simple aca has two steps one for identifying what are covered cases in the nd how a sentence could be modified if it is i covered case what we're here about this morning decided before worsening with this same identical issue where there were two drugs in the same statute of conviction and because we didn't have the benefit of case because very simply the only finding in the case is something that came from the probation office in the reporter originally sent the defendant does not qualify the defendant is not eligible persons convicted of cocaine based offenses but who spector tory ranges were not affected are not eligible and that was the extent of the district court's decision and now we know that that is not exactly the correct route after worsening the statement is right out of worsley all defendants who are serving sentences for violations of the district court or yet in looking at this order i mean it certainly uses the terminology eligible and you may be right that it's kind of an analysis of subsection a scene and i'm not sure you're given quite enough credit it's it seems to grapple with the issues in a way that you have but for the terms eligibility yet it almost looks like it's a gauge and in the discretionary analysis maybe not i can see both sides of that i mean yeah and i think the not trying to prejudge the outcome but those factors would be look you know certainly appropriate to consider yeah in the discretionary analysis you disagree with that well i do disagree with that because i think in this case i think had it been a marriage decision there would have been more facts addressed that would have made it clear to the court that that's what they were doing since it is not clear i don't think we ought to punish the defendant relief from this court so you're saying if this had not been sort of a threshold coverage decision and if and then a discretionary decision about whether or not to grant a reduction more would have been put in front of the district court that's correct i think more facts merits analysis once you find that it is a cover to x and it and it's a pretty broad think but has been on the record saying the defendant does not have to be present there does not have to be a he but the factors that are considered must be the full factors that you would find in three thousand five hundred and fifty three and so that's what's missing here and i don't think we have to blame the district judge that that's not what we hear that what we want to do is simply go back and that's what i ask you in court and to say let's go back let's look at worsening now judge is it any different should it be different and i think the answer is that it would be and i think the judge would be very amenable you're giving it the based on a non covered offense so that in effect you could go below the mandatory minimum it is that type of analysis something that should happen in the cover minimum statutory so that i mean that much is locked in but a judge has the discretion in any sentence to go to down down to that point even though it would be low new guideline range and i asked what might be the same question but in a slightly different way what if the sentence here had been ten years not twenty four years what if this defendant had gotten ten years  would that make this defendant in eligible under the st step for a sentence modification or would it just be a really good reason i mean it would prevent grant without occasion my view and i think it is the correct he is under worsening if you've got a crack conviction let's just call it a crack and that then you've got coverage but there are other factors that are involved that would come  big which would be if you have a mandatory minimums under another statute such as powder cocaine then that would be a factor for determining the new sentence but it would not be a factor for putting the defendant out of the ballgame for consideration that is the distinction and i think that's what the probation office was trying to do was to cut the defendant off from any consideration because that powder offense happened to be in the crack of things as well head the offense has been charged be no question it would be a covered offense so prosecutor discretion should not be the decision it was congress's decision to say it was a crack  you need to look at this fellow you don't have to give him relief but you have to look at you thank you very much excuse me eleven of the things i had one of the new case that i found yesterday i have given it to opposing counsel i have made copies i would be glad to leave that what the seeing requires us to focus on the statute of conviction and the statute of conviction here is eight hundred and forty six and what it forty six then does is tell you to look at the objects to determine the statutory penalty in this case there were two objects there was the distribution of the powder and the distribution of the crack when you take those two and look at the penalties you then come up with what the penalty is for the eight  six violation and when you do that as the district court noted you end up with the same statutory penalty even if you apply the fair sentencing act so because of that the court was correct in finding finding that mr grab it was not honor it's informed by a number of things including we've had about four hundred and fifty of these motions in the district of south carolina i think the most in the country and said this judge who has been on the bench a long time has done things differently when when and now i will say the government in our initial response did put in information that would have allowed her to make that discretionary call if she had decided he was eligible for coverage but the the case really easily resolved and i would leave you with this question that a court could ask to decide whether it's a covered offense and it's really simple if the defendant were charged today or the day after the fair sentencing act  with the same federal criminal statute eight hundred and forty six dollars here would they face the same statutory sentencing range and if the answer is yes then the defendant is not eligible for st step back  pretty much the argument you made and we're seeing as i and i mean i understand that nurse i understand that there's some nuanced different ideas but the basic idea was like look you look at the violation and does the violation get the same sentencing range before and after and  sounds to me like if this is very close to the exact same argument i do understand the marginal differences but look at the violation for the conspiracy charge you look at the violation of the conspiracy statute and is the sentencing range  same or not but we're not supposed to look at the violation it turns out that the language modifies offense or whatever it was not but not violation the one thing we're not supposed to look at is the violation and whether the violation would have the same sentencing range and so i guess i'm just i really i'm having trouble figuring out under we're seeing why it's not enough i mean the indictment incorporates a statute the penalty for which has been changed why isn't that enough just to get through eligibility and it would be different in