to supplement mr sutton's briefs and fall focus on that legal issue but i'm happy to answer questions about mr sutton's arguments as well the legal issue largely is semantic and largely is decided in united states versus shara last month the court adopted the type of approach to motions under the st step act that we have advocated for in this appeal the st step back to the court noted is a novel statute permits district courts to revisit sentences that would otherwise be final and it itself  whereas the st step act permits a court to reduce the entire sentence including the term of imprisonment the term of supervised release any fine and so if a defendant wishes to reduces how would you rule forty three playing with your argument under the st step back in other words would the defendant's presence be required under rule forty three when the court to either modify a sentence correct sentence or order re sentencing as she said and that decision would then be used for an abuse of discretion and so in the two thousand two hundred and fifty five dollars context if there's an error in the sen with there doesn't necessarily need to be a full refunds and hearing the district judge can simply correct the sentence without having to hear to rule forty three dollars and so i think that that's the approach but the flip side that is to say if the court wishes to have the defendant present there's certainly nothing wrong with that but that wouldn't be in the use of discretion you know what what the court i think emphasized in shah you know this is this is a new statute and district judges are really given a lot of discretion to determine what they want to do with with these types of motions so in in our in our district for example we've got one judge  really up to the district court's discretion i think i mean i think that right there certainly could be instances where the judge abuses his or her discretion but it's hard to think of examples the example and shaw had to do with the defendant robinson where a district judge didn't hold a hearing and so there wasn't any record from the hearing itself and the explanation for denying the motion was was really to summary to really celebrate appellate review and that would be the type of thing where the district court needs to do more to explain you know if we're looking at this from the point of view i know you were asked to brief this aspect but if i could turn please never question for you on the actual denial of the motion and whether or not that was a diffuse discretion why isn't that question moot now in light of the fact that the defendant was released from prison last month so there are a couple reasons why it's not moot the st one is is very practical and it has to do with the way that the bureau of prisons credits time to a sentence so mr sutton was sentenced to one hundred and eighty months in prison he served one hundred and eighty month sentence if the court if mr saddam were to prevail on appeal and convince the district court to reduce that prison term to say one hundred and sixty eight months the bureau of prisons would consider that he basically has a all hope that there's no revocation of supervised release but why wouldn't that be an argument that would more appropriately be made if there is a revocation hearing as opposed to now to reverse sent back have a court reset and somebody to a lower sentence when you're already out of prison well i i think that you're right that that is a better argument but in terms of you but mr sutton is currently serving a five year term of supervised release after a year is well st of all mr sutton has alluded and is briefing most of these motions where the defendant was mr ask for that in his motion no i don't i don't think he did not for my review of this motion so again this that but it seems like that something if if he has a nd by the sample he could go back and ask the court to reduce this time of supervised release on that basis again assuming he can get a nd bite at the apple yes i think that's right and so in terms denial of this st step back motion was an error even though he can't get any of that prison sentence back he would have a better argument for early termination of supervised early so that  request below when he brought his st step back motion for reduction with that aspect of the argument be premature  i'm not no i don't think he has he has raised is a little late in the game that's that's true but he would he would he could make a motion in about a year's time to terminate his term of supervised release and if there were a favorable decision in this appeal he could cite to this appeal and say look i served more time than i should have you should terminate my supervised release rather than reduce it from five to a defendant wants to remain and to resolve you know thus far unresolved challenges to drug quantity findings in the like in the p s r so his so is it his view and i know you brief this but we have the benefit of you being on the phone now so i can just just ask you to his view that we should remain and and that the point of the remains and will be for the district court to resolve whatever challenges mr s had to the drug quantity findings or anything else for that matter that made up the computation of the applicable sentencing guideline range i think so i think that there are two basic  arguments that he's made one is that the government should be held to what he perceives to be its promise to recommend the statutory minimum sentence and the other would be at least and let me both characterize it the way that i would i would say that according to mr sutton to view his guidelines range ought to be about eighty seven to one hundred and eight months the drug quantity actually doesn't matter the dispute was about powder cocaine and the  offense level was set to crack cocaine but there there is a five level swing because he got in the destruction of justice enhanced and thus did not get an acceptance of responsibility and handsome and that makes a huge difference in the range and so i think what i would ask for is to remain on for the district judge to evaluate and least evaluate those arguments because what happened here is the district judge basically said well probation set this is the guidelines range and so it sounds district judge has a lot of discretion to determine how to how to deal with that sort of challenge to the guidelines frames but at least should tell us how it's resolving that challenge instead of simply adopting the view of the probation office maybe if i could st of all before getting into the vehicle question posed by the court especially since the court has raised some issues about the district court's exercise of its discretion if i could st address a few things about that we think that decision was well within the court's discretion as the court has already discussed with mr henderson sutton's current sentence of one hundred and eighty months was actually less sentencing agreement and again in that agreement he withdrew the objections to the p s r simpson where in the record is it clear that he withdrew his objection when he entered into that sentence the district court found that he had that he had withdrawn those objections to the p s a and again i'm trying to figure out what that was based on where in the markup because i know it's hard this is district court judge it's not the district court judge who sentenced him originally so going back to and trying to put things together in addressing this question what did the district court rely in making that determination that the defendant withdrew his objections i'm not entirely clear on that your honor one thing one thing that i think we need to keep in mind in relation to the  n based on my review of the record is that the judge felt that what the government gave up was that the government gave up quite a bit in the course of agreeing to the one hundred and eight months and based on that long ago she ation in the context of the objections that p s r i think that's why the court concluded that the government agreed to that low discretionary decision by the court move on to the vehicle question before you did that mr simpson what the government's position on the move this substance in light of the fact that he has since been released from prison i know it was after the filing of the debriefs and after the subsequent briefing as well but last month mr sutton was released yes and we did we did in in what's the government's view on the proper remedy if we were to determine that there was an abuse of discretion in denying the motion i believe the court would  mr sutton did not withdraw any object sions to the p s r or the guidelines calculation connection with entering into the original sentence scene agreement but rather that those objections were mooted by virtue of the agreement would we remain and then if we i know that's not what you're urging us but if we if we say they would they were just mooted by virtue of the objections but i believe the government's position would be that that would be improper because the government agreed to the one hundred and eighty month sentence in exchange for m rather than looking at section forty four dollars in isolation so the analysis has to start with the overall statutory prohibition and thirty five dollars to see that the sent inherent continuing authority over sentences the statutes flecked clearly reflect an intent that government's general sentences generally be final and section forty fo placeholder for later exceptions that may be enacted and congress simply plug in one d of those exceptions by enacting section four for i'm not sure how the s than that and i that the defense asserts that the question of the correct vehicle here is just a semantic question but apparently this court  now that doesn't that doesn't necessarily answer all questions as to how a court should go about determining a new sentence if the court questions and we would urge the court in this case to defer those those questions of mechanics to cases in which the issues are presented in a concrete factual context as they were in shock mr henderson i just want to answer just saying if question about where in the record we can find the answer to our dispute about withdrawal of objections or  moving of objections page fifty three of the sentencing transcript which is stock of the number eighty five what defense counsel says is that it would be our position in the united states in the defense agree to moot because of the something that would have been an error and so that certainly could justify every man for for reconsideration just so that this court knows exactly how the judge had it is using its discretion in the case thank you