We're certainly glad to have you here today. The benefit of those who have not argued here before, you have that lighting system when the yellow light comes on. You need to pay attention to that because that means you have two minutes to wind up your argument. These arguments are being recorded, and if you get away from the podium, we lose your voice, so you need to stay right behind the podium while you're making your argument. And these arguments are available to the public. So you need to use your best and most authoritative voice when you're speaking. The other thing, as I mentioned, is that rebuttless for rebuttal only, and we don't expect you to bring up any new arguments in rebuttal that have not previously been addressed either by you or your opponent. Without calling the first case of the day in that United States versus Thomas William Malone consolidated with the United States versus Judy Green and Mr. Sadar. Sadar. Sadar for Mr. Malone. We'll hear from you. May it please the court. If I could set the stage, we're talking about an analog acceptance that was not specifically controlled at the time of the events in the indictment. It was made in analog by federal law upon recognizing that Mr. Malone had been indicted. He immediately began to cooperate and cooperated on a almost full-time basis for approximately two years on cases across the United States. He agreed that there were 1400 kilos of what's analog acceptance AM-2201. We knew going in the issue was going to be a conversion ratio. So that the court understands what we're talking about. The conversion ratio being 1 to 167. 1400 kilos of AM-2201 using that conversion ratio would be 250 tons of marijuana. That's a lot. We filed motions for defense sentencing issues
. We filed motion for downward variance on various grounds, including the conversion ratio being totally irrational and arbitrary. We filed substantial assistance cooperation motion under seal, all of which were received by the court. The government responded to all of those. We responded to the cooperation response of the governments by pointing out that this court's decision in to Sal. What should have been the conversion ratio or no on what basis? It should have been 1 to 1 because THC is THC and THC is the active psychoactive ingredient in marijuana and has the same impact whether or not it is synthetic or whether or not it is in marijuana. It should have been 1 to 1 under many reasons, including the fact that as this court has held animal studies, are usually considered basically useless in determining whether or not reliable information exists. And that's essentially where the trial judge was on this. What does 167 to 1 mean? Does that mean it doesn't mean that the substance possessed by your client was 167 times stronger than marijuana, doesn't it? To be honest with you, I think that's what the sentencing guidelines are suggestive of. But this conversion ratio of 1 to 167. That doesn't mean that your client should be sentenced to 167 years when somebody who's possessed in marijuana is sentenced to 1 year. That's not what 167 to 1 means, is it? No, not in that sense, I would agree. But what it does mean, I'm sorry, what it means here is to be perfectly statistical. What it means here is that the offense level became 38, which is the highest drug offense level, with a starting base offense of 235 to 293 months. Versus, if it had been 1 to 1, as marijuana, would have been 97 to 121 months. So 11 and a half year difference in the bottom of the guideline is what it means practically, that you're looking at twice as much of an initial guideline calculation based on a 1 to 167 ratio. That's what it means in a statistically and practical effect under the guidelines. How did the government reach 167 to 1? What is the source of that figure? That's a question that no one, and I mean no one can answer. It was in the very first guideline back on November 1, 1987, when all of us were just getting started in the sense of figuring out what these guidelines mean. There is no legislative history. There is no commentary. There's no nothing. It just appears, and it never changes from November 1 of 1987 to the present day. That's the conversion ratio from THC to marijuana. That's set out in the conversion table, isn't it? Correct
. Marijuana to synthetic THC. I think it prescribes a 1 to 167 ratio for converting THC to marijuana. It's a question here. It's whether this particular AM-202-01 is really, mostly analogous to that particular THC, and that's where the thought that the experts would do all the work. You're absolutely correct, Ron. That's what experts do. Your challenge is really to that particular guidelines statement. That is what we're not a guidelines statement, but the conversion factors that are set out in the law. It's twofold, and I would agree. What I'm suggesting to you is that that 1 to 167 is not a judicial formula, a judges formulation. That's a statical congressional. It's been arrived at the Centers for Guidelines process of the rules as to the conversion factor for that particular drug. That's correct. And the point I was making here is that experts are not or district court is concluded that the persuasive of the experts, that this is really the basic drug of THC. That's correct. And what I was making here. Are you arguing that I thought your argument was with the analogy that this is not THC, that my clients AM-2-202-01 is not THC, and the motion of the patient go 167 to one conversion ratio? I think it's a bit more subtle than that. The argument is the active psychoactive ingredient in marijuana is THC. That's what makes marijuana marijuana. So you fork effect in marijuana. That THC is precisely the same THC that is mentioned in the guidelines as referenced as synthetic THC. There is no difference. It is simply THC. We're not talking about cocaine in marijuana or heroin in marijuana
