the next case on the calendar is united states v simpson determining to deny a motion for a sentence reduction he included an impermissible factor and that factor he referred to as five levels of reduction and of those five levels of reduction in the original guideline situation where somebody cites factors that are permissible as well as factors that are impermissible and you can't tell from the decision whether the decision would have been the same had the only rely on the permissible factors you have to send it back and i think the cases in say that are cited in my brief united states v bennett and united states v pace and saying you send it back if it's an impermissible factor is cited and pace in creating the exception that if you can't if you can if you can tell that it would have been the same otherwise and there's nothing in that indicate in that decision that says it would have been the same otherwise in fact your honor the fact that he's talks about the five levels the fact that he refers to the five levels reduction later talks about the reductions there's a reason why it's in there really if you're really focused on one two three five words considering the reductions already granted otherwise the focuses is on the honor the the the hearing and the paperwork talked about the disciplinary factors because nobody had ever raised before that including judge johnson at the at the hearing the fact that he had previously reduced the that there had been a reduction from the from the guideline calculation and never frankly occurred to me when i was there that a judge would consider the fact that the guideline level had been reached after it correct probation report has a basis to deny as one basis to deny the sentencing reduction and it's true that considerable that the judge spent considerable attention on the on these disciplinary infractions by the way were rather minor disciplinary infractions i'm not saying it would be an abuse of discretion to consider them or to deny the reduction on it but when you've got minor things taking milk or a bagel back to your living quarters when you're not supposed to and having some disputes with and it's a lengthy record but it's nothing nothing that jeopardizes the security nothing about contraband no fighting no violence that you just said that  relatively minor if that's all there was here if the only thing judge johnson said was i'm not going to give him a reduction because of his bad adjustment to cars ration based on these infractions you would be  we right i don't think i would be because i don't even you know start on that when the judge did use the word reductions twice right he reduced he was following up on judge lewis this question considering the reductions also already granted but he also said at sentencing the court appointed total of pencil offense of thirty two reducing by five levels blah blah blah so we're reducing or reductions actually comes up twice yes three page decision that's correct your i have a question on which i had been appointed and on which the judge had been taking quite a bit of time to decide and which in fact was denied around the same time as this decision and in which eventually the judge denied a certificate of appeal ability and i obtained one from this court and that appeal was now pending i've submitted my brief the government has yet to respond and there is some history here about this because the judge johnson referred in one of these things you see as very brief reference to a hunger strike he asked that he asked mr simpson about a hunger strike and what had been going up what i understand had happened and it's not in the record but so you know so i don't know maybe it can be found in the record at some point and some of the other duck produce a documents that there is part of the record judge just the twenty to fifty five case was filed in two thousand and twelve and it wasn't decided until two thousand and sixteen i was again i was appointed i think in two thousand and fifty and before that he was pro se but he went on a hunger strike at one point before i was involved or saying that you know he wasn't going to eat until the judge decided the twenty to fifty five so i think i don't i cannot tell you that that that was what was going on but i think you know that that's that's there it is it is unusual it did take a long time and i don't know actions to reduce the wrong hands from three points to two said given the reductions already granted i think with one he could he was referring to the one level reduction in the role that was and and and that that reduction in candor was what was in the defendant's favor erroneous lee it shouldn't have been granted that reduction so with that really figured into his calculation it did it seems to have configured into it your hon and the sentence that he imposed one hundred thirty five months is in the middle of the guidelines and had he not given that one level eight it would have been still within that the guidelines it would have been at the bottom of the guidelines without that one level so he actually gave a sentence that would have been consistent with with or without with within the guidelines whether or not he gave a level with regard to saying that if you're in terms of figuring out the adjusted base of fence level it was reduced by one one month by the judge based upon the finding that he made about roland his it was  in four levels because of the error in drug court t v and with regard to the other point i don't think he was referring to reducing it from the top of the guidelines because there's no reference to that when he talks about reductions he's talking about the five levels and if he then of course if he did make a difference then this then he i think he should you know decide the most decide the motion without without considering the improper factor if i understand if i it please the court my name is caitlin farrow i'm an assistant united states attorney in the eastern district of new york representing apple you the government in this case and as an initial matter your honors i have a pending application for