please the court lisa lawyers from the federal public defender's office arguing on behalf of the appellant david may david may meets the requirements for a drug reduction as set forth in justice sotomayor as concurring opinion in the freeman case because his stipulated sentence under rule out than see one city was based on a struggle it wants at the outset i want to notify the court that as mr may was in the ninth circuit today he would be entitled to a sentence reduction for a different reason as is absolutely bound by the decision and ground and i would not suggest the court can or should disregard the brown case i just bring it up to suggest there could be grounds for a non bank review in this case if the court doesn't agree that mr right now absolutely absolutely stuck with brown and mr may qualify as under brown because in the freeman concurrence just as suddenly or sets forth two different ways the defendant with a c one c plea agreement can still qualify for drug production the first circumstance is where the sentencing guideline range actually appears in agreement we don't have that circumstance here the second circumstance is where the pre agreement contains a specific term of imprisonment and also makes clear that the basis for that term of imprison would argue your honor there was not a stipulated criminal history category certainly the plea agreement referenced that the parties expected an anticipated a criminal history category but that freeman agreement also made very clear that if the parties could continue to argue about what the criminal history category would be in that case and if the court would make its own findings as to the criminal history category so for that reason and also for the basis that parties actually cannot stipulate to a criminal history category under c one c it's clear that the this issue would be determined on thirty seven forty two i think that the court referring to jurisdictional issues that could potentially arise in the good yes so i think that this court has the jurisdiction to hear this case based on the district court's appropriate denial of mr may's drug reduction motion and i am going to the court asked for supplemental briefing on the  a motion to reconsider because on the unique facts of this case the district court had actually denied to a sponsor a drug reduction for mr may without ever notifying mr made that it was under consideration without ever notifying mr made and the second reason being that are you simply cannot stipulate to a criminal history category and i think that i'm also happy to address the additional argument about whether or not there was jurisdiction for the district court to have considered this motion the first place and that was the request of the court that we consider that in supplemental briefing there as i started to mention in response to your question judge why there's simply no the in the district court decision below  wish rose from a curious posture because of the still a sponsor denial by the district court the government never raised any concern about whether or not the motion to reconsider could be properly heard by judge jones the district court judge instead the government said that because of the freeman opinion mr but that's obviously something that's way of a bull by the government which is what would have happened here to extent this court of course would find it good when poses a jurisdictional problem i think that there's still a good argument that the district court would not have had the original jurisdiction to please the court i'm jennifer bock course for the united states as your owners are aware it is always the burden of the court to begin by determining if there is jurisdiction for proceeding to go forward and notwithstanding the fact that the government had not previously raised this issue prior to the direction for supplemental briefing we would submit it is clear from the goodwin case that there is no jurisdiction for a district court to consider second or successive thirty five eighty two motions they may not consider motions for reconsideration and that's an argument that cannot be waived and it's the incumbent upon the court to first evaluate that issue both for itself and for the district court we would disagree that the fact that goodwin doesn't speak in terms of the word jurisdiction that it says no authority makes much difference and that is for several reasons first the reasoning goodwin is clear that they're talking about jurisdiction that thirty five eighty two expressly limits congress expressly limited the court to billet each to reconsider a sentence once it's imposed and there's very few limitations the limitations or rule if it will thirty five authorizes it if there's been a guidelines amendment or a motion by the bureau of prisons where an individuals over the age of seventy and has served more than thirty years those are the only times a court may reconsider and that what the goodwin court said is that it's clear and in order to give effect to the statute it needs to be clear that once that motion is decided upon that's the end of the court's jurisdiction to reconsider the sentence it's the only way this thirty five to three terms with your limitation it doesn't but there's no other logical way to interpret it because it the term jurisdiction for a number of years to include many many thing it's awful yes and we have can confuse the meaning by doing that and so they start talking about claims processing rules where rule is set up that said stout time limits or some other factor that the party must abide by in order for the court to go forward and thirty five eighty two there's no discussion of what the parties might do and what deadlines the parties have to reach it's purely a discussion of what  is the authority of the court and the most fundamental definition of jurisdiction is what is the authority of the court to hear the case and controversy and because thirty five eighty two limits that to such an extreme degree saying there is no what's the word except for these limited exceptions it is clearly a remedy and there is a remedy an easy remedy for that because time of filing a notice of appeal is not a jurisdictional bar and this court can construe his later filings as a timely notice of appeal and we submit that's what should happen  i'm sorry as we can hear yes yes but there is nothing in the statute that requires the district court to go ask a defendant what is your position on