your argument next increased seventeen fifty seven sixteen coons versus united states mr fisher please the court in contrast to the case you just heard the based upon question in this case turns on how the substantial assistance provision codified in eighteen us c section thirty five fifty three works  specifically the key is whether the government is correct when it says that a judge imposing a sentence in this situation shall disregard or entirely set aside the guideline range calculated according to the defendant's criminal history and offense level and the answer to this question lies directly in the plain text of the statute and that that text says the opposite of what the government claims and i'm turning now to page three a which is in the government's brief the appendix and that's where the statute appears and i just want to read to you the operative language of section thirty five fifty three eat it says such sentence shall be imposed in accordance with the guidelines and policy statements issued by the sentencing commission pursuant to section nine ninety four so in other words that text directs the court straight to the guidelines not away from the guidelines and it says nothing about tethering a sentence to the mandatory minimum or somehow setting the guidelines aside and  perfectly years that the guidelines are a little confusing they talk about an initial guidelines range and then they tell the court the real guideline range is essential to a minimum so that it's talking about the guidelines  that question because which guideline are they talking about in my mind they're told they have to start from the statutory minimum in their departures how do we get away from that fact well just sort of mara we don't think that's actually the way the guidelines are properly read i think you're referring to section five g one point one yes and in that section what it says is that if there is a statutorily required minimum sentence then the judge shall adjust the guideline range to that minimum but remember the whole point of a section thirty five fifty three emotion is to say that the minimum does not apply as the court put it in dorsey what the court does when it grants a substantial assistance motion is it lets the defendant escape the binding effect of the mandatory minimum so now the judge as i just read to you in the second sentence of section thirty five fifty three e directed right back to the guidelines and the guideline range and it's in one other thing i want to point out while i'm talking so that means that departure is were but let me put this answer in context so first of all remember sometimes a guideline range is going to be above the minimum and sometimes it's going to be below and sometimes it's going to straddle the minimum so what section thirty five fifty three each does is says when the judge grants  assistance motion the judge should then sentence that defendant like anyone else which is go to the guideline range now yes that departure under five k one is going to be from the guideline range regardless whether it's above or below the minimum but yes court is directed to just sentence that defendant according to the guideline range just as he would any other defendant and that makes perfect sense because again what congress has done remember is set up a default regime of guided discretion under the guidelines  by guideline ranges according to offense level and criminal history categories and then it is stepped in and created a disruption in a limited context of mandatory minimums in particular drug cases but then congress says if the substantial systems given those two things cancel each other out and we just want you to go back to the default range and if i could add one other thing to your question just my what i think put this all together is to refer to the court's opinion melendez remember in melendez the court talks about two different types of substantial assistance departures one is from the guideline range under five k the other if the government wants to allow it is to allow that departure to go beneath the mandatory minimum if the government puts that as part of the motion so when you go to five k in the guidelines which is where these departures get calculated the beginning of five k says that a court may depart from the guideline range if the substantial assistance warrants that departure the guideline five case says nothing says nothing at all about departing from the mandatory minimum there's no such thing in the guidelines only departures occur from the guideline range and i think what cements this if i could return the care the court to the text that i was referring to a page three of the government's brief it's the sentence it's the reference to section nine ninety four as a whole the way the government reads the sentence is that the government says well all that sentence does is direct the court to the five k guidelines which are the ones for measuring substantial assistance departure but if that were so what that text would say is section nine hundred four n because subsection ninety four n is the place in the commission's  where congress directs it to deal with substantial assistance scenarios but instead what congress did in section thirty five fifty three is referred to ninety four as a whole which includes the entire guideline system and if you compare that to the other statutory provisions on these two pages to a in three a you'll see that on page two way congress refers no fewer than four times two particular subsections of nine ninety four so when congress wanted to limit a court's authority or t them just as we agree if that were true it would be odd but i have to disagree with your premise and i think this relates to the answer i gave to just a sort of my or earlier about how five g one point one applies that argument which the government makes depends on the assumption that the judge sentencing somebody in a courtroom today in this scenario needs to start with the mandatory minimum and work from there and that's just a false premise and section thirty five fifty three is i've quoted to you the direction is quite to the contrary it's to sentence the defendant hording to the guidelines and to start with the guideline range in five year one point one doesn't require starting at the minimum today or for any future sentencing so in effect we're asking for our defendants to be given sentence modifications that enable them to be given sentences just as they would be in courtroom today when one is going to district whether the district judge specifically disavows any reliance of the guidelines where the district judge says i don't care for gonchar subsequently lowered this is the sounds i'm imposing well two things justice alito