please the court the parties agreed below that a reduced sentence of one hundred three months procreate in this case but despite that joint recommendation the district court believed that it lacked the forwarded to go below the one hundred twenty months that's very minim that conclusion is mistaken both in the particular facts of this case but also based on several legal print and i will start with those legal principles because they control the outcome not only here but of several other cases that we have ending in our district including two cases where we've asked for bans in this court in the out here the first issue is a mistaken legal premise that pervades both the district court order and of the government's brief on appeal and that's the notion that a thirty five fifty three emotion is granted only if a sentence below the statutory minimum is imposed but that's just not right let's just not right because in the circumstances of this case where the guidelines range is above the statutory minimum the departure under thirty five fifty three e is required to begin at the guideline for and so here by granting a reduction from one hundred departed one hundred fifty one months down to one hundred  twenty months the original sentencing court affectively granted both the five a one point one and the thirty five the second legal issue is that the government filing the thirty five degree motion at the initial got the government files the motion that automatically provides authority to go below correct but then a denial of the motion could then put us back in a situation where there was no way for the authority just there by virtue of the government's motion that is our petition the authorities there by virtue of the government motion now so will a couple problems i had with that one was there are other places in the criminal code where there's issues about the government who has the authority to make something happen the government of the court and in thirty five fifty three the clearly says the government has to file a motion which in most in almost every legal setting requires a ruling by the judge where is ther places such as twenty one u s c eight fifty one where the government files information or some kind of a notice which the court has no role in doing it so why would the court why would this why would congress hold a motion if it didn't expect that the court had to make on it rather than the government's filing of the motion automatically divest the or eliminate from entering minimal will there's no doubt the court has made a ruling on the motion the way i interpret the way i read it six thirty five fifty three e is authorized it to go below the statutory now the not quite sure of the question i think that is our position which is by virtue of the government filing the motion that gives the court the authority to go below the minimum at that point thirty five fifty three sets in the the river like i think they are so i think there's an argument that that's a precondition for the court to go a lot of them but now we're in a different circumstance for the court has  given a sentence and because of the amendment you're coming back and saying that the fact that we filed this motion in and of itself fits into this category so first and foremost the court grant that the motion because under thirty five fifty three right that's in this case the in general terms try to find out what your position sure so in general terms our position is that so long as the motion is filed the a thought experiment on that which is assume for a second that the government had moved in its initial motion so we pursue it the thirty five fifty three even if not cited by pay one point one and all what the court would have been required by the text of thirty five fifty three to do in that to thirty by fifty three e it is nonetheless required by the statute to calculate the guidelines and to impose a departure from that point which in this case it would have gotten one if you want it was required to value the assistance from that point correct what we think is a mistake both in the understanding of what happened at sentencing here but also in terms of what the legal impact was of moving from one fifty one to one for any kind of a really basic question what was the basis for a district court granting us in one motion for substantial assistance but denying thirty five fifty three emotion first is a substantial if this is the same thing and both an expert question i cannot fathom a basis for that and that's why if you look i think you mention this in hard to imagine a reason why you would grant one night the other why we we think that once the court has the authority we're always doing value how much value despite the government at that point the judge is free he doesn't have to follow the government's recommendation in making low again we're sort of reading the tea leaves here a little bit but if judged on burke and look at the situation i don't believe this merits going below the mandatory minimum one twenty why couldn't you have just then if you had wanted to issue something more explicit  d that one twenty was all he although he was willing to do and therefore the five k motion is granted the thirty five fifty three emotions not and you could still get them one twenty five or so i was in so that i would start i think that if even if you'd done that it if you had said that on the record what you positive it would still justify a reduction in this case you would like the average different solution if you were starting from the one thirty point instead of starting from the one to one point and that's why i think sentencing commission has said that it makes sense to allow courts to consider reductions in the situation because you're going to if you're starting at one thirty in the one fifty when you value that assistance you're going to get to a a lower well not that makes sense but then how do you bridge them m minimum to never happen first well i think our first argument on that is that the authority was there from the beginning the second argument i make is based on the supreme court's decision in melinda's and