request for a modest sentence reduction under the st step act rested on two errors of law st the court relied only guidelines a stipulation in the parties plea agreement to assume that morrison would have been convicted  offense carrying a five year mandatory minimum having been prosecuted today and based on that assumption the court deemed his offense too severe to merit with the court probably undeserved windfall or reduction in sentence as this court intervening decision and johnson made clear that assumption was erroneous the district court could not jump from a guideline stipulation governed by the preponderance of the evidence standard to the conclusion that morrison would necessarily have pleaded guilty to or the jury would necessarily have found beyond a reasonable doubt a quantity of crack sufficient to trigger the five year mandatory minimum that doesn't doesn't johnson and our jurisprudence essentially say that in these cases the district court has discretion yet and that the district court can really look at everything that is going on to decide whether it wants to do its  court can pretty well decide whether this is appropriate in this case yes your honor but in this case the district court's exercise of its discretion was compromised by the various sumption repudiated and it's not only that the district court looked to morrison's factual conduct as stipulated in the plea agreement the court went one step further and assumed on the basis of that stipulation that he would have been convicted of an offense carrying the same statutory sentencing range that is the court looked to well they did that court did use some loose language about when for but wasn't what it was with this was a serious serious criminal and that therefore it is not appropriate to use this description to diminish what so i mean it would have been better if they hadn't said when for books well i would say your honor that when the court assessed the severity of morrison's offense conduct it did so with express reference to the statutory sentencing range grams or the least one hundred and fifty grams it could have been two hundred and eighty grams probably two hundred and eighty grams and so that was part of the severity analysis not necessarily that you know the change in  levels but or the mid term minimum but that this was a much more serious than a five graham transaction so if you're out of there there is a difference between a guideline stipulation and proof beyond a reasonable doubt and the point i was about to make to judge how greasy is that by looking to the statutory sentencing range when characterizing the severity of morrison's offense the court provide on the assumption of johnson tells us is improper and we know as a general principle that the statutory sentencing range is the best objective evidence of the legislature's judgment as to the severity of an offense well mr habib my concern with your argument is that johnson's discussion is in the context of what i'll call the st step eligibility and here in the district court recognise that your client was eligible for rico action it was at the nd step the exercise discretion that it referenced the max you're talking about now it could not under johnson have relied on the acknowledged drug quantity to say well he doesn't qualify for this it had discretion but i don't see where johnson precludes the court from considering that a defendant acknowledged when he pleaded guilty that this was the quantity that he had dealt in and take that into account in deciding about its exercise of discretion so just so i don't i don't see how johnson really helps you what am i missing so to to clarify your honor when mr  acknowledged a quantity amount in his plea agreement and when he sought to get a hearing and the government submitted that it could prove a quantity of i forget what it is five hundred grams or whatever they did he withdrew his his objection so we've got a record that supports in many ways the district court's conclusion that your client had of johnson the eligibility phase we are in the discretion case that's true your honor and let me make two points st although johnson addresses the eligibility stage of the inquiry johnson disapproves of her reasoning process that equates a guideline stipulation which is governed by a preponderance of the evidence standard with trial proof beyond a reasonable doubt a why do you think it it disapproves it for purposes other than eligibility eligibility is kind of a categorical question and at that point no you cannot consider things other than what the defendant actually allocute it to act the indictment actually discretion in this case it didn't just say mr morrison has acknowledged under a preponderance of the evidence standard that his offense involved at least one hundred and fifty grams of crack it said there is little doubt that he would have been convicted beyond a reasonable doubt of transacting in that quantity such that he would have faced an elevated statutory sentencing range and such that a favorable exercise of discretion in this case would give him an undeserv windfall which by the way is language that johnson specifically disapproved and undeserved winfall these of the defendants prosecuted post fair sentencing act does it was you know or is your argument that if the district court finding but that there would have been a trial conviction and an enhanced statutory sentencing range but that assumption was intergroup to the court's exercise of discretion and because that assumption both in terms of its assessment offensive verity and in terms of its desire to avoid unwarranted sentencing disparities that is the court reasoned that morrison should not receive