i'm sorry i didn't get word to council that we would give you the st two minutes of your argument uninterrupted i know you just got word of that this morning but we'll try to observe that and otherwise i'm going to try to enforce time limits with regard to our st two cases which we can buy and i want to give credit to my colleagues don't pressure who is an experience appellate advocate and he thought of good morning your honors and may have please the court through the st step back congress remove the below p director as a keeper of the federal compassionate release program so that courts can find the defendant circumstances extraordinary and compelling and grant relief even when the b l p director disagrees the question here is whether parts of the sentencing guidelines criteria for compassionate release conflict with the st step back and are thus not unapplicable policy statement that district courts are bound by in two thousand and seven the sentencing commission recognized that there would be circumstances outside the medical age and family criteria that warrant compassionate release so it created a stand alone ground for relates to other reasons provision but in conflict with the st step back the commission condition this ground for relief on the b o p director finding the defendants other reasons are extraordinary and compelling the government does not serious latest if the conflict the only real dispute is over what parts of the policy statement are still a clickable after the st step act one route is to do what the nd circuit did and find that the entire policy statement always applies to motions brought by the b o p director the other route as defined that the other reasons provision remains but can no longer require a determination by the b o p director and a fan of circumstances arts for nine compelling a judge would then be free to the side if other reasons exist even  director disagrees whatever route this court chooses the district court here erred as a matter of law and holding that because mister bryant circumstances did not involve age family or medical issues the court was without authority to find that the other reasons were extraordinary and compelling enough to warrant a sentence reduction now i want to start with the government's main argument here and if the court did not realize that it's a policy based argument it's the same argument the government which you have a fit with standing before the sentencing commission and that argument as if the court allows district court judges to find other reasons the world's going to hand and judges can have a mere disagreement with mandatory sentencing provisions and grant compassionate release on those grounds that is simply wrong for one we are now two years after the st step back and the government can cite to no court decision no district court decision where a judge has actually done this even if a judge worked to lodge a policy disagreement with a mandatory sentencing provision this court could reverse for abuse of discretion mandatory sentencing provisions are ubiquitous federal law and by its own definition could not be extraordinary and so you know the court need not fear having judges decide these cases now and congress did not fair judicial discretion when in an act of the st step back indeed going back to one thousand nine hundred and four congress was aware that the sentencing commission may create very broad practice area and allow judges to find what are extraordinary and compelling about the one i'd say we're not arguing for a change in the criteria the government has we're asking the criteria that the sentencing commission created to apply just not those parts of the criteria that are in conflict with the st step back and nd congress didn't just change the process when congress took the b o p s gatekeeping role it changed two things one that the defendants could file motions and two and this is the important part judges could find that circumstances are extraordinary and compelling even when the b o p director and the government disagree and the government does not dispute that was the practical result of the st step back and so that brings the other reasons provision in direct conflict with what congress was trying to do with the st step back congress had a d o j inspector general report that said there were people that met the criteria under the guidelines but the opi was not moving for their release  to my knowledge the b o p not once you the other reasons provision and so you know the part of the other reasons for guidelines criteria that says as determined by the director of the bureau of prisons as in direct conflict with the st step back which authorized courts to have the power to determine what is extraordinary and compelling under the guidelines criteria without regard to what the b o p director and without regard to whether or not the government o and so congress was aware what it was doing and made to change of that wants it allowed the fan it's to file motions and it also allows the courts to grant and find that certain circumstances are extraordinary and compelling even when result to say that the other reasons present itself is inapplicable and that entire provision falls away instead of continuing to apply that provisions are just not the part well for one that would be i think rewriting the guidelines criteria and i you know take it that the court as it is does not want to be in the business of rewriting the guidelines criteria so you would not want to say that that entire provision says a reason other than or in combination with medical age and family criteria can constitute extraordinary and compelling grounds and that provision should remain in force because it's not in conflict with anything congress did in the st step back the only part that same conflict of the preface where it says as determined by the director of the federal bureau of prisons and so we're not asking you to rewrite anything your are words asking you to find a part but i guess that's i guess that's my question to everything else because this statement goes i mean why would be wise not right because under a severability analysis you would want to leave stand everything you could that was not in conflict in the same way you as you would do well part statute that's unconstitutional you would sever the part that's unconstitutional leave as much as possible to remain here the only reason the sentencing commission directed that other reasons are conditioned on the b o p director fighting was because that's what the statute required in two thousand and seven when the sentencing commission created us and so that's the stand alone ground for relief that should remain nothing in that other reasons provision conflicts with the  process has been exhausted it does your honor but you know that i just given that you still contemplate it and we're looking at a severability analysis in other words see what needs to be saved which is sort of the driving part of your argument is how is it not i guess how was one team not are in conflict when the statute itself still contemplates her role for the opi to record