please the court road building for israel lopez this case is about the need to read statutes and sentencing guidelines to avoid absurd results and an absurd result is what happened in this case the district court granted mr lopez a sentencing reduction on only one of his two counts of conviction the court grant of the reduction on the more serious of the two precisely because it was more serious so what happened here is lopez was sentenced in tw eleven on two different drug it's one of voting cocaine the other involving marijuana the statutory range for the cocaine count was ten years to life for the marijuana count it was zero to twenty years now under the sentencing guidelines both counts were grouped together to come up with a recommended sentencing range and in that calculation the cocaine amount was overwhelmingly the driver of that range and the resulting range was two hundred ninety two to three hundred sixty five months but the government moved for a downward departure under five k one point one of the sentencing guidelines to account for mr lopez a substantial assistance to authorities investigating offense and that the government specifically asked for a three level reduction and that's what the district court granted and that took the range down to two hundred and ten to two hundred sixty two months for the both counts so the sentences for both counts were based on the same guidelines calculations and were linked together in several years after that the sentencing commission them into the drug trafficking guideline to the one point one two reduced the quantity based base offense levels for those offenses and the effect of that was to reduce the sentencing range to two hundred sixty two to three hundred twenty seven months for both counts but taking into account the three level downward departure for substantial assistance the range became one eighty eight to thirty five so mr lopez well lopez and the government agreed that he reap receive a reduction to one hundred eighty eight months on both counts of conviction and to that end they submitted a proposed agreed order to the district court that would grant him that were duction but the district court found that the rain that the sentencing range had been reduced only on the cocaine count not on the marijuana count the reason being that by operation of the guidelines the court believe that two hundred forty months was the single point r for the marijuana count because it was capped by the twenty year statutory maximum whereas on the other hand for the cocaine count it was one hundred eighty eight two to thirty five because it carried a more severe statutory rape ten years to life now in order to be eligible for a sentencing reduction the statute thirty five a to c two requires that the sentencing range must have been reduced and then if you look at the guidelines it talks about guideline range and guidelines sentence and that comes into play where there is an interaction between the statutory minimum or maximum in the resulting guidelines range so here where the  what guideline five g one point one a does is says that the range determined by the guidelines calculations is the guideline range that's the phrase used guideline range however if  statutory maximum or minimum is outside that range so let's say that the statutory maximum is below the guideline range than the maximum becomes the guideline sentence which is the phrase used likewise if a mandatory minimum is entirely above guidelines range and that is also referred to as a guideline sentence but in both cases the range and in particular in the circumstances this case the range guideline range for both ca was the same it was that which was determined by the grouping rules it was originally to night two to three sixty five and became to sixty two to three twenty seven after the amendment reducing the drug offense levels well to say in these particular circumstances mr lopez would only be eligible for a reduction on the more serious of the two counts effectively because it was more serious because he had greater sentencing exposure would be absurd so he's eligible for adoption on that count but not that eligible for adoption on the less serious count and the count that at least in the guidelines calculation contributed far less to the resulting range from the total quantity that he was held so he was old responsible for twenty times the amount of marijuana involved in the marijuana count and yet he did not get a reduction will not count but he did get a reduction on the cocaine and there's nothing to suggest in the statute or the guidelines that congress of the sentencing commission intended the result like this and i would say this is this is an unusual situation my office handled the whole lot of these drug reduction cases and i don't remember seeing any like this where there was this is unique or at is your argument and form to take into account what the recent amendment seven eighty that of particular importance here is the fact that he did receive a departure under five k one point one which is important for purposes of his eligibility for a sentence reduction generally speaking a court may not reduce a sentence to a point below the bottom end of the amended range even if the defendant received the departure of time he was originally sentenced as an exception for the financier receive a five k one point one departure for substantial assistance those defendants can receive a were duction to a sentence below the bottom end of the amended range but it has to be proportional so in this case in the worksheet the probation officer prepared calculated the percentage relationship between the original guidelines arranging the sentence that was a proportional percent reduction will result in these numbers and so had there not been a five day one point one motion in this case we wouldn't be here but there was and generally speaking the policy behind five k one point one statutory authorization as well thirty five fifty three is to reward defendants for cooperating and that's why that exception exists to the general rule that a court can  for handling a thirty five a to c two motion so in rules already to get in the original sentencing for example the probation officer is required to prepare a pre sentence report to disclose it to the parties and then the parties have fourteen days to submit objections in writing so that pre sentence report but there is no comparable procedure in the rules of the statutes for thirty five a to c to hear what happened is the probation officer prepared a worksheet that had the various calculations twelve and a half percent reduction below the two hundred forty month single point range and then the work she said a comparable reduction now below two hundred forty months would be twelve and a half percent and so that's two hundred ten months so it's it's phrase kind of and usually it doesn't say he's not eligible it says here's what the original range was here's what the amended range is they're both two hundred forty months and so a comparable reduction from the original sentence remains the same rather than i guideline range but in this case the real basis for the sentence on both counts was the range that was determined