pierce the mandatory minimum due to his substantial cooperation with the government that resulted in a five level downward departure under five pay one point one he now seeks a sentence reduction under eighteen u s c thirty five eighty two which the district  denied the seminal issue in this case is whether his applicable guideline range has been lowered and we rely on three things in support of our position first and foremost last month the third circuit in a case united states versus  thirteen westlaw two four six two nine four one ok so it's really the it's not even a third or it's not even after it was the published decision it was it was published it was if we could look it up ok the basic point is give me your best shot on why the definition of applicable guideline range as a step pushed in the guidelines manual and the amendments in the language isn't the traditional definition my understanding and that's why i'm looking for a counter i i understand the instinctive appeal from your side but my understanding always was when you have a mandatory minimum or a mandatory maximum then that truncates the quote applicable guideline range normally you have a range that you get off the grid right correct and then if either a minimum or a maximum impacts that the guidelines manual has always said that either t range or it becomes the range in other words if the if there is a statutory maximum that's below the guideline then that is the applicable guideline range is the maximum same with the minimum and there's hundreds of cases that say that so tell me what the third circuit said or what you say the changes that will let me begin with this court's precedent from two thousand and ten prior to amendment seven the passage of amendment seven fifty in united states versus honeyed which is a two thousand and ten case published and in united states versus johnson a two thousand and nine case vs publish the court said exactly that the court said we believe that the guideline range is the mandatory minimum now in hameed the court recognized that there were conflicting interpretations that it might be before it's the determination of the criminal history category in the offense level before we get to the five created its own definition and that definition was presidential until the passage of amendment seven amendment seven fifty then defined applicable guideline range to say the offense level and criminal history category prior to the determination of any guideline departures and the third circuit has interpreted this to mean where we end up in united states and some guidelines five a prior to the sort of bump up to the mandatory minimum now well the the the amendment seven fifty says and see if we're on the same page guideline range absolute guideline ranges the range of was the offense level determined pursuant to one b one point one hey ok are we on the same page so far that's where we start yeah right and then one b one point one and a has a whole set of third circuit say do we stop after one b one point one eight seven or do we continue into one b one point one eight now the third circuit said we see conflicting interpretations as to whether you could use the whole determinate five a or whether you could include the five be true five g the third circuit said it was ambiguous at the commission had not clearly delineate which says which is determined before consideration of any departure provision in the guidelines manual or any other variance in that seems to say very clearly that you you you look to see whether the mandatory minimum was the guideline range prior to taking into account in this case of five one point how did how do they get around that i look at it or what the case law has led me to is to look at g one point one itself and five g one point one itself specifically subsection b says you compare the applicable guideline range to the statutory meant for a minimal which means they are two different so so the i v phrases that i read use just i think that the third circuit is on the right track that there is an ambiguity that it is not clear that we have conflicting guideline ter potations and the rule of one of the would then come into play i don't understand how you distinguish  given the the language that we've been talking about in amendment seven fifty may be wrong casually happens in the circuit court of the supreme court but it does seem the in from an analytical purpose it would seem to me that are bound by him need and your done a very persuasive argument to say that the the language of the sentencing commission used in seven fifty somehow changes that i would not say hameed is wrong i would say the need issue determination of the definition because it finally defined apple gathering to have made this court recognise that there was no definition by the sentencing commission have there been any other courts other than the third circuit case that you've read that have come to the conclusion that which is an eleventh circuit case and the one thing that first i don't even know are either of those cited in your briefs i believe no they they were not ok and they're very recent they are very recently as we've seen this year we can look them up on the births relied on the application notes to one v one point ten specifically application no three and application no three the sense and commission recognize that defendants who cooperate are not substantially different than defendants who don't and it allowed an exception for those who provided set substantial assistance this was all thirty five eight years in our denim and these are cases where the mandatory minimum was higher than the otherwise a flexible guideline range yes so if a defendant for example was subject to management of two hundred forty months and got one fifty this court's decision you asked it's not plain correct i cannot say that all of them or i believe i believe a couple of them were and i know jermain young was the first and i believe that one and i thought you had said and maybe i misheard it but i thought you said something about five g one having something that would support you but five g one point one b is exactly the language that says where the mandatory minimum is greater than the maximum of the range of the statutorily record minimum sentence shall be the guideline sentence and with has that language ever been changed that language has not and i do not have the exact language inform me but i know that five g one point one compares the applicable guideline range to the mandatory minimum and to say that the applicant by that range is always the mandatory minimum would render that phrase useless ok so you're saying if i because you can't give me the exact subsection if i go back and read five g one point one in its entirety i will find something that implies at least that the grid number is the final applicable guideline range not a presumption of not a preliminary not a tentative but the real applicable guideline range which you're telling me i'm now i'll definitely undertake that exercise i just want to make sure that's what you're telling i'm saying the guidelines make a distinction between the mandatory minimum and the applicable guideline range in five g one point one even the means i suppose it may be you may are you relying on what i just quoted where the minimum sentence is greater than the maximum of the applicable guideline range the statutorily required shall be the guideline sentence so your distinguishing guideline sentence from applicable guideline range that is correct ok well look at it thank you i think you'll have your remaining time good morning may please the court my name is matthew call from the u s