. You're talking about THC being the active ingredient. There is no basis, scientific or otherwise, no commentary, no nothing. The interesting thing that references why THC in so-called synthetic form is one to 167 in the conversion ratio to marijuana since it is same active ingredient. That's the essence of the argument. What the district court is faced with is the substance not listed in the drug quantity table. Arnard is not listed in the drug equivalency table. And so he is directed. Is she directed to follow the process they did, right? That is the directive. But that directive has to take into account the absurdity of the result in dealing with the rule of lenity as well, which is in the court. Below said this. I got to make a choice. So if I got to make a choice, I'm going to go with synthetic because synthetic is more like synthetic AM-2201. That. I think we get down to the enough of the following. Is this determined by the chemical equivalency analysis or a normative judgment that that's just damn wrong? That doesn't make sense. I mean, it's a, we're talking about chemical content. And is this, is this particular product you're making the chemistry, you don't need chemistry to come in and test part of that. If that's your standard, your fight is over the particular normative standard, I think. I hear you're listening to your argument. Well, it's, we're dealing with the factual determination that the court made us to whether or not it should be THC in marijuana or THC synthetic. That's part of the fight. The second part of the fight is that we moved on multiple occasions for a variance on that particular guideline. And the court never made a determination that it was going to vary or not vary. It just didn't do it
. But what it said was, I'm not going to throw the guideline out. If you go to that specific part of the, I think that's a stronger point than your first one. And I don't disagree with that. I'm, I will you honor. If the court goes to the transcript, it is clear. All the court winds up saying is, I find the conversion ratio to be one to one sixty seven. I'm not throwing out that guideline. I'm done with that. I'm moving on. No discussion of variance or policy or anything to do with the rationale. The court just says, I'm not throwing it out and moves on. There's no recognition by the district court that it has the power to vary. It doesn't speak of variance. It speaks of Kimbro. But it reads Kimbro entirely wrong. It thinks Kimbro is talking in terms of it has to be between two different drugs. It really wasn't. It was crack and crack cocaine. I mean, it was cocaine and crack in Kimbro. R is the same substance, T.H.C. I think the record is clear that the court did not make a determination based on its understanding that it could in fact vary. Okay, tell me again the error, the district court made in reading Kimbro
. It read Kimbro as saying that the Supreme Court, of course, but it read it as if the Supreme Court had ruled that Kimbro was correct because it had to do with different drugs and the conversion ratio. That's not what Kimbro dealt with at all. Kimbro said that the district court judge has the authority to make a determination that a given guideline should not be controlling on its face in determining whether a defendant should be sentenced or not. It is not that it is up to the court to determine whether it wants to exercise its discretion based on a myriad of reasons. In Kimbro, it happened to be the crack cocaine to cocaine ratio. How did the district court say that lead you to the absolute conclusion that it did not understand its power and that connection? Because the district court said, and I quote, indeed the testimony of both the doctors was that there was no scientific or logical reason to have the T.H.C. being one to one 67 ratio to marijuana in the guidelines. The defendant's every lie on the Kimbro case and urging the court to throw out this guideline. Throw out the guideline. No one asked the court to throw out the guideline. We were saying that there should be a variance based on the lack of scientific basis for that guideline and all the other reasons we have set forth in memorandums from all the defendants. This court will not do so. First of all, the sentencing guidelines are the expression of Congress that this is what should be done. That's true, but that's not to suggest in the light of this entire statement that the court believed it had a power to do something about that. And the next statement, according to the knowledge that the ratios in the sentencing guidelines are arbitrary and present a relative but converting evidence to marijuana, they seek to outline the relative harm. In Kimbro, what the Supreme Court and the court was doing was comparing one ratio for one drug to another ratio for another drug and pointing out the unfairness of those two ratios. In this case, that's not what the defendants have asked us to do. They have simply asked us to throw out the ratio of one to one sixty-seven based on its arbitrary nature and the court would decline to do so. It mid-red, misred Kimbro, it didn't understand its power under Kimbro. It basically said, Congress came with a guideline, I can't do anything about it. Kimbro is different, it had to do with two different drugs. Your case has to do with the same drug or the same active ingredients and therefore I don't have the power to do it
