hear argument first this morning in case seventeen sixteen seventy two the united states versus payment mr fieger thank you mr chief justice may it please the court there's no dispute that the district judge is finding by preponderance of the evidence that respondent possessed child pornography was constitutionally sufficient to revoke his supervised release and re imprison him under section thirty five eighty three ethe read the court of appeal or any other area of the law in which we permit imprisonment by a preponderance of the evidence well your honor there is there are areas where i mean whether it  to this for my whole parole and probation well it isn't her rowel the original sentence was already x number of years and the steak granted a benefit in said instead of serving ten years will let you serve  if you behave if you don't you've got to finish serving the two that we imposed originally where do we ever per minute someone to be jailed turn additional period of time other than evidence there was no jail for an additional period of time here petitioners original sentence which was authorized by the jury's verdict included a ten year period of supervised release which is precisely  if his term there's no question now that his term of supervised release extends further than his original sentence no your honor it does not extend further than his original sentence sentence does no your honor it does not his original sentence was thirty eight months of imprisonment which he served to be followed by ten years of supervised release on revocation he received a five year term of three imprisonment to be followed by five further years of supervised release in exchange of ten for ten the court was clear and morsi dance brewer where it held that a jury finding beyond a reasonable doubt is not required for parole revocation that a defendant who's paroles revoked doesn't get credit for on to that and additional term of incarceration and incisional term of supervised release so we stretched the maximum of her earlier term your honor i don't think we have any more than would be true under a parole system so you're trying to mix to compare apples and oranges in the parole situation the original sentence was the additional sentence that he got here he only got the thirty eight months a jury didn't find facts sufficient to give him the additional years he received by the judge's finding what let me say two things to about that justice sotomayor the first  sentence if you look at the judgment does include the ten years of supervised release he was fully aware that supervised release could be re invoked and he could be re imprisoned for violating its conditions and that is in fact what happened well you heard let's talk about this could congress impose a system that says on the day of sentencing you're going to be sentenced to x number of years but if the judge finds that you committed  act you can be sentenced to instead of thirty eight months to eight years can a judge to that under a pretty or you and i need to know a little bit more about  crime it's just an hour whatever the act so your honor if your question is can a judge impose a sentence that says you'll for example spend five years in prison and then there'll be some period after that during which if you judge finds if you commit a certain  no no no you we no longer print the i think it's pretty clear under print that if the sentences you committed x crime you get five years but if you did it with rachel hatred a pretty and a judge finds that by a preponderance of the evidence you get eight years for print the says no you can't do that the jury has to find that you did that additional elements correct that's right i'm trying to figure out why a judge now gets to say after you've been sentenced to the five years instead of five years straight to your original line i'm going to find by a preponderance may be your honor and that is not what's happening here what's happening here is that the judge's finding a violation of the sentence that the judge imposed this is different from a prank in that it is precisely now  argument that would bring down the entire system of supervised release which has been the law for what thirty five years is that the issue that is before some this case no your honor i think that's mr that is mr dunn making that argument no your honor i'm in fact i don't think that issues properly before the court because the relief he sought in the court of appeals in the relief the court appeals granted or is really imprisonment under section thirty five eighty three he didn't cross petitions so the only question before this court is whether there's really some difference between the imprisonment under thirty five eighty three eighty three and section thirty five eighty three k and there really isn't any difference between those two well what about the fact without finding that he committed a violation   first of all the court held in more see that these kinds of sentences ministration proceedings for what the judge is looking at is whether there was a violation of the terms of the sentence is a proceeding to which the sixth amendment doesn't apply so a pretty is a sixth amendment based rule and therefore it doesn't apply by its terms in the circumstance would that be true if instead of a five year minimum in a moment sentence was a sentence of death with the government take the position that the sixth amendment doesn't that had the death condition on it for certain violations didn't itself violate the eighth amendment i don't think there'd be a necessarily sixth amendment problem with this i think that has to be your answer right yeah yeah there i could well require but permits the judge to go higher than the statute says does permit him if it does the jury has to find the question is can you go beyond