oh with that said we'll call the matter of united states of america versus jackson and the consolidated matter of united states of america versus harris and mar this question but we have to decide not a matter of numerical result but instead as you paint it as an issue of statutory interpretation and one therefore it may take us beyond just the plain language but to have a need to apply strict canons of construction so i and i think i think that is the best point because that is the proper proper use of english usage i do have i think i would say that it's the most simple and natural reading i do have an alternative argument which perhaps this is what you are looking for which is that even if we accept the government's position that the modifier here the statutory penalties for which were modified refers back to the word violation criminal statute and i would argue whether in isolation or as part of that noun phrase that were st to conduct no more no less that meets the elements of the sex story offense so therefore even under the government's interpretation i would argue that we are still looking at the statute and therefore the quantity of conviction i the statute penalties had to be modified right that's correct and s that it used to be five grams or more for five to forty years and now you need twenty eight grams or more yes that's all right for the statutory ranges only change for people whose quantity fits into the categories that trigger the statutory change well i think i would sort of supplement that point when that has to be based on the quantity element of the offense rather statutory range under the old regime would have been five to forty and under that new regime it would be zero to twenty dollars so if his quantity were twenty seven grams his statutory range would change client was was guilty of forty acre that he was found by the district court who presided over the kiddies to possess forty eight grams now if your argument is you want to chance to go back to judge bail since a judge no no our client had twenty less than twenty eight grams so his statutory range is changed then it would seem you would have an opportunity to do that is that what you're saying you wanted just a chance to prove that the number was not forty eight the number was something less than twenty which would change in statutory rape and i think you know that that is that's not at all what our position is our position is that that relevant he's behaved in print in prison or what his family circumstance or this is all about are writing the what what was determined to be along about the crack powder disparity that's what this this is all about isn't it but i think here right well more broadly the st step back is actually a very large piece of legislation and the stated goal of which is to reduce the number of persons in federal prisons and have them re entered into society in a safe way that is relevan which is why we're here yes so is your argument that you want the judge to look at this again so you can have a wide open range of the three thousand five hundred and fifty three dollars a factors or is it so the judge can look at this and say judge crack is treated differently now than it used to be my client should get a lower sentence i think both of those descriptions are fair when you say wide open we're not asking for reset and saying in the but when when we get to the discretionary stage we do believe and this is currently i think before your honor's in united states versus easter that at the exercise of discretion stage the judge can take into account all of the sentencing factors with many of our district courts have been looking at pepperdine permeation have been looking at rehabilitation but we're we're not to talking about the discretionary stage we're to conclude given the purposes of the act that if a district court were to determine its discretionary stay if based on a particular quantity there was no difference there would be no would would that be i understand it's a way that if we if there were open ended question a district court could think about it that way but as we're giving guidance about what constitutes an abuse of discretion is that a way that  should give guidance and i mean if not why not a back up make sure i answer your questions in order st as far as i do i do want to come back to sort of the policy and disparity question that you raised but i will start by saying that you are raising very important questions about disparity but i think we are looking at it in much too narrow of a tunnel and that is why it needs to go to the district court to put in a set of eyes on each individual u k disparity i it's a policy issue but it's also it's a sentencing factor and it's something that we give what will certainly and as a sentencing factor it is one among many that the district court may  presence the attorney for the government or the court clearly invoking the best discretion of history i would agree with that absolutely and i know that the discretion issue does come up more acutely and mr harris this case and i and my colleague may be a little bit more of a in a better position to respond to your question which if i understood it was whether at the discretionary stage the judge could look and say i don't believe this range would change and make that decision right there without engaging in further analysis if i understood your question correctly who wants to simply if the as if it wouldn't make a difference in the either because because the language of the statute says that the court should decide the case on the merits i think that we are getting into sort of a missouri reasonableness situation where have there been many other factors some of the ones that judge smith just raised brought to the attention of the court that the court should have considered as well that would be my position as to discretion i mean we return to the  please because a number of a number of authorities as well as the parties who have addressed this have been troubled by the repetition that blush it may appear that way although i have a different reason for thinking that it's not redundant but for about twelve years now we've been working on retroactive