. And then, no, she didn't say that. I have, I have say three minutes for the bonus. Thank you, Mr. Non-Munis. Thank you. Representing the Supreme Court. May I please the Court, Mr. Non-Munis, represent Drew Green, the Consolidating Appeal. We've adopted much of Mr. Sadal's brief on behalf of Mr. Malone and I, if it's okay with the court, I want to confine my argument to the rule of lenity and some of the issues around the D'Cel issue concerning Mr. Green. Your Honor, the rule of lenity at its core is about clarity. We do not want to punish someone when it is not clear that their conduct is punishable. And this court is held that that extends to punishment for a crime and not just actual criminal activity. And in this case, as Mr. Sadal touched on, we're dealing at first with a substance that was not itself illegal but was deemed to be an analog of a controlled substance which was not itself, maybe illegal by Congress, but was an emergency listing by the DEA. So we have that issue first. But that's not really the issue we're talking about, the issue we're talking about is how to punish that. Then we get to sentencing and we have this substance which is an analog of an emergency listed substance and we have to figure out what it is most similar to and how to punish that. And we have an old unexplained and unguided 167 to 1 ratio in the guidelines. And as the district court in this case said, there seems to be no rhyme or reason to any of this. That's actually a quote. When the court was looking at it, she said there's no rhyme or reason to any of these things in the guidelines and how to convert something into something else
. Now, much of the guidelines, there is quite a bit of guidance. And this is an emerging problem, the synthetic marijuana issues an emerging problem. But like most problems that evolve quickly, the solutions have evolved quickly but not necessarily for the better. We have emergency listings, we have arcane conversion ratios. One to one, as Mr. Sadow suggested, is the most appropriate conversion ratio because THC is THC. But the government's expert at the hearing indicated that the THC in synthetic THC is the same thing as the synthetic THC in Marinal, which is a Schedule 3 substance. And the conversion ratio, I'm sorry, the guideline range for Marinal, the Schedule 3 substance would have been far lower to the order of 10 or 20% of the guideline range when you apply 167 to 1 to the synthetic marijuana. And it is synthetic marijuana. So there is also an alternative conversion ratio that could have been utilized to the court and readily reveals itself. This is a product that is converted into marijuana. The process was described by the government's witness, one of the co-defendants, was called by the government to describe the process. 19 parts of plant material, one part of the drug, 21. This is another conversion ratio that could have been used. The rule of lenity says if there is confusion, which when you have a district court judge saying there is no rhyme or reason to any of this, it certainly indicates confusion. When there is confusion, that should go in the benefit of the defendant. And in this case, one to one would have been appropriate, even 20 to one would have been appropriate, and would slash the sentence significantly. How much? What are we talking about? Well, on one to one, I think that drops prior to cooperation. It drops at the 57 to 71 months, I believe. I think I'm Marinal, and this is a quick conversion that I did this morning, frankly, Your Honor. I think it would be a level 20 to start, and that would be 18 levels lower than we started out. Okay, thank you Mr. Maris. Thank you, Your Honor
. May I please the court, I'm Camille Jemang appearing for the United States. I will begin by addressing first the AM-201 THC equivalency arguments. Because, as you pointed out, and this is all because, even after Booker, Rita and Gaul tell us the district court has to correctly calculate the guidelines. In the old way we've done since the guidelines came into existence back in the 80s. And we do that in cases involving analogs by finding the most closely related substance to the analog. So we have to work within the context of the guidelines, and that's the first step. And Judge Hagen-Boveman, as you pointed out, what the district court was tasked with doing was trying to determine what substance that's already in the guidelines is the most closely related to AM-202-1, which is not. And to that end, the court received, as Mr. Sadeh Al-Manshan, extensive briefing on this issue from both sides. And then heard all day long, a full day of testimony, primarily from two different expert witnesses, a DEA pharmacologist, a chemist pharmacologist, and then the defense expert who is, I believe, affiliated with the university. And they both presented testimony to the district court, and the district court ultimately looked at four things, a binding assay, a functional assay, in vivo studies performed on trained rats, all very interesting. And then fourth, these sort of reports from people, human beings, who had actually used AM-202-1, and who had experienced some of the side effects. And so, based on, after hearing all of this evidence, the district court says, you know, I agree with the government's expert, Dr. Tracky, who has testified that AM-202-1 is the most closely related substance to THC. And one of the things that the district court specifically addressed was the defendant's plural, the defendant's argument, that, well, you know, it's actually, it should be marijuana. And the court says, you know, this is illogical, because you can't compare a single chemical AM-202-1 to marijuana, which is an organic leafy green substance that contains many chemicals. And in fact, the expert testimony at the hearing was that marijuana, the organic plant that's grown and smoked by people, contains between 60 and 80 different cannabinoids. And the cannabinoid is the type of substance that produces this effect, you know, like AM-202-1 is the synthetic cannabinoid. THC is the synthetic, or synthetic THC is the synthetic cannabinoid. So, marijuana contains between 60 and 80. It contains 300 different compounds. Some of the cannabinoids actually mediate the effects of the THC. And this makes the organic plant, the leafy green marijuana, very different from the soul standalone chemical AM-202-1. And that's one of many reasons that the court ultimately adopted the equivalency between the AM-202-1 and the THC
