request to reserve three minutes every bottle thank you so you know it is a hot issue i think i personally have about five cases really pending right now i have at least one other matter before your this court and i have  to matters before this court is a possible way to look at this and i know we've got a pre kim bro decision on record barcus in two thousand and seven is it is a possible way to look at this is in the context of the gunter factors of three going to factors you know step one is the calculation of the sentencing guidelines step two is whether you grant any departures if they're requested in step three is the actual sentencing what if we were to say that in a non fast track district that's step one you're not free to calculate the sentencing guidelines with the possibility of putting it up to a four level downward calculation but it's step three a judge can have as  step three would that make sense it would make sense or i think that at least what we've been trying to do whether affectively or not is to raise the fastrack issue as a third step there aeons issue and that the issue that we've  raised is that that this record erred as a matter of law erred when it ruled as a matter of law that the court was prohibited from considering it at it as a variance issue as to step three issue it is pretty  understanding you say that we don't we don't actually have to involve the argus in order to get to where you want to go if we clarify it if we clarify yes i don't think you have to overrule vargas but that is what in fact sentencing spirity authorized under an act of congress cannot be considered unwarranted under thirty five fifty three eighty six but still perfectly sound even by what you wanted it was and that i mean it's not that you can't say that disparity says congress has approved our ipso facto one one correct i don't know that burgess necessarily said that i thought you think that if we're pursing the language very carefully because then you're also  running the problem in front of the district court you're in essence you are raising the fast track disparity whether you're saying it's the absence of the fast track in a particular district or the resulting disparity that we submit that the analysis and vargas i guess as apply that it's prohibited is based on it's been applied in a lot of ways that are contrary what we're trying to do is clarify correct that since it's our position the protect act does not in fact ha any implicit director from congress that this disparity must exist that it's in some way mandated certainly it may exist as a disparity make this a case by case basis when the district court weighs all the thirty five fifty three a factor the that in a quote from that case although permits the records to vary from the guideline range based solely on policy considerations including disagreements with the guidelines it does not address the district courts ability to vary from the guidelines based on disagreed with congressional policy the situation we confront here in short the ninth circuit saying that evidence is a congressional policy not simply sensing come policy therefore it's a different animal what's your response it is not a different it is not a different animal that in determining whether this is a congressional policy i would suggest to the court that you have to look to the statute and in fact both the protect act the language in the protect act in the language in the motion for such departure pursuant to an early disposition program authorized by the attorney general and you know it's really the following table probably helps you at step three does it not because the policy statement of the sentencing commission is we've got some concerns here correct  l the third circuit in two thousand and three specifically said there's going to be two two different issues one is going to certainly be a geographic disparity which is unanswered and there's also going to be the natural instinct is that the departure of b not more than four levels it did congress did not indicate congress allowed jurisdictions to adopt it but they did nothing other than say can't be more than four levels there is nothing in the protect act in the the attorney general i mean that's wilson correct but there's nothing that forbids district courts from exercising their discretion to vary or depart from the guy based on this resulting disparity or absence of a program and congress knows how when they intend to give direction to the courts either by mandatory minimums or in other express directives as to how guidelines should be initiated they know how to do that they did not do that in this case and that's what  we could have said only in those districts where it's authorized and it did not and that would be clear in terms of congress and the other thing is that even when the attorney general authorizes a program and implements a program and there is always the first sentence in court to say i'm not going to follow god i'm clear recommendation sentence in court what do we do in this case with the fact that the district court expressed we stated that no combination of factors would justify variance i mean well that was after the court had already ruled as a matter of law that the court could not consider that so the court had already taken that off the table and that was simply not something that the port that  to consider and so this is given for a variance in this case are those that have been it's pressley rejected by court after court you know the desire to educate his children etc we see that all the time is there anything in this qualify it step three or a fast track disparity consider consideration and therefore variance and let me put on to that he hasn't shown any statistics that would show that  moved and you can't we can't make the government understand that but in terms of the showing that he's made that he did that he also at sentencing set forth what is guidelines range would have been at sentencing the government  conceded that he would have qualified for fastrack the only issue that they raised was the fact that that was not a quick guilty plea but again that has due to the fact that there was a record is insufficient below that we would request that the court give us the opportunity to supplement my remand if you're thinking that i'm sure that you put it all in the record well that part of the problem is that the reason this issue is coming back before the court is that it is not clear i mean my questions of them were general what are some of the things you would you would need to show that the calculation that isn't given to four levels down up to the four levels down should be considered here that's that's step three the actual sentencing where the judge has as we know under a pretty book or at all in a special kimber oh a great great deal of discretion that individuals and we believe that in the caliph the ninth circuit case where an individual who qualify for fast track with two armed robberies and was charged with the same offense qualify for a fast track somewhat different reason for not having invested leiter's i'd be saying it step three that the court can not correct consider we believe that the fifth and the ninth circuit are wrong and that we would ask this court that under kimbrel and i would submit that kimber it was specially in light of the  the defendant has not shown how when it would have come out differently if the person had been in a fast track setting in other words all there was was a sweeping generalization and if you even got what you wanted you'd have to come forward with something like i agree that we could have we could have made a better record i would submit that a better resolution of this case if that is the issue is true man this for more further clarification and supplementation at the district court level because this issue raises again and again and i would submit respectfully that these cases that were