court legally erred when a determined that a reduced sentence under the st up act they were convicted all of a dual object conspiracy offense involving at least fifty grams of crack and at least five kilograms of cocaine the district court reason they were ineligible because the statutory penalty ranges for five kilograms of cocaine were not modified by the two thousand and ten fair sentencing act while that is true they are eligible because the fifty text analysis is to trot out a litany of parade of horribles that if the court does this then any drug offense even if it doesn't involve crack will be eligible for a reduction of the st step back which obviously doesn't make any sense but their parade of horribles does not follow st off point out it's entirely illusory the government can't point to a single case for this is true the government cites the case of the dean out of the district of connecticut our invite your honour's to read that opinion closely the district court there concluded that the defendants there were convicted of the same to a logic conspiracy offense it's not accurate to say that no crack was involved well there were some issues with the the district court had a direct quote that as yours it was a case in for me that said something like simply stated the defendants were convicted of a conspiracy offense involving at least in part fifty grams of crack cocaine and therefore they are eligible again of the plaintext analysis so the parade of horribles that the dock that the government presents for free they have not materialized moreover they wouldn't work anyway because  if a defendant petitioned the court for a reduction based on a drug that was not crack cocaine the district court wouldn't be able to reduce the sentence anyways moreover the primary authority the government cites for its position jones o the th circuit doesn't even go along with the government's argument the government is the government's argument in its brief i learned about five minutes before argument you know nd conversation that the government's position has substantially changed i don't want to characterize how it's changed all that this government speak for itself because we had so little time to talk about it but the the premise of the government's argument is that the penalties clause modifie limitations for who are b are controlling which would defeat the government's parade of horribles in any event so under the plain text of the act the defendants here are eligible mr meyers what are at this and the  step if in fact your clients are eligible and it would go back up to discretionary review by the district court in your view would there be statutory limitations at that point forward the district court in providing relief for either one or both yes your daughter so let's get concrete the district court in its discretion could reduce sentences by gets reduction to be limited by statutory minimum on the offenses so in derek spencer's case there was convicted of three counts the dual logic conspiracy and then two cocaine only count rate maids correct is twenty years yet and then this is just a specific example so the principle generalizes if you have a defendant who has it's a ten counts of conviction and five of those counts involving his mandatory minimum the district court cannot reduce the sentence whole mandatory minimum so derek spencer's sentence could not be reduced to lower than twenty years the government articulated that and get supplemental brief i well i don't agree quite with how the government phrases it we both come down at the same place we both agree jones and do you think that our court is free to do without the reasoning of jones i do disagree with portions of jones i was and if you want we can explore those areas of disagreement but i was more pointing out that even joe has that the primary authority that the government cites does not adopt its position because the government's position is premie it's predicated on con isn't seems to agree with your position on this appeal notwithstanding jones well be wrong with adopting jones and saying that the  the the phrase violation of the federal statute is the operative clause in forty four so i agree your honor relief for my clients is not because decision upon rejecting john's as i believe taylor was cited in the winters case that i recently twenty get paid so this court as an intellectual matter this court could adopt the reasoning i think of jones and provide relief to my clients and reverse the just reports although it's a decision i have quibbles with jones because of course jones then as a practical matter i think that this court is currently precluded from adopting jones because i think that jones runs counter to use mcdonald why do you say that statute applies to conduct and didn't accept their position for example that you look at the sentencing guideline calculations to determine eligibility so why violation of a federal criminal statute i think well it doesn't expose i address that concern i have about going the other way on that is that you just said well it would be absurd to say that the statute applies to cases crimes that don't involve crack cocaine i believe you said that earlier yeah i agree that it would argue that but if you take the for all four interpretation that says we're only looking at the offense meaning a forty one dollars a one that includes all drug offenses right but i guess my rejoinder would be that under four a four section b the limitation there would preclude relief for all drug offenses and i think that the problem had i think jones identifies an illusory problem jones says hey if we