by grouping the two together and combining the drug quantities for the cocaine in the marijuana case the process for handling these motions in the el paso division was for my office and the government to meet and if we could agree that the defendant was eligible for adoption and could agree on a recommended reduction then what we would do is submit a proposed agreed order to the district court for the judge's signature and then the the judge would either sign that or not you know in this case the proposed amended order  when the judge dropped through or no there was no hearing on the matter we submitted the proposed agreed order it wasn't actually filed it was just transmitted to the judge's chambers that's the procedure that was followed in her chair and went to question what would you do but there was nothing other than the proposed agreed order that both parties jointly submitted to the court there was no formal motion laying out the mine or anything like that but it's but it's certainly i'm at look at the very least implicit in the request page three twenty five it has the calculation of the original range and the amended range and says that previous guideline range the noted previous guideline range applies to count to which was the cocaine count as to count four the previous guideline range was two hundred forty months pursuant to five to one point one day which is the guideline that talks about the interaction between statutory maximums and minimums and the guidelines and then it says amended guideline range the noted amended guideline range applies to count to ten count as to count for the amended guideline range is two hundred forty months pursuant to five g one point i want to say so there is no other explanation but i think did and so that's why i believe that the error wasn't fact preserved here and again the government agreed with the reduction on those it relied on our decision in carter and even in your reply brief   both carter and coons and here is the supreme court decisions concerned with the recent was based on a range that has been reduced the phrase based on coming from thirty five a to c two and carter actually goes a little further to talk about whether the range itself has been reduced or not not simply whether the sentence of the original sentence based on that range koons in his focus on the based on aspect of it and they hold sentence is based on a range when the guidelines were range is a part of the analytical framework for the sentence that the court imposed so i suppose there's there's two aspects to eligibility one within the range was reduced t carter i think a fair reading of his talks about that as well as whether the sentence was based on or as convincing here is we're talking only about whether the sentence was based on the range but it's fair to say that  in particular a huge which involved a sentence that was originally for imposed percentage of the rule of c one c plea agreement i said that if the guidelines range was part of the analytical framework for the agreed sentence with dramatically different statutory ranges even though the guideline range for both is driven entirely by the more serious count and again there's just nothing in the world or the guidelines to suggest that the defendant in this situation on the particular facts of lopez's case would be eligible for a reduction on the more serious count but not the less serious count even though the guidelines determine the range of both counts the first reason is that in the only covers situations involving statutory minimum in this case we have a statutory maximum that controlled the sentencing range before and after the in the mid to the drug quantity guidelines the second reason that the limit seven hundred years are relevant is that the supreme court in kuhn's explained that there has to be statutory eligibility in addition to eligibility under the guidelines and looking at and then that seventy eighty which was raised in that case the court said that the commission's expression of a policy in favor reduction in that situation involving statutory minimum was not sufficient to overcome the statutory requirement that a sentencing range have been lowered and that's really the key language of the statute here that the sentencing range has been lowered this court in carver explained that the range is the statutory maximum or minimum when the guidelines would otherwise recommend a higher or lower sentence so we know from carter and also from the statutory language in the language of the federal rules that the statutory term sentencing range means court looked at precisely the section that you're referring to and it's the court said that the statutory requirement for eligibility that the original sentence be based on a sentencing range that was lowered guidelines amendment trumps that expression of policy by the commission and that's at the very end of the coon's decision from last summer so the logic that this court used in carter about why that of the guidelines commentary that carter relied on is still part of the guidelines commentary the new additions to the guidelines commentary in the a minute to the guidelines only covers statutory minimum so not statutory other issues if you if you want to go beyond the guidelines in that the logic of carter then you can look to the statutory text in the text of federal rules to be consistent across all of the statutory provisions that were passed at the same time be term sentencing range must mean the statutory maximum because the other parts of the sentencing reform act that were passed at the same time and that are still good law refer to a sentencing range that must mean the statutory maximum it can't mean what the defendant suggest which is an interim preliminary guidelines calculation so because of this defendant's statutory noxon i was two hundred forty months that became his statutory range for purposes of the statute the probation officer and then later the district court identified that the statutory range was two hundred forty months before the amendment it was two hundred forty months after the amendment and since that sentencing range had not been lowered this defector to a range was it could be below two hundred forty it could be below his sentencing range could have been below but it was not in this case and  so there is nothing there is nothing other than the statutory maximum to serve is that the sentencing range in this case his got the guidelines would otherwise have recommended something well in excess of the ultimate sentencing range which was two hundred forty months based on the ice statutory maximum and we talk about the statute to be consistent it has to that sentencing range must be the statutory maximum that's also true under the text of the federal rules a federal rule thirty two criminal rule thirty two which controls sentencing says that the pre sentence report must identify any factor relevant to the appropriate sentence within the applicable sentencing range well under the defend his interpretation of d the sentencing range the sentence appropriate sentence mantri maximum couldn't have been within the sentencing range so again when you look at this meaning of sentencing range across