first of all that judge would be if you're talking about a sentence in the first instance that judge would be violating section thirty five fifty three which tells that judge to sentence the defendant according to the guidelines well they're not the only law mandatory any longer i think that's the only way a judge might work around that is to say after booker the judge is allowed to set the guidelines we are after booker so that's what the judge says then one i think if the judge set the guidelines entirely aside and said i just flat out disagree with anything the guidelines say and i mean give you a certain sentence maybe i'd have a difficult case on the based upon question but anything short of that where the judge starts with the guideline range or refers to it or uses it anchor i think you're easily within and i think the way to solve this is not good have a difficult case if the judge says i disagree with the guidelines i'm basing my sentence on the sen reform act it is not based my sense is not in any way based on the guidelines you know that you would have just a difficult case and saying that that's not it that's based on fair enough maybe it would be even more than difficult but i think that's a highly unusual scenario alito and so on all the other scenarios where the judge does what is more commonly done in a gall type situation or all the other situations as a court of scene where you start with the guidelines and it's in our very case illustrates you usually land within the guidelines or you vary from the guidelines for one reason or another all of those satisfied based on and i think justice alito the other thing i would say in response to your concern is remember and i think this was emphasized in the first case remember all we're arguing here is the defendant should be eligible to go before a district judge and argue for a sentence reduction if it just for judge in that case says to himself well look the guidelines really didn't have any meaningful effect the first time around that may well be a reason to deny sentence  modification in that context all we're asking is for judges to be allowed to use their guided discretion given to them by congress in the guidelines and ever in the ordinary situation but we are in the special situation of substantial assistance motions being granted under thirty five fifty three need and that special situation as the court put it in dorsey allows the defendant to escape the minimum another way to think about it justice ginsburg is we're not doing any we're not avoiding any trumping problem because we have two statutes that have to work together one is the mandatory minimum statute and the other is section thirty five fifty three and what the court said is that and i think what the plaintext the mandatory minimum is set aside when the substantial assistance motion is granted and if your own words and dorsey aren't enough you can look at any number of other places including legislative history where we put statements from senator hatch and from president reagan were they introduced this you can look at various issuances from the sentencing commission that we've quoted in our brief and again and again and again courts legislators administrators all understand that in the narrow situation proposition in my experience district court judges use a lot of different approaches to sentencing and i think that many of the surveys and the brief that you have showed that there are judges who  have six rules perhaps they should or shouldn't let's not get into that ok but there's a why birth of them who simply say my rule of thumb is you cooperate fifty percent and some of them never deviate says percent how can we say that for those judges that their sentence was based on the guidelines so that you're entitle to eligibility they placed it on this that they clearly tell you i'm basing it on the statutory minimum i think for two reasons just a sort of my or first is we think that based upon questions should be answered according to what the law requires not necessarily what a judge did perhaps mistakenly so as a legal matter the the sentence was required to be based on the guidelines even if the judge didn't do it it was the good if you're in at the time all the discretion to say i want to use the statutory minimum i don't want to use the lower guideline i'm going to ask the other side about the many judges who do use the guidelines and substantial assistance they say that prosecutors by their own admission have gone into judges and said base it on the guidelines so there are plenty of judges who do depart based on the guidelines because they believe that they're more reflective of the seriousness of the crime and give them a better sense of how much of a departure they should or should not give so in those ways it informs their decision but we're not in that case we're in the first type of place  let me say to a very important things to that question because i think it's probably the hardest part about this case the first is that for the very reason you say justice sotomayor that there's such a wide variance sometimes not just between districts but between courtrooms in the same courthouse it would be it would be in con in contravention of the very principles of the sentencing reform act which say avoid sentencing disparities to deny relief to some of those defendants and to give other defendants relief just based on the happenstance of what judge that defendant happened to hear appear in front of we think it's a better rule to ask what the law required the judge to do and if the law required the judge to consult the guidelines that should be enough to get into the eligibility of relief but the second point i want to make just as sort of my own words even if you want to look at what the judge did on the record warts and all mistakes and all we still win this case and that's because the judge in our case adjusted up to the mandatory minimum because of five g one point one and as i described we think that was incorrect but even if you accept that as something that happened in something need to take into account the sentencing commission has addressed that exact scenario in the policy statement that in that kompan need amendment seven eighty two which brings us here today and this is in section one b one point ten c the sentencing commission says when you calculate an amended range under the guidelines pursuant to this amendment you should disregard five g one point one and use the range itself and not a just so even if we were in a world where we had to argue that in our case even if the judge made a mistake and relied on the guideline incorrectly that has been taken care of by the sentencing commission amendments and so we still have a