. Now, once the court makes that factual finding, which I would suggest, and I've argued in my brief, is entitled to deference on appeal, because it is at bottom a credibility determination and a factual finding by the court. Once you get to that factual finding, then the guidelines supply the one to 167 ratio. And to answer your question, Judge Jolly, I think what that means is that one gram of pure THC, because that's the equivalent. So, one gram of pure THC is about as serious as 167 grams of the leafy green stuff that people buy and smoke. And as the district court pointed out, with those guideline equivalencies do, you know, sometimes, in many instances, we have to convert everything to marijuana. If you have a case where a defendant only has crack cocaine, and crack is on the guideline of the quantity tables, we don't have to convert to marijuana. But we have to convert to marijuana if a defendant possesses more than one type of drug. So if a guy has marijuana, crack, and ecstasy, then we convert everything to marijuana, because we need a common denominator. You know, that's seventh grade math or fourth grade math probably now. We need a common denominator. What is the analog? What's the equivalency? One to 200 is cocaine. And in the hearing, the district judged specifically... L.A. is serious as cocaine. 167 versus 200? Well, again, Judge, remember, we're talking about the pure THC. We're not talking about marijuana in the leafy plant that has all the other stuff in it. So, but I guess to answer your question, the sentencing commission believed that pure THC, in its pure synthetic form, the Canvanoid THC, is 200 versus 167 is serious as cocaine. But on that point, during the evidentiary hearing, because the district judge, and this is going to sort of factor into my argument later on, how the judge was absolutely aware of her authority under Kimbrote Avery, she allowed the defense to put on evidence about whether these ratios were arbitrary, whether they made any sense. And so there was testimony at the hearing from the defense expert and cross-examination of the government's expert as to what do these ratios mean? Are they arbitrary? What does she mean when she says any authority to set aside these ratios is going to have to come from an entire authority deny? I think what the court was talking about, Judge, first of all, those comments were made, I believe the ones you're referring to, is where the early before the hearing even starts, before anyone's testified. The judge says, I'm just going to, I'll read it to you. The court would tell counsel just so you know how the court is leaning, that although the court might be persuaded, the court is of the mind that the tables in the sentencing guidelines are what they are
. And that issue may be an issue for a higher court. I think what the court, and you have to sort of read it in context, with the court's later comments, in the middle of the hearing, the court, while defense counsel, I think Mr. Seidow, was examining the witness on the issue of, well, isn't it true that the crack guidelines have changed? The judge in a rep, and says, you know, maybe I'm missing something here, but you know, this is a different type of ratio, because this is the way the guidelines convert everything to the coin of the realm, which is marijuana. And what the court was talking about, I think at that point, was how at some point, when we have to do these conversions to get everything to a common denominator, the guidelines have to make it relative. So as the judge, you pointed out what's cocaine is one to 200. THC is one to 167. Methamphetamine is something else. So it's arbitrary in the sense that it's 167, but it's not arbitrary in the sense that THC is 167, cocaine is 200, and methamphetamine is something else. So I think what the court was talking about when it says the guidelines are what they are, is kind of going to this argument that this court has addressed several times in the Miller and Mondragon Santiago line of cases, where people have argued that because the guidelines. She thought she had the authority to do something about this ratio. Why would she say that it's arbitrary? It doesn't make any sense to me or to anybody, and then thinking she had the authority to do something about it, did nothing. But I think the judge, she didn't quite say it's arbitrary and it doesn't make any sense. She says the guidelines to the court acknowledges that the ratios in the Senate's guidelines are often arbitrary and present a relative by converting everything to marijuana, they seek to outline the relative harm. I think she's talking about in one sense, where did we get 167? Well, you know, why not a million? Well because when they're not arbitrary, it's because THC is 167, cocaine is 200, methamphetamine is something else, LSD is something else. So there are arbitrary in the sense, the question to the expert was where do we get 167? And both experts said, I don't know, I mean I can't point you to a study that