fact  luna case is a perfect example of a district judge saying well yeah they charge conspiracy and so the truth is under the conspiracy charge yeah the statutory penalties haven't changed but you know they could have charged two separate conspiracies or two separate substantive offenses for the fifty grams of crack and the five kilograms of powder well that's not what we're seeing tells us to do so ironically if we buy the the approach that mr small making then we end up actually i think violating worsening by changing not not looking at what was the statute that was charged eight hundred and forty six dollars and if you look at eight hundred and forty six dollars it tells us we have to look at the objects to determine the statutory penalty so if we do what he would say for us to do then we end up going and looking at the conduct and saying well we're going to change the way it was charged because we don't like the fact the government charged a conspiracy we want to treat it like a substantive offense two separate substantive fences because i will concede if they were two separate substantive offenses fifty grams of crack and five kilograms of powder the fifty grams of crack would be a covered offense which would would allow for the discretionary call to be made and it looks like the court might very well give the same sentence but we don't know because i don't think that's what the judge did in this case and i would say i want to help the court with these st step back cases because we're getting a lot of them and we prefer not to keep coming up here and  the guidelines tell you to look at the conspiracy as a whole another maybe i'm not understanding your question correct in coming up with the statutory rember the the touchdown is that is the statutory penalty changed and here whether you take a conduct approach or or the statute of conviction approach you still end up in the same place because it's still going to be ten to life right that there were offenses in the basket of the computers conspiracy charge there were two objects yes and one not covered and since the guidelines of coverage doesn't i'm sorry saying coverage just doesn't matter coverage doesn't apply to the individual objects of the conspiracy coverage applies to the eight  six conspiracy that is the statute of conviction if you look at the joint appendix page forty five that that's what's listed in the judgment as the statute of conviction so i have sort of a practical concern that i think was instructed the district court is instructed to look at what are the subject offenses i'm sorry i'm blanking on the right phrase but look at both of those offenses and at the time of sentencing those were two really serious offenses both of which had a ten year to life sentence and you know basically at the time of sentencing the crack offense was treated much more seriously than it is now if this case were sentenced under the fair sentencing act the picture would look very different to the sentencing judge there be that's one very serious underlying predicate offense but one of them would now be less serious it would be five to forty years not ten to life it would be less serious that seems like exactly the kind of thing that was driving congress like this case might actually this guy might have been sentenced to less time under the fair sentencing act than he was sentenced to well again we're not going down the conduct specific but he was he was dealing one hundred and fifty kilograms of powder he was actually done like facts are he was it was almost all power he was sending in some small amount when it got south carolina's converted into crack so do respect and i'm not certain that this is the poster child for a fellow who again the underlying reason for the fair sentencing act and the st step act was to ameliorate the you know these problems with the difference between crack and powder defendants being treated disparately he wasn't one of those people because his conspiracy involved both powder and crack that the crack guidelines and the crack object of the conspiracy didn't drive the statutory penalty in this case element in the covered offense analysis and in the questions we were asking about the ten year kind of relate to that i'm not sure her if we're in a situation where it truly does covered if it doesn't end up making the difference it says yet it calls us to look at the statute that's been violated and then that call and then it has to limit haitians and th e if it's not if it's a cover of defense and if that isn't one of the limitations in c it looks to me like the statute requires you to go to be in under calls the district court to do right and i'm in complete agreement with you and i would tell you the statute actually does work in our favor because some part a says that the statutory penalty for the federal criminal statute in this case eight hundred and forty six has to be modified by the fair sentencing act when this if you were to send this case back and say it's covered yes what's going to happen the probation office and the court and everybody is going to agree that the eight hundred and forty six violation has the same statutory penalty ten the life that it had in two thousand and three had the day crimes well but it's one rhyme is conspiracy excuse me but two separate violations that constitute the conspiracy but tell me where in the st step back is there any language in the statutory text that suggests that when you have a know from the government's perspective that would be bad from a policy standpoint yeah read the statute literally and then have the district courts make in discretionary decision on a lot of these things that are you know maybe understandably given the statute is new and everything but is there a real problem with drawing up such a hard line on the threshold and in what has come about when there's ruling such as we're seeing what we should do i'm not making this argument sort of just i mean we're every day it's a moving target i mean you know mr small just put put up a you know just give a case from two days ago i mean every day we're looking at sort of where the laws and good for you all you get the opportunity to be the st people to decide whether a conspiracy a dual object conspiracy where one object clearly will make the conspiracy statutory penalties the same if it goes back you get to decide whether that's a covered offense or not so you know you'll you'll get to educate the rest of your colleagues we believe that you shouldn't find that it's a covered offense and that you should  rm the district court because she made a commonsense correct approach that this statute of conviction the eight hundred and forty six dollars violation it's statutory penalty will continue to be ten to life even if you were to apply t act i certainly don't want to cut the short if you have any further questions i appreciate it thank you thank you well sometimes the commonsense approach is not the legal approach in what we're here to talk about today is the legal approach and we're now get it worsening in the language we're g congressional intent it was to look at any of the case that was impacted by crack cocaine and by taking a liberal approach in several charts i mean