the ten years at the statute says if and only if x exists and if that's the case you have to find is that a pretty well there's an exception your honor for the fact of a prior unless you find x then it's fifteen so that x has to be found by a jury that's a print as i understand it now if that's the case i look at the statute here what does the statute say i think it says ten years right so if in fact it's ten years then because of tradition cases he he served five he has supervised release of five and so you can send him back to jail because of fact x as long as you don't go beyond ten but if you go beyond ten just as you needed to find the fact by a jury in basic a pretty so you should have to hang the fact by the jury here because there's no real distinction now is this my argument makes sense or you're on a vet argument was raised in the court of appeals and even the court of appeals rejected it because the ten year maximum is only for one part of the sentence for the original term of imprisonment there's also  supervised now in the sense it let me just preface this by saying even if you thought that was the rule we should win because he spent thirty eight years thirty eight months excuse me in prison on his original sentence and the reimbursement term is only sixty jail and so if his total time in jail is greater than the statute allows because of the finding of fact that wasn't found by the jury no and that's where the launch should be drawn and i have the problem of having to write or agree to an opinion which is not yours but i would like to know what your opinion is of where i don't think that's the right way to think about it and that's not even the argument they're making that's not the argument any of the they're making are making and that's because i think they recognize consistent with this court's decision in morsi against brewer which addressed the parole context and it was reiterated and agnon again scarpelli which address the probation context there are multiple parts of the sentence one was the original term of imprisonment another was the term of supervised release mr bacon he's talking about the parole cases but the parole cases are cases that are very different from justice briar's hypothetical because by definition in parole you cannot serve longer than your original sentence so you never get to the question in the parole case is that justice briar is asking you about which is whether once the judge made finding takes you above the original authorized sentence it creates an imprint the problem isn't that right isn't that the difference between parole cases is that you can never get into this problem of serving longer than the original authorized sentence  to do things justice kagan once again as i was saying to justice sotomayor we don't actually have a prism and term here that is longer than the original sentence because the original term of supervised release was ten years and his re is for five and the second thing i'd say would i think in a more regular it's a different argument about how this supervised release is baked into the original sentence but i'm talking about a normal terms people think oh this statute authorizes punishment of up to ten years now what justice prior is saying is now maybe somebody might not be this person but somebody is serving twelve years instead because the a judge made finding and i would have thought that that's a pretty simple case under prend i also would have thought it's a pretty simple case under a prem day if all of a sudden a mandatory minimum pops up as a result of the judge's finding that's a pretty simple case under alain which was also a pretty simple case branding so you have two problems here one is a mandatory minimum is suddenly popping up because of a judge made finding and one is a longer sentence than originally authorized is suddenly pop because of a judge made finding your own i don't think this is a longer sentence than was originally authorized let me draw the analogy to parole more explicitly i don't think there's any difference here between the thirty eight month term of imprisonment to be followed by ten years of supervised release and a sentenced to one hundred fifty eight months of imprisonment with mandatory parole after thirty eight months of counsel congress thought there was a difference right i mean we had parole systems previously probation systems previously and congress chose to abandon that system and why doesn't the choice have consequences and why isn't one of those consequences the jury right and why is the government so anxious to avoid having the involvement of citizens in this process well you're on a rather simple thing to convene a true wouldn't we don't think it would be simple to convene a jury although that would be a better remedy than facially striking down the statute but historically there has never been a jury involved in this type of post judgments that workman is arranged everyone in this kind of system before congress self consciously created the system and i guess i'm i'm just struggling i just don't understand why the government resists the involvement of a jury of a man's woman's peers well first of all your honor we are relying on this court's decisions in morsi and gagne and that make clear that there can does the choice of congress to move away from parole and probation have no consequence it doesn't have any consequence that's relevant here ok if we disagree with you well it would depend how you disagreed with me your honor if you disagree with me such that you think that respondent here had a jury trial right but they're not the same thing but they are different the congress when it bothered to revamp sentencing in this country radically it actually intended to in the compost something as opposed to doing effectively nothing so your honor