further though not only did the district or hold that it could define its own criteria for compassionate release and further help but it implement explicitly not retroactive statutory amendments not a compassionate release either of these conclusions is sufficient to warrant reversal fresh no question before you even get to whether there is an inconsistency the policy it has to be a political policy statement and i'm not understanding how this policy statement one political here because by its terms all it says is what happens when the director of your prison files a motion and it says upon that a motion from the director of your prisons all of this stuff will follow but there is no policy statement for what happens when a defendant files a motion so how is this a political policy statement for purposes of that consistency requirement just the commission is to do two things hink we'll have an a political policy statement but right now we just don't we we can see that there are parts of the policy statement that are either in conflict or need to be updated but none of that goes to upon motion of the director of the bureau or prison under this statute and then a bunch of very important stuff follows but i just don't see how you would say when a defendant files a motion that this is a it doesn't cover it well i think i think that argument goes both ways i think if this is not your political policy statement then there may be you could equally argue that there would be no compassionate release because there's no right terry that the commission promulgated we have no problem saying in course throughout the country i've had no problem using the one point one three on a daily basis to adjudicate compassionate release motions they simply don't know that under thirty five headed to see one day inmates may also move on behalf of themselves and that it's not just the b o p s who can do that our maybe position is i'm sorry you guys this is my last so you're suggesting if there is no up likable policy statement there can be no compassionate release on a defendant's motion well that could be a consequence of is that the government's position is that the government's position that the sentencing commission acts there will be no compassionate release on a defendant's motion because i don't read three thousand five hundred and eighty two that way but tell me if you a motion or pursuant to a motion and subdivision b is just different and we know that immediately because the word there is a determination and something isn't he doesn't require updating because it's just not in conflict with the statute if you were to line the two of them up you wouldn't find you wouldn't find conflict and so our position here is that the st that brought about a procedural change in that it had no impact on the substance of criteria that courts can consider when ruling on a motion for compassion all right then why would congress intended that the be o p determine whether extraordinary and compelling circumstances exist when the b o p would have already done that based on the statute they would have already declined maybe it doesn't make any sense it's going back to judge harris's question that there's no a political policy statement here well i don't think there's anything inherently unusual about a system which eliminates a procedural hurdle but keeps the substantive decision making authority with regards to one criteria with a b o p and that subdivision the inmates may move freely under subdivisions and then the district court determines the extraordinary and compelling circumstances as the court said here the district court determines whether the criteria of what we want thirteen are met what the district court  to mean that it now has the substantive lardy to to create its own criteria for compassionate release and we know that that was wrong because under not for a to see and so such a key if the commission's job to promulgated the substance of criteria the policy statement the commission said it itself in the two thousand and nineteen report that it needed to change the policy statement or the other policy statement to comply with the st step  subdivision do you think that it's a fact and i guess i'm just having a lot of trouble with this substance procedure distinction at the sort of at the front end of the statute  at the front end of a policy statement i should say right now you have b o p s sort of a gatekeeper p o p gets to decide whether you've satisfied any of these provisions and at the back end under the caption you have your prisons plain precisely the same deep keeping role if if letting b o p make the decision is a matter of procedure at the front end its procedure at the back end and if it's substance at the back and i don't understand why it's not substantive at the front end because then you're letting b o p decide whether a through c has been satisfied i just don't understand how b o p playing a gate keeping role can be substantive in one context and procedural in saying that there are bureau of prisons under both the old and the new regime has the ability to make the motion understand that but then if under the st step that if the bureau of prisons declines to make the motion the defendant can make the motion on his or her own at that point then who important things in hand that the fact that it's mean how move on their own and that's the sea change and the commission to reflect that i think what the commission alluding to and when they say inmates move on their own you're saying that it's still the authority of the thank your honor may it please the court case and medicare for the united states in our view your honour's federal law simply does not permit the district court to do what it did here so we do respectfully ask that this court would reverse what i want to do is jump right into a question that was asked by judge harris i think it is an important one about is this or is this not the a political policy statement i'll say two things on that st and foremost i don't actually hear the defendant saying that it's not the a political one so i don't think that's an argument the defense is making but the nd thing i'll say is i think we all need to do our best to sort of ensure that as much of what congress wanted the structure to be is kept in place and so let's continue the thought experiment nine hundred and forty says that the sentencing commission shall determine what is and isn't extraordinary