that is that even if you hypothetically if we assume that the government's initial initial filing at the same thing wasn't enough in this case the consent that they filed through the thirty five eighty two motion at the thirty five eighty two state is an independent basis to find that the court had the authority to go below the minimum if you look at but no melinda's the supreme court says that the government doesn't need to specifically invoke thirty five fifty three in order to trigger the government or the court's authority to go blown up certainly if the government cites thirty five degree that's enough the court has the authority but simplest terms would they take it that in the oral transcript the hearing judge storm for granted the government's motion which was a dual motion  that's really all it is i understand your argument all you need that is that is right that's the simplest form of argument i think there are more complicated issues that arise if for example the judge moves want to do you want one for me and says well i'm denying thirty five to three i think that's an no one would have left believing what we're made believe now that the motion was printed in part tonight in part so your point about melendez i don't think i had focused on that earlier is that by coming back on the thirty five eighty two matter and the government recommending the one hundred three it implicitly without invoked without using magic word thirty five fifty three and renewed that right and the footnote seems to imply you don't need to use those words right but is there any precedent for a thirty five fifty make clear the commission believes that since reductions are available in these particular circumstances and that's what it would result if the districts were held up in the government official and you were followed we would have a very strange situation where you have the you imagine the spectrum of cooperate independent least the most hopeful what we create here is a sliver in the middle who aren't eligible to be considered for the sins of the least culpable whose sentencing guidelines ranges or below the mandatory minimum everyone agrees that they are eligible to be considered but the most culpable who guidelines ranges are well above the statutory minimum they too are eligible to be considered for a reduction but you have this small sliver in the middle whose ranges and since it's rattle the mandatory minimum cooperating and then have the opportunity to receive the full benefit of murdoch and you fix that issue by having it made more clear that the second stage of thirty five a two stage the government can then file thirty five to three type motion but that it may be needs to be explicit on the record the that motions involve the court has granted it everyone's in agreement well as opposed to relying on a general notion that whatever happened earlier with control even if the rec the authority and then in subsection see the commissioner first do so long as the court has the authority that as i read it is the sense in commission suggesting that if there is a thirty five degree motion filed you know something that gives the court the authority and it carries through to be reconsider well i sure i am the government agreed consented to one hundred three months so we did agree and we consented as in our discretion i wouldn't say we exactly recommended that sentence but we consented to the specify that and we did not change our mind even on appeal but that was an appropriate decision we still think one hundred three months is appropriate however it came down to us as we looked at this on appeal it's a question of fact that the district court made the determination a fact that the sentencing court had never granted the thirty five fifty three emotion and congress requires that that that motion be granted or where do you get not the actual guidelines but the seems like the convention was written in many districts that you look at a new guideline range based on the recommendation under the cooperation motions and the guideline range if you believe that the mandatory minimum and then the court will go on later to say but we have a mandatory minimum and so that becomes a sentence in any event the court imposed a sentence at one twenty first of all i want to take issue with a couple of things that mr carpenter argued before i in not doing so the government does not believe that just that a court cannot both grant a thirty five fifty three and impose a sentence after above the mandatory minimum those things are not inconsistent necessarily the four could say well i grant the motion but in my discretion i'm going to still sentence at one twenty but if the court is not precise and says i i you know the government has moved under both based of course as i grant the motion but doesn't say under which and the court imposes a sentence as a mandatory minimum at one point i guess is just how do we know the difference whether that was from grant original so i guess part of the when we looked at this we felt like there was enough ambiguity in the sentencing transcript because he did not make clear but were in federal court which is a different rule where we are governed properly by the world transcript and that seems to order the other way i think that there's enough ambiguity in the oral transcript that judge writing there could properly take into account the written documentation that accompanied it because there was never a point in the oral transcript where the judge made clear particularly given that he imposed a mandatory minimum sentence that he had in fact grant very clear that i think that this court's through your honour's questions are suggesting an entirely plausible reading of the district court record that is to say what the sentencing court did in the transcript and the judgment if you look at all of those one can conclude that the court granted the thirty five fifty three e motion that is one possible interpretation another plausible interpretation based on the docket entry and the statement of reasons and the confusion in the transcript or at least some some ambiguity is that the court did not and