says synthetic THC is 167 times stronger than the leafy green stuff. So what the court says is, yeah, they're arbitrary, but they seek to outline the relative harm. The argument that counts loves it makes that the court clearly not understand the Supreme Court giving it the authority to vary. And then the court says, I would disagree, number one, as the court pointed out, there's no question the courts are aware of Kimbrough. There's no question the court read, Kimbrough, this is not Burns, the case discussed in both briefs where the Kimbrough was decided after the court sentenced the defendant, that's not this case. Kimbrough was decided almost seven years before sentencing in this case, and it was extensively briefed. When you look at the Mr. Seydow's brief, all of the briefs filed by Defense Counsel in this case, and the government's response, the government never took the position that a Kimbrough type variance was unavailable as a matter of law because it only applied in crack cases. The government took the position that this was a good sentence, and that a variance was not warranted because of the dangerousness of AM-20201. But the government never took the position that a Kimbrough variance wasn't warranted. And so all of this was extensively briefed. The government never took the position that a Kimbrough variance was not warranted. No, the government clearly took the position it wasn't warranted. The government didn't take the position that Kimbrough didn't apply, that Kimbrough only applied in crack cases, that the court had no discretion in this particular case under Kimbrough. How did the government urge the court to read Kimbrough? The government's argument on the Kimbrough variance was basically directed to the fact that this is a dangerous drug. AM-20201 is a dangerous drug. It's at least as dangerous, I guess, that they're good for it, Judge, that this is a good sentence because AM-20201 is a very dangerous drug. When you read the government's response to the defense attorneys or the defendants, filings on Kimbrough, particularly Mr. Malone's filing on Kimbrough is the most detailed. The government's response is this is a dangerous drug, and it details all of these sorts of people die and they commit suicide and they have overdoses and they have psychosis, and this is a very dangerous drug. Again, this refutes the defendants' argument that, well, this is not so bad, this is really no worse than marijuana and look how high the sentence is in comparison to marijuana. Because that's the heart of their variance argument is that this stuff is... It's just that it did not have the authority to vary the analog. Did the government... did not have the authority under Kimbrough to vary? No, no. No, we argue that... They could change the analog in the conversion rate at any time they wanted to on.
. And so all of this was extensively briefed. The government never took the position that a Kimbrough variance was not warranted. No, the government clearly took the position it wasn't warranted. The government didn't take the position that Kimbrough didn't apply, that Kimbrough only applied in crack cases, that the court had no discretion in this particular case under Kimbrough. How did the government urge the court to read Kimbrough? The government's argument on the Kimbrough variance was basically directed to the fact that this is a dangerous drug. AM-20201 is a dangerous drug. It's at least as dangerous, I guess, that they're good for it, Judge, that this is a good sentence because AM-20201 is a very dangerous drug. When you read the government's response to the defense attorneys or the defendants, filings on Kimbrough, particularly Mr. Malone's filing on Kimbrough is the most detailed. The government's response is this is a dangerous drug, and it details all of these sorts of people die and they commit suicide and they have overdoses and they have psychosis, and this is a very dangerous drug. Again, this refutes the defendants' argument that, well, this is not so bad, this is really no worse than marijuana and look how high the sentence is in comparison to marijuana. Because that's the heart of their variance argument is that this stuff is... It's just that it did not have the authority to vary the analog. Did the government... did not have the authority under Kimbrough to vary? No, no. No, we argue that... They could change the analog in the conversion rate at any time they wanted to on... No, Judge, because that would affect the calculation of the guideline range. What's your understanding of Kimbrough's discretion? Well, that the court can vary from the guideline range based on a policy-based disagreement with the guidelines, but that doesn't mean that you don't calculate the guidelines. No, it's not a discretion to disregard the consequences of the calculations, but to depart downward from that result. You read Kimbrough is simply authorizing the court to depart downward from what the result of the calculation would be, or simply to disregard the whole analog process. No, I think it's the first, Judge. I think the question you asked, counsel, earlier was something about does it affect the calculation or a normative determination afterwards? I think it's the latter. Kimbrough makes clear the district court... nothing released the district court of the obligation to calculate the guidelines. And... This is not possible to disregard the analog that it chose, I mean, in connection with the conversion rates provided in the guidelines. Maybe I'm not understanding your question, Judge. You have to calculate the guidelines using what's in the guidelines. Once you do... No, I mean the conversion rate. Yes, and so my position is..