so why can't it be read as one of a one b and one c applied w anyone files a motion and one t specifically applies when the b o p director files a motion which is still contemplated by the statute after amended by cobbler's one your honor i don't think that's how the guidelines criteria is written the guidelines criteria says medical a family other reasons can all be substandard grounds for relief and it doesn't distinguish between who wrote the motion other than those it took but doesn't it in other words one t does seem to say as none of the others do as determined by the director of the bureau of prisons none of the other senate did but that's only because in two thousand and seven that was the only way a court could find relief here and one thing i would argue is the council isn't that true as to a b and c in other words a b and c also before the st step to act can only be brought by the director and yet the commission specifically said it couldn't be didn't didn't pre determined by the director pure prisons it given that that's the case for the catch all provision or the safety valve or however you want to term it and we're looking at how to save as much of this is we can can we look at this not in conflict but that a b and c apply to motions brought by descendants and g e only applies to motions brought by the open i don't think looking at the criteria as a whole the sentencing commission made any distinction between people who brought motions or defendants who brought motions versus b o p filed motions the criteria doesn't distinguish between those two and so here you have a substandard ground for relief that the sentencing commission acknowledged in part  you would still want to keep in place those parts of the guidelines criteria they're no longer apply unless you decide to do it the nd circuit didn't say that the entire policy statements and conflict ok so if i'm trying to do what you suggest that we do can't i say with doing as little damage as possible that a b and that's touching anything a b and c apply as stated to everybody and d only applies as stated to those things found by the director of your presence which is still director of your prisms whereas the way that i just suggested actually isn't touching it at all well it would be because it would take my time that you're on you can go ahead in the answer and i actually have a follow up questions but i would the sentencing commission has created substandard grounds for relief you cannot take those away you can only take away the part that's actually in conflict and the other reasons provision is a substandard ground so that other then or in combination with medical imaging and family criteria and so it's a stand alone ground for relief then i don't think you can just excise because that round by itself is not in conflict with the st step act actually a hearing so that she can make her compassionate release argument the argument that she wanted to make was a code based argument based both on the situation in her facility in the prison in based on her personal circumstances for her health both physical and mental at the urging of the government the district court as as we all know denied her motion to not even give her an opportunity to be heard essentially for three reasons one is procedural in ministry of exhaustion reason which i will address the nd is the question of the guidelines extraordinary and compelling  just for argument from strop when we're going to incorporate that argument by reference so that i could address the other two issues of course if you have any specific questions you want to direct me on that i welcome that but but if you don't i'll address the other two issues that are specific to my client and heard the judge volunteer the district or volunteer that even if he were to consider the case on the merits he would exercise his discretion based on the facts mostly based on the fact that she's in a prison with an affiliated hospital that there is no reason to release or that she's really not in danger and that the the culture the basis for release is not really a basis for at least specially given facility she's  d we are hearing now in november trying still to get her released or alternatively to get this winter hearing i'd like to begin st by talking about the ministry of exhaustion if that person if that defendant doesn't get relief can come to court the government here says there are two reasons why the administrative exhaustion requirements were not met here the st is that when  government distinguishes between the two and says this was not really a request for a reduction in sentence and therefore she never filed administrative leave what she needs to file to get or with respect to that which i think is the more powerful argument and that is the fact that the district court judge the government's urging found motion was premature we have two arguments with respect to that and like to make two court  the st one is that doesn't matter anymore because within thirty days has elapsed since since april and so that argument in our view is now gone whether it's accurate or not for the district court doesn't matter what matters now at the time that we're asking this court that is the st argument that that one and i think that the government's argument is that that that it stems from a that is a plain reading of the stashed and therefore it doesn't matter in our view if the defendant file before the three days is up or after thirty days this actually says the court can't rule for thirty days but now we are asking this court which has jurisdiction and by the way the governor's can see that this is not interesting analysis here so the district court and the court of appeals have jurisdiction we are asking the court to exercise its jur whether it's a kinds processing whether it doesn't matter because even if it's all of that more than thirty days has iraq's and therefore the statutory requirement for exhaustion from east has met and the court can act that it limits the court of the power to the sentence it doesn't restrict time in which the defendant if they just want to the district court rule before the thirty days yes so if reading the statute your way wasn't isn't the question before us did the district court her in its conclusion that it was not authorized to grant the motion order on a motion before the thirty days or so elapsed so there is now no bar to allowing any court that to step in and to take action where the bureau of prisons did not and if we were to say that what i think the most important clause four is the one that gives the most dis and give the district court the widest availability of remedies which is what congress wanted to do it said the bureau prisons it's not doing its job here we've got to get these people least let's give it to the district court then to give this record three out of the four but not the most important one not the brightest one not the most compelling one was clearly not what they would have intended and if not for this happenstance of a lack of quorum this would have been fixed how long is a been sets the sentencing commission had