so the question is whether to writing there clearly erred is or substantial evidence to uphold it we have looked at it and i ask you a question about that or so in your brief you say that the motion the thirty five fifty three motion is without effect the court has denied it right so once it's denied but there's no finding the second court never said it was not i just said it wasn't granted and isn't there some space in between there like even if it wasn't granted isn't the next most possible thing imposition of sentence at a particular time and the government says your honor we believe that the defense of santa assistance merits a reduction and we're willing to to contemplate a sentence below the mandatory minimum because there are  motion is termed and once that sentencing takes place the thirty five fifty three emotion doesn't sit out there for years and decades on end so that a later judge can impose impose a sentence below that mandatory minimum without the earlier judge having actually granted that motion or the government somehow renewing it and this is the first i've heard of our authority and i thirty five eighty two contact to file a motion i'm not disputing that it may have happened in the  the government agreed to that but that we didn't do it in this case we didn't intend to do it in this case we looked at this case and arrived at the same conclusion that it looks to us all things being equal that probably was granted and and  were willing to consent to that relief but when the district judge found something else i was tasked with ok let's look at the transcript syrian security yeah there seems to be some ambiguity he doesn't specifically say he's granting thirty five fifty three he does  the motion but the motion has is really a dual motion so and then let me ask about that the pieces where you have that presumably just run your relied on so their stamina reasons documents and as i mentioned the second checkbox i believe in your papers and maybe even the district courts statement indicated that one piece of evidence was the fail failure to check the box for a sentence below the mandatory minimum under thirty but to do three but as i read that language you only do that if the dissent actually is below what i said it's possible to grant thirty five fifty three but not to listen so would you agree that there was no reason even if you agree with your which is the thirty five fifty three it was granted and i don't disagree with this busy sentence imposed as below amanda that's right right absolutely and so that box does not does not meet the circumstances if a judge grants the motion but imposes a sentence that is equal to the mandatory minimum the judge also check the box that the mandatory minimum was imposed when it was one twenty one which was imposed right but i think there's always been some confusion about what that box means so for example if you give a sentence of one thirty you check that box because you honor the mandatory minimum even though your sentence was higher than the minimum is there any other guidance on that form requires or how it's to be interpreted not that i know of i've seen it done both ways but i've also seen judges write an explanation where they explain you know that that that different i mean just a very short explanation or there are cases i was planning to look for a moment i didn't find them but other cases in which the to be considered in these types of analyses that it's actually a and therefore a recognised piece of evidence either not as significant as the transcript itself but still something that we go to even though its purpose is not to inform empowered to consider the statement of reasons but if this were has statements of reasons as has the district court or just evidence it's evidence of what the core was the reasons why or impose a sentence and we have relied on the statement of reasons and in these kinds of cases particularly but also trying to think of i mean i have statements of reasons all the time so there must be other reasons why i'm looking at them but they're in thirty five eighty three simmons cases things like that we look to the chance that this court would find a legal error of a different sort then i think is even presented in this case so from the government's perspective it seems to me plain that judge writing her made a fact finding just writing or did not say that he arguments that the federal defenders are making in this case about authority and that's what i wanted to address so this is sort of  carpenter will be able to speak better than i can to the specific details of those cases but in our discussions about advance i did not understand them to have this kind of actual dispute i want to be very clear that section one b one point ten c which is the authority for analyzing the a mentor calculating the amended range without regard to the mandatory minimum is only about calculating the amended brain when it says the district court had authority to go below yes this district court at the time he sentence had authority to go below the mandatory minimum five virtue of the government's motion but nothing in one b one point ten c authorizes the court to go below the mandatory minimum if the district court denied or did not grant thirty five fifty three emotion and one b one point ten c only goes to how you calculate the  range in this case the amended range was still entirely above the mandatory minimum so that really wasn't triggered and there's nothing that this court needs to decide in this case relevant to whether or not that it just isn't it's not a provision that particularly helpful and i think the defendant wants to say well once a district judge is authorized then they can always go below even if that motion is denied and that cannot be the moot government has filed a thirty five fifty three otherwise or thirty five thirty five motion otherwise a different district judge could come in ten years twenty years later and say oh you know i look at this in the government at thirty five d i can i can reduce the sentence so that i don't think that that section twenty one and does anything that's particularly