not mentioning something i think that you know assuming for a moment i know that my adversary obviously contest that's disappointing that vargas remains good law i think that it prevent consideration i think it's warranted in this case to take into consideration that there is a disparity between fast track along fast track districts and it appears from kember oh look at what justice ginsburg wrote a district on fast track sentencing disparities because what vargas says is that congress authorized these types of programs and for that for certain reasons to deal with isn't the latter the holding of vargas i wouldn't agree with that i think that what marcus does say is that given it was the language you're relying on legislative and executive have made it clear that in their view these are warranted sentencing disparities that is we agree that end any sentencing disparity authorized for an act of congress cannot be considered unwarranted under thirty five fifty three  they twice but i'm looking at page ninety nine we hold that it's in the bottom right that a district court's refusal to adjust a sentence to compensate for the absence of a fast ability to consider somebody eligible at step three for a variance but the judge may decide that it's just not call for the particular case which is will lead to a later set of questions is what should you need to prove in order to have a call for  and that that is a more flexible reading of markets than the one where would be a clarification some people have read it you know we had it all over the ballpark but at this point we're taking us on because we think at some point we  to link it to the thirty five fifty factors themselves and to ask which of those would permit a variance based on this on the senate i think it's well it's pretty clear under kimbrel i mean that you know you may disagree or agree with one hundred to one crack versus cocaine island ratio but as the court said even in the mind one case even in the typical case you're free at step three to say i have a problem with that the in this case it seems like it's the same analysis and if that's correct the court can consider this at step three then the question is what are some of the things you would suggest that we put in an opinion that the court should consider as the things needed to show that the disparity between fast and learn fast track districts should be taken into account in this particular case or just give you an example district of the batter is a fast track district it has a love and pursue a cent of its cases are immigration sentencing the district of northern florida has twenty two percent sentencing for immigration cases and yet it is not fast track court a court take that into account and say i've got some concerns with  court took those statistics into account with that would that be a possibility that a court could say ok as a result of this because of what's going on in the country i don't think that i should follow the sentencing guideline calculation of step one necessarily because until we get things sorted out the more uniformity in the system with regard to those districts that really need fast track versus those districts that i think remember i'm not saying that this would be a holding of us if we were to go that way it would just be in order to help district judges who are doing the difficult job of sentencing these might be some of the considerations some examples of what you might take into account  funds coming forward with in order to justify a variance well in terms of the non presidential opinions that have come out so far and spoken to that part of the analysis i mean i think the only guidance we have so far is that there forward with specifics i think there would have to statistical analysis that would compare defendants who are who have been convicted of similar crimes and are getting certain sentences and some kind of comparison along  in a circumstance that's just like crack powder therefore in this instance you can you can give west deference to the guidelines you're free to do what was instructed in cambridge here's what's the the extent that those decisions can be read more broadly for the proposition that a district court is bound by congressional policy in this area i i don't necessarily think that we need to go that far here i think that the argument that we've vance is that because congress determined that that's track programs should be established in certain jurisdictions in order to address extraordinary circumstances any resulting disparities in sentences cannot be considered unwarranted they were expected and anticipated and  protect act with respect to this the second part of your question  s right well it's in essence the second part of the questions you can read the first circuit decision and i think you could read spears and kimberly to be saying that if i sensing commission is taken out of its traditional role it's institutional role of gathering data about censoring him and trying to understand what sort of a heartland for sensing and instead that role is overridden by for example one might argue the protect act saying we're going to have fast track histories ok that that the institutional reason the rationale for giving great deference to the guidelines is removed is also the case with fast track i'm asking you to take that rationale on and tell me why it's wrong well i think that the first circuit i read kimbrough quite as broadly as possible to say that this that the crack cocaine situation which is a very unique situation and the reasoning us here is in camera can be applied to all sorts of congressional policies a district court may disagree with and i think this the fast track context is quite different from that how he's happy for those that point because of our congress you know what's the what's the difference because the emphasis is made by the first or you're right it's of awfully broad opinion but at least on this point they are saying fast track and crack pattern disparity are just the same it's congress or somebody else coming in and pushing that something commission to do something they would otherwise do therefore policy disagreements are ok cases i think the purpose behind it behind the two are quite different in in terms of policy disagreements with the crack cocaine guidelines i mean i think there's an emphasis on trying to remedy a disparity that is sort of unmoored from individual culpability for example and to  try to mitigate the you know the sturdy and sentences in that context where the fast track policy is quite different it's about conserving judicial resources and prosecutorial resources in a thank you your we believe that be implemented in certain districts and they did that because certain districts and a much higher incidence of reentry and the same kind of case in congress wanted to move the case that congress has the right to do that congress has a right to do that fast but in living up to but the fast track programs are not in fact limited to those districts we see the fast track program in similar to is similar to oregon state where there is there's ports of call but yet does not have a direct border and washington state while very well that's an attorney general of the city as to which just districts to have fast track the thirty attorney general then authorized twenty districts to have fast tracked and the districts themselves the district judges in sixteen of them made the decision that they would go ahead and allow that fast track disparity to exist so it looks like it really comes down in the end to the district judges being able to sign on or not sign on right and i would submit to the court that in this particular case the district court was pretty clued in from considering that and that was the ruling by the district court that it was prohibited from considering it as a matter of law and really don't believe that that is correct thank you thank you very much