one way in which i think supervised release is different and this gets back to justice kagan's question is that there is a way under supervised release statute for the term of riem present to exceed even the period of conditional liberty that's represented by the supervised release itself well i mean you've got an interesting it's an interesting question and i think it's a hard one and it's not briefed and i guess i just  having enough trouble with what i understood to be the issue presented by this case without deciding whether we should overrule an enormous amount of precedent and wipe out probation and parole or decide this novel question which isn't presented here in the in mr mr hammond has to make and and as applied challenge to the part of the statute to which he objects and he is not in this situation where he is required he is required to serve a term of imprisonment that exceeds the statutory maximum that's right your honor and i think very certainly in the situation of the mandatory minimum you agree with that so let me say a few things about the about that your honor the first thing i would say is again because this is a context in which the sixth amendment doesn't apply i don't think a pretty would by its own force apply the second thing is that the jury's verdict authorizes reimbursement under k just the same as the conceded authorization of rheem prism and under ether the third thing i would say is that what they're really asking for here even if a print be applied is  allocation of the a pretty rural apprentice he does not say that if you are subject to a heightened sentencing range that you are entitled to an even higher standard of proof than would apply to other kinds of fact findings it says you receive the same standard of proof and they agree that the standard of proof in a revocation proceeding like this it is a finding of fact by a judge by preponderance of the evidence that's what they concede would be relevant underneath and the fourth thing i would say just very quickly your honor is there is no additional fact finding that is required under k the exact same finding of fact that he possessed child pornography by a preponderance of the evidence is the same finding of fact that would lead to revocation under sweet argument you know you're going to get supervised release but if you do you're going to have to buy into what might present constitutional problems and simply because the jury found it can't be the case that was it whatever was provided for that sentencing upon a conviction by the jury it is you know home free regardless of any constitutional problems that might entails well your honor there may be limits but there are they can see it in their brief that the jury's verdict authorized or imprisonment under any three based on a judicial finding by preponderance of the evidence and i think they had to concede that under this court's precedents and what they're trying to do is to draw a distinction between ether e and k and i don't think there's a distinction to i'm not sure that's responsive mike my question is yes of course the jury's verdict did include this in this that's how the statute reads but that doesn't automatically mean that it's blessed with the sort of like a waiver i mean simply because the jury sentence includes it doesn't mean that everything that follows is necessarily constitutional no your honor i know that's that's not our argument but they're trying to make an argument that the jury didn't authorize these kinds of revocation proceedings on our point is that if they're  the jury's verdict does allow does include this term of supervised release which comes with conditions and consequences for violating those conditions ok is one of those conditions mr kagan i have i guess a fundamental problem the way this provision really does it basically says if you commit acts crime you get a minimum of x number of years re imprisonment and we lift the cap on your supervised release  know if it looks like a duck quacks like a duck walks like a duck it's a duck and it what it seems to be saying is if you commit this crime you go to jail for this minimum number of years  i thought that it was baked into our criminal system that if a judge is going to leak a finding like that that you committed a crime and that it's going to increase either your minimum or your maximum of whatever the original juror jury or whatever the jury found that you're entitled to a jury to find that fact beyond a reasonable doubt so as well as a sixth amendment concern which is if we're asking a judge to find you committed a crime under the fifth amendment how can we permit re imprisonment something as drastic as read imprison on such a low burden of proof all your honor as a due process matter that's exactly the issue that was facing the court in morsi against brewer in the parole context where someone who's on parole for life could potentially be reamed prison for life in the court set out some minimum to probably we've already talked about it differences between parole in this in parole he was sentenced to life he was given a benefit to be gotten out earlier go back to chill to finish his term so very different situation than being told you're going to serve ten years fifteen twenty you've done with the you get jail time and now if you go out we can now re imprison you for fifty years minimum as opposed to twenty so you've got to let me explain a few reasons why you shouldn't consider this a new criminal prosecution first it arises in the context of active supervision by probation officers they're not simply reacting to arrests they're going out and supervising and trying to reintegrate these defendants into the community second the revocation proceedings are initiated by probation officers not by prosecutors prosecutors could ask the probation