helpful for the defendant in this case  the motion with the knife so it really comes down to a question and the government respectfully suggest that this was a big it was enough that the court could properly if we just don't think that there was clearly a clear error when there was some and not the other and i don't know that there's a particular practice i think that judge writing or that was one of the pieces of evidence that he considered and i think that what he considered was that there was no place in the record where judge thornburgh either on in writing or even orally made clear that he was granting both motion and what he did was impose a sentence at the mandatory minimum that is that i did i thought i responded earlier but i may not if i obviously had in your very clearly we we consented on the basis that we believed in assumed that the third effectively free emotion had been granted now i want to be very clear that the volume of these i mean i personally have drafted more than five hundred responses to these motions so there is not a we don't go back to the sentencing transcript at that point generally but i assumed it was granted and so we did it that does not function as a thirty five fifty three emotion a new one although there is a footnote sure that means in generally at the first sentencing is that or if the government comes in and makes  recommendation for a below guideline sentance in the original sentencing proceeding perhaps it's ok for there not to be an explicit reference to thirty five fifty three but i don't think that that can translate to the thirty five eighty two context because that is not a context in which thirty five fifty three emotions are ordinarily me at all you know i think but i would have thought i mean i have to have i confess i have to look at the for myself i would have thought the idea would be look at the government is standing there consenting to a sentence under the mandatory minimum you know what's the problem because that's based on our understanding that the thirty five fifty three emotion was granted we don't believe we have the authority at that stage to you know i know from your perspective right it was just a mistake it and say the motion was granted in another place we can say it was not and it was deny but i don't believe that a judge when we say we consent to that reduction we're doing it because we believe that motion was granted and i don't think there's former granted the motion and so we consented to the really so but your department is called the department of justice is justice for the it is well our department also our role is to look at what the district judge doesn't make our own assessment about whether there's legal error on appeal i can't concede error on appeal that i don't believe has occurred and if if we look at the facts and say under this right under these facts that if i may answering the question on this record the transcript was ambiguous enough that we can look at those written documents and we looked at them again and thought ok this is a defensible decision because we think substantial evidence supports that just decision and it's a finding of fact i don't think we really made an error exactly in our initial response i think that six questions on appeal that we have to look at are different we have to look at the same standard of review that your honor system and that's that's the measure this case if the thirty five fifty three emotion that the government originally filed had been granted so i don't think that judge for judge writing or rather made any contrary decision to writing or simply made a finding of fact that that motion was never granted and so our job on appeal my task was figure out if that was clearly erroneous judgment and in looking at everything it seems to me to be enough conflict to say not on balance clearly erroneous your hon reach a different conclusion the prosecutors now have to make it very clear in the setting and insist that the judge make a ruling on thirty five fifty three separate from the five k one using this to some degree the fault of your prosecutor for not and on th n i don't know i mean i guess that in an ideal world perhaps a prosecutor would feel comfortable saying to a district judge you're noting every little thing that maybe didn't wasn't explicit but that  i don't know even in this case what the prosecutor's impression was i mean mr carpenter got up and represented that nobody could have left that room that day and not believe that the motion was not granted i certainly don't think that's true when the mandatory minimum was imposed if we were to conclude this court doesn't sit in the chair of the district judging cannot simply substitute its judgment if this court finds no substantial evidence to support the district court's finding of fact and absolutely that into the not into the conversation do we have cases that apply that standard or review in circumstances like this rather than just saying it's a legal question about whether there was discretion to impose the below minimum in dealing with probably more than two thousand motions like this this is the first case i've ever seen you know right where we have had a fact as you write that dr eligibility right it does seem like it's kind of a mixed question to me but and i mean i think that the question of fact governs eligibility in this case should or should change or alter in any way or even speak to particular factual question arises or the legal question the factual state rises it might be much easier to simply dispose this case once the rest of them stand on their says sure i would represent the d i think the legal one of the general legal questions is going to present that simply what does it mean to grant a thirty five degree emotion in that if you agree with sort of the premises set out in the beginning which is that  sentence doesn't go below them and exactly because if you look at and that's based on the text of thirty by fifty three e which requires consist with the guidelines the guidelines in turn under one b one point one require departures to start from the guidelines range to start from the one if you