guideline amendment application and always thought about was whether the guidelines changed after that time i would say to this court just recently in the united states versus hardwick remanded a case because the court mistakenly thought that the guideline penalties controlled eligibility that also came up in the th circuit in the bemis case and as recently as last week the nd circuit panel in united states versus holloway mentioned during oral argument that it seemed like probation and the district courts were all very confused about whether they should be looking at the guideline ranges versus statutory penalties so in that sense because we know that this came as an incremental sort of remedial statute after all of those guidelines amendments which were very very  narrowly narrowly set up i think it was important to make clear that we're looking at the statutory ranges and that's why i think it's important that we look at the quantity element of conviction particularly because this is a doorway just a doorway through which someone's case gets considered and we have mr jackson's case there was some extra conviction language in the indictment but the jury was not instructed to find that and forty  do you want to try to show the district court that forty eight the wrong number because if you could show the district court the right numbers ten grams or twenty seven or twenty seven ninety nine then you'd be showing that the statutory range for your client has changed but if you're telling us that forty eight is the number and that number is not going to change which is your client was only convicted of five grams or more yes the p s r says he had forty eight point something district judge finds overrule the objection forty it's the number i'm asking you do you want to opportunity go  back and say judge this client was never convicted by a jury of his peers by forty acre him so we're going to show you that the right number is twenty seven grams or you going to go back on remand and say judge forty crims is the number and even though the statutory range doesn't change for someone convicted of forty grams we still want you to give him a new sentence a more lenient sentence than the one you  that is in this particular case that is what we'll be doing based on the evidence that was put before the judge at sentencing i do not see that we will be going back and asking to bought by that quantity  eligibility and then we move on to the exercise of discretion and term and whether to reduce the sentence if this court adopts a statute of conviction based approach to determining section four for eligibility then it must logically and necessarily follow that a court analyzing whether to reduce the sentence must do two things st determine the post fair sentencing acts statutory range by relying on the offense of conviction  and nd make any necessary guideline adjustments that flow from that determination right now if we look at actual conduct the inverse applies which is why you're arguing for statute of conviction my argument relies on this court taking the approach of the other circuits that have decided this question and analyzing this using the statute of conviction so let's let's look at your client was convicted of under the statute in the quantity unlike mr jackson's case here we have a stipulation thirty three grams correct that was not the offense of conviction your honor respectfully though if i know i understand i'm asking did your client stipulate that he had thirty three gra he didn't have thirty three grams he had twenty seven or ten no we want to remember for the court to actually give retroactive effect to the fair sentencing ok so if if your client's name were howard instead of harris and he were stipulated to the same criminal offense same violation that mr harris did and he stipulated to possessing thirty three grams of crack what would his statutory range be i'm not trying to you don't know what the statutory ranges are if he was convicted of possession with intent to distribute twenty eight grams or more of crack cocaine that he would have a statutory range of five dollars to forty dollars in what was your client statutory range when he was convicted five to forty years for actually supporting the range is not different between harris and the hypothetical mr howard so my question to you mr earn is wouldn't it be absurd for mr howard to not be entitled to a more lenient or reduced sentence having been convicted under the remedial scheme of the st step bac while your client mr harris was convicted prior to the adoption of that remedial scheme and would be entitled to a reduced sentence the judge could certainly take that into account in determining whether i would would be available to the core to address the apparent disparity the judge hardiman question as posed the court has to do the uncomfortable quantity is somewhat of a proxy for severity of the offense and drug case says i'll be better and imperfect one relevant conduct exactly it also will factor into the guideline range there's no issue with judge found facts factoring into appropriate discretionary matter to try to certainly the judge can take into account whether a sentence reduction would would promote on warranted sentencing disparities but we have to step back and remember the whole purpose of this portion of the legislation is to close an unwanted disparity that exists between crack cocaine and powder cocaine offender i thought but what judge heard of his question is posing to you is it by closing one it may be opening another store and the supreme court recognized that the promotion of additional disparity any time you have a remedial statute there's going to be a line trying to is going to be a new set of disparity new very disparity is not a reason to contort the meaning of this very clear stop charity you're right about that but here's what's so strange people convicted for crack offenses under your proposal i understand your proposed interpretation people convicted before two thousand and ten before the fair sensing act who were on notice of this really severe disparity one hundred to one those folks are going to be treated better than the folks who are prosecuted today