lower guideline range after amendment seventy two which is all that's required to get relief under section thirty five eighty two and i think that adds one of the thing i want to say and it brings me back to just question about the concern about disparities in who gets released and who doesn't we think that our solution actually for the reasons i just described of all sentencing disparities and also avoid sending disparities because we're asking for our sentences to be adjusted just as somebody would be sentenced today as we point out in our briefing though the government is the one that creates the disparity problem because under the government's view people whose guideline ranges were above the minimum and even if the judge sentence below those people are eligible for section thirty five eighty two relief and the only difference between those people and and our clients in this case is that the guidelines measured their crimes as being more serious than the ones our clients committed and we think it would be highly irregular and in fact perverse for a court to say to the people who committed more serious offenses that are otherwise identically situated we are going to grant them relief in sentences reductions but not the people whose crimes were judged to be quite as serious they're not even allowed to ask the judge to exercise discretion in their favor so we think that will be a wild anomaly that this court ought to construe section thirty five eighty t frank thank you mr chief justice may it please the court there was very little discussion the last twenty minutes about anything that happened at these particular petitioner sentencings this sentencing transcripts are entirely in the joint appendix which you will not find in sentencing transcripts is any indication that the drug guidelines that beak sentencing commission has amended had any effect on the sentences that these petitioners received in fact if petitioners were initially sentenced for the first time today they'd be subject to the same statutory minimum the same sentencing ranges under thirty five fifty three a four which would be the statutory minimum and he's wrong that that has changed and they would be subject to the exact same rules for taking into account the there's substantial systems to law enforcement in adjusting their sentences the commission hasn't purported to change any of that what they're seeking is windfall relief and they assert that they're entitled to that one full relief because they claim that the district judge made an error in their case it's they're wrong the district judge made an error and i'll get to that in one second but even if the district judge had made an error this court's decision in dillon makes it quite clear that section thirty five eighty two c two proceedings are not for error correction one g one point one would still require that the statutory minimum be there are guidelines sentence for purposes of section thirty five fifty three eighty four misses the next in which the guidelines say substantially cooperate the minimum is eliminated well first of all your honor i don't think that's what the guidelines say but i don't think the guidelines even could say that first of all the guidelines under ninety four b have to comply with all relevant provisions of law which means five g one point one setting the guideline sentence of the scotch to a minimum isn't optional that's not a choice the commission made the commission is required by statute to have a guideline like that but i think the first place to look here before we even get to what the commission did and i don't think the commission has set forth anything like the instruction he suggests is the language of the statute and so if we go to page three of the government's brief they want to read section thirty five fifty three is the written exactly like section thirty five fifty three at which allows sentencing pursuant to the guidelines without regard to the statutory minimum and they want to benefit even beyond that they not only want sentencing to start at their below minimum guideline range they want a further reduction from that point to their substantial assistance i can get back to the text in one second but let's pause for a second i think that just doesn't make any sense there is no reason why the reward someone should get for substantial assistance is that a cooperator who has been convicted of an offense for which congress has prescribed a specific statutory minimum should then by default automatically be presumptively sentenced at the level of a non cooperator who's been convicted of a different crime that does not carry a statutory minimum like a non recidivist version of the drug offense that doesn't make any sense and that's not the text the congress and acted when opposing counsel went through thirty five fifty three he didn't mention the first sentence of thirty five fifty three under which the court shall have the authority to employ impose a sentence requires so as to reflect a defendant's substantial assistance the so as to reflect language modifies the sentence the court is imposing it does not modify the nature of the government's motion and it's a limitation on what the court can take into account in imposing a sentence below the minimum the court can only take into account substantial assistance factors and that's exactly how the commission implemented this is this court recognized on page one of the money and then what melendez if you look at pages one twenty one twenty nine and no ten and i think that when israel put all the guidelines five k one one and if you do look at it in other places immediately surrounding this it does say nine ninety four in the subsections and here it just says ninety four so there's a yes and all of the guidelines should be taking into account ike i do think this was effectively selma london to address as a matter of first principles i think the reason for that is if we now look at nine hundred four including a sentence that is lower than that established by statute as a minimum sentence to take into account the defendant's substantial systems so just to address your question mr chief justice first before i get back to the rest of this you'll note that nine four and directs the commission to do something with the guidelines written large when congress enacted thirty five fifty three that was in one nine hundred eighty six there were no guidelines final guidelines that had been promulgated at that point the commission had a great deal of discretion in how it might have decided to implement nine ninety four and it might have sprinkled substantial assistance reductions and ways of doing that for particular types of crimes all over the guidelines so i don't even know that