opening brief there's a couple of other questions i'll get to in a moment but judge mcevoy has the authority to reduce gregg wrote a sentence and here honestly held otherwise and there's every reason to believe he'll be pleased by the remained because he obviously wants to reduce the ninety year sentence he was forced to impose the other two issues i respectfully suggest this court should address our respect by any mandatory minimum sentencing provision period whether it was i want to i like to interrupt you for a minute i'm sorry but i do not see any place in the record where  u asked for reduction other than for immediate compassionate release and i thought in reading the district court's opinion that that's what he thought he was ruling on did i miss something there well your honor we asked for a reduction to time served but a reduction to time served and in this case and all and many others that we've been making such motions and certainly doesn't preclude the court from granting us its  reduction statute obviously the extent of the reduction we asked for judge carney was down to time served but the judge was perfectly free to exercise his discretion sentenced to to reduce the sentence to a lesser degree to a number of years over and above the roughly sixteen he had served at the time it was it on judge mcevoy to just take that request for immediate release as a general motion for reduction and once he got past the brooker issue which you know the law has obviously changed on that now to just imagine that he had been requested  to reach some other sentence and basically to resentence well not imagine judge because you know this is become known as the compassionate release statute but that phrase it's a cloak relisten you can't find it in the statute we asked for a sentence reduction and we did argue that the appropriate reduction would be down to a sentence of time served but by no means did we suggest that there ought there ought to have needed to be an all or nothing proposition and implicit fairly implicit are such suggest as a court in our request for a sentence reduction to time served was a sentence reduction to what the judge thought was fair even if in his discretion he thought it would be a sentence greater than time s and he denied that motion that prejudiced we knew also he would be free to go back to him now and move from reduction to another period now understand better what his thinking yes is that correct i think we feel we preserved our our application for a sentence reduction lesser than a sentence reduction down to seventeen years and also going back to square one from for mr rose wouldn't be an appropriate resolution i think it's crystal clear both for the for the the reasons that we're discussing now and because the judge misapprehended his authority with  cannot do this i could not do that it was i would not even if when he was discussing his alternative finding and i wonder what you can point to his most strongly establishing that he did not have a clear  view and correct a few of his authority to implement a reduction particularly you know in light of his invitation to come back with another proposal the the single most powerful response to that question is on special appendix page twenty one dollars where the court said and this is the part of the court's opinion the government selectively quotes the full quote is until such time as rose has served enough time to satisfy even the minimal sentence that congress now deems appropriate for multiple section twenty four dollars c convictions in a single case with no knowledge twenty four dollars seek conviction and assuming authority for the court to make the determination the court would not find that section nine hundred and twenty four dollars c's former stacking of enhanced penalties provides an extraordinary and compelling reason for rose's compassionate release and i'll suggest to this court that that st clause is reflects a fundamental misapprehension of the authority conferred by thirty five  and i guess that's what why do you think that describes report thought it's not party was as opposed to an appropriate measure for the exercise of its discretion to say well look i think th sentencing scheme is excessive but i think the new sentencing scheme is bare and i think you should serve as much and he would serve my word sentence today now i know that you made an argument that you don't think that you would be nardini mr does judge mcevoy made it clear that he would in fact reduce the sentence if he thought he had the authority to do so he said that the sentence was far too long he invited the government to permit him to reduce the sentence by vacating two of the nine hundred and twenty four cs so a fair inference from this record is if he thought he had the authority to reduce the sentence he would reduce it down at least by fifty years he wanted but he didn't say that and also let me just ask you that structurally would you agree that a sentencing reduction is the eleven way ratchet right so let's say for example the judge  reduce the sentence by i don't know when you're in thirty years not years whatever it was but let's say presume that the defendant would have to serve one more year in prison you would agree that if the year went by and guess structurally why would it be inappropriate in a district court's discretion and say look i think you were sentenced as it stands now success but i don't think i'm ready to readings because i want to see how things play out and let's hypothesize the judge said look i think you probably need to serve another three years but i see how it goes you come back in three years if you maintain whenever you know good he wrecked or whatever you know come back and see what would be inappropriate about that there would be nothing inappropriate about it and if that's what judge mcevoy said i think i'd have a more difficult argument but at brown case and the priestly case that we cited on page six of our reply brief make it clear that if there's any ambiguity with regard to whether a district judge misapprehended the scope of his or her authority instead of affirming this court sends it back to make sure that the court was not acting that the that what appears maybe to have been an exercise of discretion was not an exercise of discretion that was influenced by a misapprehension of authority and i'll suggest that there's room to argue that there's some ambiguity here but i'll also suggest that it is certainly not the case the judge mcevoy said what you just said this you know this was nine months ago before this series of cases it's not very many