heart and with your permission i would like to reserve two minutes of my time for rebuttal granted thank you the parties are in agreement here of course that the decision below doesn't meet the requirements of united states versus easter if the  court would indulge me one point before i jump into jurisdiction i want to i want to emphasize something that i was in my letter brief that i want to make sure was clear the limitation section in four  been reduced in accordance with the fair sentencing act of two thousand and ten contrast this with the rd category which relates to emotions made under the st step backed of twenty teens after the date of an act in  act i wanted to point this language out to your honor's because i think the variation in terms suggests a variation in meaning i'm not sure if i was as clear as i could have been with that in my original briefing but our position is absolutely that that  the provision that says previously reduced in accordance with the fair sentencing act is not applicable to the case here but instead refers to those cases that came back after united states versus dorsey or for some other reason  the word motion there and it also does not specify it doesn't say previously reduced in accordance with this act or after filing a motion under this act it says in accordance with the fair sentencing act of course takes us back to the cases that were not sentenced in accordance with the act until dorsey the disorder the dorsey decision came down and held that the fair sentencing act was applicable to cases on appeal honor i think it did intend to cover the spectrum but i think in that portion it very clearly relates to those older cases that have already gotten this benefit and do not they're not granted the opportunity to file a motion under this statute i recognize that we sort of come back to the same place but unfortunately we are we're looking at a case here which is i want to say one in a one hundred if not a  thousand in the sense that there really be cases where motions under the st step back were granted and are filed again i did outline in our briefings sort of the culmination of factors that led us to this point this really is sort of a one  hopefully one time unique kind of case i don't even know that it could come up in another district and so for that reason i think they had reason to be very specific in the text of for a foresee they certainly weren't anticipating these bizarre circumstances and in the st two sections they're referring to people who previously were sentenced effectively under the fair sentencing act of two thousand and ten and then they address people who have filed motions under this new statute so i just wanted to make that part cleric's it is our position that regardless of whether the statute were deemed jurisdictional we believe mr mr hart is certainly eligible to right i think it can be read that way i think from a practical standpoint that is not something that is going to happen it's something that could potentially happen once and then a motion another motion would be denied and we would be in to the other category it's certainly not a situation that we've seen happening here outside of the circumstances but why should we read congress's words that way i mean it would seem to have the effect that  reduction i think that that would be a very fair policy perspective on that but what i am relying on is simply the actual language of the statute that congress chose to put in to section four a four c as i said before i don't think it was something i don't think that it was something on anyone's mind that circumstances like this would happen we've seen i think we are working in the background of many many years sure this class of cases those where there was a letter joint letter filed well and that's that may be in one sense because i cannot speak to other districts and i do not think that outside of the eastern texas tech excuse me district of pennsylvania they may not have had this unique process in place the way that our office has we worked very closely with the u s attorney office since two thousand and eight every time a crack reduction type thing has gone through i don't know that other people do that but the other unique thing about this was i mean unfortunately in the heat of getting this stuff together and moving my office misunderstood the scope of the statute i have done everything i can to go back through all of the agreement cases and make sure this didn't happen to anyone else but unfortunately it was a confluence of a misunderstanding on our part and a use of an old procedure that perhaps wasn't as appropriate to this new statute as we thought it would be absolutely agree with that as well part of my argument in the letter brief was that this this portion of the language that talks about being previously reduced in accordance with shouldn't be read to involve any less of an analysis than what we're reading into the on the merits requirement of the motion in the lower section and so sort of a secondary part of my argument in the letter pray for us absolutely that this letter agreement broadly as you as you need to for that for that part of your argument your honor unfortunately i cannot i cannot i'm taking i'm really attributing the meaning from the other phrases in this provision but i cannot cite to you a specific other statute where in accordance is read that way let's say in accordance with means what you want to mean is earlier reduction i mean it's not just under the fierce sing act it's under the this is a now we're talking about emotional to the st step back does that make a well i think if i understand your question correctly i think that goes to my st point which is that in this case the letter agreement did it did come through or was filed pursuant to the st step act of twenty i see so you're saying that this doesn't even qualify as within the terms of the four foresee bar because the sentence was previously poser probably reduced but but it talking about imposition in accordance with the fear sensing act of two thousand what if both of those sections are referring to this the same idea why should we read them is hand and glove saying that this that he's had