all right just confirming ms kristiansen yes your honor and his bone amaechi yes your honor well good morning to both counsel we are here to hear argument in the case of united states against christiansen how much time she wants for rebuttal i believe i reserve for minutes or minutes ok i don't have the bench cards in front of me unfortunately so i will i will notify you when you have reached before minute i ask you miss christiansen there your client may not be in a big group of people i meet your client at the moment the st step back to spare asked actually has had the prior sentence a did so that he doesn't have one somebody who's sentences on appeal somebody who's in the middle of twenty to fifty five proceedings it seems to me by your logic would not be entitled to you saying this is a for a while issue it's actually both your honor so far for applies to his prior convictions and the government conceded that if the st act applied mr bethany who no longer had prior convictions that that's the issue here although it does also lower the maximum when you see it in conjunction with for all four so for our viewers a little bit of a different issue because that's a question of whether the fair sentencing act applies to that he says he was sentenced after the fair sentencing ab so he did get that benefit what's wrong about that statement he got that benefit the st time around so that benefit came in him supposedly in two pieces one is a lower level under the guidelines and the other was perhaps a lower statutory range from twenty to life to tend to life the district court found by preponderance of the young man's that there was crack involved in the case at least two hundred and eighty grams that the twenty year to life even under the fair sentencing act what apply mr bethany raised that issue on appeal that it was a look in a leave in error and this cour held that that was harmless argument now is that it is still it in a lean our air but it is no longer harmless because of the other changes that have occurred in stature a minimum should not be twenty years it should be if everything applies appropriately five it at least as i read you know the transcript right he did not bring up is it his findings defense counsel if i'm remembering correctly did put four of the a lean argument against saying the only amount that had been found beyond a reasonable doubt was the one hundred and twenty five years in prison quote the statutory minimum had absolutely no effect on his ultimate sentence so that i i take it was it a harmless error statement correct and and the cour made some suggestions this time around that he hadn't been considering i believe he said statutory minimum was the furthest from his mind when sons and mr bethany and well that seems to kind of be a harmless  many more time but but then when that drops to ten years or even defined of years i think that that's a significant consideration the judge should have had the right set of factors in his mind censure and do it in two steps or what seems to me you're arguing is that two steps this is just wasteful way of doing it and there's no reason why the district court couldn't consolidate those two inquiries that way but it seems to be since judge when a mother will make the decision across the board we're not involving another judge that it should have been done all at the same time and could've been done all at the same time as a package deal because it's also inter couldn't compute how long he's supposed to stay in prison if he's in exactly the same position as somebody awaiting sentencing of course he can be detained under the normal rules that allow that kind of pre sentencing detention but i'm having trouble figuring out how how he's under a sentence has been imposed when there is no sentence well the question i mean once the sentence has been imposed under even the most egregious circumstances that's what in a statute requires us to understand the word in post that way as opposed to imposed meaning you are on you are now under a criminal justice act you know a criminal sentence that has not yet been set aside that would be all of the people on appear all of the people with the twenty dollars to fifty  actually think most people would easily sit under the rule that you're talking about but people who mr bethany situation seem to be a bit different but your honor there is a different language that's used by congress here and this is where  been determined not to have a sentence when when the when the sentence has been vacated and there is no sentence in place that's that's the line that i'm concerned about but that line if doesn't in the language of the statu statute says the defendant has not received a sentence as august two thousand and ten when the fair sentencing act is an act and in the context of section four a one the line is the defendant there has been historically a sentence have been imposed but it was it says no you know it had been imposed by you know a biased judge or it imposed with in violation of guinea enter imposed you know and so so it's but actually that isn't the situation here as you're aware and i am just giving you the other hypothetical so reasons why a sentence might be set aside and the court i'm sorry congress could have easily decided that that was that was a distinction they wanted to me but that is not the distinction that the statute makes and i understand your point in terms of what why when that have been a better place to draw the line there are a small number of people those who struggles are not over yet had or those in mr bethany situation and as you well know twenty to fifty five's are not granted every day it's a rare event forbidden these days to look at legislative history but it seems quite clear that congress was trying to make the benefits of the fair sentencing act available in an equitable way they haven't but in the government  through congress knows very well how to how to use different kinds of language to draw different kinds of lines i mean as for helen pearson the word impose is an important word that has a very clear meaning and to use that word in the context where one seems to me to be totally clear about where that line is and i just not it's not something that it is subject  are are ignoring based on considerations that are not addressed in the statute and based on words used that are not used in the statute i mean those are just not things that are  to two cases going backwards and a lean doesn't have anything to do with this case at all because this court in applying the fair sensing act made a finding that it was that the defendant was  guilty of possessing at least two hundred and eighty grams of of crack and that finding was based on a case that was ok for him on reset missing after everything had already taken place right i mean there's no jury finding and there's no concession to that and the problem i have with the lying is so we may have been perfectly correct earlier on everybody but he may have been correct that the statutory minimum had no effect on earlier sentences when it was twenty years because of the length of the sentences but it's a harmless error  point there's no question after a lean that mandatory minimums are subject to the same rules about the need for a jury finding that was the whole point of supreme court's deciding alene it was a point justice thomas had been making for years and now if there is a chance of a much lower statutory minimum what used to be a harmless error is an error that potentially could have a significant impact well it might is another case but it's pretty clear that it would not in this phase where we're going to where we see admission or the jury finding well i'm not sure what i'm saying is in terms of carlos not the question that you're posing or the the issue you're raising is harmlessness when i'm saying is that from the beginning the district or imposed a sentence well above the mandatory even the higher mandatory