tried to assist the court and i guess it's a little unusual for me to be standing here with the government supporting me it is we don't see them but i actually took that as a signal that the court had concerns about where we were going together even and that's perceptive and i'm trying i'm trying to be prepared here to address those concerns i think the three cases that i need to discuss quickly would be freeman davis and williams from the fourth circuit freeman in our view actually overrule jackson via davis  really the problem you've got here strong is judgment why i think rightly observe that because this was a mandatory minimum life sentence the guidelines i mean i guess you could say that became the guideline but it's not a range it's the mandatory minimum there can't be anything beyond life so it's difficult for me to conclude  when you start at that point that and then he comes down to what do we know at two hundred something within you know that it's in any way based on the guy or well i guess it's funny i argued jackson in two shima wrote that opinion and that's all about based on and that jackson opinion says without qualification that in my case the statutory minimum case the jackson  case it was not based on but if you look at the progression from two thousand and nine forward to include all of the amendments to the guidelines the momentum of all of that including freeman and including davis you can see that just because the guideline is it's always going to be there it's always going to be step one really has to be that doesn't mean it's the sentence is really based on that guideline well but  there's two parts to the statute the based on and then of course it has to be a range that's resulting from this change and so the first part the based on if you look at davis as the most recent pronouncement it's not enough to calculate a guideline they say it has if you decide a sentence for reasons unrelated to the guideline seems here that judge malloy did that and i appreciate your comment about you know that progression from jackson and so i could see a case doesn't have to do that it's just a minute by minute i could see a case where you could have a mandatory minimum and you might well fall in this but if you take the davis language and if the decision is made quote for reasons unrelated to the guidelines how do you meet the statute here well i guess i have a couple of responses to that first is i think we need to keep our eye on the ball here that this is an eligibility determination to see qualify to be considered for the frame that question in that the good things that your honor said i think that can get resolved under the distinction between eligibility and actually granting the relief the court could always say you know enough is enough here i went down twice you had your substantial assistance you got what you bargained for i don't think you're deserving of another reduction under the amendment although it applies to you but the test a two part test in three five eight two eligibility but i think start and then go up to the mandatory minimum and that was squarely rejected by this court it seems to me i just want to give you a chance to respond because here's what's bothering me under three five eight two of course it's a two part test as such mckeown just indicated and so it seems to me that what's out of the mix is the reduction is consistent with a political clickable policy statements in other words it would be consistent in a five k you know situation to grant a three five eight two motion and deem this person eligible for sentence from the guideline range in this case but the guideline range was used to go up under five g one b one and the policy statement now anderson i don't agree with that premise i mean the problem is the statute says that for a two time offender it's a mandatory minimum of a life sentence without release well then and that that is congress's determination not the sentencing commission and i think judge mckeown was right when she pointed out in her question that the commission cannot trump a statutory enactment of congress that the commission doesn't have that power so what the district court was looking at here was an offender who was otherwise going to get life without parole and the government was trying to obtain some sort of relief in the form of a carrot and incentive to continue testifying against other members of the criminal organization and that is a an exception to the mandatory minimum that renders him eligible for a sentence a low life without parole if he performs to the satisfaction of the government but that doesn't have anything to do with the guideline it has everything to do with an exception to a mandatory statutory minimum but i think what's left out of the mix there your honor respectfully with regard to the statutory analysis is that we had thirty five fifty three in play here too so that provided that's a statutory source of relief from that mandatory minimum  is promulgated in the guidelines i mean under your honour's reasoning i suppose we could just plead a guy to a drug crime that has two priors send it's life sentence and we're done that's not how that works you still have to have the pre sentence report calculated you still have to have the drug weights calculated you still have to do thirty five fifty three you have to go through all of that analysis to include the original guideline but in that situation don't you agree that there are only two ways that the sentence could be less than life either through substantial assistance or i suppose i don't know how you would qualify under rule thirty five motion i think that would have to come also from cooperation but there might be some ground that the district court could later grant rule thirty five really right and he had both and he had thirty five fifty three relief in play here as well so i just think i'm not sure that that helps us resolve the question of whether or not the sentence was based on the god well if that's not guess what i'm having the big maybe the concern is i'm hearing it is just that the sens right on in his analysis i don't think that's my only concern for what it's worth i think that is a concern but i think the other part for me is that under the statute that you have to have both you have to have a sentence a reduction that's consistent with the policy and that's go what you're seeking would be consistent with one b one point ten c but it also has to have a sentence that was actually based on and i don't see this wind as being based on what looks like amount of time you're  all right well here from the government we recognize this is an unusual situation where the government conceived error and normally you would shake hands and go home and fix it plurality at least is as as i read it talks about the fact that we need to consider whether or not a court has it in some sense considered the guideline range if it's played some role in the in the outcome of the final sounds like there's always going to play some i don't think it says that i don't think that's what the majority says i mean i think that's what the dissent wished it sure is fourteen point what was suggested by just crist and that is that in light of davis what we need to do is go back and look at the transcript of what the court actually did at the sentencing proceeding i think that we do need to do that in this instance and and in looking at that the court of course did as it's required in every case go through the initial steps and one b one point one calculated the the offense level the base offense level the total and and in fact i would concede that maybe you can sing too much but in the williams case with with the dissatisfied i think that the dissent was correct that the guidelines cannot modify something that congress has done right but there was a thirty five fifty three emotion filed in this instance right and so of course the sentencing court was freed from from having to impose a life sentence and certainly i think that that subsection c of the guidelines  is able to say that five g one point one does not apply in this sort of an instance but returning to your your question the court made that n f l calculation and then it was interesting that both the court in the government and trying to fashion a sound it's in this case did make reference to the guidelines now it