a quorum going to start out with the main argument for reply at and then we'll get to the administrative exhaustion part after as it relates to bryant issue mainly federal courts are courts of limited jurisdiction in the sense reduction contract this was recently riff or firm by this court and us beach own and us v denson where the court explained that the district court la not rather the statutory scheme contains three distinct roadblocks demonstrating that congress intended to limit the district court ability to make policy in this way one required that any sentence reduction under th because the whole thing is directed at the motions by the bureau of prisons and of course this is not a motion by the bureau of prisons motion by defendant then isn't there no other political policy statements for which that there needs was was clear that there is a role for the bureau of prisons in other words the bureau of prisons does still file motions in fact as i read the st step back if we want a principle we rely on the bureau of prisons because a they can file motions on their own directing the something commission to come up with the substance of criteria for extraordinary and compelling so that part of the guidelines frankly is an orientation and it's not it's not really operative as to the purpose  has it not though if it's not operative is when the statute specifically contemplates motions by the bureau of prisons how can we say that it's not operative when that very same still exists in the statutes conversely could have said it could have to be a completely and just allowed motions by the senate in which case there truly would be a conflict and i might be inclined to agree with you but where there's still a role for be ok and this language is still in there how can we say then that disgui political to anything other than motions by the well because again your honor i don't believe that if we're looking at what think conflict i don't believe that this is in conflict because again i don't believe that the operative even if we're even if so if we were green but this is a delegation of a definition you know which and congress you know house has also passed you know on its own you know sections where the fines terms for other uses in part the  other parts of the code i think that the this court can also do the same thing that's a different question than applicable but like it still goes to the question of can a court then completely ignored the sentencing commission definition well even if let's assume that i would agree with you that you can ignore it the question before us is simply what did the district court have any authority outside of the b o t a here to rely on anything other than of have to look at this as a guideline in order to make an ultimate determination of what what what compelling and extraordinary circumstances are i don't think it is your honor i think that if you had to look would still be would still reach the same conclusion that the sentencing commission the find extraordinary and compelling in a similar situation over here and so we should import that definition of extraordinary and compelling where defendants file it and so that isn't that using exactly the applicable something guideline language what that you think the statutory of the bureau of prisons and you say we read that out of the statute because it's introductory or whatever and then when you get down to two d again it says as determined by the general director of the bureau of prisons we don't read that right that's your argument can you elaborate on the have errors and yes i did mister yeah and you know i it's the difference between the non operative part of the guideline which i believe is just simply orientating towards the statute it's about you promulgated a rule for and then one d which is st of all i don't think that that is actually in conflict because i think if the something commission today promulgated one b one point three given the way that the new statute is written it can still be promulgated one b one d as it is  rules for deciding which parts of a guideline which is a statute or operative and which parts are not operative what are what are the rules for well i think i go st year my rule is what the congress and when it pas ninety nine cents for congressional intent on and on and on and so you know that the congressional intent was that it was the sentencing commission coming up with the substantive it your position that congress cannot legally empower courts to grant students or directions for extraordinary and compelling reasons no congress can do that i agree i think this is the statutory scheme issue well your honor i think it fits the definition because the operative parts of it go to the substance of what is extraordinary and compelling certain and that is what was directed by ninety nine in  and compelling it does know for grand fact in st step back when it did the amendment congress could have no further defined extraordinary uncompelling they do have a subsection on with another scenario that  commission to amend its guidelines to be consistent with the noose statutory provisions for the st army of the fair sentencing so congress knows that it can do that one thing i would like to mention about the severability argument about regarding what section no one the itself is i don't think you can several several the st part but leave the remainder of it and you have to put yourself in the place of the sentencing commission and had it known at the time of this amendment what would that have done and here i don't think you can say that that we know that the sentencing commission would have replaced the rector of b o p n one v with the district court there's no evidence of that and so you can't just several that part and then replace it with district court that's not how severability analysis goes under statutory canons of enter patient and so i think if you look at the rest of the guidelines the rest of the guideline that the could have always been written broader by the sentencing commission could it could have always given the district court more discretion and it didn't i think that's how we can tell that it didn't provide it wouldn't necessarily provide that same discretion and if we can't tell that you can't draft you can't sever the in that way it cannot turn you to the to the thirty day argument your honor the district court correctly correctly ruled that this was premature the timeline as that by her own admission w pending what we've done in our district and other cases when there's an appeal pending on that issue and someone files a new motion we agree that the district court can rule  rule on it under rule thirty seven to deny it i don't think that she can file that motion and actually obtain her relief until the appeal is finished because of this because the jurisdiction you said that but what you're saying is they can't rule on it they can't take any action on it until we rule is that my understanding you're i don't think a district court and that's fairly granted until you rule but i mean published most of them are either in well all of them are