as part of the framework should have relied on the confines i thought this as far as i can tell the whole process here is precluded by case law and he's supposed to starting point because if the starting point should be the minimum mandatory that's not what the judge did here what the judge said ok so i think you're right about that i didn't understand you had to have said then your prints but go ahead there's a bigger there's a bigger problem here that it has guidelines are relevant in this case because oftentimes a defendant is not even sentenced as part based on substantial assistance at the original sentencing because the nature of the in this circuit is we have a decision that relates to a rule thirty five in the united states st is tied dio which indicates that there used to be a time when rule thirty five had the same language as th and eighty that the departure has to had to reflect substantial assistance now they just they changed that advisory committee notes that in two thousand and two it's a stylistic change we're not going to five fifty three dollars a factor becomes just another factor it's no it's not there's nothing there's nothing either in it by statute or in the legislative history that suggests that the minimum record in this case it a combination it took the it took the minimum mandatory and it placed it into the guideline grid based upon a criminal history category of you complaining about that and that that way  was a flaw in here in the court choosing to start at a level twenty seven but what i'm getting back to is the fact that in a rule thirty five scenario under to deal where you had the same exact language  to reflect in the in the in the the court into dio spent time in trying to go back to that language before the change in two thousand and two to see whether there was any change in the procedure and it found that no it doesn't mean anything different after two thousand and two let me ask you don't because as a district judge it seems to me you're in front of me now and it worsens in this manner and i tell you that i have to start at one hundred and twenty months because the statutes require me to do that because it's the mandatory minimum and now the gum which made a motion to depart there seems like there's three ways that i could look at that one what the parties asked me to do was will plug it into a guideline judge and  some departures from that well that's really conceptually not you can't do that because you're not supposed to take into account those langs the other thing is you could say judge i want you to depart down two years so it's not related to guideline is purely the cooperation was worth two years or judge who operation was worth of rd so take a rd of one hundred and twenty months and give him that sentence but it seems to me those are the three things a district judge could do one is where you don't take it all account any of the guideline principles to where you just look at the quality of the cooperation in this case the judges talk i want you to do it this way i want you to use a guideline to do it and then i want you to put a plug in the guidelines one hundred and twenty months i want you to come up with an answer then you add five months because a guideline doesn't work so well it seems to me that whatever those things are that you've chosen a way to do it and you may be right it may be that that was not a good way to do it they should have just use  well the the party i don't think the parties realize that there was a problem here in terms of the way in which the court should conduct the sentencing the court decided how to conduct the sentencing nobody challenged the idea of using the military minimum standing standard starting point and then reducing it by a percentage or by a set term you numbers in january but the problem is now that nobody challenging me nobody suggest nobody suggested not doing that they didn't do he didn't do that what he did was he he made up a guidelines as a sentence which included a for example a prior  criminal history and which he's not supposed to be looking at at this point and he puts it in there and then starts from there and but nobody's but you all say fine go ahead i don't blame the judge because the judge was know that so taking but my understanding of your brief is you weren't really complaining about that you were complaining about what he did from that starting point well the judge was frustrated because there he had no guidance from the appellate court as to how to proceed and so for many years now courts have been sensing on the basis of increments either in terms of years and months or percentages as you mentioned and our position is that's really wrong to consider both assistance and non assistance factors and to look at the guidelines itself as a determination as to where the starting point should be not that courts have done this analysis in three ways they've started with the mandatory minimum they've looked at it and they've created an artificial construct in using the mandatory minimum and then have departed from that in three mechanisms one by sheer number of years to by a percentage of reduction or rd create an artificial construct of guidelines and discuss the level of departures off of that artificial construct because in many ways that those are the metrics that the courts and the attorneys are jackson are no longer good law but alton jackson are the ones that say they in can still this you know what you're all the jackson say is that you abandon the the lower sentence the lower a pickable unsing guidelines and look toward the supposed to be doing no well it's one hundred and twenty months so finding i still think it was proper for the district court to find and i can say this is a longstanding practice in the central dis i know it is how is troubles me because it doesn't seem right but let's take it off the table and what is the issue if we assume that's ok defendant asserts that amendment seven hundred and eighty two the guidelines abrogated this court's precedent in all th jackson we assert that is not the case