officers to do it but it's ultimately up to the probation officers whether to do so third there are both substantive and procedural limits baked into the statute as well as possible as applied due process limits that prohibit the judge from in posing a sanction for the violation of the supervised release conditions that is punishment for the offense that gave rise to the violent i don't see how a minimum can be anything but you're one of those here the judge very clearly the church and the court of appeals very clearly sa that if this had been a crime that would be determined beyond a reasonable doubt they don't think the government could win and the judge even said that he thought the sentence was inappropriate so the nature of the allegations and proof in this case where you are never quite the guidelines themselves adopt this philosophy that in sanctioning the violation of supervised release very it goes on a breach of trust theories so what you're trying to do is to determine how do we how does a mandatory minimum the end of a problem where we said that really should be determined by a jury not a judge how does a mandatory minimum deal with the breach of trust once you've tied the judge's hands in the sentence then how does that so that when most of the court is the respect for the breach of trust is the judge doesn't believe that's the right sentence why would that promote him i think the congress should have some leeway to decide that these are particularly egregious types of breaches of trust by defendants as to whom it's particularly concerned but when they get back into the community will commit crimes that resemble their previous well the question is where up here where congress is leeway stops because the constitution kicks in and that's what we've talked about in a print day and then in the lane and where we've said the constitution kicks in is that judge made findings are not good enough to trigger mandatory minimums or to trigger changes in the statutorily authorized ran and both of these at least mandatory minimums is present in this and the arguments that you're presenting also raise questions about moving the statutory range and it just seems if this isn't a clear cut violation of a prend in a land that what is a judge here is making a finding and not only any alleged crime then a finding of a statutory violation and he's being not a judge not a jury by a preponderance rather than by reasonable doubt and the result is somebody spends of some very significant amount of time in prison so your honor let me just very quickly before i reserve the remainder of my time address the mandatory nature of this which this court has also addressed in the par context if you look at black again for a mano which is cited in our briefs this court has recognized that in some circumstances but it depends on the facts and circumstances a defendant might be able to claim that the mandatory revocation of a period of conditional liberty is  substantive constitutional violation and the court in fact found one such a violation and bearden against georgia where there was mandatory revocation of probation based on the failure of a defendant to pay fines that he just didn't have the means to pay or cry from that here revocation of parole to me seems like a denied benefit whereas revocation of supervised release seems like a penalty you're on i really don't think there is any difference because penalty rather than denied benefit at least if you look at it in that way is a period of conditional liberty that's included in the sentence this is exactly like the type of automatic parole that existed at the time of morrissey as we pointed out in our brief and this court is considered things like revocation of good time credits to be the denial of a right and nevertheless not attached full protections to them and it's considered the revocation of conditional liberty to implicate a defendant's liberty rights in the parole context and nevertheless not attached full due process let along sixth amendment protections if i might reserve the remainder of my time thank you counsel one mr chief justice and may please the court i like the verb that justice sotomayor used at the beginning stretches what thirty five eighty three k  stretches what the original conviction the amount of sentence that was authorized by the jury's verdict in this case it aggravates the punishment in the prison and i also think that justice gore sieges comment that when if you would if the sixth amendment didn't apply would this also apply if you punishment that's allowed in the law and those types of heightened punishments that thirty five eighty three k allows create tremendous due process problems and they also create the each three reads that the court may revoke a defendant's supervised release to allow him to serve in prison all or part of the term of supervised re term of supervised release is has a very minimal it's a fairly minimal sanction and that is designed to rehabilitate a prisoner who has just finished his  maximum here is that what you mean so he has he has no he himself has no claim that the statutory maximum is being stretched that's well the statutory minimum is being str allows an effective supervised release supervised release regime it doesn't necessarily equate with criminal punishment but when it does it quite with criminal punishment in other words when you have a situation that there is no rational connection between the non punitive purpose of supervised release and that actual punishment for an underlying crime which is what's happening in this situation then then  you can have a situation because so why couldn't a remedy instead of require the jury trial or striking down this part of this provision which is ten circuit did why couldn't a simple remedy in  be adequate that is the judge