this fun yes i represent james murphy he's a court appointed client of mine this is an appeal of his st step after the sentencing originally mister murphy was indicted in two thousand and eight for two counts want a conspiracy with intent to distribute fifty grams or more of cocaine base or crack also a set kind of action and distribution with intent to distribute fifty grams or more of cocaine base or crack at the time both of those counts carry life maximums at the is original he went to trial was found guilty is original pre sentence investigation report came up with off  sum of five hundred and ninety five grams of crack cocaine and twenty four grams of heroin these drug amounts were objected to and the original p s are at the end and that's that's  no matter how you slice it it's greater than fifty grams right right but at the time there really wasn't a lot of focus on on that drug quantity because once you got over fifty grand  life and then you have the the st step out and you get a reset in my case i guess the question here is did the district court err in failing to reconsider the applicable drug amounts circuit said we're going to joined a six circuit enough or circuit where we're going to st and we're going to have these recent things we're going to st have an accurate calculations of the end it's and saying guideline range occasion to argue whether you update the facts and update the law are not so all they quoted a sentence from the th circuit it's helpful for you cited a case or two that are on that side of the split but that issue wasn't before in the government sites another sentence from later in the opinion that says you don't get a plenary sentencing that the defendant is present net but that's also out of context so i'm not sure the eastern really has much to say for us either way if it's not binding on us tell us well i mean i don't think you can argue one without the other because chambers felt that you had to have it accurate you had to start with an accurate sentencing calculation an accurate di line calculation so  what you can really go beyond that let's parse it out with respect to the drug amounts what does exactly is the error with respect to the attributable drug amounts here  the jury made a finding of fifty grams were more or more or more there was no further inquiry made there was no further specific finding by the jury as to you know was it wasn't much court incorrectly and it's footnote in the opinion of the appendix fourteen says there was no objection made by murphy originally so i think i think there has to be your explanation is that the time it didn't really matter and now it matters but but there was no way of challenging it then and the question is should we open it up now again now that it matters what he did challenge it for what its  ok he challenged the trial but he didn't he didn't appeal what you say is an error in the way that it computed that the drug quantity it it didn't matter back them correct it was moved so why should we take this a new it'll help if you can focus on what in chambers and what in the st step act tells us we should approach this a new i've got the text of the act before as if you want to talk about chambers reason that's critical under the act but look at some point here both the the text and about the the cases on your side we talked in my brief i talked about how the act vacates the original say can you point to the language in the act that helps you i'm looking at section four for now what language in the you that sounds like it's a new sentence ok and i think i can't remember if it was the th or six circuit that leaned on that when i look at three thousand five hundred and eighty two dollars though the entire section is called imposition of a sense of imprisonment but then under that heading they got c modification of an imposed term and it you see is not a completely new sentencing sult else where congress is treated modification under that bro i'm not sure that it leans your way but i'm not sure it resolves the issue like should we why should we give real weight to that i think that the circuits on the other side like the th say well there's this language about as if the f sentencing act were in effect that's the one thing that gets tweaked why should we say that the word impose outway is as enough and blows open not just that but everything else about the sentence i think i cited some of the legislative history behind the act and was let's talk about the text st and then we can go to the legislative history why do you think textually this leans in favor of a plenary re sentencing right but a lot is a bunch of compromises some people wanted mormon auction some wanted fewer congressmen balancing leniency against finale so they struck up a bargain or compromise and it wasn't as lenient some don't believe so ok so you're just relying on a generalized policy lenience got is there anything in the other circuits cases the th circuit or the th circuit say that you want to draw our attention to  now that i that we haven't talked about as far as what's in the chambers and abounding ok can i ask you about something i think it's more from the th circuit had a footnote said hey you know whether this goes into the guidelines or not that the court remains freed up to very downward with that is an acceptable compromise to kind of stick with the original guidelines calculation but remind district courts that you can still vary based on the stuff you don't have to do a plenary resentencing but you've got some wiggle room here if you want to it's your definition of what a plenary sentencing is if if if i think what you read this new cases they've talked about not letting the person attend but getting the guideline calculations strictly correct is more important than accurate calculation of the mandate guideline arranged so i think that's that's segue into the nd issue let's assume for the moment the district court was technically wrong in preventing you from challenging murphy's career offender designation then the court still sentence murphy as if he wasn't a career e career offender and basically said look i'm just i'm just one of take the guidelines that would be in effect i'm going to assume that's the case but i'm going to send you to t which would be the high range of the sentencing guidelines were the career offender status is not in place and it seems to me that there's no harm here because the matter what we do it would seem that the court is going to see him the same two hundred and ten months and reason i say that with with short conviction just three months ago you had judge jones considering the c factors and noted that murphy was responsible for