after the remedial scheme and i'm having trouble understanding how people who are prosecuted after the adoption of a remedial scheme can end up worse off then people who are prosecuted under a more draconian s honor you're comparing apples and oranges the scheme under which the defendants who are now eligible for relief under section poor four were sentenced was a very harsh scheme not only because of the disparity but many of them are sentenced pre book pre all of the amendments to the guidelines that now have attempted to make sentences for nonviolent drug offenders more fair that people who've been sentenced post two thousand and ten have been sentenced under an entirely different orange i assume then that what you have gone on to describe is a completely new sentencing regime which provides some means by which the district judge may look at these two cases the apple in the yard and somehow all if not a limb an eight mitigate the disparity between those two sentences absolutely if there's a concern at this what mechanisms are available to do that that's what i've been pressing this is what district courts do all the time when they waive the three thousand five hundred and fifty three a factor i think thirteen years is a district judge i know pretty much what they do what i want to hear from you is in this particular setting given the discretion that now is provided to them especially in a in the advisory sentencing guidelines regime given the change that the  sentencing act brought about what could a judge do it with judge hardens hypo try to make these two sentences comparatively alike compare actual cases i'm not sure there's an answer your honor's looking for but certainly the judge could deny the motion altogether if the concern that disparity is all that's really would not be the intent of the statute would it you know and it may be positive because he love that the offender with kilos of actual crack looking quantity who's now getting the benefit of a lower statutory range there might be a case where a reduction is not appropriate because the of to to the chief judge is the last point the purpose of this legislation and i think what i'm challenging you on i want to hear from the government is should we look at the statutory history here the evolution of this  and tell me if you're great with my understanding of the evolution of my understanding of the evolution of the statutory federal criminal penalties was that there was a severe severe draconian reaction to crack and the violence associated with crack the penalties were were severe and had this great disparity of one hundred to one from crack to power are we on the same page before we are ok and after a lot of debate and then in twenty team the st step back comes along and says we forgot to make two thousand and ten or we should have made the fair sentencing act retroactive agreed we are finally making the fair sentencing act retroactive ok so we're on the same pivot all that so the whole point of this statutory history not legislative history what one senator said or what congresswoman said the statutory history is to give relief to defendants and the convicted who are involved in crack isa's sort of the chief point if the answer is well a lot of these people shouldn't get relief what's the point as i'm reading this law there should absolutely be relief but only for people who statutory ranges are changed and it really should not almost be automatic we'll see if the government admits but the relief should almost be automatic for people who sat ranges are changed but i don't understand how covered offense can include people like your client who statutory range was not changed you know you decide so explain why i'm wrong on the last point congress legislates and kind of background legal principles one of the most basic sentencing principles is that a judge found facts are not a basis to increase mandatory minimum are meant to our maximum sentence so we cannot forget those basic principles th amendment th amendment will leaven when we look at these cases under section poor poor and determined what the penalty range is today what it means to sentence these folks as if the fair here or the court did not give proper retroactive effect the fair sentencing act when she gave that in fact finding i'll be a based on a stipulation but in other cases little be based on far far less  ultimately go back to an issue of treating the offense of conviction as the quantity as an element of the offense the difference between the  way i guess i'm wondering as i'm listening to the dialogue whether the analogy is before and after might not be that after the fair sensing act someone is  convicted of five or more that that's what the indictment says and that's what's found by a jury and it's a stipulated quantity just like before so the statutory range before and after then is actually identical that the difference is that the government now knows to charge twenty or more and so we'll see things differently going forward but that's that's a way of looking at the the meaning in words definition  violation to include the element as as part of that requiring under book or that it be had been found by a jury and i'm wondering if that comes back to if i'm understanding that argument correctly and if that actually comes back to it i think that a statutory interpretation issue comment the statutorily charge drug quantity that mr harris admitted as an element of this is five grams or more what the thirty three grams is this is a stipulation for guideline purposes when the judge made her findings that the statutory range would be the same today subsumed in all of that are actually quite a few assumptions that if this case had been charged post their son sing act the government would have charged twenty eight grams or more that mr harris would have pled guilty to twenty eight grams or more that he would not have been able to ultimately bargain for a lesser included offense there's quite a bit of fact finding that that actually at the worst zooming here and the judge has an effect amended his offensive conviction to have him stand convicted now of possession with intent to distribute twenty eight grams or more  