don't interpret it this way then all drug offenses can count that was the government's argument here and the one case the government offered frankly i don't think says what the government says it says i mean that the court there the media case sad is that he was convicted to a lo conspiracy and his conviction was based at least in part on crack cocaine so i think that the the bogeyman that joe's is trying to avoid doesn't materialize and to if you take a look at smith which also identifies it as a potential problem smith leaves it for another day because it's not fairly presented by the case right so i mean you know john does is one way to read it i think the reasonable re  jones is an outlier and in how it reads what the penalties clause refers to ok and i thank you for that i had one other on a separate topic on this question of what that the defendant doesn't have standing to pursue a motion to the fair sentencing act because the court can give any relief when the non coverage offense is fully concurrent and can be cannot be reduced and i guess you haven't read the case you're not a great solution to comment on it but it seems to me it would have lied to in tons fencers case if we agreed with it because he has the concurren shows the sentences are interrelated here twine and of course this gets back to section three d of the guidelines which tasks the district court with arriving at a sentence that provides a total punishment so if you read the various provisions of three d carefully the district court is supposed to craft a essentially a total punishment for what they think the defendant's culpability yes and then apportion that total punishment among the various kinds of conviction observe the rules about minim things like that so and there are many cases holding d that you can reduce sentences on non covered offenses if you have a covered offense conviction so it strikes me as wrong and it strikes me as an interesting way to sort of loop the concurrent sentences doctrine in to standing which is i've never seen that done before d but under the concurrent sentences doctrine is usually welcome questions jumping right in but i would ask the court's indulgence for a couple minutes i think i can save some time in the long run if there's a point i want to make of the context we're in and then i want to explain which side of my mouth i'm speaking out of through this new position that i'm taking as to the context we're at the tail end of these acts these cases i understand the court may see a few more but in terms of offering guidance might my drawers empty and i think mr meyers is too and i know this and this is the point i really want to make i know that there's none coming i'm pretty certain of it other than to defense he didn't want to make defendants and i tell you that behind the curtain to this is because i'm proud of that effort and the tip of the spear on that effort the entire spearhead in that effort was mr meyers w contacting all of these people and offering his services and it was a lot of work so i just wanted to give him that a pause kind of here at this tail end as to the government's position my briefs were filed over a year ago d and then last july that was maybe i position at the time that was the b of j position at the time the department of justice came out with some some new guidance to adopt you know and work within the position that this court took in the donald in banks and that every other court almost took except for john's their position lines up with jones and in terms of which side of my mouth i'm going to speak  of i have my own concerns with this court would tell in this court suit that the offense of conviction is in the thing other than a forty six that's my own problem so i'm i'm speaking from the d o j perspective just to  be clear on that the deal jay perspective i dops what macdonald and banks say and it's also it's also consistent with what mr meyer says page thirty three dollars of this brief i can read that i supposed to know what the government's position is i apologize your honor i didn't read that new guidance until preparing for this argument and i didn't understand it frankly i'm still struggle with that until yesterday yesterday i got a hold of the we got we got ahold of two attorneys that d o j that are in charge of this one of them strapping the government's brief in the supreme court case dealing with the st step act and section eight  to see that's not a that's not an excuse but it is an answer it i didn't have the time i figured this out literally yesterday and last evening that's despite reading all these cases more and so i understand that's not fair to mr myers i understand that's a waste of your time to the extent i can finish early i welcome mr meyers to take the time that remains because i don't have that much i said government read including the sub to you in the sub three the crack in the power positions once you there it takes a categorical quote from looking at a statute and everybody who's convicted of that stats you should be treated the same way which is as not eligible because those defendants would not be eligible under the power probably the statutory text we tie this to you is crack and powder penalties and all the penalties were not modified by the fair sentencing that that's the government's position in a nutshell it it marks the government's position on whether the sponsors are eligible they're the nd circuit decision mr meyers probably bought to the court's attention winters ago but those are the same that's that's one take on it the government's take it as is followed in a case called the court treats that is