.. No, Judge, because that would affect the calculation of the guideline range. What's your understanding of Kimbrough's discretion? Well, that the court can vary from the guideline range based on a policy-based disagreement with the guidelines, but that doesn't mean that you don't calculate the guidelines. No, it's not a discretion to disregard the consequences of the calculations, but to depart downward from that result. You read Kimbrough is simply authorizing the court to depart downward from what the result of the calculation would be, or simply to disregard the whole analog process. No, I think it's the first, Judge. I think the question you asked, counsel, earlier was something about does it affect the calculation or a normative determination afterwards? I think it's the latter. Kimbrough makes clear the district court... nothing released the district court of the obligation to calculate the guidelines. And... This is not possible to disregard the analog that it chose, I mean, in connection with the conversion rates provided in the guidelines. Maybe I'm not understanding your question, Judge. You have to calculate the guidelines using what's in the guidelines. Once you do... No, I mean the conversion rate. Yes, and so my position is... and you know there's that... and I know it's just a district... You cannot... they cannot just... well, I mean, a portrait just says... Right. Not disregard the conversion rate. But then... They can depart downward. Absolutely. It's disregarding the practical sense, the real sense, that you don't have to send it to someone bad by such a thing. That's exactly right
. and you know there's that... and I know it's just a district... You cannot... they cannot just... well, I mean, a portrait just says... Right. Not disregard the conversion rate. But then... They can depart downward. Absolutely. It's disregarding the practical sense, the real sense, that you don't have to send it to someone bad by such a thing. That's exactly right. So it's a two... it's a two-step thing. We calculate, and then the district court can say, well, you know, this comes out under the guidelines as a level 38. That's way too high. Because I don't think this stuff is so bad. Or I think that this is... the 167 has no basis. So you're not... you're not changing the manner in which the guidelines are calculated. But you are, as Judge Hagenbothen points out, changing the result. And this is exactly the argument that was presented to a district court in the middle district of Alabama. It's a case I cite in my brief because it's dead on. It was an analog case in which there was an issue on potency that the unlisted substance was not as potent as the listed substance. And so the defendant wanted the district court to apply a different ratio. And the district court, I think correctly, said, no. I calculate the guidelines using the ratio supplied by the guidelines. And then that second question is left for a variance. And I think that's what the court had in front of it
. So it's a two... it's a two-step thing. We calculate, and then the district court can say, well, you know, this comes out under the guidelines as a level 38. That's way too high. Because I don't think this stuff is so bad. Or I think that this is... the 167 has no basis. So you're not... you're not changing the manner in which the guidelines are calculated. But you are, as Judge Hagenbothen points out, changing the result. And this is exactly the argument that was presented to a district court in the middle district of Alabama. It's a case I cite in my brief because it's dead on. It was an analog case in which there was an issue on potency that the unlisted substance was not as potent as the listed substance. And so the defendant wanted the district court to apply a different ratio. And the district court, I think correctly, said, no. I calculate the guidelines using the ratio supplied by the guidelines. And then that second question is left for a variance. And I think that's what the court had in front of it. And the case law in this circuit and in every circuit is extensive on the fact that the court never has to vary. It doesn't have to disagree and it doesn't have to vary. I also contend that the district court misapprehended its range of authority to downward the part of for substantial assistance. That's 5K1. The original factors of the one that I wanted to judge Jones's opinion and the one that... The decal case, John, on the non-assistance related factors. It's the government's position. And again, I think maybe the best authority for this is the Jacobs case that's heavily relied on in Malone's reply brief. Supporting his argument that there's a difference between a variance and a departure or deviation and a departure. Jacobs, that's the Jacobs case. Jacobs says that guideline sentencing, it's a 2011 case post-booker, says it takes place in three steps. The court calculates the guidelines, the court considers specific offender characteristics, and available grounds for departure under the guidelines. So the 5K and the 5H categories. And then applies the 3553A factors to all of it. So it's our position that you have to read decal. Decal is an unusual case. It was a government appeal where the court departed to a greater extent on grounds other than assistance. And in Judge Jones' opinion in decal, this court reverse saying no, no. A 5K departure is meant to address assistance related factors only. And I would suggest to this court, as we do in our brief, and many other circuits have recognized as well, that that's a one-way ratchet. The district court always has the authority to limit the extent of a departure to account for valid 3553A considerations. And that's exactly what happened in this case, Your Honor