it may be uncomfortable that the new penalty structure and the old penalty structure caused this friction between us these clips quantities but giving the fair sensing act retroactive a fact and without abandoning all of the normal principles constitutional principles that courts engage with incentivizing analysis which is you don't find your own facts to increase someone's statutory minimum you don't find your own facts to increase the maximum you just don't why should that be allowed here or this term before you sit down a quick question which perhaps is in anticipation for the benefit of  argument i guess i'm not surprised but i find it somewhat curious that given some of our questions over the last ten minutes  going through the legislative history here and given the congressional intent going all the way back to what i remember in the eighty's and some of a parade of horribles does in fact play out as judge hardens hypo and some of my follow up questions suggest is a possibility isn't an answer that congress can once again try to get it right and address that legislatively if judicial discretion doesn't work in the long haul if we end up with th that is that was not an issue in dorothy but records applying to a seed to be as awkward i'll call them the awkward threshold quantity cases the st circuit the th circuit i've cited them in my reply brief they applied the lower statutory forgot and something very fundamental here we do start with the tax given i have eleven minutes or maybe a little bit more were you know how generous we are and i appreciate it very much we do start with the tax i am not here to tell you that this tax is crystal clear i do believe that our interpretation of the tax is the correct one if we were limited to the language it goes into that redundancy that your honor referred to let's get back to that put aside for right now the redundancy which has been what  applicable rule is considered it is never controlling there are many examples in this court's precedents require precedent where it's one of the things you consider certainly if you look at that rule the last antecedent here is federal criminal statute not violation but the more normal understanding of this is that you have one coherent phrase here a violation of a federal criminal statute the statutory penalties of which when you look at that statutory penalties given the repetition of the word necessarily refers to violation is no portion of violation necessarily caught up in specific facts it is and that's wh congress then go to the use of a word like that that is necessarily factual in its meaning as opposed to something with a clear narrow meaning is a federal criminal statute because the statutory penalties in this area involving crack cocaine are all about the actual facts it's only about quantity and importantly the word amending changing an entire sentencing regime here let me answer a couple ways st if i could say one more thing about the violation where that word violation is specifically in section eight hundred and forty one which is the violation the penalties are as follows and then it gives different penalties depending on drug type into a quantity so in this specific area a violation is a very important word it refers to the crime you committed it and then if the penalties change the penalties or only change if you change the quantity and that's why in this specific area of drug sentencing this necessarily has to refer to quantity when we then get to legislative history your next b before and now you'd be in subsection see if you had fifty one grams of crack you would have been able for an hour and be those people were suffering from a real disparity in sense and sometimes dramatic despair if you had people serving life who might only get ten years under the fair sensing that's the everyone knows who's been involved in this even if it has will distance knows that the purpose of the st step back was to benefit those people those people who makes it clear that it's not automatic that the courts district court still has discretion even where someone's eligible but it isn't it isn't it almost automatic i mean for what he's for these types of people if if my client had six grahams you know six to twenty seven grams that person should get a reduced sentence because the statutory ranges change for that person that's right and that's why the usual result is that there are some exceptions we've and office we're pleased to agree in most of these cases we get a handful of cases where perhaps the person had a variance already and therefore the sentence really is similar we also have cases involving violence you know bad things happen in prison and we're not real competent in immediately releasing a person so we do take advantage of a limited number of cases of the discretion that the statute affords what happens under the other reading and so some of the district courts that have looked at this have have noted that the actual numbers if the defenders reading the statute were in fact and what's been the experience of those circuits that have adopted that approach so i know that nationwide there been more than two thousand of these motions already granted and there are many that are still being considered so it's consistent with the original prediction it's less that much less than half of those are affected by this issue of people whose quantity would still support the same sentence after the st and nd act like i said they and i and our district is typical it always ends when we deal with these where to active issues the majority of people here who are applying are eligible and we are pleased to tell the district court that and then go to the proceeding and are they i understand you wish to read that all together and look at the term violation but as you pointed out and i have been considering also and that the fair sentencing act it relates to not just at age forty a really interesting question about what's an element of the offense the d talk about you or the and it gets back to this sort of the bait we have back from a prime the leader of the supreme court no this court has ever definitively said that quantity is an jury beyond a reasonable doubt but