and compelling and so they've listed examples they've numerated the application notes that we've all been discussing and i don't think it's the best construction given that congress wants the commission to decide these issues to just reach a construction that throws all of that structure out and i think if you look at what is left of application notes yes judge harris well what the different going through thing is not we want to throw it out they will continue to treat it as advisory it's not as though it disappears they continue to rely on it but they're not it is not binding in the same way right and that runs precisely your honor i think into the buzz saw of the words and three thousand five hundred and eighty to see which says it has to be consistent with and that really is the heart of our argument grommets kind of  words thank you i think thinking about the words a lot so what it says is that it has to be consistent with the political policy statements plural issued by the sentencing commission so is it the government's position that  reduction has to be consistent with more than one policy statement some of the political policy statements i think your daughter's question is there's a plural there and then is that what you're getting at your honor it is what i get at you and i think our answer would be via political policy statement here and right but i let you know i'm wondering at one point one three yes you're right and what i'm getting at is i think the only sensible way to read this language you wouldn't need a portable and it wouldn't be plural if it meant that a reduction has to be consistent with a policy statement issued by the sentencing commission that's what it would say instead it says it has to be consistent with a political policy statements plural and i think the only sensible way great and you know i guess my restore to that would be and i and forgive me if i'm wrong on this but i think i'm not if you look at three thousand five hundred and eighty to see two i think the language is exactly the same and then we go to the billing case which we rely frankly pretty heavily on which interpret it three thousand five hundred and eighty to see two and they're the supreme court looked at just one policy statement one b one point one and so i think perhaps what i would return respectfully your honor is that we shouldn't read too much into the plural versus not plural i think everybody agrees on the defense frankly is not arguing this either one b one point one three is the whole shooting match here that's the only policy statement that applies and it doesn't shouldn't give us heartburn that there's only one and so we have to be consistent with that policy statement and here the district court was saying i don't have to be i can be inconsistent and that's perfectly ok and our view is that that violates the law it violates th allow a construct or why would congress when they passed the st step back to allow a construct that allows b o p to either deny a motion or to not make one and then to sort of have the district court you know look at it again and i think the answer lies in why the st effect changes were made that were made and i think if you read some of the legislative history which again we don't think we need to consult but if you read it i think the primary problem here was that there were instances where defendants fell under the criteria listed in application note a b and c that b o p was actually not making the motion and so we're still looking at the commission's preapproved criteria but we're just giving the defendant the ability to say hey the b o p missed this one i really do have a terminal illness or i really do have a caregiver that passed away and that's important to me just record find as a fact whether that exists judge then take action or deny the motion outright in the former case where the p o p doesn't take action isn't there a vacuum there i mean work work was supposed to do in that instance well i guess but my response to be that discourse absolutely cannot fill that vacuum themselves let's say there is an i'll take a take your point some defendants think that there are extraordinary compelling circumstances that they have but there's absolutely no provision the your understanding is that the sentencing commission can decide look there needs to be a catch all provision we can't sort of lay out all of the possible things that might qualify as extraordinary and compelling there has to be a catch all provision when it comes to defining want counts under the catchall it's permissible for the commission to delegate that responsibility to the bureau of prisons but it would be a violation of federal law to delegate that responsibility to the courts notwithstanding that the whole point of the st step backed is to get the bureau of prisons out of the gate keeping role and give more room to the courts that's how you understand the lay of the land so i think generally yes but a couple points of clarification you are st i don't think it's correct to say that congress wanted to get completely out of the game and i take your point you used the word gate keeping role and i think that what that change was made but again we're not p completely out the door here and the reason for that i think that the real reason b o p s is closer to the ground it understands unique circumstances that are going on in their prison accusations and they're defendants so we're going to give them their due this is their area of expertise and so we're going to allow them to exercise that but it the sentencing commission did that and it's ok for the sentencing commission to do it because congress said they could back after the st step back and b o p from that day keeping role under the catchall could the sentencing commission do that or not would you say that i think consistent with oh certainly that the sentencing commission could amend its rules i guess the the problem that i'm i'm stewing over is that if you look at the st step fact amendments they actually still allow for emotion by p o p and so i think it would be sort of problematic for the sentencing commission to say v o p you're completely out of the game we're not going to let you act in this arena at all so i guess all i meant is i may have been imprecise and i apologize in your view after the st step back when the commission finally does issue in a political policy statement couldn't keep everything the same for when