sorry and the state ten right b two yes that language the limitation of that language that says except as provided in subsection b the court shelled not reduce the defendant's term of imprisonment under eighteen us c thirty five eighty two c two and its policy statements to a term less than the minimum of the amended guideline range undersexed subsection one of this section what mr moss  adjusted any adjustment deducted from the sentence under five g one point three b if it said that then he would be right he is attempting to amend the guideline i don't think his his beef here is with the government or or with the judge winds or even judge collins opinion or dicta i think it's with the sense of commission i think he's saying the sentencing commission should have taken this into account and didn't and he says he did but you know again it all comes down to the question of whether in fact this reduces this a joke dustman reduces the guideline range and it clearly does not eat can't it's in a guideline section that does not reduce an individual's guideline range and once you recognize that his argument evaporates i have two minutes left but unless there any further questions that concludes mark thank you very briefly your honor i do want to return to corridor because i believe carter implicitly does refer to the adjustment as then creating a reduced range in corridor the court found initial range of eighty four one hundred five months the court applied a twenty four month adjustment which reduced that to sixty to eighty one months and then this court affirmed and it's on page eight ninety six ninety seven describing that the senate seeing jord judge had found the applicable guideline range inappropriate and impose an upward vari it was an adjustment that was one of the issues is whether or not the court had applied that it just might and at least quarter implicitly holds that yes after you buy the adjustment that's the guideline range and then you measure any upward adjustment