as a result of the vacant or of his prior felony conviction the circumstances of this case the unique circumstances of this case cry out for recent events as the government has conceded the district judge incorrectly found that the defendant and the petitioner mr reed was a prior i'm sorry was a career offender now it is helpful when  there needs to be a distribution element in the convictions that were that mr reed had been subject to and there were no substantiate this arrest once the nine hundred and ninety three dollars conviction was vacated and the indictment dismissed i would argue that there were no longer any career of offender for citation in a prior felony information but you disagree that under the guidelines he's a career offender quite frankly i disagree that he would have been subject to prior felony based on these  particular offenses but what what i would like but in any whether he is or isn't subject to it in fact once the previous prior felony information has been  in point of fact the district court was incorrect in finding that he was a career offender and incorrect in say stating that he was subject to with three hundred and sixty month to life prison term because under the guidelines once there was no more career offender status we have we paid that to a guideline a criminal history category of four and the guidelines will greatly be very concrete about it when he was sentenced everyone in the room including his lawyer and the prosecutor believed that he was subject to a twenty year mandatory minimum that the guidelines recommended three hundred and sixty months to life that's what everyone thought exactly and in fact he was subject at that time to the mandatory twenty year minimum but the guideline range was actually two hundred and ten to two hundred and sixty two months correct ok and today what with the vacate of his new jersey conviction if he were to be sentenced well it is gets even more complicated  but the now correct situation is he was his subject retroactively so to speak to a ten year mandatory minimum and guidelines of one hundred and eighty eight two thousand two hundred and thirty five months but if the st step back were miscarriage of justice in this particular case when the court was sentenced him everybody in that room and the record speaks to this six times in the record thirty six dollars page sentencing transfer very short but on six occasions everybody's stated you're being sentenced to twenty year term because that's the mandatory sentence in this case they hands for time right here but now we have a situation where that's not what the district court some of them in the original censoring she was asked even absent the prior felony information would deem a twenty year sentence based on the guidelines to be reasonable and she said absolutely yes but she also pointed out know life is too too much for you but yes you know i i think that the twenty to twenty year minimum is appropriate but really at that point that's what everybody understood the minimum wa your argument is that it's a different world when's somebody stands before a judge for sentencing and everyone believes that twenty years is mandatory and the guidelines recommend three hundred and sixty to life twenty years starts to sound like leniency but if you were in a world where actually it was ten years to life as the sentencing range and the guidelines were topped out at fifteen years or less the whole situation would look different  the lands that she was looking through at that time was a twenty year minimum lands we have a new lens now you know i need to take off my glasses when i read well she need that she needed to change she needed to have it when she when she reviewed this petition the sentence should have broken out because one more question though about what happened below her decision came down when he saw what the difficult of a few ability he brought up the career offender and the certificate of appeal ability was granted and you were appointed and i have to say that mr reed helped in his own in his own case and this this is a case that needs to be remembered and i would also ask judge cyber threat that it was was even this time around no one even pointed out to her that the guideline career offender guideline did not apply the assumption was still that information really it's like he had he was eligible for a twenty year mandatory minimum in effect and the guidelines are still three hundred and sixty dollars to life if you're right and we remained in correct of that error why would we assume that the judge would not be capable of looking at the case as you put it through the appropriate lens on remand tell you why and i know it's unusual and unique but  was talking to mr reed about the sentence she said she talked about the trial that she presided over and she said i recall vividly you cooking up a batch of crack and then she said the distribution of crack has ruined your neighborhood and ruined many lives and you are going to be held responsible for yes but that may be right she would be entitled and so would any other judge who inherited the case  entirely within his or her rights in considering that fact and some new judge would go back and read the trial transcript or such portions as the government cited to him or her and it would have that same information available i for and with all due respect i for the transcript and quite frankly for you don't have the commission i don't see evidence of that i think i think it was disproportion directions if any with direction let me ask you are you aware of any practice or tradition in the eastern district of automatically on century man and referring this to another judge there's a long history as you may know over the decades about the directions from time to time of the day of the court of appeals that amount to be sent to another judge it is sort of you can see immediately that there's a suggestion implicit suggestion of of the judges not being able to do the job armory man and so the eastern district has been reported to have a certain tradition and miss corkery and her colleague will perhaps be able to lighten us on that and others it may be that if there were such a rematch were automatically go to somebody else so we wouldn't have to say anything on that score but you wish just even if there is such a tradition you like or new practice government respectfully submit that the defendant cannot show that they carry the burden of a fund showing a fundamental effect that inherently results in a complete miscarriage