the thirty five eighty two the procedures that the court used although we would agree with judge jones later assessment that it may not be the most prefer of all practice but certainly the most efficient where they just the court work its way through all of the cases and determine if someone eligible or not certainly mr may would have liked to have weighed in but  the question of whether he's entitled thirty five eighty two reduction to purely a legal question and what the extent of the reduction is essentially a legal question there's no authority of the court to reconsider the thirty five fifty three a factors or recalculate the guidelines so it is simply not necessary that there be the protracted litigation or even necessarily having the defendant weigh in straight to be given the efficiency it was trying to work out a deal with the serial numbers they would be  one circumstance that a person wouldn't get at that's not an issue in this case is that there are other factors in their sentence that were in their case and in their personal situations that the judge feels that this sentence is what was appropriate in light of all the thirty five fifty is the reason that he's not entitled to your right and so and that makes it an even easier case for him him not weighing in he entered into a plea agreement which the government's missed a large number of charges including things with tremendous consecutive mandatory minimum sentences in exchange for a twenty year sentence and it was very specific two hundred forty months the guidelines to people ations as to the offense level only were included as a means of aiding the court in determining whether or not to accept to correct and that would be our position the jurisdictional argument i would suggest it would be helpful for the court to clarify goodwin that it is a jurisdictional case because that is always the starting point of what the court needs to do but the outcome is the same for the very reasons that judge jones put in those just three sentences i think at the bottom of his february order may is not entitled to to a thirty five eighty two reduction and the law is clear on that there's no criminal history contemplated there's no sentencing range contemplated i would disagree with the public defender as to the implications of freeman freeman's agreement there's one sentence in there that i think changes everything from the way she is offered the facts is that his agreement specifically said he agrees to have his sentence determine pursuant to the sentencing guidelines and then they they lay out what those guidelines are and here there no language or anything like that the language is just clear from the agreement that we're talking about in order because the guidelines have to be calculated here is what they are but they have the it was explicit will mean it can't be implicit of how you get to the sentencing range there's no discussion or no indication at all that the parties had any idea what his criminal history category would end up being or that they tied that sentenced to where they thought that it was there are many that do that either say although it is correct you can't stipulate to a criminal history score you can state what your expectation of that criminal history score is or you can state what you expect the ultimate guideline range to be or you can write an agreement that actually agrees to the guideline range itself and all of that is absent in this case in which is why it is clear it's not tied to the sentencing guideline range as required by fr mean i think that's what freeman says that it has to be evident that it was expressly based upon the guideline range that if ever ever the factors are taken into consideration if it's clear from the green meant that they did not government for went pursuing a mandatory life sentence under age forty one so there we had a situation where the range was given not in any relation to the guidelines but because the government chose not to pursue a mandatory life sentence that the case cited by the government from the eight circuit again brown this time b r o w any there was an agreed term two hundred ten months in that case but no reference at all to the guideline range at all there was no reference to offense level work in all history in that case the only case  and in a seven circuit case of dicks and again we had a fifteen to twenty year clear range in the agreement and a stipulated offense level but the guy my mate in that case was actually three hundred sixty months to life and the prosecutor explained in that case that the only reason they agreed to the lower plea was essentially because they'd built a benefit of cooperation those agreements are all very distinguishable from what we have industry mase case which is a total offense level which with a simulated drug weight that produced a guideline range that everyone from the first circuit which i agree finds that the lack of a criminal history category was completely dispositive but i think that that was wrongly decided based on interpret ing the framing case and the justice that american currents to require a stipulated that was the exact language the first circuit criminal history category when that wasn't the case in the freeman case so with respect to the fair stiction argument and the government's request that the court clarify goodwin and this decision in this case to be clarified it is an issue of jurisdiction i would suggest that the court employ the approach of the seventh circuit the third circuit and the ninth circuit of all recently looked at this very issue and if found that the prior decisions which sometimes overuse the word jurisdiction were inappropriately decided and that this is not an issue of jurisdiction but claim processing and i think that there's good reasons for that and and i think that the seven circuit points to the freeman case itself as a reason to come to that conclusion because in the freeman decision despite the opinion being fractured and basically every other way all of the judge justices agreed that it was a question of whether or not lehman was eligible for a drug reduction not a question of whether or not there was jurisdiction for the court to consider his claim so i think that that's language that's helpful in addition to the fact that there's no express reference to jurisdiction in the statute itself and that that would be a good basis from which the court should distinguish and that this is a claim processing rule