it's kind of a relative trickle compared to what happened under four hundred for a st step but it's early on in the argument that one could read into what was written in this opinion the rationale that you just described judge nardini but it's not what was said and this court has been firm in an erring on the side of sending it back when there's some ambiguity about whether it was an exercise of discretion that deserves the deference that you're suggesting this might be accorded on the one hand or an exercise of discretion that is inherently an abuse of remain as opposed to just filing a new motion considering net under the st act this is not like crack reduction where you only have one you only have one racket right if you have one motion to do to get in on the merits you can't bring it in theory you know your client bring this or any client could bring you know every every year on new year's day trial a new one it's raising e the same arguments or or new facts whatever the defendant wants ratings so i guess as a practical matter do you think it would be pessimistic it could be more sympathetic to the underlying equities the judge mcevoy articulated you'd have to wait for the mandates whereas i would think filing something new motion today saying look regular knocked out one leg of your ruling judge mcevoy let's take the other one from the top i guess i'm trying to understand t what is your real life the benefit we're detriment to your client of a remembrance and emotion well i'll say this as an aside judge will probably follow one today in light of what you've just said but i'll also add this would like this court and this this aspect of any decision this court writes would be presidential we would like this court to say directly and and ambiguously don't you need not feel cabined by in any respect any mandatory minimum even the one that might be applicable were the defendant to be sentenced for the st time today that's hung up some judges we also would like you to say in a in a and in a way that would disabuse multiple judges of a contrary impression that you can grant complete you can grant a sentence reduction what the statute explicitly has in mind is a reduction not necessarily release even in circumstances where the defendant is not going to be released and that has collateral effects that at such a you know the one downside to waiting until x number of years is a sentence reduction ordered now has impact on programming on eligibility greg rose has a projected release date so far down the road it renders him ineligible for programming w in prison it matters it matters not to delay a sentence reduction of cell to be appropriate and judge nardini if something happens between a sentence reduction ordered today and the ultimate release that gives a judge pause there are other ways to deal with that many of those in addition to good time being taken away depending on the on the nature sorry a judge  no no but it will be i'm sorry i don't understand your suggestion you're suggesting that the will be consequences to the defender and depending on the nature of the infraction that produces a diminution for example of good time it might be criminal activity it's not i'm not what i'm trying to suggest to the court is there's no sense in which if a sentence reduction to a degree that's not quite to time s is ordered that there's going to be some felt belief on the part of the defendant that the defendant can act is like free and clear there's there are into there are structural incentives not morning your honor smith please the court government course concedes err on point one in light of brooker so we're really talking then about this merits decision of judge mcevoy in the alternative he anticipated that he could be wrong on the  what ended up being the ricker issue the law isn't settled that time and so he wrote several pages on this alternative merits decision and he did not find that he could not grant relief but that he would not  rose had served the the current mandatory minimums that he would have received had he been sentenced today i don't think judge mcevoy misrepresented his authority there i've read that as a direct response to the argument that rose raised least receive the papers before the date on which he would grant relief if he could he have that authority i don't know that he is saying that the papers couldn't be filed till then i think the what he brandt's here is that in response to the argument made strenuously by pros below that the st step that acts mandatory minimums should govern because that's what congress intense these penalties to be  sixteen years again this is directly responding to his argument just met point later goes on to suggest that and to say explicitly that rose would have gotten approximately four hundred and twenty months of a sentence if he had taken exercise that authority of today reducing the effect of sentencing mr rose would have to serve how he's how do you reconcile the different court's invitation to be u s attorney with your parent reading that the court made an affirmative decision that he was not going to reduce the sentence until intil much later on the portion of his opinion where he's addressing the u s attorney and inviting the u s attorney's office to make that reduction suggests that judge mcevoy thinks that at least approximately fifty years or excuse me it would be forty years of a sentence if you took the fifty off might be about right and that squares with the rest of his decision in which he's talking about the four hundred and twenty months for the plea the five hundred and ninety four months of the board actual he's fighting the u s attorney to take action today that would reduce the sentence not to wait you know you know years to reduce the sentence but today to to do it how how do you reconcile that with an interpretation of the district court's authority that the district court did not want to reduce defendants today if the district court could do it i just don't see  issues on this appeal before the district court was the rehabilitation of the defendant in prison and he as was shown and as it is in the record he did not have an exemplary prison think it was well within judge mcevoy's discretion in the context of that to basically say i'm not saying no forever i'm saying no right now you can come back later and he explicitly invites rose as been pointed out this morning asking what would you say what you think you mean the military minimums have been reduced in the stacking potential have been reduced congress recognizing that they resulted in extraordinarily harsh sentences that might