can do anything within the original sentence because and if you're if you're reinserted if you're really in position requires a minimum of five years and that's what you've got which strike that down the judge doesn't have to do that he can do whatever he wants within the original imprisonment time or the original cerm of supervised release maximum would not be a violation of printing but it could be you could still have due process problems with that type of situation for instance if someone had been sentenced to one year and the judge by preponderance of the evidence  was allowed to impose a far more restrictive far more punishment related since let's say of nine years he might very well have an argument that that was a violation of due process rights because he's looking by law increases the penalty for a crime is an element that must be submitted to the jury or your basic argument is mandatory is something that increases the penalty for a crime ye got that whatever i say here it would also affect three and i think it would for this reason it would raise this question statute ten years imprisonment five years supervised release him now he serves sentence nine years which he serves supervised release he then after a year passes supervised release is revoked on the basis of a fact now it could be the fact he didn't report it could be any fact at that point when he sent back he will be on the basis of that fact in prison for more than ten years but the statute said ten years and so he is being put in prison on the basis of a fact that was not bound by a jury if i decide for you this may be an unusual case you know eat doesn't isn't that serious and normally but but but it would create a composite complication you would have to do something like call a jury in those few cases not what you think of that a person violated a new law the it's a violation of their supervised release and the judge could hold them in contempt so if you have someone who's been sentenced to nine  years it would allow a judge and they're on the brink of getting to the since that was authorized by the jury the judge could still find him in contempt but you wouldn't necessarily he would not be in a situation where he would be finding facts that would go beyond the period of incarceration that was authorized by the jury's verdict that would be how you would deal with that situation i think and how be contempt well if you're dealing with contempt there are rules under this court's holding in bloom that if you're looking at more than six months then you're entitled to a jury trial where can i ask you about a lien whether a room held is that the touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element of the charged offense so you're saying that all of the conditions of supervised release are elements of the charged offense all of the well it my understanding of elaine is that if you increase the mandatory minimum or you increase the maximum that was authorized by the jury that that in effect creates a you aggravate the punishment by creating a new element and that makes an entirely new crime right so all of the all of the conditions and mr hamlyn supervised release were elements of the offense they well the conditions that are imposed are not unlike a contempt situation you're told to do certain things and if you don't do those certain things in a court order then then you may be found in contempt or in this instance you you may even be stinnett's to prison if necessary for a very limited period of time so long as it still is designed to reintegrate  former prisoner back into it and is designed for rehabilitation purposes your answer is no mints of the fence in the in the in the standard case where ten years in prison is a statute yes plus five years supervised release that plus makes clear that if supervised release is violated and the whole thing doesn't exceed ten years in prison plus supervised release you don't need a jury you can he did jury when you give him a punishment that exceeds because of a fact what the initial punishment was in the statute that i thought was a pretty yes so the answer i guess is elaine obviously as to that with regard to a mandatory minimum mind so you have a situation in elaine and this is how this line applies directly to mr hayman situation alang holds that by aggravating the punishment of either the mandatory minimum or heightening the maximum that you create a situation that heightens the loss of liberty and it empowers the prosecutor to get the judge to do something that the judge wouldn't ordinarily do and that's precisely what happened in this case the judge did not want to impose a five year mandatory minimum but what was the sixth amendment protects doesn't protect the rights of the rights of of people to have a jury of their peers or doesn't protect the rights of judges to discretion the sixth amendment provides further assurances to the right to jury trial that had already been guaranteed in the constitution under article three section two clause three  and the sixth amendment in fact was not needed to ensure a trial by jury in cases of crimes that that would case cited in the report i mean i thought the reason for the jury trial right was fundamentally distrust of judges they want these things to be in the hands of judges who had historically been appointed by the crown and were thought to be beholden to the crown they wanted it to be in the hands of ordinary citizens so how does that get turned into a saying that there's a problem with the mandatory five because it ought to be up to the discretion of the district judge yes based on the sixth amendment right to a jury trial yes ok so what you're what you want is the judge to have the discretion to impose something less than five minutes connect that with the right to a jury trial again a