did not make reference to the guideline range that it calculated which i think was ninety seven to one hundred twenty one months but the  fast i did talk about he came up with the guideline range of i think was it what is going to be equivalent of a total offense level of thirty seven and a criminal history of two category of two and judge moore well i thought felt that that was a little bit too generous and said no i think that something more in accordance with the eleven thirty eight criminal history true but would you agree that what the court was trying to do and and judge milloy said it several times was not only to punish what is now a three time offender but also to provide some incentive to continue cooperating with the government in the hope that if you satisfy satisfactorily performed  and you granted or made a five k one motion that the court would reconsider and perhaps even further reduce i do agree that that's what happened and that's what happened that's true that's true i mean that the guideline calculation as i read it was pretty much as you stated that it was a phone guideline in a way it didn't have anything to do with this you know what was being reduced actually it had to do with like sort of a construct and of course just more to everyone to give him some and send him to help out and given his age not only to help out but to possibly get out and so i think a colleague constructing a fair look at this but then when all that is said and done we still have to go back to the statute and say whether it was based on so i don't think that it just didn't seem that that focus on struck actually is the foundation for the sense that's that's why i think at least i'm here my colleagues as well we're having kind of a gap here but it seems to me just if i could just pile on i think it could be i think it could have been and which is goes back to my home i think i think after really parse the transcript and look to see what actually happened in the case and that's why reconcile this guideline one by one point and see what they're allowing for the fact that even though there's a mandatory minimum in the right case if there's substantial cooperation and we can tell from the transcript that the guy sorry that the sentence was in fact based upon a guy and line that was amended then i can i can imagine that that that there would be sentence reduction eligibility i which will be sustained i don't think i even asked but i had to stop well i was just going to say you know for those of us who who were raised in the salad days before there were sentencing guidelines i find it a little bit ironic that at one time they were they were mandatory and then the supreme court said you can't do that they can only be advisory and in essence what you're asking us to do is to go back and make them mandatory and say that the court must look at the guidelines and impose a sentence that's based on the guidelines when the transcript here indicates that wasn't what the the sentencing court was doing at all it was trying to to fashion a sentence that would both punish  but no greater than necessary and still provide an incentive to an older offender that if he cooperated he might still see the light of day while he was still well i think again returning to what mr  stated that an arbor raef again i think he was you know it's simply our position that he just has to just consider it you know the other thing i would note is we've got this additional component in here and i don't know how much it changes the analysis but there was in fact a rule thirty five motion granted in this case which is why right to fifteen right which is why we're at two fifteen and so you know the court again then made made a further reduction we don't have an explanation there as to how the court arrived at that it didn't refer and it talks about and we have savant and i realised that those cases proceeded the guideline modification but the guideline lot of cation certainly was attempting to implement those cases and and williams and walking in at those has said well you know that's that is a sufficient reason at least in the fourth circuit to overrule hood which in my reading of it is is very similar to jackson  and and so i think that we need to take that into account and you know the other thing that i would would simply note is that the jackson itself and mr donahoe it argued it raised this point that well you know the guideline is always calculated and so in the guidelines well i i and that's an interesting question because you know rule thirty five just addresses a post sound i answered auction and it empowers the district court to do something that the statute otherwise forbids the court from do exactly and it also it also provides that the district court can essentially impose whatever senates it feels regardless of the mandatory minimum so you don't require thirty five fifty your position tailored to this particular case or does it represent some a larger strategy or a view of d o j well i think think i and i don't want to be of ac but actually both i think in this particular case when you look at it there were these discussions of the guideline calculation these these efforts to sort of create another guideline by the court and by the u and so i think that those in this particular case suggest that this is the right outcome but this is you know without a doubt a part of all a larger approach by d o j and the sound insane commission in this area was smart on crime and and i and i do think that that is part of certainly a recognition that this particular defendant this particular kind of defend who has cooperated is in some respects a special defendant but what more do you need besides five k one point one and rule thirty five i mean if this is really a problem why doesn't the department just go back to congress and say we need a change in the law well i think that once a thirty five fifty three is filed really it's something that if we have this whole other category of defendants who are getting thirty five eighty two relief you know we shouldn't necessarily think that started with the crack versus powder cocaine problem and now the commission has moved on to other areas of the guidelines where they think that perhaps congress has been a little overzealous with mandatory minimum sentences if you're pleased back to my question rather than do with this way why doesn't the department just go to congress address the issue well i think it i think it could and i don't know that i would say that that is necessarily an easier approach i'm not i'm not suggesting that i'm just so it might take longer it might take longer you know but the fact of matter is ultimately we were freed from from the mandatory minimum by thirty five fifty three there is this this amendment to the guideline and and i think under these circumstances really the a mammoth to the guideline modified five g one point one not a mandatory minimum itself  and i think in those circumstances you can say the sentence was based on at least in part on this floor guideline ranch thank you thank you do you have anything and or are we basically the issue is join think you know tried to follow the discussion closely here and this is been ringing around in my head and i got some clarity on it while i was sitting there i mean when you think about it the question i think the judge tallman per pound it about how the sentencing actually worked itself out and the judge was saying well the government suggesting maybe should be level thirty eight and thirty seven and it jokingly went up thirty eight once that thirty five fifty three motions filed those ranges and the subsequent discussion all implicate the guidelines and a level and they were decisions made under the guidelines and in freeman justice kennedy says that even where the judge varies from the recommended range if the judge uses that sentencing range as the beginning point to explain the decision to deviate from it then the guidelines are in a real sense a basis for the us and so you're basically taking the position that the supreme court did not adopt in freeman which is that every sentence is based on the guideline they couldn't get a majority for that but i think davis answers that question well we'll take another look at thank you thank you both for your arguments unusual case as you pointed out united states versus ro