minimum is that point right and then when when given the opportunity to refinance a defendant did that very thing again and the court comments that this christensen mentioned that you know the man for a minimum is the furthest thing from my mind this with reports that the mentoring minimum played no role in affecting the sense in this case and there is no question that that section for one i mean there's no question in our view that section for a one uses the language imposed there's just there's no way to ignore that language and determine that the statute says something entirely different which is the only way that you can that you could even conceive of a mandatory minimum of your being substantially lower and well here's it would come out i mean i don't know i mean maybe the judge would ignore everything but if mr benson he is right and one way or the odds are either in one proceeding or in a three thousand five hundred and eighty two dollars he winds up with the  have a different situation but the guidelines don't i mean they there's there is a small change in the guidelines based on progress but the guidelines which by the way we should not lose sight of the fact that we're only here because the fund and did not want the fair sentencing act reduced guidelines to apply to him because it calculated that the two thousand have guidelines were more favorable to him you know and when did the most he can get as far as i'm concerned is to be sentenced like everybody else and of the two five book you know we take the good with the bad with the two thousand and five book but there are some reduction instead other people sentenced him to two thousand and five book received because the commission itself said that these were retroactive changes and that would be the way to put mr benson a on even ground with those other folks right and i don't mean and those also would not allow for a significant reduction i mean we're talking about the the guidelines i mean the guidelines issue is a crap issue that has nothing to do with recidivist question right it's the crack the crack guidelines now that that's the reality of the guidelines the only way to get a five year mandatory minimum and a guideline level of one hundred and fifty five dollars is to remove any possibility of the judge considering the actual fact of the offense that's interesting you say you're right as far as what is your core sound as far as drug quantity goes my point altogether different than that it doesn't depend upon this report finding them all the jury needs to make the drug quantity funny and that never happened then what we would have to is that an analysis under the guidelines is different than analysis under the statute that you set the parameters and they are they must be guarded by a an admission nowadays by admission or a finding by jury right but those are just those of the upper lower end what happens in between is based on the guidelines and the guidelines are still determined by the just report so that's how i would explain what i know what i'm trying to say is and you know what it is kind of circular and you do find yourself in trying to analyze this you find yourself switching off between the statute and like in the guidelines over and over and have to remind yourself to stay on track as the statute on the side in guidelines on the other that that's definitely true so i agree with your assessment of the feeling you get from it but the reality is the guidelines still exist that the amount of practice involved in this case is still significant and as you i mean the the judge made the pronouncement that it was that was two hundred and eighty dollars or at least two hundred and eighty dollars but his actual math that's reflected in the in the in the discussion was that even at a very very conservative level the amount was the quantity involved in this offense was way higher than that way higher i mean the conservative math using the fifteen grams per day for her for six days and over two thousand or so we're not talking about a small amount of drugs here and this and was very obvious from the record is that the district court had that in mind even though he calculated the guidelines at a very conservative level  that if the two thousand and twelve guidelines were pi that's why did you one thousand five hundred lines by the way are better because they amount to a reduction that comes from the fair fair sensing act and the guidelines promulgated under that act is not enough at all to make up for that increase in the specific offense characteristics of the different it was found to have qualified for so that the other really big on the crap and you know what it would effectively do if this were all done in one proceeding judicial efficiency and what it would do is it would provide him with a better using i mean that's what that's what it comes down i don't think so it's only only in so far as everybody else who was sentenced under the two thousand and five guidelines isn't title to read the small number of retroactive amendments promulgated by the commission so i don't think that i don't think it's a split book problem as long as you're staying on a par with the other two thousand and five defendants but i see what you're saying but in those cases they never wanted the subject to the real question is whether this defendant with actually benefited in this case although that that is something that we do need to ask in terms of karma fair but in general the real focus needs to be on the two thousand and five guidelines who then receive retroactive nine months this idea that retroactive amendments would make up for the increases of the other and the ensigns that's not the way these resurrected guidelines work you can get discretion on the judge's part for reductions but not increases so he's not trying to get the benefit that any other defendant in his shoes didn't already get mostly and then switching back and forth and i agree with with that government counsel that this is a complicated issue i have on my office wall poster now it's there are about three feet long about each portion of this case because you have to look at the guidelines and you have to look at the statutes and some portion but if we're talking about the fair sentencing act and the statute part of and drug amounts you only look to what was found or admitted beyond a reasonable doubt and this court said unshod that  determine eligibility under the fair sentencing as you only look to the statute and the elements you don't look to the guideline range and how much the defendant could have been or was even found accountable for look to what was found in this case we have two problems with this one is the court basically a good lean problem the court made the finding not beyond a reasonable doubt by a preponderance of the evidence i will go also to the just your court statement that the mandatory reason to think that the bottom that incurs that decision would have made a difference in this case at sea i agree that this is a line this is essentially line  line we're all dry why is congress doing lines and we have to look to congress's intent in passing this legislation and then as i started congress congressional intent was a remedial statute to rectify the he was still convicted but not sentenced in the b o p as i think you noted cannot calculate it out because he has no sense so in our common usage of the word imposed it is whether the defendant is currently under a a presence facility or press he has to be in a pretrial detention so he doesn't have the opportunity or to work in the same kind of situations he certainly wouldn't be released in any situation such as compassionate correct that's a b o p program so he would not be eligible for  appeal is completely different so i would not be here here is an interest sentence that allows jurisdiction for the district court to impose that sentence and then this court to take that case on appeal because of the impose