trafficking a significant amount of crack cocaine into the middle district of we further took into consideration he would no longer be considered a career offender under the current status of the law in fashioning a downward adjustment of his sons we did not however except as imitation to sentenced him to a time served sentence largely because significant criminal record the fact that he was on federal supervised release when he committed against an offense demonstrating a considered and continue disrespect of the law in danger to the public isn't that game set and match in terms of no prejudice well if i think but judge felt that he was a career offender not the last but he did basic question having the designation career offender if that designation continues it does that provide prejudice in other situations and other considerations and other offenses the fact that he has been debt designated a career offender in this case i'm not one hundred percent sure but i can imagine that if he's a career offender that that's part of what the bureau of prisons takes into account as far as you know how they treat him certain ways perhaps you know if if he's a career offender i think it carries a certain the attributable drug weight question and the objection that was raised initially way back at the initial sentencing in this case yes mr eunuch is correct there was a kind of general objection to the factual background that was presented in the r there was no specific objection to the attributable drug weights and if you look at the sentencing memoranda that was filed prior to sentencing at that time it was different counsel for mister murphy but the objection that he spelled out seemed to be more to the fact that while there may not have been enough evidence to prove that this was crack cocaine as opposed to powder cocaine and thus the argument at that point was that murphy should not be an eight hundred and forty one dollars b one a defendant but should be an eight dollars b one b so instead of facing the life maximum with the ten year minimum he should have faced the forty maximum with a five year minimum which is exactly what he has now been in how he has now been sentenced so in effect he has gotten exactly what he wanted in that original sentencing memorandum and even when we look at the st step back to re sentencing here you know mister unic you know brought up an objection to the the attributable drug amounts an presents in congress i wasn't involved at that point so i was not in that pre sentencing conference but eleven days later when you look at the sentencing memorandum that mister unic filed again he's not talking about the factual or the factual question of what the exact attributable drug amount was at that point there was still a disagreement between the government and mister murphy as to whether he was whether he had committed a covered offense that was during the time period when there was still the debate whether you look at the actual conduct or whether you look at the crime of conviction that has been resolved by the circuit in jackson the united states is now altered its position and does not anymore argue that upon the st step back resentencing that mister murphy should have been sentenced as a sub as opposed to be everyone is in agreement that it's the five dollars to forty dollars and so all that can be argued here by mister murphy is that the court should reopen the basic factual assessment of what drug amounts are at issue and that's not proper and that would be part and parcel of a plenary re sentencing in which he would explain why it's not proper i mean language of imposing a sentence ordinarily means you go through a whole bunch of steps in the in the sentencing reform act why is it improper when you know what language you point to in the in the act when it does talk about your friend mentions imposing a reduced sentence not reducing an existing so it's well sure when you look at the word impose in isolation that would normally yes indicate that you would go through a full sentencing procedure however when you look further into for a for b as your honor has pointed out there is t talk about you know imposing a reduced sentence not necessarily a new sentence as opposed to just a reduced sentence as if sections two dollars and three dollars of the fair sensing act of two thousand and ten were in effect at the time the covered offense was committed and refer to dylan the supreme court's decision in dillon and interpret it interpreted three thousand five hundred and eighty to see two you take all of that together and the senate most sensible conclusion is and this has been reached by every quarterlies been stated by every court including this one in easter that a st step factory sentencing is not a plan a reprieve proceeding and whatever of the the six circuit opinion in form and there's contrary shading  bolding use or not it seems to require just report to allow defendant challenge sentencing and resentencing and we expressly adopted the bolding reasoning in easter well bolding bolding i think can't be read in isolation it has to be read as well obviously and easter but it doesn't overrule what was said informant about how you don't have a plenary sentencing you don't look at the order that i think the exact language was that the that foreman was prohibited from challenging his previous career offender designation and the way that you you make those squares if you look at it and this is the way at least i read it that when it's talking about the district court looking at the or correctly calculating the amended guidelines that's the amended guidelines as they were amended to reflect the fair sentencing act after two thousand and ten and looking at that as part of the three thousand five hundred and fifty three dollars a analysis which frankly is exactly what the district court did in this case cerruti easter as i said i didn't brief or argue or hold on this question but the reasoning sort of leans towards you know a more fulsome a less crabbed approach to resent certainly than the government advocated in the easter case you know we're supposed to do a holistic analysis of the factors tell me about how you propose what role the government proposes and how that harmonizes with easter would harmonize with what we what we held in reason that well i think the the most common or the of the most obvious reading at easter at least to me and i i may not be the the sharpest tool in the shed i don't know you know is that if you look at the amended guidelines you but you basically do what the district court did here the district court you know chose not to go back and look at recalculating the attributable drug amounts it