the commission had to  gated specific guidelines to implement nine ninety four and although that is as this court recognized the melendez what they chose to do the other thing and this is back to justice kennedy's question when we look at nine ninety four and i think it recognizes that substantial system sentencing works exactly the way we describe it recognizes that there would be a sentence that would otherwise be imposed and it gives us an example as the sense that the statutory minimum were group choir and then it tells  the guidelines and effectively this goes back to the reflects language that i was pointing out earlier in thirty five fifty three instructs the commission the courts that then what's going to happen is that the court will give a sentence that is lower than that that reflects or takes with our view of how substantial system sentencing works they say the d c circuit has said otherwise i don't think that's correct but i acknowledge as your honor said and as we have knowledge in our brief there are district courts that do this the way that mr fisher just described and i also would acknowledge that in those cases the government often is an accomplice to that by suggesting that the court do it that way and i can't tell you but i think we all of this in their reply brief that they're doing that out of compliance with circuit law and i can't tell you how they got out of circuit law compliance in the first place but i can tell you is reason why i think this persists is that it just doesn't come up on appeal that often because when you do it the way that they think it should be done and that some of these district courts do the defendant's not going to appeal because it's to his benefit and from the government's perspective we don't frequently appeal sons and we do it's not to vindicate abstract principles of law it's if we think the sentence that was imposed is a sentence that shouldn't have been imposed and was just flatly outside the judge's discretion and so centrally gotten to a place where in at least you're really saying it's not a gross abuse of discretion or otherwise should be appealing so you're not doing that it seems to me that the guidelines don't help the judge in their words to determine how much of a departure is just right and judges have to figure that out by having some basis of comparison with something what if the because the few five factors to consider you've got someone who does a lot of number one does a little one number two does a whole lot more number three and then says nothing on for the judge mixes of that all up and says how much to i depart and the will have a different mix and the same question comes up and what i see judges doing is say the severity of this crime is measured most accurately by the guidelines it's based on a sampling across the country of how serious this crime is now i'm going to take that and compare it to all of those other factors and i'm going to side a percentage both based on the statutory minimum but also on the guideline of how much seems right to me so i think it's not an abuse of discretion in my view and if it's not what do we do to ensure the equity that mr fisher is calling for well your honor let me say a few things about that the first thing i would say is when i was referring to the kinds of music expression we would appeal there's usually a substantive component to that we look to the actual sentence and see if it's a sentence we can live with and of the sons we can work with we that is what i was referencing yeah your honor i think it's different ways to get to the same regard and i think exactly and if even if the judge got there an impermissible way we're not necessarily going to take an appeal just to indicate an abstract principle of law even though eleven circuits if we took that appeal we win on procedural grounds because they agree with us about how the statute should be read and your honor in the situation you described where judge did perform the substantial systems reduction the way we think is in permissible and second that i'd like to get back to the reasons why we think it's in principle but i'd like to address your question directly we don't think section thirty eight fifty two c two relief would be available because we don't think thirty five eighty two c two requires a court to repeat the same mistake twice that defendant already got a substantial benefit because the court was looking to even even lower range than the court should have looked to and they don't need to get there and shouldn't and congress is do you get the benefit again there are two legal reasons why i think that is under the statutes the first reason is i don't think in that case their sentence can properly be said to be based on  that below minimum guideline range because the below minimum guideline range didn't have any legal force in their sentence it shouldn't have been applied in their sentence if you think about the function of thirty five eighty two c two it's to give defendants the benefit of the commission's change in its views about how a particular class of offenders and offenses should be punished and although the guidelines view of how that particular class of offenders and offenses should be punished has changed congress's superseding view should not be changed again congress has decided that these defendants were based on their criminal histories and based on the crimes they committed are subject to the point i see the very basic question and i think your argument is perhaps the refutation of it but i think the god lines are not the tax code despite the continuous effort necessary to number after number after number so but i'm not saying you shouldn't do it yeah after but but the fact is here the guy at the commission made a simple decision and so did congress the drug guidelines were too high so we're going to lower him to point and we want people to be reset and if it isn't really anything to do with that i'm saying based upon read it broadly why well because there's only one person who knows really what that was based upon and that's the district judge who put the sentence and we can't psychoanalyze him and we try to proceed case by case in three kinds of instances want to use the guidelines that's easy to he departed from the guidelines are was he looking at it when he departed i don't know he knows three this kind of case depart from the statutory minimum now since we're never going to know and all we have to do if you read it broadly based upon is send it back so that judge himself or herself can rescind and by the way judge when you reset and if the guidelines had nothing to do with this don't change the sentence now that seems to be practical prevents every case from trying to