roman three a little thirty three lies and beat three lies but there was no change at all made to see was there our view is that there was a change may deceive her two reasons one we think the focus should be a little bit more in a categorical fashion much like the st circuit approach the issue in united states versus smith and this way you simply look to see whether the individual committed a violation of section eight or you want to evolve in crack cocaine and were penalties and be modified they work but when you want to be penalties but when you look there's two elements in b amount and identity so much more than just penalties right well it could be identity because the fair sentencing act only addressed  disparity between crack and powder cocaine so that's where the limitation comes in on that score in our view though stepping back from a can simply look at this fashion tory framework as a whole to see whether  penalties and be were modified they work but even if you accepted the government and the district courts work barrow ok and look to simply whether the subsection that applied to mr burke was and if if the prosecution chose to charge you under c it's irrelevant right you could theoretically have been arrested with you know carlos mugger or all levels of the tons of cocaine on you and if the government decided well we're going to charge a son to be one he that would be then the operative provision not what could happen but what did happen in the charging decision correct i don't believe that that would be operative in terms of eligibility i think that your honour's focus would bore better inform of the district court's decision making on the back just trying to figure out the analytical frame i'm not and the analytical plane you seem to be saying is because there'd be one seat can only be understood in contradistinction to be one a three and b one b three that it necessarily change because it can only be understood in contradiction contradistinction to those st two that that's the pitch i understand to be making right that's one of the pitches i think i'd also stick to my earlier argument as well the one forty one b one modified and the answer again would be yes but you're right your primary argument is you were charged under b one a fair go everything happened everything was changed wasn't impressed by it but maybe we'll be more impressed what's what's wrong with the government's position as articulated in that way to nd that the that if that were what congress were doing it would be walking right into a constitutional trap because and and the st step back were not been acted long before elaine so are we supposed to be thinking that their congress is legislating against the backdrop of constitutional decisions by the supreme their constitutional procedure that required the government in certain circumstances to prove things they're going to alter either a mandatory minimum or yet every maxim but they don't hear what y as provided in the paragraph a and b so they're necessarily linked as a matter of statutory tax to begin with and one change in the threshold for modification the drug quantity by the amendment correct as and we're ok and therefore the penalty was changed what you would say well that i think that the scope of the statute in terms of who would fall within the provision assuming it was charge was changed so that without qualification i believe that's how we would look at it and it also changed the scope of subsection c in the same way judges exercise of this crash and i don't think we're going to i don't think anyone is going to disagree with the fact that if once you get past the eligibility gate there's some discussion get into that for the sentencing judge but if you  the secondary argument as to whether subsection she was modified or her language that even if we accept the government's position not thank you and for what we have received an whole hold on when you say it's consistent with the purpose of the fair something act in and indeed the you got you got support for that again in smith where they say you know they think it's most unlikely that address disparities when large amounts were in play because that's where the disparities were going to reach the most significant serious differences and they weren't as concerned about  smaller they just they did work it was concerned about making people eligible for changes that small amount because maybe they thought that's already hamel courts are already dealing with that at the small not level what's the what's the policy what's the thinking that says it has to be the case that congress meant to get to see because otherwise it doesn't make them well it doesn't seem that there's any indication in congress decided to draw a line if i was going to suggest the way they could have done it very could have done all kinds of things his heroic that's the point and that's the thing that we're wrestling with now right with you which is they they didn't appear to do anything the old shouldn't we but not the c that's the that's why i'm asking you the question about the smith rationale where you seem to be saying it doesn't make sense and smith think you think doesn't make sense i'm trying to find where why didn't why are you the one hundred and one dollars disparity which existed when perspective powder and crack cocaine existed all the way through the section wasn't just confined to subsection day and b and it was driven by statutory benchmarks as well of the guidelines you have that there are both of those other ones have mandatory minimums he doesn't then the court is always free to depart or to vary from the guideline so why is that it is logical to think congress thought there's a fix in place already what was i very straightforward act of congress i mean yeah you were set up and i can't exactly against your position in every particular and it looks like woodson is going to go that way and it's my my guess is that what's is going to be presidential categorically no there was no mandatory minimum sentence that applied to a b one c offense is not a fact that is exactly why prosecutors were charge that way because