the in four of foresee uses the word imposed and then goes on to say or previously reduced in accordance with my point is that i don't think congress would have intended a different standard of our now assists or a lesser standard of analysis between those two and then if we look at the rd group where we see where it says on the merits and if we sort of take that in combination the courts reasoning in easter i think it tells us that there has to be something more than a simple sign off on a reduction that it needs to be that it needs to be weighed more away from easter at least to me was that the the sort of the background of sentencing law and policy that we have specifically the procedural reasonableness requirements that we have generally are going to apply in these motions for sentence reductions in other words and i would i would direct the court to let me i'm looking at statutory sort of background of where all this is coming from and says three thousand five hundred and eighty two makes clear that the procedural framework is the same so and specifically point to the word impose so when i look at that then in the st step back in section four hundred and four i would certainly attribute the same meaning to that term in both sections and section b and c why shouldn't we take the previously reduced as referring to the reduced in the very preceeding subsection your honor i think just for that reason as i think the way i read this and because it does not mention emotion it does not mention the st step back what this what this indicates to me is this is a case that has come back for re sentencing so therefore it would have had that same that same weighing a factor that same sort of more than just a recalculation of the facts tory range and possibly the guideline range it would have been a  thing so and it's for that reason that i see sort of more than just the back and ask mechanistic reduction in that class of cases so help us if you think about it as which was essentially identical language if we are not to do damage to provisions of a vs where congress suggested and several others and i think most importantly i want to start with the decisions in those cases did not rise or fall on the use of that phrase shall entertain unfortunately we're in a position where unless congress makes a decision to specifically use the word jurisdiction while we have to start with the text it's very hard to end there because mandatory rules are going to have the same emphatic language that jurisdictional rules are going to have so to come more to your question we have to move to the context in which this language is being used and while i certainly agree that the context is critical i cannot agree that there are any to the discussion in quiet fun long when we think about shall not entertain and whether that phrase has so much importance in quite on one on the court looked at a phrase shall be forever barred that phrase was used multiple times in title twenty eight in civil statutes and the government there argued that the federal tort claims act the use of that phrase in his her claim that should be jurisdiction well that was just a rhetorical phrasing but that doesn't tell us that doesn't clearly indicate congress's intent so i think we cannot use a term or phrase alone to determine the clear intent of congress when you look at for well i think one for the reason i just stated which is the consistent there is not really that much consistency in the use of the phrasing for example even throughout chapter one hundred and fifty three there more importantly judge i think these decisions when you read them do not turn on a particular word but on the context and the purpose of the statute and i think that's really where  similarities and the distinctions begin because we're talking about the entire purpose of chapter one hundred and fifty three dollars is the gate keeping of ed congress wanted to stem like a tidal wave of just repeated attacks on convictions and whereas what we have here is we have a remedial statute where congress wanted to open the door it's not it's not a wide door it's a very narrow door i would also say i'll go back to will or will it was very careful about distinguishing between statutes that or provisions that limited the class of cases versus conditions precedent to the court  think rather than any particular language or rather than which party language speaks to which can be different depending on how it's written what we really need to look at is whether a provision limits or speaks to the class purpose is to designate which class of cases go to twenty to forty one which class of cases are limited to twenty to fifty five we do not have that in section four for say we know the class of cases that the they both speak more to the class of cases that may be heard whereas section four of force see talks to speaks to the  and i'm wondering if you have any criminal analog where we know that time limits are often not on jurisdiction right and this is called the limitations period with this looks like a number bar that i know we have an immigration law you can only file one of certain kinds of petitions or you were rather analogues in criminal law or a b s where there's a similar number or that we could look to in terms of whether this is going to be treated more like a statue limitations than a jury than the subject matter jurisdiction limits frankly your honor i do not and i think part of the problem is how unique this statute regret i cannot actually point you to anything similar to this particular provision because the previous reduction was not done in accordance with the st because the three thousand five hundred and fifty three affected are not considered absolutely absolutely could and i think this is one of those rare cases where while the government does not necessarily agree that the sentence should be reduced further they have been very forthcoming in that the court should have an opportunity to do just that the issue today is not should have been reduced should be should  they were all those were all soaks who were immediately releasable this was this was an anomaly in that way to be completely forthcoming there are potentially two or