the courts have never said that eight hundred and forty one dollars b is an element by itself of a criminal offense it has to be treated like that for prosecution purposes only that doesn't that tell us that if we we look at the term violation standing alone if we take out the threshold quantity as and think of that not as an element itself then then we're left with tracing as referring to that violation where the penalties have been modified but it's still the violation of the just the act of  offense not a quantity of the office conduct or relevant conduct right it makes a lot of sense in our favor the violation have not changed it's the exact same offense of possessing crack with intent to distribute the was in effect if you have someone who statutory penalties have not changed such as mr jackson that person is not eligible because if you sentence him as if the st sentence you have were in effect it would be the then it's for every violation that the statutory penalties have been modified by the fair sensing act when we look at it forty one dollars so this case st i think it's appropriate to look at it and be together in considering what the statute means and what congress intended but this gets to the bigger point if the defense position here is correct that the via any violation any crack violation is eligible congress could have written this in a much clearer way which would favor the incredible outcome that they're advocating the thing to say would be if you're a crack offender before august rd of two thousand and ten come on back because because that's the part that's the argument here there were lying on the fact that we were required in indictments before and ten to put in either five grams or fifty grams and then they go to the next step of pretending that these crimes somehow involve only five or fifty what that does is that makes every single person who was convicted of a crack offense and only a quantity that was that was proven beyond a reasonable doubt versus a quantity that was found by by a judge because so with and this is where we get to the statutory history in the scheme of this it's an absurdity the  concern of congress appropriately is that somebody who had fifty five grams before the st sentence here is serving a completely different sentence in a more severe sentence than someone who has fifty five grams today that's what congress meant to suggest the congressman also said oh and everyone else who had ten kilos one hundred kilos who has the same sentencing range today as before come on back mr jackson had forty eight grams of crack in his lap in two thousand and three i believe it was if that happens on august rd two thousand and ten or on any day thereafter he's still subject to that range of five to forty years how would a rational congress say ok but still mr jack that looking at the sentencing was back then if it were in negotiated plea if skip elations were done against the backdrop of the known the expected statutory and at every plane the defendant is is advised of the statutory minimum and maximum as part of making a knowing involuntary  if if those have changed even if there's a relevant quantity or irrelevant conduct that could be considered why wouldn't congress say given all of that that it could have affected whether someone entered a plea where within the range a judge was sensing we want to give the district court discretion so there are a couple things packed into that they st of all and this gets to judge harmon's questions earlier if there is a dispute regarding quantity now if someone does want to say you know i agreed to thirty three grams back then because it just didn't matter but the reality is i would have a really good argument that it's not thirty three grams is twenty seven our answer is let's have at it but that that is the appropriate that person does have a right that's right and we should have a he suggesting well maybe the plea was informed by what the range was or st well again i think it's the same range today if the quantity hasn't changed but even if it has congress never allowed in the st step back for people to withdraw their pl change that was something that was conveyed previously and so where within that range a court might choose to sentence she is something that perhaps congress might reasonably think with the change statutory range of which that defend was not advised let's leave it to the district court to consider whether there should be an jasmine but the bottom line in these cases is that the statutory range has not changed the person the quantity if there's no this might have for m jackson but mr harrison a tougher spot because he's depleted it's hard to get away from that but it's hard for mr jackson i think could argue look you know the jury wasn't asked to find whether i had forty eight grams and in fact when the government said i had forty grams i objected and said that's not right i write big so if there's an objection we should consider it if there's not if we still agree that it's forty eight grams and by the way mr jackson there was a bag in his lap that literally had forty eight grams so i know women's minds coming from in saying that there's not going to be a dispute in that case if there's no dispute or if the court resolves that it was that quantity the statutory range has not changed and my fundamental argument here is that no rational congress would want to say the you get reception saying we're the undisputed quantity in your case still merits the same statutory range that congress we ourselves by the defense does the opposite it takes those people from before let's everyone come back an important thing that i want to address it and i think this goes to chief judge this questions is what about this question let's just leave this to the end st of all the if the person is seen as having this artificial range based on five grams that they never existed to which were applying this new penalty structure there's a strong likelihood that many judges will give a lower sentence not just that but you know as you're in the court knows i mean i've been doing this before this court i've had the privilege for you know decades and i've seen hundreds of cases go back