b o p files the motion but say that when the defendant files a motion if the defendant can get relief under a through d and d no longer includes a gatekeeping role by b o p s so on the defendant's motion it will be up to the courts to decide whether a through d has been  met so i guess that the reason why that that's a very difficult question your honor is it kind of creates an interesting little echo right in the sense that congress said that a grant of compassionate release has to be consistent with what the sentencing commission says and then i think if i understand your hypothetical right the sentencing commission would then have to say it's consistent with three thousand five hundred and eighty two if on an application the d motion the district court is able to determine that if i'm understanding you right and you know that's interesting hypothetical because i in some respects heidi of the circle it's the most excuse me i don't think it's a hypothetical it is the most obvious thing that the sentencing commission might do when it does have an opportunity to issue a policy statement under the st step back for a walk happens when a defendant files a motion the obvious thing is one very obvious alternative would be now that bureau of prisons is no longer in charge of filing these motions were taking it out of its gatekeeping role all together and i am wondering whether the government's position is that it can't do that that somehow we live in a legal regime under which  permissible for the sentencing commission to delegate its authority to define what counts as an extraordinary and compelling reason to the bureau of prisons but not to federal courts because that seems unusual to me right so i understood your honor and i and again i i don't want to quibble whether it's a hypothetical or not i guess our point only at this point is that the senate hasn't done what you propose that it might do and so for purposes of this case we would just say there's really no power to do that this court can't rewrite what the sense commission hasn't done yet but i also think to sort of on a larger basis i can't see why the census can commission would want to do that because then you get into the parade of horribles that we discussed the sort of patchwork od hoc scenarios and that is frankly already playing out if this regime is affirmed in other words you know district of maryland and forgive me i'm a little bit over my time actually a lot but if i could just finish this point i'll  conclude unless there's other questions we're already seen these disparate activities play out in maryland and virginia stacked nine hundred and twenty four c's were determined by the district judges to be extraordinary and compelling just a couple weeks ago and a case out of the th circuit united states versus logons the district court there said no they're not extraordinary and compelling so in terms of just sort of a necessary policy but obviously rose courts when when they say those stacked  sentences there are not are not extraordinary and compelling they're looking at each individual individual defendant and his or her background things they may or may not have done in prison it's not a wholesale zero in every case in the district of maryland saxton's is going to be extraordinary and compelling or in every case in some other district as that it is not going to be extraordinary compelling so that the district courts are simply three a prong here where as with what we're most concerned about as a threat old legal matter just a pure legal statutory construction matter is our nine hundred and twenty four c's stacked enough and some judges are saying yeah they are and some judges are saying no they're not gender and years go ahead as the court order so you're saying that there are district courts that are just as a blanket ways good records are doing that right so we're looking at the sort of the threshold question of have you reached extraordinary and compelling or not and then you get to those ancillary questions of have you met th and so what i'm talking about on that st step are we as a threshold matter have you established extraordinary compelling or not what i've seen and again it's very early this case law is still developing in both maryland and virginia as you saw the cases that are before you hear the judges in those cases yes those are sufficient and i take your point that you know maybe those decisions are impacted by the individual circumstances oh but again they get its own scripts the transcripts i think reveal that they are impacted by the individual circumstances the judges at least in the cases we're looking at went into gary detail about each individual defendant's history and and criminal conduct in deciding so easy to have a district court case where the district court is just blanket saying no we will not do this under any circumstances or yes we're going to do this under every certain stance i'd certainly be interested in that yeah and get here that the closest thing i've got for you right now is that log ins case and  change if the court would like but i think in our view it reaches that that that that construct where you get this disparate missed that the sentencing reform act was frankly designed to avoid adversaries st and in connection with this last one since it's fresh in my mind all the cases with which i'm familiar involve precisely what happened in these four cases individual and no per se  have different measures of rehabilitation they have different no relevant criminal history a near perfect disciplinary record mentor suicide watch companion craig scott these are individuals judges have made judge that her judges have made and we represent a number of them and the ones in which the sentence reductions have been granted have been precisely the kind of wholistic determinations that congress vested in article three judges not in the bureau of prisons it is true this relates to judge hatteras his initial question it is true and what i'm going to attempt to do with the court will permit me is to route is concerns this is i'm going to suggest respectfully this isn't nearly as complicated as the government wants you think it is these concerns that have been expressed can be rooted directly in the controlling precedents and which say that the judge must consider the applicable policy statements and then it says and we don't notice this where live it every day and then it says taking into