released no not it well really the purpose of the agreements were was to fast track people who both parties agreed to go home and mediately and this case sort of fell into that because quite frankly mr hart was sentenced to a very harsh mandatory life term on a relatively smaller quantity of crack cocaine and i think this sort of he fell into that category of people who had mandatory life and were now suddenly eligible to have a a sentence if we go back to just cross is concerned as i there as i have looked and looked and as far as i can find there are no other cases where the client was not immediately released and maybe that doesn't answer question but the sentence cannot be reduced any cannot be more than four or five but as far as an actual sentence reduction we don't have any other cases ok thank you we'll hear  of course i'm sorry i want to go back maybe it's looping back one more time to easter as i understand it your claimed hens upon easter right you prevent al easter says this now with you want to say it had to have been in accordance with the three thousand five hundred and fifty three requirements of the st step back but for for you see says the it if it's in accordance with anything it's in accordance with amendments made by two and three of the fair sentencing act so i don't understand how you can benefit from easter's requirement of three thousand five hundred and fifty three factors and say this was the st sentencing recency was out of whack with that when four foresee doesn't say back but the in accordance with ritter's refers only to the st cent of the fair sentencing act but you're right i think the answered your question is if we look at the language in four or c when it talks about a sentence previously imposed or reduced in accordance to the use of that word impose it's not necessarily what easter day does take longstanding precedent on how we sentence an individual defendant and applied it to motions under the st step back but anyone who was being sentenced prior to the st step back to would have still had that procedural protection  from an initial sentence imposed doesn't thirty five b to require us to look to the st reduction here as to the attempted motion here in i guess what i would say is we still it would have certainly been pursuant to four o four b but that we still don't fit into any of the boxes in for a foresee is exercising its authority not to insist on enforcement of what is a mandatory clean process and rule and i can explain why we're doing that in this case with respect to forty four dollars say it's the one area in which i need to disagree with my friend miss martin in the presentation that she's made today this sentence here was reduced in accordance with the amendments in the fair sentencing act there simply could not have been a reduction if not for the amendments of the the fair sentencing act changed the mandatory minimum provision such that mr hart was no longer subject to a life mandatory it was now a statutory range of ten years to life and it's because of that that the court was able to reduce the sentence  life to four hundred and twenty months and so i'm not depend on us reading in accordance with as having a fundamentally different meaning than as if the sections were two secs well i think it's actually enforcing both provisions both g these provisions are consistent with each other and what happened in this case is consistent with both provisions the court reduced the sentence in accordance with the amendments as if those amendments were in effect so i thought is this was there for the consistent with the statute the statute here being section four for the st step and that allows the reduction well it's to the extent that it's authorized by another statute and it isn't the only authorization for a reduction authority to do it that the parties were in agreement that it was appropriate because the fair sentencing act had changed those statutory provisions that applied to mr holder and now section four for being was making that retroactively applicable but  how could so that the court imposed a reduced sentence as if sections two and three of the thirds and saying act were in fact when we had decided in history that there are certain steps the court had to go through to do that it didn't hear and under the terms required i'm i don't read it that way i think that the easter error in the reduction does go to the merits it means that the court made a mistake when it was considering the motion and that's certainly something that could be appealed as mr easter did for example but i think that would be a quite broad ruling to say that any error in the application of section forty four be means that in essence there was no earlier reduction no earlier proceeding i don't think the analogy to section two thousand and fifty five with respect is exactly correct the there is no successive motion under section twenty five when the earlier adjudication was not on the merits for example was because of a time bar is that the most typical example of that's not what happens here there could be many situations in which a court reduces or declines to reduce a sentence under section four for b and then the defendant asserts that a mistake was made i don't think that leads to the conclusion that there was no motion under section four for say i think that leads to the conclusion that the defendant should appear as yesterday and see whether he can obtain any relief but that would be an interpretation of a particular factor or as to the consideration or the extent of the consideration of a factor most commonly post sentencing rehabilitation i really can't think of an analogy where we say that a mistaken determination on merits means that there wasn't consideration at all that that's quite a profound thing and i just can't think of an analogy for that i think the fair approach here is to say the judge did have an adjudication  argument here is that she made a mistake because she didn't fully whether she considered the thirty five dollars to be a factors or not she didn't say that she did and therefore that was a mistake in the perceiving so that's our position that our view is that this wasn't reduction that could only