admission to the second circuit and i've also filed a notice commit error in declining to reduce the sentence of the defendant in this case as your honors have recognized he cited the considerable disciplinary record that the defendant has had while incarcerated as his principal reason for the prior reductions and part of it was a mistake in the elimination of four points right based upon your earlier indictment yes your honor so that's that's that's the question i mean you know just that's not a talking about as a reduction just as easily talk about it as an increase and that's that's the problem with calling it reductions it's certainly ambiguous your honor however he in the section where he's referencing early on in the order of the reduction says the judge cites that the resulting guidelines range was one hundred twenty one to one hundred fifty one months and that he was sentenced to one hundred thirty five months so there's an increase in the bottom of the range there's certainly an implication in the order that that that's part of the consideration of what was a reduction and then i think the significant reduction here was the fact that he was eligible for a three level enhanced man on the basis of being a manager or a supervisor of criminal activity involving five or more people but that he was only given the two level enhanced mitt had he been is really an ambiguity ultimately at the end of the day the district court could have been focused on that for level reduction in connection with the lancaster trip and that was that needed to come out because the government had no evidence that he was involved in those narcotics so it wouldn't be proper to think that the district court afforded him leaning leniency in connection with that reduction either way that it's not clear from the record and there's no evidence to support that that was the actual the reduction the four level reduction that everyone agrees was a mistake was the basis for not correct so  there were in that case there were several factors that the court had considered in giving a downward departure and rather than just focusing on the clearly improper one the court looked to all the factors that the court considered in granting the downward departure to determine if there was an alternate basis for that it turned out that none of the factors were appropriate in this case we have the opposite situation where clearly the court considered the disciplinary record of the defendant as being the principal reason for denying the sentence reduction and then i just say is is leniency in the earlier proceeding ever properly taken into account in one of these motions because as i understand it by definition the guidelines range has been lowered so and he's now subject to a lower range we would have been subject to a lowered range of his original says if he had been given the effect of that change the guidelines so what difference does it make whether there was leniency afforded in the prior proceeding that's not part of the thirty five fifty three a calculus as well least the fourth circuit has determined that prior leniency is a thirty five fifty three a factor pursuant to a one which is the history and characteristics of the defendant i don't think this court has had the opportunity to consider that but at least one other circuit has determined that that prior leniency or prior determinations as to the sentence are factored in under thirty five fifty three  above the guidelines arranged by marriage ninety seven to one twenty one twenty seven that's correct however if he had been appropriately given the three level enhancement one hundred thirty five months would be  however we believe pursuant to the fourth circuit's case and bony and other cases that it could be considered as part of the history and characteristic of the defendant as well as the criminal conduct what would it hurt to send it but he's already he's going to be he's been censored three five months right well what's the downside of just letting judge johnson take another crack at this in light of this ambiguity that we're all talking about what's the harm he may well he may well send some to the same sentence but if he makes a better record and takes out any ambiguity it doesn't and the reason doesn't mean that he's going to get a lower sentence he might get one thirty five the harm to judicial efficiency would be minimal your honor which is why were we would consent to a jacobson remain we have no objection to that for the purposes of the judge clarifying whether or not this four level reduction that was really part of a mistake factored into his decision not to reduce the defendant's sentence so whether he whether judge johnson was thinking that one thirty five was reduction and i have trouble with that it's in the middle of the range is not really a reduction it's just as much increase which i don't think he did have in mind but if he did i think that would involve a presumption in favor of a top of the guideline sentence which would be impermissible on the reader so that would actually be a further er range is not discretion in the new ranges ninety seven one twenty one no question about that but whether to give him a sentence within the new range is discretionary under thirty five eighty two see right now the fight is revisionary writ whether to reduce the sentence at all and if if reduced it must be within the new range so johnson said simpson has not submitted sufficient justification for upsetting the court's previous balancing of factors outlined in section thirty five fifty three and so one way to look at this is the say the judge johnson just bought one thirty five is the right sense period that's the right sense regardless of reductions and new guy lie ranges and anything else but apparently one of the reasons he may have thought that is because of the floor levels of reduction was it was a correction so that's the answer to that i think i mean it could be that if he didn't if he says well even without thinking of that if you honestly feels that way even if without considering those four levels i would have still denied it for