as sensing commission cannot abrogate this court's interpretation of a statute and hear what that issue is he asserts that what the court should have done was not started one hundred and twenty months that once the government files a three thousand five hundred and fifty three dollars emotion the government should have started at the a political guideline level level twenty four dollars that's the argument and now we've had a whole different argument in he if you started one hundred and twenty months and using the guidelines i should've gotten three points off or from one one hundred and twenty dollars much the level of that would be for substantial assistance and i didn't and my criminal history was overstated and so just use a guideline means of determining the amount of the reduction as opposed to just the quality of the systems well the criminal history category matters only in that if the criminal history category was overstated then the court would have to in our analysis would have to pick another offense level to find one hundred and twenty months so what what the parties did here was find the most conservative offense level to use in that one hundred and twenty months was at the high li high end of that guideline wage and then have a conversation with the court about what the appropriate credit that should be given for the cooperation is in the context of guidelines that's kind of the other issue and he's arguing he should also have gotten credit this the sum malcolm approach is so bizarre because you are taking at things into account no we're not your honor i'm not how did you get to the con line by plugging in criminal history we found a guideline that is commensurate with one hundred and twenty months plus category one and find the offense level that's one hundred and twenty months you could pick criminal history category six and find the next referendum to twenty months but you didn't do that the poetess you come to different guidelines when you do that so only because you're plugging in the criminal history are you getting the guideline you're getting but that's that's just the construct that the court is using in discussing it then the parties can evaluate whether in the here the government requested it of effectively a one level departure the defendant requested three dollars to five dollars level departures defendant versus another and be able to measure it in a way that parties are comfortable but the difficulty is that you're arguing for keeping jackson in one respect and not another i disagree your honor i think what this this this procedure is consistent with all of the jacks and all of old progeny and has never i don't think it's ever been called into question over the number of years and perhaps even decades i think that the central district at least has used guidelines as a way of measuring a defendant's assistance substantial assistance and so what all the jackson say is you start from the mandatory minimum sentence and the only thing that the court can consider in departing down from that is the level of the defendant substantial assistance and that is the discussion that was had here all of the parties agreed to the construct that was the terms and expressly adopted the court's methodology  unless the court has any additional questions i'm happy to tell and i'm as i say i have difficulty understanding how the issue is being framed that you think you've addressed whatever issue is before us i don't know i mean i will have a very hard time understanding why she was before i think perhaps because the issue was changed a little bit at oral argument the issue in the briefs was a separate question which is not that the issue in the briefs was the defendant asserts that court erred in applying the mandatory minimum because what the defendant is arguing is that there is no old in jackson or no longer good law and that if the government files a three thousand five hundred and fifty three dollars emotion then the mandatory minimum goes away and the court should start from the otherwise a political guidelines level which would here be level twenty four dollars that was the argument in the brief i have arguing  now it sounds an oral argument that he's adopting this court's view in the questions at least that the mandatory minimum was the proper starting point and he was raising this argument about rule thirty that we see no basis for importing the restrictions on three thousand five hundred and fifty three to relief into a post sentencing rule thirty five b sentencing so i don't think the rule forty five analysis has any bearing here and has the all the jackson decisions and so if the court believes that all the jackson remain good law and that the district court properly started at the mandatory minimum sentence then the mechanism  procedure by which the court did that i don't think is the issue on appeal and we would asked that the sentence be affirmed ok thank you  change it unless there is something that has changed in terms of the case law or the statutes are the guidelines right and what's changed in the case law it is what what was written in the decision in to deal which was expounded upon in the th circuit case of united states for suspects which is found at the answer in the answering breeze it page twenty which basically said that there no matter what the sensing stage is substantial assistance should be treated the same and that in some instances and in some courts and according to whatever the prosecutor decides oftentimes you wait until you get to the rule thirty five dollars stage in order to do this the sensing by virtue of substantial assistance now what all said was is that you have to start with the minimum mandatory as a starting point because if you didn't if you had these two defendants who were co defendants who were similarly situated one who had a prior criminal history that would trigger a minimum mandatory the other with no prior criminal history who rendered the same level assistance it wouldn't be fair to the st offended for them both to be sentenced to the same to receive the same