take place under retroactive application of the fair sentencing act but that and therefore you run into the forty four dollars c bar and therefore what this comes down to is whether that bar is  editions well so here i get to move into agreement with my friend ms martin that these are different there are many different provisions and many different uses of language by powers and the supreme court has now very clearly told us now over and over during the past decade that we need to look for clear statements through for it to be a jurisdictional bar and certainly we have now a judge the other statutes but that's not necessarily controlling if i could talk about hey b s in general because that's what particular whether it's a limitation on courts are already or is directed to fire right oh absolutely but we still have to look to the language there is and to see what we can glean from that as well as looking n i think that's easy i think that recognizing two thousand two hundred and fifty four as a jurisdictional provision which the cases cited by the court j o it's undoubtedly correct because there is no federal proceeding at all  jurisdiction well again there is no precedent that the word entertain by itself means it's a jurisdictional provision and we cited numerous statutes that use that word every which way both jurisdiction and sometimes just to refer to i think there was one statute where it talks about the senate entertaining a motion on the floor of the senate which obviously has nothing to do with a court's jurisdiction so i think that word by itself doesn't get us very far the prisoner is not present that certainly doesn't read like a jurisdictional provision so i think the word entertain doesn't answer the question what answers the question is what is the type of proceeding that's involved and twenty dollars to fifty five dollars and habeas in general historically and we are familiar with centuries of practice in hay vs is recognized as a separate proceeding it's a separate civil matter that's directed to the custodian of the prisoner that is brought after the there ok ok ok so i will take a step back i'm not sure where your honor stepped off but when i was saying about habeas in general is that it's a different proceeding it's historically recognized as a separate civil matter the takes place after the completion of criminal proceedings it's directed to the custodian of the prisoner and it it the in many ways under the law is seen as a separate proceeding and that's especially forty one what twenty to fifty five isa is that the prisoner simply cannot bring a hay vs matter under two thousand three hundred and forty one if he can proceed by a motion in the sentencing cord under section tw b s matter challenging custody or up to the custodian and under current law for the last six thousand and seventy years it's really not directed to the conviction at all it's directed to the enfor the judgment by the custodian so it really sounds in a separate proceeding and you have this requirement that it cannot be brought if a twenty to fifty five motion is available that's true that sounds like  and of course there's a great deal of precedent but i think the supreme court would recognize seeing that as jurisdictional that all brings us to this motion that doesn't describe a section forty four dollars motion at all or more broadly it doesn't apply just to retroactive application of the fair sentencing act it applies to compassionate release which has a number of requirements it has an exhaustion requirement it has a requirement that there be extraordinary and compelling  applies to motions under rule thirty five dollars which of course is another set of possibilities of a modification of the sentence in a criminal case based on a clerical error based on a cooperation b the fundamental rule of section three thousand five hundred and eighty two dollars in general is that sentences are final except and then it provides the examples of when a court can modify an existing criminal sentence it's pursuant as martin said to the original jurisdiction of the sentencing court and under the standard twenty eight dollars u s c jurisdictional provision and so we're just being faithful here i think to the see that this resembles b s methods which are going to different now the other interesting thing about section twenty five is that it then includes a number of provisions which are very very important and yet are not right so everybody cross that bridge that is that is that determines if you're or do we look at these two do we need to do is separate and parallel now since evolving both structure it's what's the right approach to reconcile them i think it makes sense to do a separate but parallel approach i think so what thirty five dollars e t c one says is that the court can produce a sentence consistent with a statute and so it would then make sense that if congress came along and passed a statute that said you only have jurisdiction to produce this type of sentence in this type of circumstance that would be enforceable congress gets to limit that particular type of production jurisdiction so i think you have to satisfy both i think your honor is correct that we're past the question of whether thirty five a t c in general is jurisdictional and certainly the parties here are in agreement that it's not but then you can certainly you do have to look at the particular language of the implementing statute that's four for say and when we look at it we say that it says that a court can entertain a motion that language does not literally sound in jurisdiction and that's where we go to the supreme court which tells us don't be so quick to assume the rules are jurisdictional entertain a motion sounds like an action in a continuing criminal case which is the way we've treated it and you know easter sort of you know without addressing this question is looking at it in the same way by calling it a we sentencing that's not a plenary recess and saying and all the other statements that are made in that case so i hope that answers your honest question i mean there may come a case there may come a statute that we you know we do have to we're bound by the particular statute but we