they're required to if you wanted a mandatory minimum sentence foot back in the district court so he can have his determination that he was a career offender reexamined by the person who was not subject to the mandatory minimum not subject subject zakk same penalties  s after the fair sentencing act doesn't get that chance a career offender in bert's position is arguing that he should have the opportunity to go back into the court not because his sentence  reduced by the fair sentencing act made retroactive by the st step back but simply so that he can have his career bender guidelines reconsidered that's what he indicated in his letter to the court that ask just the penalties so it necessarily is the case that the one c is swept up in it what's wrong with that logic well st off the difficulty i've had in examining smith and some of the other cases or the arguments that are made regarding this is the offense and that is the penalty and they have to be separate is my understanding of what a would also be considered a proper defense since smith was convicted for disturbing a crack we need to decide that issue or you know somebody's going to have to decide it and this court and dr smith position then there's no way that somebody who was sentenced for heroin offense or meth and that any offense couldn't come back and say well you know the statutory penalty for eight hundred and forty one was modified even though it was modified just for there it's a whole you've got up a whole pie it's got eight b and c in it and when you change a and b you have to change c but i think mr orcutt is looking at it and you keep using a word back and i  say reverse be beat language of the st step act feels about sentence modifications that read deuce and individual increase in the level of drugs it would make eligible for a mandatory minimum sentence is the modification that was made by the st step back nothing change the fact that under the one you were not eligible for a mandatory minimum then you didn't get a mandatory minimum and as your your honor is pointed out if you look at the text of the amendments made by the fair argument they're making that i take their position to be dismissed the case position to be yes the words were not changed but that doesn't mean that the effect of the statute was not changed it was was modified by changing a and b you did modify c even if the verbiage remained done change that's the that's the argument i'm trying to get you to address directly is that yes my my response to you could not have imposed you cannot and do pose a reduced sentence for a b one then that is the answer to mr always claim that well it's modified well no it wasn't modified because under section b the court cannot reduce the sentence for a b one c which means that it wasn't modified the modification refers to the eligibility for the five year mandatory and the ten year mandatory sentence  and to go back to the point in and smith where they talk about congress couldn't attend this and it's unintended results you have a situation right here where the amount of crack cocaine  were just five years or ten years that time most likely would have expired but these cases are all seem to be connected with individuals who have prior criminal convictions under a fifty one more information we'll file than they w mandatory minimum because there statutory maximums and guideline ranges were exponentially larger because of that distinction so in this particular case amount that nothing would have changed and that was the whole purpose of the st step back to give those individuals who did not get the benefit of the sentencing reduction under the fair spending act i shot at  birthday able to come in an individual who was sentenced after that we can act in the same situation is denied that opportunity and i don't think congress intended that at all and the interpretation know the court is pretty straight forward and i know it's their district court and that's why and i know they're on presidential payroll and other circuit and that's why but they're instructed and they can be considered by the court make changes to the statutory sentencing ranges that were brought by the fair sentencing act to make them retroactive so how is it if that is the purpose how is that all further by a sentencing reduction in a case like b where the sentencing range available to the district court was the zach lee the same before the fair sensing act as after well certainly the district court judge could take that into consideration and decide in under clearly what they intended a fairly broad application of these measures if the supreme court case law on this is pretty clear that it doesn't matter what an individual congressperson or senator says what matters perhaps a committee report but statements on the floor of particular senators or congress persons who some of whom aren't even involved in the drafting of the st step that gets almost no difference and that's correct but  your question was a modified and even if you look further down into subsection b one c the penalties are modified because the range of exposure under subsection c was raised and altered as a result the only modification they're making is to the penalties associated with crack cocaine you have a logic to the logic in there that the problem the st circuit is recognizing the hole in their in their logic which is if you go with  and forty one a modified everything then unmodified everything and you know that would apply to heroin too but we'll think about that another day so i was hard to understand about that they've identified a problem in their logic well they've identified a problem that doesn't really exist in these cases because let me think living language in section forty four and in a fair setting that this all directed towards crack of pain offense not heroin not powder cocaine not not methamphetamine or any of these other substances so i  that determination because it's simply a modification of it most significant change in the penalties and for these reasons as just that earlier we believe mr burchett should be sent back for it terminations when the court wishes