informed monday morning so his office is working from home the i t people have assured me that the electronic commish connection with judge matheson will not enable that virus to spread here ten based on a determination that he was a career fender's he was sentenced to two hundred and sixty two months incarceration in his pro se pleadings mr manny did not attempt to challenge his status as a career offender statutory punishment at the time of his conviction was a mandatory minimum of ten years in a maximum of life mr manny is eligible for st step act relief he was convicted of a cover defen no longer subject to a possible life sentence and the advisory guideline range for the alternative career offender computation reduced twenty one million eight hundred and eighty two thousand two hundred and thirty five minutes incarceration the government acknowledged this but urged the court to deny relief so eligibility is not an issue but the fact that the court did not grant relief is before the court for disposition  district court denied relief citing the public's interest in preventing mr manning from siren any more children that he didn't support and preventing him from harming other women and children the court characterized mr manny as a recidivist with a history of domestic violence and clued in that he was in and redeemed and by his efforts at rehabilitation although the court acknowledged that he had done some things to rehabilitate don't really apply and that the courts in reviewing this for abuse of discretion and we acknowledge that this is an exercise of discretion by the court that the abuse of discretion standard is somehow far more generous than it would be if and less and less he were here on a direct appeal from in the original sentencing the problem with the courts and now with the government's analysis of the standard review of this process that goes on in the st step act is that to agree with the government you are going to have to ignore the plain language that congress used exactly to the point when mr mini was before the court on the st step act motion his guideline range is now one hundred and eighty eight months to two hundred and thirty five months budget but the four of which you rely on be starts off by saying the court may yes and so doesn't that make all of you folks on the board made you focus on the word imposed but how do we get or how do you get around the word may be fifty three dollars a factors include the sentencing guidelines the sentencing guidelines in this case are reduced two hundred and eighteen eight thousand two hundred and thirty five months judge try it never explained not once why a one hundred and eighty eight months wasn't sufficient but not greater than necessary to achieve the goals of sentencing mr manny is still a career offender the things that the court focused on his history of recidivism is taken into account in the career offender computation the severity of his of his prior actions is taken into account in the career offender provision he was before the court mr ban is now before the court by virtue of the st step act of two thousand and eighteen congress intended that the court may impose a reduced sentence and not mr manny wanted to have a plenary recent thing i believe that denying mr manning the opportunity to present elocution into addressed and of the other judges issues with mr mann was an error what did congress intend when it promulgated the st step backed it intended to reach men just like mr manny who had been sentenced to extraordinarily long terms of incarceration under the hundred to one crack disparity congressman wanted the courts to look at these men and again you cannot reconcile what the court did with pepper gall and with rita this is effectively an opportunity to rescind into this man he may impose a reduced sentence and simply by saying two hundred and sixty two months is necessary to protect the public from you does not engage in the type of individual licensing post poker host pepper that is required courts exercise discretion within  frameworks either within a framework of the rule a framework of a statute or the framework of constitutional decisions mr manny was back in front of the court for reconsideration  the court articulated why mr manning was not a very nice man and why a substantial sentence was imposed should be imposed he flatly rejected mr manny's request four hundred and twenty minutes which would have been the mandatory minimum sentence prescribed by the new statute but he never explained why on one hundred and eighty eight months the low end of the new career offender guideline was not sufficient but not greater than of what would you expect the judge says he said you have this very bad record i recognize what you've done in while in prison in taking courses family although there was some out there were allegations of domestic abuse there that i would think would be quite relevant so what puts the judge most is say you've got a bad record i think this is the appropriate sentence  hundred and eighty eight months just wouldn't do it one hundred and ninety five would i don't think we require that sort of thing well three thousand five hundred and fifty three a does the sentencing statutes require us to impose a sentence efficient but not greater than necessary to achieve the statutory goals of sentencing and setting and he took that into consideration obviously and he he recognized what the guidelines range was and said i think need more given this history do we ever require more than that have we heard some mathematical computation of you know whether this is sufficient or not i know the courts do not require a mathematical computation however they do require some reasonably articulated basis and why is that not present here because i don't understand well it's not present here in part because the primary person who might have had something to say about this the primary person who could have answered the judge's questions about his remorse the judge also pointed out that mr manning was shown no re sentencing proceedings that were rather peculiar they were conducted in a very odd way by his lawyer and so missing the judge was judging mr manning based on the mr manning who had been presented before him ten years previously and now you're arguing that he was entitled to a hearing it sounds like the rule specifically addresses re sentencing under these provisions where there's been an under under the statute ted this case for the very specific reason that when you have done well in prison you might be eligible for that reduction so you see if you don't you know not so much so countries the rules you think in certain circumstance he is entitled to hear i don't you're saying you're saying he wasn't entitled to a hearing but other courts have allowed a hearing in similar circumstances and he should have been given one and it was it was reversed the boy or not that in appellate review decision like this our court should engage in a procedural and substantive reasonable that's analysis along the lines that