jury trial applies when someone has committed a serious or atrocious crime under callen versus wilson going all the way back to eight hundred eighty eight or any public wrong which is the balloon case which is a case that didn't necessarily involve a criminal prosecution because it dealt with the contempt so the right to a jury trial is when you are looking at a  what amounts to a prosecution for a serious or atrocious crime and it doesn't matter what label you put on it whether it's revocation or syncing guideline or contempt or whatever that's what the holding in ringgit this is nothing more than a label for what really amounts to the trial of a crime i thought of a way of putting this question  let's imagine a statute that says up to ten years in prison for possession of drugs with intent ok certain amount then the statute adds the following if the offender had a gun there is a three year mandatory minimum but in no event will the total sentence exceed ten years if you got that so it's no more than ten years no matter what but it has to be at least three if there's a gun now does the jury have to find whether or not there was the gun i believe they do is there any authority on the well to some extent it may be the o'brien case somewhat similar it's a situation where there was a gun and then the issue became whether or not it was a machine gun and the court said that the drastic increase from five years to thirty years actually created a substantive offense and that needed to be presented to the jury so i think this is similar if you have a drug offense and then there is the issue of whether or not you have a gun then in that situation that has to be presented by the jury if that's going to cause him to have actually convene a jury and have the jury make a find there are two responses first of all it's just a simple land question as to why you need to do it at all which is if if you really are looking at a situation that you want to prosecute someone for by guilt beyond a reasonable doubt why don't you just prosecute them by indicting them but beyond that if you then want to bring the jury trial system into the revocation system it creates meant difficulties it really does potentially transform well that's what you want though you're saying the violation is the lack of a jury yet you're saying as a remedy you don't want to jury i understand that and we obviously believe that this type of situation based on the allegations that are being made are something that needs to be pretty presented to him if you're not satisfied with the jury's a remedy that raises the suspicion that the mandatory minimums really what you're objecting to not the lack of a jury but there are problems in this court has looked at that type of situation for instance in both the jackson case and in the pennsylvania board of parole versus scott were it describes what happens when you when the court tries to create that jury in the revocation  process you would have burden of proof issues you have confrontation issues you have booked into double jeopardy issues that would arise there be potential self incrimination issues you'd be dealing with whether there needs to be something presented to the grand jury in the first place so those are things that congress really needs to deal with rather than for this court to try to create some type of that the type of rumi that the government is talking about and  frankly if if this court gives its blessing to this statute you know you look at all of the crimes that are included here and they include a b c and d crimes  applied in thirty five eighty three k the lowest one here is twenty four twenty five under title eighteen which carries only a five year sentence and ten year sentence if you committed a second crime we're looking highly discretionary and it is something that you are it is focused on the and individual defendant and what he needs and you would change it into a potential adversarial system there is no reason to believe that if the court were to agree that this senate thirty five eighty three was appropriate you wouldn't have for instance a drug offenses find themselves as thirty five as a thirty five eighty three k two provision that mr learn you're raising a lot of objections but i mean you can't argue with the proposition that such a system would cure the constitutional violation that you're complaining of isn't that right if you had a jury trial assuming that you you get around these constitutional problems such as presentment to a grand jury that the judge used to per party that says that the constitutional violation that you are complaining of the problem a jury would cure is that right a j jury in a revocation hearing if that's where the court wanted to go and if you thought that that is what congress would do in this situation that's what i was very well i think that's right i think it is what congress wanted to do i mean that that question should be thought of much in the way we think of whether to sever unconstitutional provisions as as a as a question of congressional intent which system would congress rather what they want this ho what they want this provision severed or what they want the whole statute to fall similarly would they want a jury impaneled or would they want the statute to fall and how can we think that congress would not have rather impanel a jury because the entire tradition supervised release and in fact parole and probation has always been highly discretionary because and congress has has recognized that throughout all that but if you made those arguments we were talking about the merits they would certainly cut against you clearly the court can say that a jury should impose be imposed in a revocation hearing but it would fundamentally alter the way in which revocations can handle it what about here and it would