reduced to thirty two dollars which corresponds to an amended guideline range of two hundred and ninety two months to three hundred and sixty five dollars this reduction however was ruled to be ineligible and a s and fifteen motion by judge that judge bennett essential relied on a political policy guidelines found in one b wine ten b two which states that if the original sentence was a low the amended guideline then prisoner is not eligible for amendment seven to really however there's an important exception that the government refused me that the court erred and b two b says that if the original this so a lot of the six dollars eleven cents certain cases cases that have found that have ruled that was the case the applied on the merits and may apply to procedural denial but nonetheless at the same issue as it brought up which this issue never was and judge strand in the district court found the same here the circus issue which is the real merits of the case united states anderson never got that the united states anderson was challenged to this court on constitutionality so i still think this is a new issue before the th circuit and it hasn't ruled on it and the reason that the th circuit should rule in favor of my client your honors is that the d o j letter really says that there is no slicing reduction that it gets it's not just part of it or some part of it that would raise substantial amounts of litigation and confusion in trying to figure out what the district judge was originally decided that so the district judge in this case was clear judge and it was that despite that her race she was never heard on the merits so address in a possible floodgate counterargument to our argument based on data that's been released by the sentencing commission in two thousand sixteen very near the two thousand and fourteen retroactive guideline that that issue here is only be proximately two hundred cases or hundreds of cases across the united states that would be open t entitled to which would be two and a half years in this instance and that's that's a huge difference between the time she served already thank you your honors and like to serve us my time for well thank you this case involves as you already know the temp to reduce it one hundred and sixty eight month sentence for ms malvo a sentence that during the sentencing process the guidelines went as high as they were originally were found to be three hundred and sixty months to life and they were subsequently reduced to two hundred and eighty eight months with the substantial assistance motion finding and then i went down to one hundred and sixty eight months with a finding in regards to a variance in the upward  that i have been on since the inception d i was initially involved in the initiation of and in contact with officers are controlled by city search warrant execution a defendant's house and therefore  i have a great understanding of all the egregious factors and aggravating factors as well as the mitigating factors that were discussed all the way up through sentencing in this particular case most i think the district court and you obviously are well aware that i did do some gymnastics there that the court did go through the analysis and basically looked at some general eight circuit laws regarding  considerations motions for reconsiderations or rulings regarding reconsiderations and essentially found after that analysis looks to be correct from the government's perspective obviously that  it does make reference to the court district court does to the fourteen day appellate rights section but then talks that eight months or three plus years either way you go is well beyond any allowed i think that may case even talks about the possibility of with a thirty day extension for those types of findings i think two thousand and fifty five extended typically in this circuit a little longer than that but it has to be specific to specific reasons for it inmates but no matter what timeline you use in regards to that it's as the district court found it is far far too late in this particular case and when you look at the interest of finality and you also down the line and said even if you could see the pro se filing eight months later and then look towards the delay after that year it's three plus years three pushed years plus eight months from the original ruling by the district court that argument that government waived not jurisdictional challenge in this case because it didn't raise the allegedly didn't raise the time winners argument are we are adamant that the government did not waive any time reply brief to our response originally before the district court and d the district court used randall as well as some other cases in regards to its findings alternatively this court can affirm on any grounds supported by the record in this case as we've also said in our briefing we d leave the record does show that there is support for a denial as untimely or substantially and kindly in this case not raise had not raised and therefore waived nine jurisdictional bar in those particular case particularly i may it does talk about how they're there is that they don't have to reach that but they also discuss  when the apple changes due to other circuit developments when the apple changes due to supreme court cases then a nd bite is permissible then the implied prohibition is the same particularly we'd like to direct the court judge bennett was clear was clearly denied because novels original sentence was below her amended it wasn't because he understood the distinction and in two thousand one hundred letter there was no understanding of such it was simply that he and it was waived at the district court level in two thousand and nine randall essentially turned on the fact that the retroactive sentencing guidelines in that case was based on an amendment that wasn't retroactive  two is remedial action it's a rarity defending concedes that it should be used it should be used sparingly by district courts but however it's not a traditional