mr habib thank you good morning your honor and may please the court daniel who be the federal defenders of new york on behalf of nikko's the special condition of supervised release requiring mr parkins to perform six hundred and ninety five hours applicable guidelines policy statement which generally prohibits the imposition of community service in excess of four hundred hours per year the application note doesn't specify it says four hundred hours period and no case that the parties research has uncovered has suggested that the cap is anything other than a total cap nd although they can't be in part because the the there are cases in the nd circuit that  grapple with the idea or with the imposition of something in excess of one hundred hours so i so this court's unpublished decision in ca tool addressed a community service condition that conceivably could have resulted in an excess of four hundred hours of service but to be precise the condition applied only when the defendant could tool was not working or not and not enrolled in a vocational program that is to say there was no certainty that the condition would exceed four hundred hours as there is here moreover the probation department could tool recommended the condition imposed in contrast to probation because probation is position here which supported the defense's request for one hundred and twenty hours but the probation services does not oppose the imposition in this case your honor at re sentencing mr parkins requested one hundred and twenty hours of community service period and the probation department supported that recommendation second that the community service condition violates three thousand five hundred and eighty three d two because it involves a greater deprivation of liberty than reasonably necessary to deter incapacitate and rehabilitate we know this is true and we have the best possible evidence that this is true for mr parkins st thirteen months of supervision during which time he performed only one hundred and twenty hours of service but conform to the conduct of the law in all respects  working he's working full time as a driver your honor how much time has he serves since and then the judgment to date mr parkins has completed approximately four hundred and twenty hours of community service this court can find suggested limitation of three hundred hours is not based upon it is mainly based upon some perceived shortage of good works available in the community i think the the application  longer or obligations impose administrative burdens related to the selection of sites and monitoring of ons that's right and let me say your honor that below the probation department did advise the district court that it was quote short on good spots for federal supervises that is to say the six hundred and ninety five hours consumed by mr parkins at st john's bread in life is time the probation is not able to allocate to other supervise these with community berman and imposed a term of incarceration here we would indeed be contesting the substantive reasonableness of the sentence i recall that mr parkins guideline range was four to ten months in zone b he was a st time offender who engaged in low level roles into frauds but more importantly he was a truthful and highly effective cooperator who broke open the government's investigation into both of those frauds indeed both of the people he cooperated against received nine incarcerate tory sentences but to take your honor's question which is berman is known as someone this is a judge who imposed terms of imprisonment for significant cooperators and if you were here you would as you put it contest that but we would be hard pressed to reverse that decision in part because of the significant difference we give to district court's decisions now fair point your honor but let me say this the statutory framework here circumscribes the district court's discretion in ways not necessarily applicable to a term of imprisonment section three thousand five hundred and eighty three d sets for three statutory requirements one is consistency with the applicable policy statement and the supreme court in deal one held that analogous language was binding not withstanding the advisory nature of the guidelines in addition as we've pointed out i think the district court committed both legal and factual errors in selecting this term of community service which would extricate us from abuse of discretion review as alluded to earlier the st was the court's failure to recognize that mr parkins had proved with historical evidence a lesser term of community service was sufficient to deter and incapacitated normally that's a predictive exercise for the district court what sentence will be sufficient going word here no exercise and prediction was necessary we had the best possible evidence that a much lesser service obligation would have sufficed in addition with respect to legal error on the well let me say this on our best i think other factual errors the district court's failure to grapple with the economic impact of the service condition on mr parkins as documented without dispute from any party mr parkins was earning wages below the poverty level as an hourly worker every hour spent in service is an hour spent not working and the district court simply said so this condition would consume hours that might ordinarily go to others i want to say also that while the district court referred to the fact that st john's bread and life monitors metropark and hours it didn't address the other burdens that the condition triggered namely selecting alternative sites monitoring hours at those sites assisting mr parkins in constructing a schedule that balances his community service obligations with other supervised release conditions such as the need to work full time and make restitution and making periodic reports to the court all those consume the probation department's time as well thank you very much thank you since he's a lift driver yes looks as though the judge  work i mean you can always work more hours i mean that's true but it's also the case that mr parkins has several other obligations in his life most prominently as a single parent to an eleven year old child that consumes a significant number of his hours it's also a it's a zero sum game to some extent your honor hour spent at community service and by the way it's not simply the hours spent in the food pantry which is where he works but the record reflects that's an hour round trip each way thank you thank you on a tip for a bottle we'll hear from the government good morning ma'am please the court my name is david abramowitz i represent the united states on this appeal and i also represented the united states below the district court had broad discretion to set conditions of supervision and it did not abuse that discretion the record of recent missing makes clear that judge berman followed all the requisite