psychoanalyze the judge prevents us from hearing appeal after appeal like the appellate court would certainly have to and anyway this is you know common sense as to how they're supposed to work to the statue permitted yes because the statute says judge in the departures you start with the god line because the statute says here judge in the language  read you start with the guideline and maybe some won't maybe some will never use it in the me somebody will say sixty months no matter what good you judge want to do that do it on remain and do it when you reconsider if it's legal three very simple you see it's a little complicated to say but you see what i'm doing three points just for first there's no need to psychoanalyze the judge if the result of the psychoanalysis would be that the judge implemented the law in correctly you don't get relief for that that in order to have the court make the same mistake twice the second thing i'd say is it is a very strange scheme in which the commission's judgment that the drug sentences are too high is implemented only in the cases of cooperators if you think of two defendants each subject to the doctor you're a minimum you're i i sometimes more broadly than i should i don't mean really carry in a psychoanalyst what i really mean is you look at all these things he wrote in different things and try and put it together nor do i mean in every case they wanted to lower it they wanted to lower it in these cases that you're right about that your honor and my license by the basic point is if the judge considered something the judge should not have considered that is not a reason and it particularly work benefited the defendant that's not a reason for a thirty five eighty two c to reduction the second thing is just to your instinct that these defendants should get their sentences lowered if you consider other defendants saying that i'm saying send it back to the judge because he or she is the one who know whether this was really significantly influenced by the guidelines or not and there before you can the judge can impose the sentence he really wants to impose your honor even under that approach the only ones  going to be able to send back are the cases in which there was a statutory minimum and there was a thirty five fifty three motion you're going to wind up with a very strange scheme work where the commission's judgment that the drug sentences are too high and i think the just record judge who is minimum made this point said that it's a very strange scheme where the commissions judgment that the drug sentences are too high is implemented only in the case of cooperators amendment seventy two says nothing about cooperation or differentiating between two defendants subject to statutory minimum is because one cooperated and one didn't but let me get back to thirty five fifty three and why it doesn't instruct the court and i think it couldn't instruct a court to start with the below minimum guideline range as the starting point for the departure of the reward of cooperate or twice once by treating him like he didn't commit a different crime and the second time by giving him a substantial systems departure and i guess the third time on petitioners view by giving him a sentence reduction that has nothing to do with his cooperation the reason it couldn't work that way is although the guidelines are not mandatory now and we understand that as a constitutional ruling congress implemented this against the backdrop of guidelines it believed were mandatory now imagine a case in which a defendant is subject to a sixteen month statutory minimum and the judge thinks you know this defendant did provide substantial assistance not a great deal i'd probably give him a year off i'd give him a forty eight month sentence but we're up to me now imagine his guidelines range calculation if the statutory minimum did not exist were twenty four to thirty months under their scheme you'd start with the judge would then be faced with a dilemma if he decides he's going to grant the substantial assistance move in he has a range where not only the where he's actually stuck pretty much with that range i don't think you could have done an upward departure under the mandatory guidelines system because he didn't provide that much substantial assistance so the judge either has to give a sentence of thirty months that he thinks is eighteen months too low or he can deny the substantial assistance motion all together and impose a sentence that he thinks is twelve months too high i don't think there's any reason to think that congress was implementing you shouldn't do this you can't do that and my thought is once we go down the road that you're saying which is examining as you've done a sentencing transcript in case after case that way lies a kind of legal perdition because the judge for example do the thing or did he think of doing the thing which the guideline says you shouldn't do and you see the complexity of second guessing that seems worse perhaps from the point of view of what congress would have wanted if they'd thought of it then giving based upon the guidelines and policy statements a pretty broad meaning we're on i don't think i'm pointing the court down the road to perdition here we have a very clear view of how substantial system sensing should work which again is the view the loving courts of appeals that have squarely addressed it and under that view we think it doesn't matter what the judge may have had in his mind you can as we've acknowledged when this was up for debate before the sentencing commission you know judges may have a lot of things in their minds and some of them are permissible considerations and some of them are not and i think we trust the district judges at the end of the day should have complied with the law we presume they did comply with the law and if even if it's apparent that they made a mistake and that the mistake benefited the defendant we don't go back and give the defendant even further relief on the basis of that mistake and that and here there was no mistake at all why is that mr fake and mean this language speaks in terms of questions of historical fact it's what you were sentenced based on not what you were sentence you know what your sentence should have been based on and as to giving the defendants some further benefit i mean you had an opportunity to appeal and one might say that by about what should have happened what you were doing is seeking the form of collateral review that you are not entitle to with this point so your honor first of all i know you understand this but we're not talking about a case that is not like this case in you've moved to say in we shouldn't be looking at what it was based on we should only be looking at what