of justice the defense was convicted at trial of eight separate counts on conspiracy which had the mandatory minimum increased by the prior felony information and seven substantive drug trafficking counts none of which had the mandatory minimum of the ten of the twenty years at sentencing  counsel just said she was in the room i was in the room and the court at that time sentenced the defendant to a lawful sentence on each and every count of twenty years with the counts that didn't have the mandatory minimum of twenty years decision to discriminate among the counts and decided specifically that twenty years was appropriate both for the mandatory minimum and for the others are the guidelines don't you calculate a sentence are of the prior felony information so to the extent that i don't believe that was foreseen by the by the court but but i do believe that in consideration the guidelines level the court made the decision that twenty years would be appropriate indeed as  said in consideration of the guidelines level but now you've conceded that the guidelines level that the district court believed applause in two thousand and twelve whatever it was when the sentence took place was wrong and the guidelines level that the district court still thought applaud when she considered the heaviest petition is the same one which you can see it is wrong your honor i don't believe that the guidelines level was was incorrect at the time of initial sentencing i believe that that was appropriate at the initial sensing the defen conviction was vacated it's the fact that this conviction was the only strike as it were because it was the only narcotics offense where distribution was an element and therefore the other strikes that added up to career offender didn't qualify i thought that was the argument and that was the reason why you agree that the three hundred and sixty to life was incorrect from the get go your honor with respect to the today there were yes then on on the petition to the extent that there's no longer that initial there's two there's only one now so there's only one that could qualify as a controlled substance offense so based on that the guidelines are now he is no longer  and sixty months to life and then once those are in play in a sentence these all seem to be reasonable the judge is required to consider the guidelines three hundred and sixty dollars to life in looking at what the sentence should be she's required to pay attention to that is not to follow it but she was required to pay attention to it and there it sits congress has adopted a twenty year mandatory minimum when you're looking at that it looks like well i mean he's not as bad as all that i'll give him the bottom of the available sentences but it's very different then then suddenly you know these numbers all turn out the way because they're sort of arbitrary and a little weak here a little tweak there and suddenly you're looking at the same guy with the same actual record of what he's done both in terms of the offense conduct here and the criminal record and now suddenly our fabulous guidelines are telling us really he could get less than fifteen years as a sentence instead of thirty to life i mean you know it's and now we're also in a world where congress and the sentencing commission are taking away some of these sentences and you're basically saying stick to the  sentence that was given at a different time in a different world when everybody was wrong about what these numbers actually were because why exactly because it's not a miscarriage of justice i mean after all i'm not saying twenty years is a miscarriage of justice by any means i don't know i haven't studied the sentencing the trial transcript i haven't looked at the details of his criminal record it's not my job to sentence him maybe the judge will look at those things and think twenty years is still sentence and i don't see anything that on the face of it says that's a reasonable but it's very different if the judge imposes that sentence in full knowledge of what the actual legal landscape is then if she imposes it and has different if she imposes it in the world where she thinks that between twenty and thirty years is the effective range and everybody in the room knew it was going to be a twenty year sentence that's probably why the defense counsel didn't bother to research whether to argue for whether the guidelines were right or wrong it was nothing to argue about was going to be twenty years sort of a speech put a question mark at the end of it and say whatever you want to it was not it was not just basing its opinion on the you know it here it's to those guidelines the court made the assessment watched all the evidence the trial saw all the factors and made that determination that is  factors i would impose this twenty year sentence again so again what right and that's a good prediction of what the judge might do then what is the cost of asking the court to rethink about think about it again in light of what we now know of the true legal situation is other than and is not a small thing some imposition on the district court's time is not a small thing but compared to whether this man is going to spend twenty years in prison or fifteen years in prison a couple of hours of looking back at the record again and being sure that this is what the judge really wants to do it seems like a relatively minor cost you are putting aside the finality of judgments i recognize that it wouldn't wouldn't necessarily be the most onerous burden to place on the district court however judge judge the district court at sentencing evaluated all this material at the outset revisited the issue on the hayes petition so again you're not all the material not all the material but it was aware that the very minimum no longer applied to the  take it that miss marian run tala appeared as counsel at sentencing right now yes north sentencing he was represented as i direct right secondly i asked opposing counsel abo sentence and that there's actually you just that it goes to another judge can you enlighten us on that can you put the light up or light a candle forest mist i'll do my best and i'm generally not no i just it's important to this point when i have the full picture in the same way when i have the full picture of everything that was at play at sentencing let me ask you finally for your personal assessment based on your experience as a case is there any doubt in your mind that judge siebert role is likely to come to the same conclusion of the riemann my understanding