if it's the same case we're looking at here but the sentences in that case was one hundred and twenty months the statutory minimum and the defendants were not eligible for that reason that that case has been distinguished by a southern district of new york just a court case but it was adopted by a lot which applies are facts so that's that's the one that's already i can point you toward the issues are pending with a rd circuit another circuit says you know and as i why the government can't tell us the position before and the day of the oral argument and give us the statutory interpretation in your and keating i don't understand but i don't give you the stack start and i understand because i didn't have it but that's no excuse for not citing like that i didn't understand you to say the department just issued the guidance yesterday  think you're right to criticize the government the government d should have done better in this case i apologized my answer is not an excuse it's just the reason why i left i didn't do it in this case i'm just trying to figure out how we're going to even articulate the government's position here if it isn't in your briefs i'm happy to follow up with the will twenty eight jail letter that's what the court would like well well put on an order if we want to order anything ok appreciate that you're on it i wanted to address your point we just do it on his own initiative i think if the government was changing the position and can brief so your point is well taken your honor and i certainly all that practice in the past the i want to address the court's question on a nanny i'm not familiar with that case i do but i agree with mr myers  on the result the government is frequently in this position of seeking and unbundling of statutes and we've never taken the position that you don't have standing to do that wouldn't you know when one statute bailey is the supreme court case i'm thinking of which took out one hundred and twenty four dollars c and then there would be drug cases or other things that were related we talked about sending it back to eligible on count four if the district court finds that those were related then they almost certainly worth here that the crack drove the train in this case we would not we would urge the court to exercise exercise its discretion but we do see before you all pine you might want to consider the opinion in manning and what the government filed in that case yeah fair enough i what makes you think the government around the country is saying there is standing in cases where in the defendant has a concurrent sentence that's the same as the covered offense sentence well i took that position in this very they put out some some guidance why the way it these defendants were eligible for immediate release some of them right away and so we they responded really quickly with some guidance that guidance took the opposite position on that i thought it was wrong and about a month later the part of the justice changed it to the position i've stated that's the position around the country and it's helpful that we have that guidance so that i can tell you that some certainty that that's the government's position around the country it's you know government's position is that this case is not just this offense this violation is not one for which the defendant is eligible it's not a covered offense when you look at both pieces of the penalty so he will ignore with me for one d more point there's a mistake that the th circuit make makes and that mr myers makes in his briefs that i just don't want the court to make and that is confusing a single object dual object conspiracy with single conspiracy or multiple conspiracies those are two different things that is to say the government could not have charged in this case a separate conspiracy for just powder or a step and hand a separate conspiracy for just crack that would violate exactly what this court addressed in the direct appeal that would have been duplicity it would in multiplex with us we don't give them two separate crimes for that that's that's because of the facts of this case  the they have they conspired together one single security to deal to drugs there are other cases where it's more of a spoke in the wheel hub where those are multiple conspiracies it's a sticky area of law but i don't want you that that's the last point i wanted to make i appreciate the court bearing with me i apologize to the court and to mr myers for a late notice in my coming to this position of extremely late in the game might krishi at the court hearing  we'll hear from you in rebuttal thank you your honor just one brief point let's assume for the sake of argument that mr chief is right about the conspiracy point the government can't church out the point the point that i was trying to make is that you shouldn't let government charging decisions control eligibility and so let's assume the government can't charge a conspiracy for coke and a conspiracy for crack the government could have charged two substantive counts great you know or in other cases you could write where they actually have control by right distribution of coke distribution of crack and now scenario the defendant there would be eligible because even under the government's theory the penalties means all the penalties under the law case and so my larger point still remains that eligible here would allow the government to control eligibility decisions through how it charges cases and as courts have remarked the eligibility under the st step back can't be so fickle and unless the court has any questions i will stop very well you can use a submitted