attorney's office from the northern district of ohio i was the prosecutor handled the case from day one with regard to mr joyner i have a hard time responding to some of the arguments that  defense counsel has raised because i haven't had the opportunity to read seventy or renne they've never been argued or brief and they were not raised in the twenty eight day letter so i'm somewhat sandbagged but ultimately our position is that defendant joiners not eligible for relief under section thirty five eighty two because his initial sentence was not based on a guideline range that was subsequently lowered by the sentencing commission his sentence was based on a mandatory minimum that being around one hundred twenty grams of crack cocaine given his previous criminal history that placed him in a mandatory minimum of two hundred forty months twenty years had his sentence been computed purely under two d of the guidelines it would have been lower initially a level thirty two at the time his plea agreement was negotiated and entered into then subsequently after amendments were passed it was lowered to a level thirty judge boyko in the district court went through the exercise of calculating that and then noted correctly under section five g of the guidelines he was bound to begin from the mandatory minimum of two hundred forty months that's consistent with what is stated in the sentencing guidelines it's consistent w ith the instructions that this court has given to district courts under the stuart case stating that the starting point for downward departures is the mandatory minimum based on that his sentence was not based on a guideline range that has been changed by the sentencing commission in any way it's very clear this court as stated in the supreme court has stated that the fair sentencing act i did not apply to defend it the section thirty five eighty two context to effect the mandatory minimum so in this case if damon joiners advisory sentencing guidelines were to be recommitted here today they'd wind up at exactly the same point no matter what starting number under section two d of the guidelines he would be at for the quantity of crack cocaine after specific offense characteristics after adjustments the court would wind up its five g of the guidelines  his sentencing range would go up to two hundred forty months from there that would be the starting point from which five k cooperation points acceptance or responsibility would be taken up and we would wind up right back at the level twenty five category five one hundred one hundred twenty five month sentencing range that he was sentenced on in two thousand and seven based on that his sentencing range has not changed in any way shape or form that's consistent with what this court did in all the cases involving amendment seven zero six mclean macpherson johnson and to me to all of which are cited in our briefs and additionally there is one unreported case the williams case which is entirely on  apply in the rule seven zero six context and applies the same in the seven fifty contacts that a defendant who was sentenced based on a mandatory minimum that was subsequently pierced by the effect of  the language at the very end i give judge mckeague and i have been leapfrogging down but now the papers the very bottom says that none of these are applicable if it does not have the effect of lowering the guideline range because of the operation of another provision e g the statutory mandatory minimum correctors all that would be from your point of view seem to be the final nail that seven fifty is no different from seven o six it would your honor if it weren't for that we might have a little more of an argument perhaps although i'm not sure that the sentencing commission would have the power or authority to modify a a mandatory minimum or but we don't really know if i mean to be to be fair to the other side's gut argument is the sentencing commission wouldn't be modifying the mandatory minimum that's already been done by the judge in the five k one motion trooper's it's clearly legitimate to go below the mandatory minimum we're talking about a kind of a proceed rule argument which is to say can thirty five eighty two apply because i'm not sure that i i don't even know if you're making it but that if the commission said thirty five eighty two can apply or you're the mandatory minimum has been has been lowered by a subsequent amendment it wouldn't be making that amendment the statutory amendment retroactive it would be making a statement back to the williams case the facts are entirely analogous they put mr williams versus mr joyner i think the difference in the amount of practice was about fifteen grams they face the same mandatory minimum two hundred forty months there was a different criminal history category for mr joyner at five and mr williams who i think was a two or three so he started a different defense level before his departure but that being said this the court's panel in williams said that t d one point one base offense level had no impact on the defendant sentence and were a mandatory minimum is greater than the otherwise a political guideline range it replaces the got my range so in that circumstance which is exactly the same as is what happened with mr joyner section thirty five eighty two relief is not section thirty five eighty two reduction in sentence is not allowed or appropriate because the sentence was not based on a guy adeline range that pierced the main terminal before to get any type of a reduction under thirty five eighty two whereas people who did not cooperate but were sentenced of ultimate for a minimum could receive production's this doesn't make sense at first it's further ironic that the government's although when they were sentenced above the minimum under the law they couldn't go below the minimum this time around they wouldn't get a second shot at that's correct ok but a defendant who was sentenced to two hundred sixty two months could receive essentially that's that that's really the argument which is that when congress and the guy who commissioned by their grace give out some reduction possibilities it is whatever they say it's not it's not unfair any more than any other statute is unfair well i believe it's ironic that the government now iraq iraq iraq is a different matter well irony irony to a level control but let me ask you because i raised with your colleague this very last couple of lines of the part of amendments seven fifty words specifically says none of the amendments are applicable if if the amendment does not have the effect of lowering the guideline range because of the operation of another guideline provision a mandatory minimum so there they absolutely contemplated it i  was giving you a little shrift that there might be a difference between applicable guideline range and guidelines sentence but here the commission is clearly in so many words saying it doesn't apply when the guideline range is not lowered because of the mandatory minimum and that's correct and but that is if and i believe your reading application note one a correct which deals with man terminals but doesn't mention anything about substantial assistance or cooperation if we go to application no three well but then that that doesn't that go right to what the judge mckeague was emphasizing was before consideration of any departure or any variance which is what five k one point one is about is and that is one type of departure yes there are i think twenty three others but application if you go further down application note three deals specifically with the exception for substantial assistance and the sensing commission then adds to it and says and i