for different reasons there's very often a different sentence on remaining years of past passions of cool victims are not available or they don't want to be lived the experience the person has conduct in prison there are powerful reasons that someone can get a lower sentence and what the defense  suggesting here is this narrow class of people crack cocaine offenders who would face the same sentence today should get this remarkable benefit of having this opportunity mr new mentioned given that there are many pre book or pria currently cases absolutely there are thousands of inmates still in federal prison who did not commit crack offenses who are pre book or pre a pretty who would relish the opportunity to come back but this court emphatically held as did every other circuit the booker in a crowded would not apply retroactively they don't get that opportunity how do we look at this language of the st step and say the congress men crack offenders whose penalties would be the same today to have that benefit that isn't extended to anyone else i can't really handle thinking about it as a piece of discretion because inevitably there will be different sentences imposed by different judges they'll be lower sentences and it's  there's also the fact of the this is your better argument not the the pre book or people who are armed bank robbers don't get this opportunity is it isn't sort of more obvious argument that mr howard in my hypothetical who commits the exact same identical position and if today he's charged with five or more grams and then there's just a finding in the p s r or by a judge as to it being twenty nine dollars well of course we wouldn't charge five grams today in the same way that we didn't charge twenty grand back there still  isn't that the right comparison well now you're hired with all respect and i want to abbott it's more if i may say younger than simply that he would be subject to the same sentence he actually many of these defendants if the defendant's position prevails come back and be treated as if they were b and c which is really what they're arguing the mandatory minimum sentences go away the rd is a subsection b of a mandatory minimum of five years if mr jackson is eligible because we're pretending there was a five gram offense that mandatory minimum goes away he's been treated better not just in having the opportunity for we sentencing but having an artificially different statutory sentencing exposure it's also true for the guidelines and this is actually harris rather than jackson i don't want to step on mr harrell but with respect to harris the way that both of these men were career offenders the career fender guideline as the court knows depends on the statutory maximum for the crime and that's why people who did get the benefit of the fair sentencing act many of them have a lower guideline range because when you kick from a to b or b to c you're also going down on the guidelines mr harrison's range is a clear offender in subsection b w walking in the court today looking into ten between sixty two is a career for the disparity here is is just escapable and it's inappropriate and there's no conception that congress intended it when congress was acting to solve a specific any of the other arguments that i'm presenting undermine your argument there seem to be a lot of the district court opinions where the government did not assert this gateway argument you're asserting here we've asserted throughout the country the circuit level the four circuit disagrees looking only at the statutory language the is it the th circuit in jackson same thing the government did not serve the court well in that case the briefing didn't make the arguments i'm making the court did not have  and i think bring some reason to this area there's no abuse of discretion everyone is conceded that at some point the district courts allowed to look at that thirty three six grams as everyone said has the five to forty year statutory range today the district court didn't go your way on the threshold issue the with the government's position which mr salazar spelled out but this report just assume that away and jumped and made the practical decision at some point she's allowed to look at the actual conduct she did the actual context thirty three point six grams statutory range of five to four years guidelines are two times to sixty two nothing has changed does this mean to in your view mr carroll a district court can never abused his discretion and step two if the offenders guideline excuse statutory range was twenty eight point five grams right on the bubble it's a close call the facts will kind of when they've done great work in prison and they've been a model citizen if at the time and so maybe the judge would want to lower it and  about well suit ok so this from your perspective the government's perspective from the other side of the commonwealth this really isn't just about righting the wrongs of crack disparities of disparities for crack offenders it's about a holistic approach to resigns you know i think that this should be the district judge should reopen the whole thing and take a look in how has this guy done it is last six years in prison in which his family circumstances and nurses parents elderly in need of care all of that is now on the table this isn't about saying that you're a quantity for a crack offense was unduly harsh you know that i apologize if i misspoke that we definitely continue to agree with everything mr salazar said after government's position but when you say that the judge can look and say will twenty eight dollars and a half grams that's sort of near the threshold i mean that that bespeaks a holistic approach resurgence and that's not about whether the statutory range was altered right and that's that if the district or to that we want to valuated and determine whether we're going to take an affirmative appeal and challenge that but you know you could imagine a district court doing something like that and i would want to standard ad say one way or the other what our position would be but that's decidedly not this case and that has nothing to do with this case in this case it's clearly thirty three six grams state troopers