it should have been based on and i guess my question is textually why is that true and sort of you know structurally why should it be true given sort of like a second shot in the peel so there are a couple of reasons your honor i just want to be clear that we're talking about a case that's not this one there are a couple of reasons one is just just as a practical matter you would be requiring the government to appeal even sentences  thought it was substantively fine with and could live with just to preserve down the road some procedural objection to thirty five eighty to see to relief and i don't think that's a great use of the courts of appeals time or frankly the the government's own resources but there are two statutory reasons why i don't think that that approach is the right one one is the one i was discussing with justice sotomayor earlier which is that i don't think a sentence can be said to be based on that is the legal foundation of the guidelines aren't the legal foundation of the sentence if they're not even the guidelines that the court was required to apply so again thirty five eighty to see this i don't quite understand that just as a matter of language something can be based on a legal e well your honor here i think based on a sentencing range actually has a very specific meaning as we point out in the first section of our brief and as petitioners never really respond to in their reply brief something ranges a term that's only used in three different places in the statu and the i think the relevant places here are one we see it in thirty five eighty two c two we also see it in section thirty five fifty three eighty four as the thing that the guidelines the number that the guidelines give back  to or the range of numbers in most cases that the guidelines give back to you under thirty five fifty three eighty four and i think based on the sentencing range means that the number thirty five fifty three eighty four gave back to the district judge when he computed the guidelines it was actually the number should actually be that number and where there was an error there i don't think thirty five eighty two c two should be applied to give the defendant further relief and the reason for that is the guidelines the third place sentencing ranges used are required to return a sentencing range to the district judge that complies with all statutory law and when the commission changes a guidelines range it only has permission to do so outside the context of statutory minimum and so the whole function of thirty five easy to see to is to give defendants the benefit of the judgments that the commission has made that would change their sentences if they were sentenced properly for the first time today and that puts them on par with and defendants are going sentenced properly for the first time today it doesn't really make sense to give them relief where the commissions change a judgment that shouldn't have had any effect on the sentences to begin with the second legal operative rule i would suggest here and this is specific to the context of statutory minimum is that nothing in section thirty five eighty two c two itself or any related statute allows the commission to grant retroactive sentencing relief that would allow a defendant to receive a sentence that is below a statutory minimum they don't claim that the commission could write a rule that says everyone who is sentenced to twenty years statutory minimum under twenty one u s c eight forty one now gets a ten year sentence instead to the extent they're relying on the ability of the commission or the judge to recommend or impose a sentence that is below the statutory minimum the relying on section thirty five fifty three and for the reasons i've given and happy to get back to and perhaps add a few more section thirty five fifty three does not remove the mandatory minimum for all purposes or to the law it was a sentence that reflects or takes account of substantial assistance and the entire delta between the statutory minimum and the sense the defendant actually receives has to be based on substantial assistance factors neither the guidelines i think nor dare i say common sense suggests that one of those factors should be the sentence that a non cooperating defendant would have received had he can been convicted of a crime that congress did not deem serious enough to warrant a statutory minimum we can disagree we don't but one could disagree as the district judge did with the policy wisdom of some of the statutory minimum sentences but the fact remains that in the eyes of congress a defendant who has committed an offense like these petitioners did with a criminal had to go back to the district judge for justice briar's common sense approach that that would mean that the government in the first sentencing hearing would have to make all of his arguments would waive them i thought which is the new sentencing procedure you could say well your honor the first time you had this sense we thought that we made our case and we did but there are many other things to do with that or you could say that in the second hearing i'm not sure that we could drown her because the court made clear and ellen it's not a complete sentencing you essentially do everything the same way you did at the first sentencing and just is there any untoward i could look to to see if there's this waiver to a waiver of the economies that you have to preserve all these points or you can't well i was resigned i'm on round two that you're barred on two so dylan addresses the fact that this isn't a full resurfacing proceeding and i was responding to justice kagan suggestion that the government had effectively acquiesced to section thirty five eighty two c two relief when it in a case again not this case where substantial assistance sentencing was done improperly and the government hadn't appealed i'd also like to quickly address opposing counsel suggestion that we're creating sentencing disparities i think they're creating sentencing disparities in three different ways the first is a timing disparity again under our view of how substantial systems works which is the wall of all the circuits that have addressed it and i think the only fair reading of the statutes they would have a very strange timing disparity whe entitled to section thirty five eighty two c two relief simply because they were sentenced before amendment seven eighty two where is identically situated defendants sentenced today wouldn't get relief i think justice ginsburg pointed this out earlier the second disparity that i think exists here is the one i was pointing out to justice prior which is that you have amendment seven eighty two which has nothing to do with cooperators and only has to do with the