and it's an examination of a witness i don't see any other reference for step back than a transcript right so i'd like to go through the components of what defense counsel argued as why this is a or a promotion and i would suggest there's three really position then that depends council herself made a motion by kind of like hinting at you know some of the specifics that might otherwise be included in an argument about the st up act or that the defense at me just ask you this and then i promise i will illness but so you might have lots of ready answers and i have not going to look so that might be answers but are there do you have examples of times when no one has ever bottled anything no one has ever used the word  and so i can't you know go outside of context here before specific example i think that when you have all of the elements of the notion including all of the elements of what the government's response would be this because that's not label as  which and they also construed it just in their response on page ninety four you know where they specifically respond to this is not a covered offense because you have to look at whether or not he's afraid but that is essentially what they were arguing there when he said that when they said the st step crack or any of that stuff none of that stuff happened so they go i want to say what you're presented with is what the file a she was a i'm of the sense in this case motion today marshal all of his arguments make a motion today he would be entitled to consideration of it i mean have you considered to become the boomerang consequences of your position here that this what i'll call a half cocked sort of government and by the district or there is error here and that error there whoever he didn't hear again sentence for mr money so i think that it needed to be raised on direct appeal because the district court specifically said this revocation hearing if it's appropriate that this were addressed the error here and send it back to cure the error that happened during the repetition here and let me let me ask you a related question which is we years ago we had courage when guidelines were mandatory we encouraged district judges to let us know where they are when they wouldn't pose the same sentence if they happen to get a guideline issue right so we thank particular context the courts i reject the defended charge the guideline means x and not why i'm sentencing him or her to the higher guideline to reach us by the way even if i was wrong and he was one guy i'd like rates lower i would impose the same set how much detail to we require answers a lot of in their opinion if you adopt that reasoning and that's just simply assuming eligibility i recognize the consequences of battle ability as such  no part in this this is the guidelines range challenge and just because he ran a stat on the fair fenton saying it doesn't turn it into a st step back notion and when you read the transcript you actually read what he's talking about when  think she never really made a st one so he should be allowed to file it's really his st one once we're done with this a i think that i mean i think it's going to depend on what his notion that is what the st step back motion really says and compared to what he actually said here at the sentencing now you just like i think what you can't have it one way or the other make or preserve a st step motion therefore we should have but you have to understand that if that's the position you take then he's allowed to file a st act motion once we're on that basis it's a quasi branch challenge and the district court was correct and so is the prosecutor and saying that this is a class a felony and we do look at the time of the original offense that is consistent with the law that the district court court that imposed a sentence for a covered offense may on motion of the defendant that bought or the court impose a reduced sentence so i mean is the argument here ok maybe money things didn't make a motion  court itself should have just the court i mean the court under the act has the authority to make its own most and it sounds like is that ultimately where this case sort of lands on whether the court abused its discretion and not su could theoretically abuse its description and refusing to do so not saying it did here but it could is what does it mean that it or that a court may on motion of the court imposed the reduced sentence i mean doesn't that give the court the ball ready to move itself to impose a reduced sentence i'm not saying that many of those challenges would prevail because i think you're right that it would be an abuse of discretion standard but i think that that language clearly gives the court of the ready to do it if it gets the court at the ready to do it but it doesn't it's not  f i can i help you messiter yes so i think the jury some its rights but practically speaking you'd never be able to get that case up on appeal in other words if there is no order to appeal from because the court never acted sewer spot to center where there were not to move there's nothing to appeal now obviously if the judge says that's ok i'm exercising my sui i'm considering this on my own motion i'm not denying it then obviously you could get an appeal but it's almost like the administrative procedure act of an agency fatally to exercise its discretion and not taking any action it's essentially unreviewable because there's no order review in other words if mr money's had let's say mr money's didn't say a word about the st step back to the st sentencing act or the the fair sentencing act with the st step  and this was just a guiding light cases you as you argue if it goes back down he's eligible to file a motion for relief from the st step back but if he doesn't the judge for example taking it up and then either granting or denying but failure to exercise a discretionary authority to even consider i think would be practically hard to get up on appeal but i haven't thought it through maybe maybe i'm off base but it's a lease a possibility and now let me now let me turn to something else here the exchange let's assume for purpose of this question that this was a st our st step back motion made within the context of the revocation here ok so i'm assuming something contrary to your argument at the end and i'm talking now about the alternative ruling of the district judge the prosecutor asked the judge to say on the record whether or not i forget whether it was a he or she would impose the same  sentence if the circumstances were different and his classification of a felony were different and the judge says sure i would do that is that enough for an alternative really one hundred and eight months the judge agrees with the government imposes a sense at the high end of the advisory range so he gives them under an eight months ok that's six years more than the at the defendants proffer guy like rage at the end it's the prosecutor asked the judge would you impose the same sentence and the judge says yes but doesn't explain how he or she would get to a six year variance up top if the defendant were right about the guideline range how much explanation to the for the district judge posing the same sentence even if the guidelines were different we don't need any we don't need anything more than just what you thought i mean and keen if that's all we need to know it just all out court what if you would impose the same sentence and that would be a par reason for doing it you have to say something about why you're very up why the guideline of rage is inadequate why it doesn't satisfy the purposes of section three thousand five hundred and fifty three right where  but legally on appeal we figure out that the judge made a mistake and says though that one hundred and eight month sentence really did turn out to be a six year very it's so how much to explanation do we need if any i guess your position is we don't need thirty six month sentence is unreasonable even if it's guidelines ranch a drop to eighteen to twenty four months and so if you send this back at the court has already told you what it would do you would impose the same thirty six months on tints and that would be within  unless this court has any other questions know what i think this applies here you've never asked for relief i want to hear from the parties about this i don't think there's anything in the text of war horror that leaves any of that and so if the government is arguing that you can't move or st step back really during a revocation hearing i don't believe that the text of were who are would agree with that position and he allowing courts to handle these issues very rare occasion hearings is actually very good for judicial economy into hearing is is something that the government said about you know nothing's changed here in this case again i would take issue with that and say quarter as my already that it's not that the penalties change it's that when a district court decides to consider a st step back motion assuming eligibility they have to consider both sets of penalties and during their discretionary review and so it's not that it guidelines are and here those are reduced from five to three years and the high end is reduced from thirty seven months to twenty four months so significant differences for most americans and by only i just want to raise that this is not a reasonable sentence i don't believe i can argue that thirty six months isn't reasonable based on a guideline rings of refused spines and so part of the court to consider be alternate posters and exact kind of things thank you thank you both very much we appreciate your