the next case on our calendar is united states versus harris four ninety four in effect at the time of the sentencing it was your honor that we didn't it wasn't passed later so he can't claim that they didn't know about it it became affective a month before he was sentenced right however that the sentencing court still sentenced him under the previous guidelines and did not take the necessary considerations under moments of ninety four was it brought to the district court's attention at that time your honor at the sentencing know even though it had passed by that even though it had been released or published of amendment seven ninety four it did become effective in november and  so mr harris is counsel who i assume was you know it not bring it to the attention of the district court i don't believe you would that ever were argued for a lower sentence based on a mouse of drugs is that what it would have provided  it would have provided for consideration of a minor role reduction so under the previous law before the amendment the guidelines were saying basically we can  compare this activity with any other activity whereas the amendment clarified that no you're not supposed to compare with other activities posed to compare with the other people that were involved in the same boat but the court said the court considered his role in comparison to others involved in this drugs and the amount of drugs has nothing no bearing when it comes to the minor role here under the old law minor role you would compare the amount of drugs in this case is i'm sorry this was a summary statement i mean he's just going at this is the last paragraph exactly it's just a summary statement but so so i think it is and it's and he says that after he discusses the amount of drugs in the case which if you're discussing the amount of drugs in you saying that we compared that you know that that has no bearing on whether you compared it to the other two people you don't think it's meaningful that he says the court considered his role in comparison to others involved in this conspiracy his background and his criminal history in deciding to impose of ninety seven months i don't understand why we shouldn't take the court is saying exactly what he meant which he considered his role in comparison to others involved in this conspiracy that doesn't match up with the facts your own if you look at the government's pretty investigation report pre sentencing investigation report it clearly discusses his role and when you look at his role that they limit it to him you know basically going from point a to point b within new york city you're saying he didn't give it enough weight that that he had a minor rule and he should have had a greater and because the plea agreement was negotiated and the old regime that the number given to the judge was did satisfactorily range that was subsequently amended and then if you look so one it wasn't subsequently amended it had been amended before the guidelines that they were using were subsequently amended at the time they negotiate the  an old exactly and that's that's what they used at sentencing if you look through the transcript during the sentencing there's no discussion there's no consideration at all of a minor role reduction or there's no even consideration distribution of quantities of cocaine and heroin through harris and another codefendant and others two individuals transporting cocaine and distributing it to rochester so basically what they're saying there is that the main defendant in this case handed out quantities of drugs to other people just to hand within new york city limits to other informants that were transporting this these drugs to rochester and distributing it up there the court should have used the guidelines in effect that that time if they chose to apply earlier sentencing guidelines then the court should consider subsequent amendments the extent such amendments are clarifying or not substantial and it i preventing a sense reduction however if we look at the supreme court case of freeman vs the united states it makes clear that the lower court must give due consideration to the relevant sentencing range and we're arguing here that the relevant sentencing range should have considered the minor role reduction and that would have substantially decreased the sentencing range involved here and  is not an issue here and finally if you look at mr harris he's been fully cooperative there in the lower court proceedings he's been a model prisoner and it would be in the best interest of the community that  return and continue his campaign of trying to educate youth not to be get involved in the kind of offenses that got him into this mess he has some popularity here asking for though is a recent and saying right correct we're asking for reasons and that's part of the factors that are going to be considered to be opened up but everything would be a total do over i don't think they would need a total do over all it would have to do is sentencing and the the court would have to do its duty of considering whether a minor  was a minor player that's all one could be you know i tell me one time and he does what he has to do good that's good all right thank you i have a reserve any additional time you court monica richards on behalf of the government with regard i actually couldn't choose in this case which was the better argument to make first the fact is as it was presented by my counsel i think that is the winning argument or the better argument for him to have presented first that the government by the time of the sentencing and the court by the time the sentencing didn't have any discussion with regard to the enhanced men or the decrease rather for minor role adjustment because it had been negotiated out of the agreement so i go back to that maybe i should have started with it was negotiated out of the plea agreement the best argument for this court to consider first in my opinion is that this plea agreement negotiated out the right to  move either by the government or by the defendant for unjust men based on role here we had three defendants charged together in an indictment two of them negotiated out of their plea agreement the role of just men factor  one obtained a minor role of just one factor and that was in the plea agreement one be i'm sorry the other mr harris was tyrus harris was the other one who didn't go she had out of this plea agreement that i'm sorry when you into his go sheet out of fifteen of the appendix paragraph ten of the plea agreement the government and the defendant i'm sorry i'm sorry i see what you're saying agree the following does not apply and so that was addressed in the plea agreement but it's  agreed that the just does not apply either way so so that's a benefit also to both ways to both the government and to the defendant because we can't move he couldn't apply for an operative just meant and he couldn't move for the lower adjustment the rule changed under amendment seven ninety four is it possible that the plea agreement would have provided something else had the rule been different at the time not in this case it's not possible but  maybe it could have been but that wasn't something that was something that the parties specifically negotiated the debt was something that they knew that seven ninety four was on the books when the issue does appear that's true and with regard to the pre sentence investigation report it's also in there that this term was in the plea agreement it was not accounted for during in the calculations and there were no objections to the plea agreement so at this point looking back on everything and trying to parse apart that aspect that's a plea position that was taken that was a bargain that was struck during the course of the plea it's unusual but that's what happened here so that one defendant did receive a my overall adjustment and two did not to that point the two who did not both agreed to similar exact same relevant conduct so with regard to the way that this case was indicted it was an eight forty six charge in count one but the other defendant was actually also charged with money laundering and so his role in the offense his higher role in the offense was accounted for in the nature of the in the nature of the charge so that that defendant in the end received a sense of one hundred twenty months which was pursuant to an eleven c one c agreement this defendant received a sen of ninety seven months and the other defendant received a sentence of the mandatory minimum for all three which was sixteen months so i had a hard time as i said writing this deciding which way to go with what was the best argument for th consideration and reflection it probably is the fact that the plea agreement negotiated this term out unless there's any further questions what would you point me exactly to where it is clear from your perspective that the court considered the new rule in imposing the sentence really in december i don't know that it i couldn't i couldn't say that he did your honor i couldn't say that he did and i could but i can say that he didn't have to because the district court was aware of this plea agreement where that term have been negotiated out with regard to the terms of the plea agreement that would be something that would have had to have been a motion to withdraw the plea agreement i respectfully disagree with my colleague that the this would undo the plea agreement if we can't do one of thirty five eighty to see it sort of this is too late for that but you find it ambiguous in his decision with regard to  he recites and seven ninety four as well as saying that he considered his role as compared to others involved in the conspiracy i'm sorry maybe i misunderstood your honour's question in the decision in order regarding the thirty five yes certainly considered ye i'm sorry yes a page in ninety seven in the record and just consideration of the other defendants was included in the record also at the sentencing transcript at eighty four and eighty five where he talked about the other defendants in the sentences that they received he was the same judge who sentenced both i have no further questions thank you and mr castro you asked for no time for a bottle so that concludes our argument calendar the last case is on submission i will ask the clerk to adjourn court