found it was the district court looked at him and said there's nothing to do here you know that that question of what the district court can look at is squarely before the court of easter where that issue arises but the but the reason started the badger about this but i i'm not understanding because the the reason there's nothing to do here your words i assume is because he stipulated to the thirty three grams right yes ok but that doesn't shed any light on has he done good time has he got his g d does he have a child now it at home who needs him to parent there are myriad issues that judges consider sensi and when you say there's nothing to do here it sounds like you're taking all of those things off the table well there's nothing to fear because this what did consider all those things so the issue of what the just a court can and cannot consider isn't really here but how about one more generally than this particular case so if we don't agree with your interpretation on violation and we're looking at this as the nd step where there is discretion is that is the government advocating for a sort of two steps there either way it was true we can courts were through individual cases would be appealing and challenging abuse of discretion if for example that the court were to say no change in statutory range no change in the guideline range but based on rehabilitation over the last several years going to change the sentence so i think definitely i'm not sure that has to be two steps but definitely within the district court has to look at whether the guideline whether statutory  and we are very focused of course on the purpose and fact but i just want to quickly point out a violation of a federal criminal statute involving a quantity for which the statutory penalties would have been modified would have been a very simple way to articulate what the government is asking for here it also i might add in where modified would have been the correct verb tense to use when we're referring to a past that is contrary saying st of all the th circuit did take the time to talk about the purpose of the statute in was very clear that the purpose of the staff here was to reach out to those crack offenders who could not benefit from guideline amendments i would suggest that the purpose is also to try to remedy this horrendous crack powder disparity that we have had going on for so long and i think this opportunity to add one thing to the booker kimber oh list and that is that i have five  up where we didn't have a rule about reasonable foreseeability in conspiracy cases and yes i will be challenging those cases and the reason i do not think that's appropriate at the eligibility stages because as mystery's ousmane pointed out if we're talking about whether we can meet the elements of offense we are going to have a mini trial just based on eligibility it is much more complicated and unworkable th coming before a district judge and saying these are the facts of this case this is what was happening men this is what's happening now you can make a discretionary decision about that the reason i wanted to talk about worst thing was because it's a very good circuit said the district court found this person eligible we're going to explain why he is it was a fully briefed issue and it was fully argued and the same thing happened in jackson the court said the government's view is less than clear we need to hammer this out and figure out what that will should be so they were both thoroughly briefed and argued before those court of course i have several more things my only thought would be that one hypothetical the hypothetical mr howard is does not make an absurdity and i would propose to you if we are making extreme hypotheticals i would propose a person who i rap i could ask about the smith hypothetical but i try to avoid doing that if the person is not in with chief the person i'm most concerned about here quite frankly is the person who had two hundred and eighty one grams of crack and was subject to mandatory life imprisonment just as the person clearly there's been a lot of focus on the fact that mr harris stipulated i just want to point out that that stipulation was against the backdrop understanding that absent the stipulation the judge could find relevant conduct drug quantity under a preponderance of the evidence standard at sentencing for guideline purposes so the simulation was not entered the way an admission to an element of offenses and heard with the backdrop understanding that a jury will find that fact beyond a reasonable doubt and these differences are significant and means that the judge's determination now of the statutory penalty range based on that stipulation violates a candy violates the th and th amendments and is contrary to  the outer bounds of what's possible at the nd stage these cases are really about what a bare minimum is required when the court moves from step one step two and i submit that if it's a statute of conviction based approach which is consistent with the way courts pick stash tory ranges at sentencing proceedings that happen every day then the court has to apply the lower post fair sentencing acts touch twenty range and make the guideline adjustments that flow from that here because he was a career offender the satcher a maximum sentence of all he should be going from an offense level thirty four to thirty two and then any determination exercise of discretion needs to be guided by that this is like a sentencing error where the court applies the long guideline range or the wrong statutory range we cannot trust the analysis that follows because the judge here used the wrong starting point that you were personal remand for the judge to that case would be charged today essentially she amended the charge to find him guilty of possession with intent to distribute twenty grams or more and when a court then determines that there is no change in statutory range and thus no change in the guideline range of conduct and finds well this isn't a basis alone to reduce the sentence this analysis was very confused if this court's going to take a statute of conviction based approach this case must go back for an exercise of discretion using the correct