or ok the reason i asked the question if he could be was a district judge didn't have jurisdiction then a ten to twenty to fifty five even though we gave him a little to leave to file if you understand that yes there were no constitutional claims with regard to time this was an unreasonable sentence at that time and it become only more clear after the passage of the first step backed that it is reasonable and the first step back which past a few weeks ago reflects an matters and the fact that the congress has demonstrated that policy and that the mandatory minimums have been slashed is very significant because it's the one today remind me that i just don't know the history of the because i was trying to figure out which way for your clients this is the first i mean you want to consider the policy but there has been the termination in congress that it should not apply retroactively so on the one hand you may think this is sort of favors you in the sense that there's this relief but i don't think there was an expression that the day before the date of an act it was reasonable to impose that twenty five years to accents in the day after congress has to draw these lines but when minimums create the guidelines in these cases and create unique challenges that the policy arguments expressed are applying in this case as well so what indeed would allow us to conclude that the district court abuse took discretion and not adequately you say we can have a debate discussion about factually what happened but adequately you say considering the nine twenty four c sentences nothing you know and nine twenty four so you restrict district court judges from considering it nothing prevents from the question is whether the dissenting judge has to ignore the court says no but none of that says must consider rast consider i mean there are so some gray area in the middle i would just record may or may not consider nine twenty sometimes the arguments express the statutory interpretation in dean indicates that it may consider the policy arguments and dean which is in the section before that indicate that there are when these types of sentences apply there are things that would be highly relevant to the sentencing factors and a court is required to consider those sensing factors and this court is instructed to do its own calculus of those sentencing factors and create a range of reasonable senses and this sends exceeds that range now those factors that this court should look to to establish that range include factors pacific to the defendant like the immense rehabilitation that mr pearson has performed like the work and education history that he's performed to prepare himself for release all but in addition this court should look to things like the minimum sentence the guidelines and the maximum sen's to create that range of reasonable sentences and here the congress has expressed intent  minimum sentences have been slashed and because nine twenty four c cases incorporate the last sentence in the guidelines those have also been slashed so i think those factors clearly indicate that reasonable miss challenges he then imposed a substantively on reasonable sentence because he placed a sentence on top of that mandatory minimum when it was simply not necessary and i think one of the and the government's argument was he received a sixty three month sentence on the counts one three and five on top of the mandatory minimums and that that sixty three months is well below the maximum sentence is on those counts i think that argument elevates procedure over substance which is the say the maximum sentence mr pearson could have received is life in prison he received nearly a life sentence the sentencing commission for its own projections considers a life sentence to be equal to thirty nine years he wants that's less than two years more than thirty seven month that thirty seven year and three month pearson received so in effect in substance which is what this court should be reviewing he received a sentence very near to a life sentence and still not only the minimum is and the guidelines are indicating th sense is too high but also the maximums this is not a person who needed to receive what is in effect a maximum sentence and that's clear from both the characteristics of him and by the support michael billingsley from the united states to the four hundred forty seven months since in this case is reasonable it's a guideline incidents it's a low and guideline sentence whether you look at the individual counts or you look at the overall those counts but overall it's a low and god wants sentence because the statutory max mandatory minimums were imposed the mandatory minimum becomes the guideline sentence overall he got it when god wants sense and again repeatedly this court said you expect sense to be reasonable it's his burden to prove otherwise we submit that he hasn't proven that in this case another indicator as he alluded to is that the sense is well below the statutory max the individual bank robbery counts sixty three months well below the three hundred month statutory max on each of those the nine twenty four g count is about half of the stats for a max of one twenty as he noted the overall sentence is below a life sentence he wasn't sentenced to life he could have been sentenced to life with regard to dane i think it's already been mentioned by the court dates that answer the question whether court is required to ignore the mandatory minimum sentences in a case like this the court said no and judge proctor did not ignore the mandatory minimum sentences he took them into account and i think what's interesting about this case if you go back to the original sentencing in two thousand and seven