. And the case law in this circuit and in every circuit is extensive on the fact that the court never has to vary. It doesn't have to disagree and it doesn't have to vary. I also contend that the district court misapprehended its range of authority to downward the part of for substantial assistance. That's 5K1. The original factors of the one that I wanted to judge Jones's opinion and the one that... The decal case, John, on the non-assistance related factors. It's the government's position. And again, I think maybe the best authority for this is the Jacobs case that's heavily relied on in Malone's reply brief. Supporting his argument that there's a difference between a variance and a departure or deviation and a departure. Jacobs, that's the Jacobs case. Jacobs says that guideline sentencing, it's a 2011 case post-booker, says it takes place in three steps. The court calculates the guidelines, the court considers specific offender characteristics, and available grounds for departure under the guidelines. So the 5K and the 5H categories. And then applies the 3553A factors to all of it. So it's our position that you have to read decal. Decal is an unusual case. It was a government appeal where the court departed to a greater extent on grounds other than assistance. And in Judge Jones' opinion in decal, this court reverse saying no, no. A 5K departure is meant to address assistance related factors only. And I would suggest to this court, as we do in our brief, and many other circuits have recognized as well, that that's a one-way ratchet. The district court always has the authority to limit the extent of a departure to account for valid 3553A considerations. And that's exactly what happened in this case, Your Honor. The district court conducted sentencing in two phases. There was a sealed 5K proceeding where the court received evidence. There was a ruling on the 5K motion. There was a ruling in the sense that the court says in the sealed proceeding, I grant the government's 5K motion. Then later, when we get to sentencing, the court basically pronounces a bottom line sentence. If you're asking me, did the judge say, I'm giving you five... The motion is safe. The motion is specified these specific months that it wishes... The government filed a generic motion and then a more detailed memo. The memo... Granted it. No, granted it not to the extent recommended by the government. I think that after Greenwood's sentence, this lawyer asks, I understand it, ask the judge a question to the judge. Well, the judge responded to that. Why would the extent of the 5K one departure was less than the government recommended? Because the government recommended it apart, your substantial assistance is I understand it. And the judge didn't buy that. And her reply of that was that, well, I'm stuck with a horror of this overall thing, etc. There's no question that the district court tempered the extent of the departure in this case in light of 3553A factors that have nothing to do with assistance
. The district court conducted sentencing in two phases. There was a sealed 5K proceeding where the court received evidence. There was a ruling on the 5K motion. There was a ruling in the sense that the court says in the sealed proceeding, I grant the government's 5K motion. Then later, when we get to sentencing, the court basically pronounces a bottom line sentence. If you're asking me, did the judge say, I'm giving you five... The motion is safe. The motion is specified these specific months that it wishes... The government filed a generic motion and then a more detailed memo. The memo... Granted it. No, granted it not to the extent recommended by the government. I think that after Greenwood's sentence, this lawyer asks, I understand it, ask the judge a question to the judge. Well, the judge responded to that. Why would the extent of the 5K one departure was less than the government recommended? Because the government recommended it apart, your substantial assistance is I understand it. And the judge didn't buy that. And her reply of that was that, well, I'm stuck with a horror of this overall thing, etc. There's no question that the district court tempered the extent of the departure in this case in light of 3553A factors that have nothing to do with assistance. She looked at the relative culpability of the defendants relative to each other. She looked at the... She says, I look at their relative cooperation, the value of their relative cooperation. Pardon me? Pardon me, gazelle? I think it does, Your Honor, because I think Decell is about calculating the... First of all, Decell is about how far the court can go down. So I would suggest you hold Decell to its facts. Decell, let's talk about it one way, ratchet. Yes. That... Mr. Court can... is authorized to depart downward for substantial assistance. But then, having done that, it can't throw in other factors and take it further down. That, I think, is Decell. And I cited a case in my 28J letter Alvarez, which was decided before Decell. And it's a pre-booker case that basically says once the court validly decides to depart