account any amendments made to them by in the dark red case looks a lot like the three cases from maryland that are before you now but was an appeal by the government said look we have no commission and then there is no applicable policy statement with respect to a sentence for induction motions made by made by a defendant's commission hasn't got me or that there is no applicable policy statement with which this sentence reduction must be p out of its gatekeeper role that if even if one b one dollar is determined by the court to be an applicable policy statement the court has to disregard the extent to which government i'm sorry this judge jackson in the in the case before us said this is a statute intended to remove the o p s gatekeeper and the government is trying to entrench it as gatekeeper this is not difficult stuff the other the other sources of authority respectfully suggest to the court and this is by no means an exclusive list there are a lot of decisions to be the couple of dozen decisions in which district judges have acted on the concerns expressed by judge harris and judge factor but i suggest in the time i have available very principled bases for this court's authority to disregard that prefatory language in one  and not create a different world the world in which instead of as contemplated by the statute and the policy statement judges decide whether extraordinary and compelling reasons other than medical condition age and family circumstances warrant a reduction they'd be opie's the government wants that to be relegated to the bureau of prisons which never opened the gate on that ground but the other source of authority all suggest to the court respectfully is dorsey statutes trump guidelines and most importantly justice priors decision in dorsey says here's the key the key is to see you look to this the language of the statute the structure of  basic objectives and give meaning to it and it's not legislative history the title of section of the title of the amendment to the compassionate release statute section six hundred and three a st step is to increase the use of sentence reductions in the notion that in the face of a statute specifically intended to take a gate keeper who  that dorsey asks this court requires this court to take the rd bases i want to mention is slightly is slightly different and your honors it focuses on the difference between our c statements and commentary it's really significant that what the government is relying on is this snippet a vestige of the language in one d in the commentary and the reason is because if you read that phrase reason it's important is if you read that phrase in the commentary the way these government lawyers are asking you to read it it will bring the commentary in direct conflict with both the statute and the policy statement itself both the statute and the policy statement make it crystal clear if article three judges decide whether extraordinary and compelling reasons other than or in combination with the policy statements trump commentary so even if the government were to were to succeed in it's as judge that are pointed out this kind of counterintuitive this notion that  what i understand from the government's concerns is that what this is turning into is a defacto parole system which in fact obviously congress and eliminated some years ago and now are were reverting to a system which effectively has the same unintended effect so would it be appropriate for the sensing commission to simply say we're not going to we're just going to numerous factors but we're not going to allow or use use of the catch all whether by the opener of the courts in these kinds of motions well a judge there in my view respectfully i think the sentencing commission will do precisely what judge arris predicted it will do but let me let me say emphatically that the current lay of the land we're now almost two years past the st step back and this bears no resemblance it would defacto parole system know we know because we screen them they know there's no flood of applications in the district courts they know what it means to have to satisfy extraordinary and compelling circumstances they know that that unlike a world in which  said amendments might have been made retroactive you know that implicates inquiry into offense characteristics into the degree of their rehabilitation they know how hard it is and the what we have the data we have so far show how hard it is and one point i can't make more emphatically and that is this notion advanced by my adversary that if you rule against the government it will offend the the  goal of the sentencing reform act to eliminate anwar to disparities and sentence there are no disparities that come even close to the ones produced by the government in the way it has gleason as well thank you that's ok as the gleason kopko had well since you got this for can ask you a question mention stacking and the extraordinary breathtaking senses i think is the way you describe it  retroactive and so i guess my question is what is it about the stacking that given the fact that it was there are a number of defendants who were subjected to it that makes it extraordinary and what is it about rehabilitation which the statues and regulations make clear by themselves not intended to be extraordinary well what is it about the combination of these two things that suggests that your clients and other similarly situated clients really are intended to be encompassed by the by this catch all provision of course and if i can append to the beginning of the answer to that question a little bit more answer to your last question the please bear in mind that as a rule the whole point of the  parole review by the commission of every sentence a very narrow judicial authority put it back in the hands of judges second look at of narrow subset of sentences only those that cases that present extraordinary and compelling circumstances so it's a narrow window that that congress created by amending the compassionate release statute to allow ours to make their own motion and judge here and it is true that although rehabilitation alone by statute in pursuit of the policy statement can't be a reason for a sentence reduction it's also obvious that rehabilitation is important consideration and must be considered an end to the at the nd answer to your question is this here's what's makes it's a very small window and truth be told how wide that window