procedural steps he understood and he weighed the next enough of hours in a day or the number of hours needed for someone to sleep but in this case three hundred hours a year is not too much the judge specifically found that i was at the exact i'm asking you so the different question what would be too much and how would we assess what's too much i think if it were impossible to comply with or it were too great a restriction on a defendant's liberty that would of course be too much but in this case that the judge specifically considered whether this was too much he found that it was less than an hour a day he found that the defendant's work schedule as a driver permitted him to do complete this community service requirement and and facts the pipelines node gives us a four hundred hour limit so if that's a general rule what about this case makes it exceptional such that we should allow more than that time i think judge berman set forth a number of reasons that it was appropriate in this case to impose more than four hundred hours of community service a major motivating factor seemed to be that this was a defendant who had found himself who got himself into trouble on multiple occasions over a period of many years and that in both of the types of criminal conduct he engaged in any sort of out and about in the community resisted invitations to join criminal conduct and then succumb to that temptation and so there seemed to be from judge berman's written decision in his statements that resentencing an interest in occupying the defendant in a productive manner was an exceptional circumstance the judge berman certainly found that it was it was a circumstance that justified more than four hundred hours total in this particular case the four hundred hours limit i mean by its terms this is not an absolute limit it's generally courts should not impose more than four hundred hours and is the next sentence makes clear that's that's really a benchmark geared toward ensuring the probation department has sufficient resources and that's another thing the judge berman considered every sentencing he spoke with the probation department he got an assurance from the probation department that there were programs available both week day and we can programs including programs beyond just working at a food pantry but providing other types of work that would offer the defendant skills and help both the defendant and the community what is the providing defendant an opportunity through the community service but again at a certain point it is up to the defendant to take advantage of that opportunity it could very well be that he will in education to get a food pantry well the probation department specifically noted that resigned saying that this was not just a food pantry but i think there were other services offered tax preparation services other other services that the program provided to the community in the defendant would have options to pursue policy statement does not make clear either way although the nd sentence of commentary suggests that it would be puryear it would not make sense for comment to be concerned about the strain the administrative burdens on the probation department when four hundred hours for one year is completely different for four hundred hours over say five years that's a completely different level of burden on the probation department but it does not specify either way can you explain to me what rationale pattern of falling into criminal conduct again it was over many years you made port cision see even though he was a very low member of both of the criminal conspiracies he joined with a very minor role he made foolish decisions and so judge berman found that this would community service would among among other things teach him responsibility would occupy him productively clearly the in terms of protecting the community by keeping him occupied that way that could prevent him from falling into her own conduct yet again or i suppose you and i suppose it depends on the type of criminal conduct that the person has fallen into i think it's relevant here that this was not necessarily a defendant who conceived of the crimes and went out and and planned to commit them so much as someone who succumbed to peer pressure multiple times and so surrounding him with positive influences that may be more of an interest in this case than than it would be in a typical case with the judge that he specifically committed and i believe in his thirty's i may have been a little off but he's in his i think late thirty's at this point but you as the government aware of the higher of community service than this would i am not your honor other than the cases brief but as as my colleague noted those were cases where the community service was a potential as opposed to definite so the government is not aware of it so this is the outer limit based on what's actually been impose this is a high thank you your honor three brief points judge parker the district court made no finding that this was an exceptionally aggravated case to the contrary this case is exceptional on the low end mr perkins was a st time offender who engaged for brief periods of time six and ten years ago in a low level roles in conspiracies that he then broke up via cooperation if anything a lesser term is indicated on those facts judge  that that would be the case if this was for purposes of punishment yes that's your your honor is right the district court could not impose this condition for purposes of punishment but when the application note creates the presumption that it does i think it's a fair inference as judge parker points out that it demands something unusual something extraordinary something exceptional and what i'm suggesting to the court is that what's exceptional about mr parkins is that he's among the least culpable defendants who could come before a court for sentencing in light of his low guideline in this where the presumption is four hundred hours and he's now completed more than four hundred hours the fact that  a concession from the government here that there is no evidence in the record that any educational or vocational benefits are being realized by virtue of participation in the food pantry and let me be clear about this mr  exclusively in the food pantry the service site may provide additional services but mr parkins educational achievements topped out at high school so he's not providing tax services and he's not providing legal services to the patrons of the service site and finally judge jacobs with respect to the question whether the cap is annual or total i think there's to be say the following the application note itself doesn't say but to the extent there's ambiguity that makes  a reply however to a penalty this really is not well i think the rule of lenity applies well certainly the community service condition has punitive consequences whether it was imposed for those