said i'm not going to revisit the career offender designation however i am going to as part of the rd step of the sentencing sentencing process where i'm going to look at the three thousand five hundred and fifty three a factors and he did and eastern now requires the district court to do that when you have a st step back re sentencing i'm going to take it into consideration at that point basically the rd step of the sentencing process and make a decision about whether to exercise the judges the district court judge's discretion in light of the fact that there's there's no disagreement and in this particular case that the th circuit no longer consider some of these predicate offenses to be career offender predicates and so it doesn't change what would be step one of the sentencing process the calculation of the original guidelines you don't have to get into all sorts of additional fact finding there but you can take it into consideration as part of step three which is consideration of the three thousand five hundred and fifty three it factors and the history of the defendant the applicable guidelines and so the government would be satisfied of that compromise was suggested in the more footnote that considering these factors is a matter of discretion at the very end stage just fine but no right to a plenary re sentencing a computation of the guidelines based on new facts or new law well that's that's the way that i can kind of square everything with what was decided in easter obviously our position in easter was not necessarily that what the judge did there was correct there's broad discretion there and we all are familiar with that from case after case after case and there i can understand and would certainly see why a judge would want to look at a situation such as it is and one of the thing is that one of the things in easter is that you need to consideration at step one of the accurate guidelines range in a given case so in this case what is the accurate guideline rage well i'm not quite sure what the language called it ok we understand that it's a like a fake guideline range but so i'm going to give you a as i said here i can't say that i'm aware of any adverse consequences with the bureau of prisons of course if mister murphy were to be released and convicted of another crime it would not surprise me if the prosecutor in that case tried to point back to a previous court finding him to be a career offender but of course at that time mister murphy would be able to point to roil in the cases out of the th circuit that would say that he's not actually a career offender for it would not be a little late for that i mean w well i think what i'm talking about in that hypothetical is that it would be an additional crime that he commits down the road at which point i think writer court would be obligated to look at all of those facts a new regardless of what the district court did in this st step back re sentencing  or what may have happened prior in this particular case i think find that not a realistic from my experience in sentencing i cannot remember having well i can't say that i've addressed that issue on any appeal i've ever handled or in the district court so i don't know exactly what the the law would have to say as to whether once a career offender always a career offender for all prosecutions in the future i'm afraid i can't answer that surgery before we let you go is there anything in the act besides the phrase as enough that you point to as support for your reading of it of the sections of the act that that i have reviewed in preparation for this i'm not thinking of anything offhand it's more taken that the the verbiage as a whole in the context of prior decisions involving three thousand five hundred and eighty two c sentence case and or in my brief and that we've discussed here today murphy's career a fighter designation a fake career offender designation because easter is going to fall chambers chambers case clearly has changed or is allowed to use of their career offender as a nation when it case back to the district court if nobody thinks it's certain thing when you when you said faith career offenders mission what did you mean by that because we all knew because of the law it wasn't real it was fake because the judge somehow thought he had to apply the old designation before the law changed which is crazy i think it's just we  know that there are going to be people sentenced and there's not supposed to be disparities in sentencing so no one uses the old law for sentencings at you know this at the specific time when murphy was sentenced so i just i just think it's just a real serious mistake to to have done that to give him that stigma to make him a career offender and yes you know my own experience with just language your honor but i don't think we know what judge jones is would give mister murphy and i think based on chambers you should be you know given that opportunity to every sense murphy you it almost looks as if what he did formally was the career offender is part of the sentencing guideline calculation but is going to be practical and sentence question really comes down to is there truly are something that would prejudice him in the future if he committed other crimes by virtue of previously being judge so it so isn't the most you can really get is ok you get to remain and possibly and you would consider whether the maryland offenses truly were predicate offenses under i guess roy so that right yeah i don't think there's any dispute that the nd degree assault is you know a longer a predicate offense and no one's ever challenge that in any other process that we've been involved in  so you know if i work i think the prosecutors would have would have said something so i think we're going to see that murphy is not a career offender and at a minimum let's see what the judge gives  i said before i would make a bet that the sentence will be the same but the question then the only question from a becomes is later on again if he commits other crimes and his re that another venue or a court will the career offender status from this case will be not sentenced as a career offender alternately millet make a difference in  he just doesn't show up on a rap sheet you you're just speculating that are so i can tell right well it doesn't show up on a rap sheet but you know that the government has tremendous amount of judge goes i get it nice job this it i agree with you so i'm going to sentencing the judge and so in effect i'm just i'm going to take your suggestion nicely done offender designation is going to show up again if there ever any future offenses committed it could show up in a in a misdemeanor state court case