is open to clients like the inmates in federal prisons is dictated in part by the text of the statute in the policy statement i mean extraordinary and compelling suggests now in this it's going to be informed by decisions including by this court as you put a judicial gloss on what it means to present extraordinary compelling circumstances i want to suggest to you though that no matter how narrow it is it will include cases like the ones before you now and that's because for decades judge these extraordinary and so extraordinary that they are the past the congress eliminated them  extraordinary enhanced sentences have never been used a spin there have been based on a defendant's culpability on a defendant so they offense conduct for decades they've been used by the department of justice by reference to one fact and one fact alone whether a defendant pleads guilty if a news isn't bone crushing twenty and then twenty five year enhanced sentences are used to induce people to plead guilty you have before you thomas mccoy worked for him it took thirty two years guaranteed bit if you went to trial on his twelve thousand nine hundred and twenty four seas it would have had two hundred and eighty two mandatory years and they've been used to punish people who don't plead guilty read chief bryant craig scott and could child to cater who got their own fifty year sentences plus because they went to trial and so in addition to their unusual really trying to get my hands around and it's related to that question is it seems to me there are sort of two different theories under which you could be going and i want to make sure i understand which one it is one would be to say look this is the sentencing commission has not made a judgment here that when a defendant moves for a reduction the defendant can't invoke the catchall provision and last b o p we don't have a commission policy saying that so there is nothing here to bind the judges another way to think about it would be that the commission han't have a catch all provision that uses b o p s as a gatekeeper period after the st step back and might be able to get rid of the catch all provision entirely but the one thing it cannot do consistent with the st step act is put the bureau of prisons in this day keeping role in between a defendant file petition and relief so you know on one theory of your case the district courts can do what they want here because the sentencing commission hasn't said anything on another theory it would be like we can maybe assume that the sentencing commission wants maybe wanted this to continue to apply no reason to do so but we could assume that in which case it would just be inconsistent with the st step act to maintain the catch all with the b o p v keeping requirements and so which is your and maybe you're arguing under both  applicable statement is not find the judges to go back to the question the answer judge i have one final up there is a sense in which as we look at this new statute there's not a lot of law under it it would be somewhat narrower right for us to hold there is no commission policy statement here period and that's what allows the district courts to kind of exercise their discretion here without reaching the question of whether the commission could when it has a chance to issue a policy statement keep the b o p and this gate keeping role i mean it would be a slightly smaller decision right judge i don't see why you would ever reach that decision now in this case whether in the future the commission could permissibly eliminate subsection g m by the way it couldn't that's not a question i'm with you i'm with you i you know i go back to the statute this is the face of three thousand five hundred and eighty two c one a and we know from the legislative history it was intended to allow a judicial nd look for unusually long sentences among other things and the face of the statute says a judge in any case when determining that there are extraordinary and compelling reasons on a reduction and do so now and that is the commission authorized by nine  articulate crowd criteria yes and it did and it says in the background no to the end of one b one point one three we did our job here the criteria age medical circumstances family circumstances reasons other than or in combination with those so in the future could it backtrack and eliminate d i don't know why it would but the last thing this before this court now is projecting what the commission could do or might do and ruling on my challenge to a commission decision to eliminate subsection d entirely the last thing i want to say i see my time is up is almost up or is a i can't tell with these lights are but if i may judge ts can i make one more point to go back to the way the you know the the other point and look i'm going to call the government out on this and with all respect so should this court and it's a blight on our system there is this sordid racially discriminatory deployment part of it set forth in our brief in two thousand and four in the commission doesn't often ring laro alarm bells on behalf of defendants and that fifteen year report it said this is deployed for decades in a racially discriminatory manner black men comprise four thousand six hundred and forty eight percent of those who are eligible for nine hundred and twenty four dollars cs but there are sixty four percent of those who get stacked one hundred and twenty four dollars c's in that humongous two thousand and eleven mandatory minimum report to congress the commission said it's still happening it's still racially discriminatorily deploy and congress this is the commission says to congress you should get rid of this you should allow it to be concurrent you should lower these sentences you should make it a true recidivism statute like have ten months before congress amended the statute and it says it's it's still happening the racially discriminatory use of this statute is still happening so ten months later finally i'm grizz does something about it and i'm going to suggest to you you know you look at this brief there is no sense in which there is any claim of abuse of discretion in thomas mesereau is case but you look at the description of the crimes is robberies resulted in a guideline range of thirty seven to forty six months because the robbery guideline takes care of things like described in there and you see these you see these words in the makes these cases i suggest respectfully