a procedural vehicle unavailable to those prosecuted today and it's because the you the basis of the whole record and what he pled to and what he did and all that but you may not base it on your assumption that he would necessarily drug has questioned you on about saying that somehow johnson limits looking at these really even poor discretionary purposes well thank you judge how raese let me answer both of your your questions i'll take the nd st it's our view that johnson precludes treating a guy behind stipulation or precludes equating a guideline stipulation with proof beyond a reasonable doubt for any purpose eligibility or discretion to answer your st question in this case we're asking this court to vacate the denial of relief and remand without prejudging what outcome judge kre but for judge pastor to revisit her decision with the benefit of johnson which she didn't have the time and i thank you yes and cared for a bottle with her from the government morning may place the court my name is alexander lee i'm an assistant united states attorney in the southern district of new york i represent the united states in the spiel as i did in the district court i'd like to begin with where defen left off just now which caliber a safe to district court here did not equate a guideline stipulation of one hundred and fifty grams to five hundred grams of crack cocaine with proof beyond a reasonable doubt actually said is that morrison's violation actually involved a much larger amount over one hundred and fifty grams and that quantity far exceeds the new twenty eight gram post fair sentencing act threshold for imposing penalties under section eight  b one b now it's true the district or did go on to say that if the government had charged morrison today there is little doubt that it would have charged for at least twenty eight dollars grants but that that's not an assumption that's true in the underlying case the defendant was charged with fifty or more of crack cocaine with a district court really did was it is soon for purposes of sentencing of applying its discretion that the defendant in fact engage in narcotics activity of one hundred and fifty gra  or more and nothing in johnson precludes that johnson says that you cannot equate a guideline stipulation with proof beyond a reasonable doubt because it was looking at eligibility which looks at the statutory scheme and the statute of conviction that's not what's going on here johnson expressly approved of the district court's ability to look at the actual drug quantity when can when exercising its discretion and that is exactly what the district court did in this case i'd like to turn now to the other argument that mr b has made with respect to the guidelines calculation and i think the st most important point here is that the guidelines calculation nowhere in the district court's decision what the appellant is effectively trying to do is ask this court to make a guidelines calculation and require the district court to analyze that guidelines calculation but that guidelines calculation was not part of the district court's assessment of its discretion and on abuse of discretion review what this court asks is whether the reasons that his record gave can bear the weight that the district court assigned and here there was no weight assigned to any guidelines calculation much less the guidelines calculation that the defendant has proposed in for that reason the guidelines calculation the hypothetical guidelines calculation the defendant has proposed really should not have any bearing on this court's decision the last point i'd just like to make is that there is a factual dispute between the parties over whether the drug quantity was in fact one hundred and fifty grams or two hundred and eighty grams dragica pointed out earlier in the argument but to the extent  district court made an assumption that it was a one hundred and fifty grams that error if any was really in the defendant's favor and so there is really no reason to ask the court whether it really meant one hundred and fifty grams of two hundred and eighty grams because even if the defendant gets what he wants and gets a drug quantity of one hundred and fifty grams it's clear from this opinion that the district court reviewed a one hundred and fifty grams as too severe  and in order to warrant relief unless of course any further questions i'm happy to rest on our briefs thank you mr handy fifty three dollars factors is there any of the offense and the need to avoid unwarranted sentencing disparities its assessment of both of those actors was driven not just by the factual quantity of crack that it attributed to mr morrison but by the assumption that his guidelines to people asian could translate into trial proved beyond a reasonable doubt and what they just report said was there is no doubt there is little doubt that the government would have charged morrison for at least twenty eight grams today there by triggering the same five year mandatory minimum he faced at his sentencing back in two thousand and twelve i'm reading now from page one hundred and ninety two dollars of johnson which rejects a virtually identical assumption it cannot be disputed that if the fair sensing act was in effect at the time the defendant committed his crime in i mean would have alleged two hundred and eighty grams to trigger the penalties of section eight hundred and forty one b one just press goes analysis is indistinguishable extent and what i'm what i'm suggesting your honor is that although johnson address the eligibility stage of the inquiry but underlying point is that a guideline stipulation is not the same as trial proof and when a guideline stipulation is treated as