just don't see that in the language of section four for say what we do see is a mandatory claim process and will there's no question that it's mandatory that i have to disagree with miss martin it would preclude a production in a case like this but the government has elected here with your honor's permission of course not to enforce that rule this is something of a unique case mr hart is really a victim of what was a salutary practice that was adopted by our office and the defenders and which as ms martin says goes back now twelve years and we're very proud of the collaboration we've had in these circumstances where we've had one set of retroactive sentencing measures after another sort of every two or three years going back to two thousand and eight and we developed this practice in which we collaborated with each other we talked to each other we reached agreement where we could with the goal of getting to court as quickly as we could to give relief to those to whom congress or the sentencing commission wished to give relief when mr hyde came up at a glance he is in the sweet spot of the person that the fair sentencing act and then the st step back were meant to benefit and he was sentenced to a mandatory life time very draconian sentence based on the quantity of craft that quantity of crack is now explicitly within the range of ten years to life instead of life and so the parties acted quickly and the defender sent us the proposed agreement we signed off on it right away and he got it but but he was not as it turned out in the in that group of read it for a for b as as a simply being that not satisfied in this in this unique situation so that are i don't think that that can be supported by the language the four foresee simply says that if a sentence was previously reduced in accordance with the amendments of the very sensing act that the person should not come back  i anticipate that that is a much stricter and a mandatory rule that the government and the courts will enforce because congress is intent is very clear which is that we're going to do this one thing we're not going to keep doing it over and over again and if you think a mistake was made in the one bite at the apple to use judge the judge's expression here then the remedy is to take an appeal so i think then regretfully we would be in the position of saying if the court  friends construction what what you how do you read the words previously imposed and then the prayer is in accordance with you know because your friend was suggesting that any time that it hasn't in even if there was a procedural defect or irregularity or oversight to bar a nd one yes that's our view is that the language says that if the sentence was previously imposed or previously reduced in accordance with the amendments made by section two and three of the st sensing then as i've said this sentence simply could not have been reduced other than in accordance with the amendments made that is what permitted the reduction here then it continues to say that  a previous motion made under this section was denied after a complete review of the motion on the merits so the language seems to anticipate really every thing that can happen which is that you can you're either going to have a reduction or you're going to have an out back is saying that the reduction is in accordance with the amendments so it is the simple purpose of the st step is to make retroactive those provisions of the fair sentencing day i think if this court were to rule that a mistake in the rejection or the denial or the extent of that action or that a procedural error in that means that there has not been any action at all and there could be a nd motion i think that really g the the point here which is that there are generally should be only one motion and it should be fully adjudicated in there should be a right of appeal consistent with all of our normal rules but but i think it would be quite of broad  statement to say that any error that you know in the procedure means that it didn't happen and therefore you can keep going back and taking another shot i think instead there should be a full adjudication there was an adjudication here that was a mistake under the circumstances we don't want to enforce the rule of a rule for foresee and that's where we are if we ask whether something is a limitation on the court's authority in terms of deciding if it's jurisdictional and i say that because there are many many statutes that speak to powers of the court that are not which empowers the court to issue a c e o a under certain circumstances that is not jurisdictional so to section c three in which the court is directed to indicate the reasons therefore  there are other statutes outside of that if we look at the dolan versus united states the supreme court cases the language there was the court shall set a date for it was setting forth limitations and powers of the court in section three thousand six hundred and sixty four dollars that was held to be not jurisdictional i think what we take from fort bend county which is one of the most recent cases that we have from the supreme court and also from wheeler we really need to look at whether the provision is speaking to the class of cases over which the court should exercise jurisdiction rather then simply delineating adjudicatory authority i think that's a much more consistent test for looking at whether these statutes are jurisdictional and what we have here in section four hundred and four dollars as i said before this is a remedial statute this is an opportunity for to go back and fix something that was unfair and unjust and we're doing it in the context of the same sentence the same case the same proceeding and it gives the court adjudicatory authority to go ahead and remedy that  problem if we look at the legislative history the concern was certainly how do we get all of these folks back in to have the court take an individualized look at their cases is whereas with haiti is we have congress saying how do we put a limitation and set up a gate on these repeated requests to look at the same conviction over and over again so i just wanted to be very careful in terms of how what the test is that we put forth