. She looked at the relative culpability of the defendants relative to each other. She looked at the... She says, I look at their relative cooperation, the value of their relative cooperation. Pardon me? Pardon me, gazelle? I think it does, Your Honor, because I think Decell is about calculating the... First of all, Decell is about how far the court can go down. So I would suggest you hold Decell to its facts. Decell, let's talk about it one way, ratchet. Yes. That... Mr. Court can... is authorized to depart downward for substantial assistance. But then, having done that, it can't throw in other factors and take it further down. That, I think, is Decell. And I cited a case in my 28J letter Alvarez, which was decided before Decell. And it's a pre-booker case that basically says once the court validly decides to depart. And I think that's where you reconcile Alvarez and Decell, if this courts inclined to do so. The validly decides to depart. I think Decell was all about a downward departure on the basis of factors other than substantial assistance. Alvarez talks about once the district court validly decides to depart, meaning considers valid factors in making the departure decision, then there's essentially no limit on what it could consider after that. And that's what the other circuits talk about, tempering the departure in terms of 3553A factors. The district court should do to be clear about it. It's the rule on the 5K assistance, hopefully government makes. And then, after it rules on that, turn to the 3553 factors. And it didn't do that in this case. It just jumbled them all together. And that's why I asked if there was ever actually a ruling on the government's motion for additional assistance. Because the court did say in kind of a remnant way that the defendants didn't deserve anything, any special assistance, any special consideration for the assistance that they rendered. You want to make my briefly respond my red light is on. Okay. The court did rule on the 5K. At the very end of the sealed 5K hearings, it says, I grant the 5K motion. Then later, at the open sentencing hearing, it says, I'm granting a 30% departure instead of the government's requested 50% departure. So there is a ruling to that extent. Thank you, Your Honor. Sit out. On the 5K 1.1, the factors that are supposed to be considered by the court are never even mentioned. We have a sealed hearing in which the court does rule that's going to grant the motion without any indication whatsoever what the court is going to actually do in the extended departure. We go into sentencing, green goes first, then Malone, handwriting is on the wall, 30% from the top of the guidelines
. And I think that's where you reconcile Alvarez and Decell, if this courts inclined to do so. The validly decides to depart. I think Decell was all about a downward departure on the basis of factors other than substantial assistance. Alvarez talks about once the district court validly decides to depart, meaning considers valid factors in making the departure decision, then there's essentially no limit on what it could consider after that. And that's what the other circuits talk about, tempering the departure in terms of 3553A factors. The district court should do to be clear about it. It's the rule on the 5K assistance, hopefully government makes. And then, after it rules on that, turn to the 3553 factors. And it didn't do that in this case. It just jumbled them all together. And that's why I asked if there was ever actually a ruling on the government's motion for additional assistance. Because the court did say in kind of a remnant way that the defendants didn't deserve anything, any special assistance, any special consideration for the assistance that they rendered. You want to make my briefly respond my red light is on. Okay. The court did rule on the 5K. At the very end of the sealed 5K hearings, it says, I grant the 5K motion. Then later, at the open sentencing hearing, it says, I'm granting a 30% departure instead of the government's requested 50% departure. So there is a ruling to that extent. Thank you, Your Honor. Sit out. On the 5K 1.1, the factors that are supposed to be considered by the court are never even mentioned. We have a sealed hearing in which the court does rule that's going to grant the motion without any indication whatsoever what the court is going to actually do in the extended departure. We go into sentencing, green goes first, then Malone, handwriting is on the wall, 30% from the top of the guidelines. Not any mention again of the factors that are outlined in 5K 1.1, just 30% from the top of the guidelines. The government said 50% from the bottom of the guidelines, difference 49 months without a word being said about substantial assistance. 50% is 117 months or 50% of 50% of 155 versus 30% of 168, 49 months approximately. Do you agree that the other circuits that are considered this have held that non-assistance related factors can be considered to limit the extent of a 5K 1.1 departure? I do, but I don't, because this court and the other circuits have made it clear how that comes into play, the government in a letter to the court just recently, in fact, in a precurion opinion that Judge Jolly was involved in. I realize it doesn't have a presidential value, but the government did reference that. This court says in reference to the sound, noting that a district court could consider other factors to determine the amount and significance of the assistance provided. As long as the ultimate extent of the departure was based solely on assistance related factors. R is certainly not based on assistance related factors. There's nothing in what the court said on the record that even spoke to assistance related factors. It was other matters outside 5K 1.1 and substantial assistance which guided the court on its 30% from the top of the guidelines. And there's an extensive difference between going back to the other issue, between departure and variance. The court told us at the time of the 5K that 1.1 sealed hearing, that that was all for that hearing, that was it. We're not going to be arguing that again when we get into sentencing. 3553A was argued at sentencing. 3553A encompasses downward variances, encompasses Kimbrue. Those were the arguments made, not 5K 1.1. Court never speaks to variance, never speaks to 3553A, speaks only to the 30% non-assistance related factors. That's procedurally unreasonable. That's the way it's called
. The entire sentence is substantively unreasonable