either in our brief or in twenty eight j letters that we have already submitted and united states versus  that this was a mandatory claim process when when appellant mentions that we've withdrawn the jurisdictional argument the department originally asserted that this was a  must it as mister weiss said sit on it for the requisite thirty days before ruling on it what what what does all of this me well so i think a long actually address of the some extent which is i don't believe that  this allows someone at the fountain to pre filing motion and then make the court wait thirty days before i think the statutory language itself none of these none of these five circuit i've held that this record have to wait and along the defendant there only waited ten days before filing his motion in district court he filed his request with waited ten days and and alarm said that his motion with premature prevented the that and present that argument but they did present the argument that as a matter of equity the court should rule on this right away because of special medical circumstances and that she at why can't the court  given the way the statute is structured as the court's authority rely on some sort of equitable authority to rule on something or to just sort of skip over the thirty day requirement  statute in ross which again said you can't file this mo this motion until x number of days until you've done something in that case exhausted a political prison administrative procedures dollars in which to under extreme circumstances for maybe some undefined reasons overcome those those claim process claims processing rules you mean equitable and then and then wait also if we're going to look at this equitable i also don't think this is equitable for those defendants that are following the you know that weight that go through the the and ministry of exhaustion process and and wait their thirty days before filing and then someone else pre filing a motion and gets to be heard before a district court i think that this promotes an orderly progression and gives b o p the opportunity to p gets thirty days to try to make a decision in this case and that seems to run counter to the intent of congress giving you no pete at thirty days anything further mister davis no your honor just the government requests that this court affirmed the district court's decisions in both cases all right thank you including the b o p director two parts of the policy statement and those are both clearly relics of the prefer step back regime rather than holding the other reasons provisions sometimes fall way way and sometimes doesn't the court can simply hold up those prefatory statements are no longer a pleasurable and here's the reason why you would not want to read one d and the other reasons provision out entirely government's right this is like severability but not identical substandard grounds medical agent family are certainly capable of being used they just cannot be conditioned upon the be ok to terminate the dependent circumstances are extraordinary and compelling if the government's right here and there is no conflict between one d d and the st step act the sentencing commission could come back and say for medical age and family we're going to make those dependent upon a b o p determination and the commission would be able to basically take away the changes that congress made with the st step act that's clearly not what congress intended congress intended judges to have this authority be opie previously had under the statute and you don't have to just take our word for several make it groups the american conservative union foundation our straight cato they all work with the white house in the senate on this bill they both support us and saying that congress intent the judges to have the power that the b o p director previously held that the o'jays own inspector general noted the problems that the b o p s never use this other reasons provision never moved for a leave congress was responding to that that's part of not legislative history of the statute but the history of the statute that you know should be taken into consideration and you know our view is that judges are clearly capable of finding when other reasons will warrant a finding of extraordinary compelling and nearly two years after the st step act what we're seeing are judges that are being very careful and using this as discretion very wisely and all in the most compelling extraordinary circumstances granting really we'd ask that the court and i'd like to respond to a number of points that were made by the government with respect to the administrative exhaustion i st want to snip very clear that we have two separate arguments here our st argument is no matter what the nature of the requirement the thirty days is now separately where i mean even if you say the thirty days is still ticking even though it was filed in april and it's now november the court has the equitable discretion in unusual circumstances this to waive because it's not jurisdictional and it's not mandatory our st argument that the thirty days is lapse would suggest would suggest that even if the government is right in characterizing this as mandatory ok it's oh you don't know what the district court's going to do if it doesn't get guidance from this court if we go back is going to say why are you here i've already determined that you cannot rely on the extraordinary uncompelling cause i've already determined based on my discretion which by the way proved completely wrong i should add because his discretion at the time as we call it was just starting that she would essentially be pretty much safe in the hospital and we've seen how how the cases rockit i the hospital so he needs it this has to go back to him if it goes back to him it has to go back after this court has made clear we hope that extraordinary and compelling is available in that the court give and the courts feeling that it is exercising its discretion because she's she's in a hospital and she's in a prison that's a civilian at the hospital was misplaced so we had to find him more on well i think you do but i think what you need to say is i'm going to hurl world back at him that he hurled at us premature he was making a decision on the factual setting in the prison that was premature now the reason was premature is we were bringing this motion because we want to avoid what happened and others by the necessity of color that we have to bring the motion before everybody gets sick and some people die so we were forced in that situation but now in good we all recognize it would have been an exercise in futility even with the district court row to simply drop the appeal and to go back to if we go back to him and say please rule under extraordinary and compelling circumstances that he's ruled that it's not last three of them never file so that requirement was never met not then not now not rader and one of them to case went so fast that the court of appeals ruled within thirty days so four out of five of those cases it was a thank you very appreciative presentation very helpful from our counsel thank you thank you