you judge diaz makes these cases more likely than most to slow comfortably within no matter how narrow this court decides extraordinary and compelling reasons other than age medical condition and family circumstances how narrow that is these cases more than any other provided they have the kind of remarkable rehabilitation you see on the part of these four men didn't intend to override a busy because if it did it would have said so and the best evidence of that defection eight of the fair sentencing act which directed a commission to promulgated guidelines turf like new minimum as soon as practicable in fact  impossible to think that congress forgot about about the b o p s subdivision rule judge harris you asked if the commission could amend subdivision deed to reflect the courts can determine their own criteria for compassionate release and i think that if but if the commission did do that congress would have to amend section nine hundred and forty two to reflect that other bodies of government can also promulgated substantive criteria and i would also have to amend three thousand five hundred and eighty two is requirement of consistency with the article policy statements because it would likely render it absurd and superfluous and the reason for that is that it always just a court had to do to comply with three thousand five hundred and eighty two requirements of consistency is be consistent with their own determination that extraordinary compelling circumstances under the factors as somehow conferring eligibility under thirty five dollars and that's precisely the opposite and we know that because don't tell us that you don't tell the how did how did this court in clawson st to determine eligibility section in the discussion portion of its analysis which is extremely telling in this case mr griffin also talked about the text and structure of the st step back and i think that's helpful because the text of the st section four hundred and three and then of course case mechanism for defendants to benefit from retroactive mandatory minimums compassionate leave is just not that statute and finally mr gleeson talked about the commentary yes the commentary is authoritative understands and unless there's a conflict and there's absolutely no textual conflict in this case the only way to find conflict is if you assume that congress has procedural amendment intended to have substantive benefit and if you accept that you have to accept everything that goes with it which is that nine hundred and forty doesn't mean what it says and the absurdity of requiring courts to be self consistent with their own determination yes or chars so i'm sorry i'm going back to the jordan point and the fact that congress didn't make the  stacking change retroactive i mean it's all part of the same statute though right the right that these brian defendants right are serving a forty five year minimum zone congress has now mead the judgment that's forty years more than is appropriate right they should have gotten a five year mandatory minimum they got forty five year mandatory minimums so they're forty years off from work congress thinks it should be and in the same statute congress says we're not making that retroactive but we do want more compassionate release is we want more use of that individual eyes safety valve so why isn't that just sort of a perfect congressional compromise we're not open we understand we  there's a big mistake here we want to clarify that this never should have happened we don't want to open the floodgates and let everybody out automatically regardless of individual circumstances and rest of the public but in the very same statute we absolutely want to expand this safety valve for individual cases why would it be that in employing that safety valve you can't turn around and look to what the exact same congress did in the exact same statute when it said oh my only going to difficult line drawn question and i want and i'm just having a little bit of difficulty hearing and i don't want to miss this can you i think the opinion in jordan right of the reduction in criminal and opiated always go to pose difficult line drawn question and the congress obviously was faced with that issue but i also tell you without opinion i know and the point was that there is a real isn't why congress might not want to open the floodgates and it's always going to have to draw a line between people who will automatically be released from prison and people who will not but jordan certainly didn't say anything suggesting that that having drawn that line as to automatic vacating of all of these sentences would somehow constrain judges from broader that's that is a much just going back to your colleagues a metaphor that window is wide open that's just sort of it's out the court's discretion it's there is no requirement that you find it extraordinary and compelling that's what congress extraordinary and compelling is the right window for this but we are paying attention to it at the same time that we are changing the stacking provision we do want to be clear that we want that extraordinary and compelling provision to be used more often and we want to do it by getting rid of b o p s the gatekeeper i just don't see why it would have been necessary for congress to have done more than that if they were comfortable with extraordinary and compelling that's where we want to set the window we just want to get b o p s out of the picture  compelling circumstances after decades of cases stressing the finality of sentences and judgments were sentences are final unless congress explicitly says otherwise i think i would have said so on i hope that answers your honest question i just want to make one more point then is simply no evidence other than a single piece of legislative history as for the point regarding abuse of discretion if this court sidesteps issue a conflict it could nonetheless hold the at the district court heard a committed a legal  case has been submitted by mr gleason in particular i want to thank you for your wellness to take these cases on pro bono on behalf of your clients and of horror as an institution obviously it's critically important that lawyers be willing to render such a valuable service as you have here today so thank you on behalf of my colleagues on the force we would traditionally come down from the bench and greet you all individually obviously we cannot do that under the circumstances but please kno