which is way before dean came out judge proctor took him into account at that point at that point the low end guideline for the non twenty four c counts was two hundred sixty two months that's progress that a guideline sentence is too excessive it's greater than necessary to achieve the factors that to achieve the purposes of the three five five three factors so i'm going to go to one eighty which was the mandatory minimum based on the application of the a c c at that time was like an eighty two month variance downward before from the low end of the guidelines to just back then knew that he could take into account the mandatory minimum sentence and i just very well below the guidelines sentence on the basis of the impact of the mentor in minimum sentences so fast forward to the current sentencing that now the lower end the circumstances of these offenses i think i just can't get conscious go below sixty three months he said i would in fact give you a higher sentence but i am impressed by your post conviction post sentencing conduct and so i'm giving you credit for that and that's why i'm imposing a sentence at the low end of the guideline range completely reasonable in the government's view and i know if the court has any questions about the first step back but since there was a letter just so i can give the government's response to  it we agree that it's not relevant at all for a number of reasons and i think judge newsom got exactly right you have to determine whether the sentence is reasonable or unreasonable without regard to the first step act and if the court can determine that this sentence is unreasonable assuming the first step back had not even passed then it in the government's you the court can't reverse just a couple points on that first of all it's the court's already noted it's not retroactive congress could have made it retroactive it knows how to make a statute retroactive and this very legislation that made its previous changes to the fair sentencing act or the changes that it made in the fair sentencing act of two thousand and ten it made those retroactive so it knows how to do that it did not do that second point is  question is whether the judge erred not whether what sense this court would impose but whether the district court erred it's difficult to see how you could determine that the district court erred based upon a statute that had not set or a change that had not been affected been in effect yet at the time sentencing it's going very well for us because congress when they set mandatory minimum sentences they're not cabin by the three five five three factors that's not what's guiding their determination as to what sentence to impose in fact they can't take into account many of the three five three factors because many are specific to the defendant their specific to the offense so we don't think that's a comparison that can be made and finally i would say i don't think it's that congress is saying that the previous sentences were excessive what congress is doing with the change is just giving courts more discretion but the fact is that statutorily mr pearson could receive the same sen received in this case under the first step act so if congress is not saying that sentence is excessive if they could have made a way where he couldn't receive that sentence they did not do that they're just giving courts more discretion thank you your honors judge joe flat i need to address the answer to the question that i gave earlier counts one in three he was a career offender as to count five he was an armed career criminal the government's approach elevates procedure over substance that's as to the range of possible sentences because the court could have imposed five hundred six hundred seven hundred month in addition regarding the first step back again that's procedure over substance the issue is not the effective date of that statute the issue is whether it's reasonable to imprison mr pearson for another quarter of a century if congress is just indicated that that may not be necessary and that the guidelines in forming that sentence should be drastically reduced if the congress billingsley point how do we hold the district court in error for having abused its discretion for not considering a policy that had no knowledge of right i mean this is not a question we're not  five fifty three factors and then determine if the sentence imposed is outside the reasonable sons and this court can consider all of the information in front of it and a significant part of that information is that congress no longer deems the mandatory minimums and the guidelines that mr pearson is subject to to be necessary so of course the court just recorded not hearing considering yet to be imposed we believe he did err at that time for the reasons stated in our brief but since our briefs and since this court chose to grant oral arguments we've received compelling evidence that again this sentence was simply too high and he's not going to receive a windfall by being remanded to the district court as mr billingsley pointed out he would be remanded and the court would simply construct the sentence that was reasonable as applied that they are going to really use a studio review with regard to these the reasonable thing what it does is it says there is a range of sentences that are substantively unreasonable the district court can fall anywhere within that range in the vast majority of the time we would expect that it would but there are times when a district court without making a procedural  falls outside of that range that's what substantive reasonable in this represents and that is what has occurred here because it was simply outside the range of what was reasonable i think