appropriate sentences for defendants convicted of drug crimes and yet the as to two different defendants both of whom congress believe committed the same crime and deserve the same stature a minimum only the cooperate or gets the benefit of the commission's judgment on a matter that the commission's judgment isn't controlling because we know what congress specifically thought because there's a statutory minimum and the third disparity is one i've mentioned a few times here today which is that again i think there be an anomaly in their view of how substantial assistance sentencing works even if we get rid of that very odd situation that i think would come up quite a bit when the guidelines were mandatory in shows congress couldn't have intended it to work the way they're suggesting i still think it is very odd for congress to  cross section thirty five fifty three f illustrates the congress knew exactly how to write language of the sort the petitioners want to read into thirty five fifty three e although thirty five fifty three was inactive later they're not unrelated provisions they're the only two provisions of section thirty five fifty three even allow sentencing below a minimum but allow something below a minimum under any circumstances and congress naturally would have viewed them as related thank you thank you counsel thirteen minutes mr fisher sure make the following assumptions rejected your argument that the substantial has to start from the amended guideline that let's assume we accept the government that the eleven circuits who have ruled this way that it has to start from the statutory minimum but assume further that some of those circuits have said that the court can't even consider the guy by the arrangement determining how much of a discount to give that was wrong that as with all factors a district court can consider what it wants in determining for all the reasons i said earlier how much of a discount you give can be informed by the guideline range in some way weird with that put your client's because it's not clear that and to be frank with you it wasn't something i was paying attention to when i read the sentencing transcripts and i'm not clear that the defense attorneys in these cases below actually argued anything different than you did today which would be rejected that didn't raise argument that the god that they properly raised an argument that the guidelines should inform the departure from this from the next and so the answer your question where that would put my clients just a sort of my or would be  the transcript well justice ginsburg i think that the transcript if anything suggests that it did because three of the defendants three of the five defendants here actually ended up with within guideline range sentences and and for the only one for one of them that the judge them basically were the first type of judge i'd mentioned earlier i thought virtually all of them except that one the judge said i give a percentage all right right so i think then you have the question that the government itself raised when this was in front of the sentencing commission which is that even if the judge characterizes the departure in terms of the percentage the judge may have in the back of her mind where that percentage leads in terms of the guideline range and i think it's not a coincidence that three of the five sentences here and it up in the guideline range and i think there's a sort of more just to reinforce the question that you asked i think it would be a highly undesirable and just improper rule to say that the only two things that can go into sentencing in a serious case like this are the mandatory minimum and the five k substantial systems factors because they are the judge would be required to give the maximum downward departure in every single case based on those five key factors regardless of how serious the crime was  that would be larry that's what i said earlier which there has to be a little bit more the question is what are you comparing entrenched and one of the factors your way right so i think if we get the government all of this legal arguments even there is the third circuit  weinberger the guideline has some effect on the ultimate sentence at least to the degree is just a prior was pointing out the district judge should have another look but if i can return to the main argument i made here because i i think i understand the court may be a little bit perplexed at what it has in front of us the court granted a second case dealing section thirty five eighty two but what really happens in this case is is everything turns at least says setting aside what we just discussed but everything in the first instance turns on section thirty five fifty three and so it all comes down to how section thirty five fifty three works how the government keeps saying eleven circuits eleven circuits if you look at those opinions you'll find that only a few of them have any reasoning and in terms of section thirty five fifty three easy and i think it is quite clear t c circuit has disagreed so you have a circuit split you need to resolve about section thirty five fifty three even if i could just read you one more time i think the language which hurt congress could hardly speak more clearly at page three a when it says such sentence sh imposed in accordance with the guidelines and policy statements issued by the commission pursuant to section nine ninety four so the current so the gut so mr fagan made a few responses and i want to go through them one by one to that statutory language first he said well i overlooked the first sentence which contains a phrase saying that this sentence shall reflect the defendant's substantial systems well two points about that first of all as we pointed out in our brief it would reflect simply as a textual matter can mean just to make apparent and the fact the sentence is lower than than a tory minimum is what makes apparent the fact that the defendant granted substantial assistance and even if you thought the word reflect was ambiguous i would just return you again to the second sentence which is a directive straight to the district court telling the district court how to impose the sentence the next argument mr fagan made was that woman lend as for closes the reading that i've just given you and that's just not the case that wasn't the issue in front of melendez and indeed it wasn't even what the government argued in melendez we cite in our reply brief a few times that the government argued that the second sentence of section thirty five fifty three just requires the judge to give a sentence according to the guidelines as opposed to the pre guideline system of having free reign to issue any that the government has and i know you