we would in an appeal from the initial sentence and my question to you is whether you have any authority for this under st step back to niles if any other courts appellate review i believe that this occasion a st impression in the circuit the circuits are slowly trickling out honor good morning ma'am please the court my name is tim ogilvy appearing on behalf of the united states the district court's decision in this case not to hold a hearing was not an abuse of discretion and authority for that position is found in a number of places most prominently in the text of the st step act itself which neither mentions much less requires a hearing second is one of the question to earlier federal rule of criminal procedure forty three which governs when a defendant must be present or need not be specifically includes any form of sentencing modification and the needs are twenty eight j letter with that i think i certainly will your honor both of those cases are very very recent in fact one just within the last month or so another circuit in the context of opinion by saying that this the notion of discretion in the st step act is plainly inconsistent with a plenary re sentencing and there are fundamental differences between a citizen in the st place and a modification which is what happened here the argument by the defendant that attempts to graft a procedural reasonable this component on to something which is not an initial sentencing simply doesn't work for reasons that i've explained in my brief it's not required a judge is within his discretion to hold a hearing or not  and again the language of the st step back is that a judge may reduce a sentence and as other courts that recognized that kind of discretionary language is plainly different from the things a judge must do at the sit and see in the st instance the only thing that the st act requires is that a judge fully review a motion on the merits and we know from the district court's order in this case that was clearly done another what do you think it means to review on the merits do you think that means a new review of everything or only taking the old review and adding in the sentencing adjustments for these drugs i would say it has a number of components one is one argument the defendant made was does include not just the fact that the guidelines the sense has been changed the statutory conversion rate has been changed but also that they have to consider everything else about the sentence to again we consider that i think your honor that st they cannot and should not consider everything about the sentence for example whether a person was consider a career offender and they for sentencing is now not properly open for review on a st step act motion but as the district court did hear three thousand five hundred and fifty three factors were considered mr manny's positive changes since the date of his original sentencing were and do you think that those that they had that the court has to consider those things i think the case law is that things like post syncing rehabilitation maybe consider but need not well if the court does or is required to consider other evidence then i think it you have a harder case about arguing that there should be a hearing because if if things like post sentencing behavior is considered and particularly if suggest in this case that it's not so and insurmountable for several reasons one is again that the st step back doesn't require it nd as a practical matter there was no fact that the defendant has a den of fide in his brief that he would have personal and that's what he asked if there was no if it was a proffer so we have something but then it would have said we have nothing so this particular case may not raise the issue i mean it are simply some defaults that cause that issue not to come up but but if it is the government's position is it is that the court should consider not just the change in sentencing conversion you know a punishment conversion factors but other post conviction behavior then i'm having a difficult time why that if it would not have a eight fights you got three times you were disobedient once you did this once you did that and therefore i'm going to change it or i am going to change it now what made even worse but you don't have a right to be in court to defend yourself well there's to be answers to that be as a practical matter was there anything like that here and the answer is no no every time testing the your position about that that there is no right to a hearing if it even if there are facts presented like post conviction behavior that the court should consider your honor i would say i would st of all fall far short of urging the court to say that in certain circumstances a hearing must be held i think that we're view of in the use of discretion and allows for flexibility in exactly that circumstance and it's true i can imagine a hypothetical where under like here a defendant tries to put new or facts in writing before the district court and the district court simply says i will not consider those i don't care who raises and in such a fashion either not hearing from counsel or failing to hold a hearing may very well be in the abuse of discretion with the incidence of those i'm sorry are you aware of any cases where a court has said that the district court  error to simply reduce or decline to reduce without a hearing and again the hypothetical that i suggested i have to think is the likelihood of that ever happening and practice yes does it make any difference on the hearing issue that the sentence at this point is in effect upward variance in other words under the st step act the guidelines the court to explain it with was it would there be any other legal significance to this record that is upward variance rather than within the guidelines i would suggest the answer is no your honor this is simply a discretionary instance so the fact that it is and upward variance i mean here we do have an explanation by the courts of this case by the resent that issue but but the your position would be that discretion i suggest that the court's ultimate decision to deny mr mann these relief is amply supported by the district court's order and by the record as the district court gave it just a very highlights of and the district court finally explained after taking into account all of the factors including three thousand five hundred and fifty three dollars factors and the new arguments raised by the defendant concluded that the current sentence was the appropriate sentence and the district court was quick to explain that was a calculated decision as it was not simply a reflexive default to the guidelines so for all of those reasons i have suggested that it is not an abus the district courts discretion to decline to hold a hearing that the full and complete review on the merits that the st step act requires was done in this case and the cult courts ultimate decision was similarly not an abuse of discretion thank you runners but thing does matheson did you have any question no no for the question