not serve the purposes of a just and fair penal system now admittedly congress did not make all of these observations and statutory changes but i think it's fair just to answer your question there have been discussions about this among the parties that are not reflected in the record and an agreement was not reached and so in the end though  congress chose not to make this these new mandatory minimums retroactive and this was not the u s attorney's decision ketek can i ask you getting back to your question asked in council and i think you can be as well the same question could probably be asked the same way to government what's the difference if you can't file a branding motion that asked the same thing what's the harm just remember isn't it doesn't it but all the parties in exactly the same business of reversing a district court judge when they have not made a league player and when he was just responding to the arguments raised by rose and so that's real difference is whether he's going to be found to have committed a legal error or when the government's position  remission where we retain jurisdiction but we asked this report to simply clarify one aspect of their ruling and we say did you know or did you think that you had discretion to reduce one version of the case but if the judge writes back to not all i didn't realize i had not discretion on and that's a different version of the can't might not the difference between that  indicate that he did understand but ultimately yes that that could be one option of dealing with this i think that henschel a critic longer than as you say having rows just file a new motion but he's chosen not to pursue far i see my time has expired thank you your on this very good mr gleason you have three minutes rebuttal yes and i want to go right back to this notion if i may judge carney this this question of why we would not be in the same position martini's questions and the punchline to what i want to use my rebuttal to say is the just records need your guidance this is an this is old asking for a reduction to time served rose seeks a better result in retroactive application of the amendments this is a fundamentally important point i want to back up a little bit the exceptions to  circumstances the statute mentions age and time in and time in and then the commission was directed to provide guidance c one d is where reduction is permitted by statute or rule thirty nardini these are you're the holloway case and the more case you are involved in and then see to is when there's a skirmish an amendment that's made retroactive by the commission i'm going to suggest to this court that yet another reason for you to conclude that there's plenty of ambiguity about the apt of correct apprehension of his authority i'm going to suggest to this court that what judge mcevoy was doing and you've all been here on the bench he's been on the bench a long time undersea to you can't do any better than the adjusted guideline range created by the retroactive amendment by the commission under under the judicial nd look that c one a was originally intended to be which was intended to include among other things a judicial check on prosecutorial discretion yes you absolutely can do better then you would wait for it for all three were rendered retroactive you would absolutely greeting i'm sorry mr gleason but it seems to me that again you're you're reading an implicit limit into judge mcevoy's decision that i just don't see there i mean i  see that there is a sentence reduction mechanism that of course is limited to retroactive guidelines and then the fact that he said in this case in the exercise of my discretion and then he tied it to the that he was sort of misled into thinking there was a linkage between the old guidelines or the guidelines that would apply and you exercise it's question then and i guess that's i guess my question already an exercise of his discretion or trying to evaluate whether he was really doing it as opposed to just just trying it from scratch with without this overlay of what he's already said and how we would necessarily be be reviewing what he did previously any decision by this court that imply adly let me back up this district judge seemed to accept the notion that there was something exceeds to accept the notion that greg roe such assume for argument's sake the thirty two years is the currently applicable mandatory minimum he seems to accept the argument that if greg rose does better than that anomalous and that's dead wrong and district judges need this court's guidance if we went back down and judge mcevoy said you see you seeking a better result than retroactive application  do is twenty eight years whatever that would four thousand eight hundred and thirty two whatever the number is that would be wrong and with all respect that's what this court does is it it looks at this and sees it can it  read in a way is it ambiguous can be read in a way that he thinks he lacks the authority to sentence below the currently applicable mandatory minimum if he did then you should say no you can't do that and send it back down and if he meant something else that he wouldn't do it in the exercise of his discretion so be it that's on us on remand but with respect it's this court's job to structure the district courts and bits of authority in situations like this and he misunderstood the authority the government's relying on a part of his opinion that reflects that misunderstanding there's nothing wrong with him doing better than twenty eight years in fact the kind of judicial check on prosecutorial discretion congress had in mind was implemented precisely for that reason of course we might read it differently and read the transcript differently in that he was using that as just a point to contrast that in the sixteen years that have been served when he understood that motion for immediate release was being played but i understand certainly that it may be a time where there is flux in the law that some kind of guidance would be helpful effective and if i could just say one thing in response that judge tiger has to us on that under brown and precisely if there's any ambiguity about whether he thought his is hands were tied on the one hand or this is an exercise discretion on the other it should not be affirmed it should be reversed so we can get clarity on remand and i'll say this i'm going to take up judge nardini will file our new application and get the ball rolling in any event in the district court i promise you that very good thank you thank you both thank you for your arguments will take a matter under advisement they