the rules across the statute you see that sentencing range must mean the statutory maximum and i also wanted to address the issue of plane air that judge owen and judge wiener brought up the sequence here was that the probation officer identified the sentencing range as two hundred forty months for the marijuana count before the amendment and two hundred forty months after the him then several months and during those several months there was no objection to say and to express the argument that the defendant has now raised which is hey you've got the sentencing range wrong the sentencing range has actually changed for this marijuana count and so there was plenty of opportunity to object to god and to try to correct that calculation and that was not done and in cases involving sentence reductions that involve just the same kind of procedure that we have in this case  those are evans and chapal both of which are cited in our brief this court said in both situations despite the fact that the more streamlined procedures that apply for sentencing reductions that the defendant actually has to make the argument that he or she wants to present to this court it's not enough to ask for a sentence reduction and just say i want this reduction i want to in this amount that if it actually has to express the argument for that sentence reduction and can switch the arguments between the district court on appeal and that of course is to protect the record and allow the district court to make findings in the first instance and to make the correct a termination in the first instance and so  in this case nobody came to the district court and said hey the sentencing range of ranges are off the probation officers worksheet which certainly could have been done and that's why we say plain error rate review applies and that makes this case easy because for there to be plain error the error must be clear or obvious and it's not enough to say there's never been to circuit case on on this point which defendant concedes in fact we think carvers dispo other way in multiple unpublished decisions support our position and it's also not enough to say that the guidelines are straightforward because what the defendant is actually pushing here is an inference from one provision of the guidelines that it's not in any way express so we don't think that there's any clear or obvious error here but ultimately this court can just rely on the fact that there was an error at all the district court got this right because the sentencing range had not been lowered before or after the sentencing in minutes i don't think that there's any absurd result here and i don't think the court's precedents would support the main thrust of the defendant's argument that there is an absurd result here the supreme court's decision in coons shows us that there are going to be situations where the general policy about sentence reductions is not going to prevail over the statutory language and that might be the case in many situations in which you have a more serious crime and a less serious crime so for instance in kuhn's what we know is there from coombes what we know is that a defendant is not eligible statutorily eligible for a sentence reduction when the original sentence was not based on a sentencing range because instead it was based on a statutory minimum that's the holding of clinton's well for a defendant who had a sentencing range well in excess of the statutory minimum so who committed a much much more serious crime or had a much much more serious criminal history that defendant would be eligible for us and it's rumored auction because the coons is logic would not come into play so there will be situations where the interaction between the statute statutory eligibility and the way the guidelines operate means that some defendants will not be eligible in certain circumstances for sentence reductions and that's simply the operation of a broad statute on the  the very fine tuned operation of the guidelines that's not absurd in fact the absurd result would be to say that this defendant and only this defendant in a small subset of coke wards the guidelines also are important because of the amendment that you're referring to is in a minute about statutory minimum this is a case involving a statutory maximum so that under the pla substantial assistance but it's a departure from the range as the text of the guidelines makes clear and is this court explained in multiple situations the supreme court also reiterated that in the coons case so  it's ability you're looking at the sentencing range you're not looking at a departure from that range and so five k is not does not change what happens here the sentencing range was two hundred forty months decision in carter also talks about the rule of five k and what local five k should play and underlines that the point that i just thought i was just making about five case being a basis for departure and not a change to the sentencing range address two points to government raised and its argument one concerning the standard of review in the other policy first on the standard of review where the government says that you know the purpose of requiring objection or an argument below is so that the party is not going to change sides and make different arguments on appeal that is exactly what the government is doing here the government agreed that mr lopez was eligible for a reduction on both counts and so the government joined in the agreed proposed order that we submitted to the district court now the government a stranger's mind that was arguing that he was not eligible and i haven't heard the government explain why the change of face what's different now why did the government believe that he was eligible in the district court as opposed to now second the government is arguing that the congress of the commission could have policy reasons for not allowing reduction so in certain cases but i can't imagine what possible policy reason there would be let's get to the statutory language and kind what hal was the original sin and it's based on a guidelines for his other and not the statutory maximum because here both counts were grouped together in the guidelines calculation to come up with a guideline for which the government moved for a five k departure and aspecific only for three levels so the request for departure was keyed to the guideline calculation which again both counts were grouped to determine the calculation and the district court granted the five k reduction and in the written statement of reasons months which was exactly the same right exactly the same as the cocaine count and the bottom of the range after this three level calculation that was in the government's five k motion that the district court decided at sentencing and again in the written statement of reasons the court says the sentence is a departure based on the five ok so in that sense the sentence was bateman mr lopez a citizen on both counts were based on the guidelines range as i understood  coombs the only difference here is that instead of a venturi minimum coming into play to limit possible eligibility it's a statutory maximum and and again as to policy i can't imagine what the policy reason would be for