counter by saying it's a later provision of this one but it's a later provision in light of the circuit holding that's close to you that i miss not quite that he starts from the statutory minimum and if congress knew enough to change f to exclude statutory minimum it would have had a very same time john the authority the government cites comes later and indeed what you find in those cases are courts comparing in eft and thinking that means something different and so that's what's driven them off the rails is the existence of f our position to start with a statutory matter is he has to mean what it meant for the first eight years before f was ever an active f can't have changed what but if you do want to compare them so we think you shouldn't compare them but if you do want to compare them the operative language in f is almost identical to the operative language in e it says that the sent the court shall impose a sentence pursuant to the guidelines promulgated under the by the sentencing commission under set under section one ninety four it's almost precisely the same language that is in the second sentence of subsection eight and so then all the government is left with is well language before that and talks about without regard to the mandatory minimum whereas what we have in subsection easy is language that says the court has the authority to  mandatory minimum and the question i think that you would be asking is do those two things mean anything different and we think the answer is no because and this goes to even more to motives for taking was saying the whole point of a mandatory minimum is to set a floor and so either you have a floor or you don't and once congress tells you you don't have a floor anymore there's no work left for a mandatory minimum to do so saying that a court has the authority to sentence below a mandatory minimum is the functional equivalent of saying sentence without regard  three minimum because that's the only thing a mandatory minimum can do is set a or so once it's gone it's simply gone it doesn't come back to life and it doesn't hang around like a zombie who's been killed and somehow still has assumed some poll on the sentencing on sending judge's discretion and the and i think that all of what i'm saying is reinforced as the chief justice pointed earlier to the and i pointed earlier to the points in the in the section thirty five where congress points directly to subsets of ninety four it doesn't point directly to section ninety four in which would support the regime mr fagan is describing it says ninety four as a whole and again just the sort of my  what is subsection f do it's the only other section that directs the court holistically to section ninety four so we think congress was doing the same thing and that's what the court itself said in dorsey and dorsey the court said there are two ways for a judge and a defendant  mandatory minimum one is the other is for treated them as equivalent so i want to make two final points the last point aside from all these legal points that mr fagan made in the government makes was a policy argument that it would be a double benefit of sorts for cooperators to have their sentences pegged under easy to a guideline and then perhaps departed down from that we just disagree with that promise remember it's not of the benefit of cooperation is to be treated just like anybody else it's not a double benefit it's just a benefit it's just telling the court look if you have a cooperator take away the manager for a minimum and sentence him just as you would sentence anybody else and the judge would have discretion to give the defendant a within guideline range or the judge would have discretion if there were exceptional cooperation to go below the guideline range but that's in the court's discretion and congress has just given the court the ordinary discretion that somebody else would have another way to think about what each does is it says we want all coop treated the same regardless of whether to cooperate or subject to a mandatory minimum or not we want to lift the manager the minimum for those who are and just have them sentenced according to the guidelines so cooperators are very important to the justice system the government relies on them heavily and so when a minute defendant makes a very difficult choice to cooperate we want that defendant treated just like anybody else and one last thing on the policy is that he said will are our result running the section through section thirty five eighty two would be to  give only cooperators the benefit of the sentencing commission's drug guideline reduction that's just factually inaccurate for all defendants who are subject to a mandatory minimum but whose guideline range were above the mandatory minimum they to get the benefit of section of amendment seven eighty two regardless of whether they cooperated i think the government admitted that in this brief so that's just a small inaccuracy i wanted to correct and the one last point i wanted to make was to go back to justice kagan your question about based upon being a question of historical fact and this seems to be one point where i think we in the government are in a sense agreeing which is we think that that's one way to read the text but it's not the better way to read the text and the better way to read the text is to ask what the law required in that which is if you want to do this as a historical question exactly what the judge did works in all we win and the reason why is because the judge adjusted the guidelines sentences in our cases according to subsection five to one point one and the commission as part of its amendments to seven eighty two and the policy statements accompanying it said when you calculate an amendment an amended guideline range you do not include section five to one point one as part of that calculation so we have explained to the court i don't think it's rebuttable that even if you take the mistake the judge made in the first instance as a historical fact that the court has to deal with they still have lower guideline ranges under section thirty five eighty two and that's all that's required for eligibility and so for all the reasons  that several justices of the court have said whether you no matter what you do i think the safest way to resolve these cases this narrow band of cases you're dealing with here with operators whose whose guideline ranges were below the mandatory minimum is to send them back to the district judge and allow the judge to exercise the informed expertise that the congressmen imagined and that section thirty five eighty two in particular he envisions to decide whether these defendants should get a new sentence or not and how much that who stands should be reduced