thank you your honor matt campbell from the federal defenders of eastern washington and idaho on behalf of mr flaherty i'm going to attempt to reserve two minutes for rebuttal so our position that the district court erred in this case by finding mr flaherty ineligible for thirty five eighty two were duction based on the changes in drug weight calculations and we believe that the davis on bond decision is dispositive in this case as we argued the guidelines touched mr flaherty sentencing disposition at every step the court will determine the ranges and that's a twenty nine paragraph tenney sets forth the base offense level discusses a potential guideline enhanced meant and provides for acceptance of responsibility thirty one the government based its argument for three hundred months on the guidelines it's pacifically discuss the a political guideline range of two hundred ninety two to three hundred sixty five months and use that as a basis to create it's three hundred month recommendation that c d r one forty three the court noted that mr flaherty was facing a sentence within the guideline range and stated that it was required to consider the guidelines that he are one fifty and one fifty five in determining what the appropriate guideline range was the court carried out all the calculations and came to that guideline range recommendation of two hundred ninety two to three hundred sixty five months so on these bases we believe that mr flaherty sentence was based on the guidelines as defined by freeman and further interpreted by this court in davis in that he's eligible for a sentence reduction and even setting aside for the moment that the government sought a sentence within the guideline range the ninth this court talked about the clearly rooted in the guidelines in davis and it specifically went over all of the factors that i've just discussed  whether the district judge determine the guideline range the agreement and the additional calculations for  as well as the exceptions or responsibility yes let me ask you a question so davis is well and good but the supreme court just granted cert in two cases hughes and coom correct i'm not mistaken right yes   i think the answer to the court's question is at this point the davis decision is binding precedent it's not as if the search grants have effect the davis decision now hypothetically i suppose the supreme court could issue a decision either or both of those cases that would touch upon davis but at this point we don't have a situation where the mandate in davis is not given a fact or that the davis decision is somehow bad law we don't know what the ninth circuit excuse me what the supreme court will ultimately do will issue a decision that's different than davis i can't rule that out but could it dig it as improvidently granted it could  could issue a narrow decision that doesn't affect davis it also could so at this point davis is binding precedent and particularly as a as an on bank decision binds all subsequent panels  then on remand the district court would be aware of these cases were sort of granted and could be confronted but decisions in those cases with that being the case should we hold off on our decision until those cases are decided one way or another respect leon i think i think the answer is no the court shouldn't hold off and what i would note as a practical matter thirty five eighty two re sentencings typically are not an entirely new sentencing hearing in which defendants are transported back to the court and the like there are sort of a limited scope re sentencing and i think the supreme court talked about that i believe in dillon and i think this court talked about that and waters so we don't have a situation for example where mr flaherty could be transported from a far away location back purpose you know for no purpose if the decisions came out otherwise if the government wanted to move into district court to stay proceedings the government could do so obviously what decision ultimately the district court reaches would be a different story but there's nothing at a practical level but that would cause the need to do so and again in regard to judge by as his inquiry earlier davis is the law at the at this time and based on the reductions that would be a political in this case it is entirely possible if not likely that the district court would sentence mr flaherty differently based on the an exercise of discretion because just because you satisfied the first part of the test that is based on a guideline range still the district court has discretion about whether or not to r absolutely your honor and we recognize that judge nielsen could look at the thirty five fifty three factors etc and simply say i'm not going to grant relief that would obviously be something he could do but he hasn't done that because his order does make it clear that he finds mr flaherty ineligible which is the legal determination that we're arguing is wrong under davis so i agree we could still lose on the merits but we deserve a ruling on the merits which we haven't gotten yet government to seek a stay pending those decisions i would concede that the government could move for a stay in the district court pending the decisions of the supreme court i would agree with that  states has a disagreement as to what occurred and this is why in the davis decision simply adopted what was stated in freeman by the plurality and i would submit that the operative words in freeman as quoted in davis are even when a defendant enters into an eleven c one c agreement the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the guidelines and when it is the defendant should be eligible to seek relief under thirty five eighty two  thought i would submit that the operative words in this case are likely to be based on because likely does not mean always and the other words when it is presupposes that there would be times when it isn't in this case we have a defendant who was sentenced prior to the seven eighty two amendment upon the seven upon the upon amendment the defendant filed for a reconsideration of his sentence unlike many defendants that we've had that we had in our district in which the district court s dismissed the motion based on the fact that it was an eleven c one c plea this case did go to the district court after davis the district court indicated that it reviewed the file and it ultimately made a fact finding not of external witnesses or evidence presented but a fact finding arguably of its own decision the very source of how the sentence was based on how the sentence came about came from the very person the senior district judge that said the sentence was not based on a guideline range so the question is so i would relate this very much and maybe this is where a clarification of freeman davis in the circumstances is may be appropriate in that i view this very much like when the ninth circuit when this court says we have jurisdiction to hear everything but that doesn't mean that we have the ability to resolve an issue and maybe an issues waived it may be that an issues precluded for some other reason but this court always retains jurisdiction to hear it and the press and in practical effect of what happened here is that the district court did not summarily say we have no jurisdiction to hear this case because it was an eleven c one c the district court said all right as in the record i've reviewed everything davis was submitted in the briefing and the district court said this case even though i'm required all courts are required to look at the guidelines this case  my own finding my own determination was not based on the guidelines more than just the guidelines oh yes yes in this case you know we talk about the district court having discretion freeman says that he district court always has the discretion