make it constitutional well but it would create an adversarial system potentially that would be quite a bit different from what we've known for revocation proceedings you have any idea how many rather cation proceedings there are every year there are numerous revocation proceedings there aren't many revocation proceedings hundred thirty five eighty three k i don't believe it was the total number of revocation proceedings maybe mr fagan has an idea so we know what we're dealing with with some of these potential arguments and that's one of the problems that you have if you put juries into those revocation proceedings that would create immense problems is something that a court would really need to think about how all of the ramifications and how these would be done that's really not something the courts should be doing is something that congress should be doing if that's what they really want to do so your questions who would be the prosecuting them that well you have the issue as to whether or not if you allowed a jury trial whether or not there would be  any you would still allow any type of contact between the probation office and the united states attorney's office and you have a lot of additional issues that may very well come up if you are decided jury trial should be allowed in these cases this is a case where the defendant with with his he was given a thirty eight months in ins and this under thirty five eighty three k he was given a five years revocation sentence which is more than what he received he was looking at  a ten year maximum but in this under thirty five eighty three k he's now looking at a sentence of life without parole if the united states attorney had actually prosecuted mr statute of he would have been looking at a maximum of twenty years in prison this system under thirty five eighty three k essentially circumvent the tried and true system of indictment and it makes it somewhat a dead letter in these types of the situations if there were no mandatory minimum here and everything else those stayed the same in terms of what the what was imposed would there be a constitutional problem there loss obviously a person you also consider the nature of the privacy interest the most sacred privacy interest that a person has is their own liberty and yet you're looking at a potential life without parole prison sentence so yes and the same thing applies looking at the maximum sentence under the sixth amendment and article three section two are you representing a client who was given a life without  parole but he was it doesn't matter what does matter is that he was looking at a maximum sentence of life without parole and the courts cases in frank duncan and blanton vs city of los vegas all point out to the fact that when you consider the right to a jury trial you look at what the maximum prison sentence could be and the same thing applies with the due process right if there are no more further questions i'll thank you consul of my time thank you two minutes mr frewen thank you mr chief justice i just want to make two very important but fairly quick points one is that they're defending a judgment under which this statute was struck down as facially unconstitutional it cannot be applied no matter what the original offense was or what the supervised release violation was someone who kidnapped a minor and then kidnaps a minor again an  offense that even a prosecutor under the criminal laws would subject the defendant to twenty years to life imprisonment would have to be treated the same way what we're talking about in this case is an as applied as applied in this case and this is the second point we're talking about just a five year sentence which is the only kind of sense of the only kind of room prism and term we are familiar with under the statute with a few exceptions that are listed in our reply brief and there may be one more we're aware of everyone agrees that the jury's verdict authorized three imprisonment for possessing child pornography the only question is just what the legal significance of that fact was when the judge was reamed presuming should the judge look at ethan or should the judge look at khe the only distinction respondent has drawn between eat three mm kay the one that he's emphasizing the only distinction of political to him is the absence of discretion as i was explaining earlier that is an issue where you could potentially make a substantive claim that under particular circumstances the application of a five year minimum sentence would be unlawful under this court's decision and bearden as explained in black against from on no that's not the claim they're making they're trying to defend the statu good i don't see how they'd have a claim let's just assume eat three didn't exist in the default penalty under ether were five years to life i don't see how they'd have a claim they don't have some free floating claim that a five year minimum room pris term is too much for a violation of supervised release indeed under some circumstances ethe reve would allow a five year term every imprisonment for a violator tumour died of the original crime that didn't require also your honor the original crime authorized the period of supervised authorized it but didn't require well your honor i don't understand what principle they're relying on to say that there is no finish mature justice to say that there it is unconstitutional trying to make on the second point is just that everyone agrees that prison meant was authorized and so a lot of the arguments that are being made here as justice alito pointed out earlier would call into question not only the constitutionality of supervised release in general but also the constitutionality of parole and probation which this court has upheld in its precedents thank you thank you counsel to cases submitted