to determine what's an appropriate sentence but that's not always the case in fact there are there are statutes that don't apply that the guidelines don't apply aggravated identity theft to nine twenty four c possession and use of a firearm cases don't the court has no discretion in those they have to apply the mandatory sentences in this case the defendant was looking at a potential of mandatory life if the united states had filed all of the prior convictions if the defense if that had occurred the court would have no discretion the court the united states didn't file those two it just filed one but in effect the court's discretion was still tempered the courts to squid not have sentenced the defendant lower than twenty years because one eight one had been filed and if the court had sentenced the defendant lower than twenty two years which was the agreement which by the way has no is not an agreed upon is not a range that is relevant in the guidelines but if the court sentenced him below twenty two years then the united states would have had the option to withdraw file the additional fifty one and perhaps temper or perhaps eliminate all of the court's discretion so it's fair i think the fair inference is that the court can say that its decision to accept that plea agreement range was not based on the the courts articulation of the order denying motion then that might be a fair speculation in the absence of any further discussion but when the court says well  that's not speculation on my part as to what he said he said what he said yeah but he also said in the order that the court is required to determine what the guidelines are and is required to articulate what the guidelines are in every case had the court not had the court completely ignored the guideline analysis and simply of said the parties have agreed between twenty two and twenty five years and i picked twenty three i think we would likely be in the same position or a similar position to how the defendant davis was when he first appealed and the court didn't calculate the guidelines correctly it was sent back the same sentence was imposed but it was only because it was procedurally flawed because the court didn't articulate the guidelines correctly won this threshold question of where the not the thirty was eligible to seek a reduction or were reviewing the district court judge's decision for abuse of discretion or dean i would respectfully submit it would be abuse of discretion because this is this is like a it's almost analogous to a jurisdictional question almost and here's why and i say this because the court could easily have said i can review this because it is an eleven c one c please him i do not have the jurisdiction but in this case our position of the record is that the court indicating that it reviewed everything looked at the record and said i find it is not eligible by saying that does not meet the legal standards because the sentence that i am opposed is just a judge imposed was not based on the guidelines it was based on other factors that i the district judge excuse me considered very much like saying again back to my example of this court saying we have jurisdiction to hear whether or not the defendant waived appeal and now we're saying he waived appeal so we're not going to look at his issues and that is that is i believe how what occurred and the fact that there was much discussion of the guidelines for example of the plea agreement talks about the guidelines the change of plea hearing talks about the guidelines the sentencing talks about the guidelines mind you very very little does it talk about the guidelines in fact the sentencing hearing says i have to consider the guidelines if the police never said a word about the guidelines and it would still the law still requires the judge to determine it  would be in the pre sentence report and the judge would still be required to address it so it's been a long time since i was a district judge when i when i was a district judge back in the ninety's we saw these agreements not not very frequently but when we did and those were the days when the guidelines were mandatory if you remember correctly back in the ninety's the parties would agree upon a specific sentence not at all related to the guidelines and we had to indicate whether or not we were willing to go along with that you know we wouldn't subject of the pre sentence report and all that stuff but once we accepted it that's the sentence that we would impose irrespective of the other all the guidelines you know the other guidelines and it morphed over the years once we got out of the tory guidelines it morphed into this time since i've done this but i think i i realise i recognise what the courts pointing out and i think that was my experience as well and i and i would submit at least within our district and my experience in these cases in that you know sometimes a set in a set sentence a discreet term is not necessarily what the defendant wants or the government wants so in many cases we've come up with ranges and then also sometimes a district court it's i guess how should i put this gives a little bit of discretion that obviously the court has all the discretion not to accept it but i think that in many of these cases we've found that these ranges are more acceptable to the parties negotiations as well as presenting it to the court with a little bit more of a range of take this out of the guidelines then i think davis would have come out the other way but it didn't the court all courts have to consider the thirty five fifty excuse me thirty five fifty three a factors and they do it every sentencing but that doesn't take it outside the guidelines in the supreme court's made clear in various decisions that the guidelines serve as a starting point as a benchmark i think that judge paez observation that the sent the district court referred to this being just below the guidelines is important this is not a case where somebody received a mandatory minimum sentence which is one hundred tens or hundreds of months away from what the guideline range is nor is it a type of case where somebody receives a sentence well above the guidelines because it's running concurrent with a state court decision this is a situation where the c one c range was had significant overlap with the guidelines and the government also explicitly argued that the guidelines should inform what the district court would decide in this matter the government decided to both in its sentencing memo and at sentencing that the court should essentially follow the guidelines so obviously the guidelines were informing the court's decision and then finally to address the issue of the standard of review i think judge nielsen's order makes it very clear he is making a legal determination when he states and i'm looking at our one ten approximately line sixteen though the court concludes that defendant is legally ineligible for reduction legally ineligible that to me is essentially a jurisdictional determination that the court lacks the authority to reduce the sentence i don't think there's any way to wreak erik to arise that is some sort of factual finding that subject to abuse of discretion this is a did over review case based on his determination that mr flaherty is legally an eligible and i believe he's entitled through sentencing and just so the record is clear if i could go back to the commune's issue i had a moment or two to think about it i think the issue well technically it's possible that the coon's decision could affect this case i think it's unlikely  appears that the determinative issuing koons is a situation where somebody received a sentence below the mandatory minimum due to cooperation and that's simply not factually what we have here the mandatory minimum was twenty years shall be submitted