appellant in this case ms ileus filed a pro se motion for compassionate release on april th and through counsel a supplemental motion for compassionate six at that point the district court decided it had already seen enough without even waiting for the government to response to the motion the district court denied it missy aliases motions on the next business day stating that her circumstances were not extraordinary and compelling the district court in its one paragraph of analysis committed to errors st ignored the medical sources provided in ms ilyasah as motion to say that no evidence existed that that collected several additional primary source studies the conclusion of it was that your is that your client has hypertension right and so you're trying to use these medical sources to link hypertension  to increase risk of contracting coats to the district court to establish that your client actually has hypertension i guess that missing from the record here so you're correct yes the that there was no of the initial motion pro se was submitted eight days before but then they submitted it on the th right and so there were two opportunities in theory to submit it and all that was left was the government's the district court you know if the government were to respond as they did in the in the briefing in front of this court that documentation had not we could have sought it to provide those  documents either in a reply or in assist sort of supplemental filing as well if that was going to be relit court's consideration of this motion the district court did not rely on the fact that there was no documentary evidence they is premised on hypertension in combination with the effects of several injuries that she had sustained while at f p c alderson which had led her to some other chronic conditions and had not been  treated well and that the combination of those symptoms and her sedentary lifestyle as well as hypertension would create extraordinary and compelling circumstances in this case the district correct standard or the wrong standard for lack of better way of describing it the government then brings it up in its response and you hit it in the reply i'm just curious how do you think we should you interpret the statute and the guideline that goes with one b one point one three sure so people only the circuit court to rule directly on this issue so far is the nd circuit which they did in the u s the brooker case which  notice this court in the th a letter i believe that the nd circuit arguments there are compelling they say ask your related question because the way i read the statute i know no one's done it yet this way but it seems to me it's an exhaustion statute it says that the defendant can bring a motion after he or she in this case has exhausted through the b o p why would we interpret this law we do traditional in all sorts of cases we have agencies where people exhaust and so the guidelines would be bull or the note to guide us in what is the proper standard and then we'd interpret extraordinary and compelling reasons as textualists do so why isn't that the proper way to think about this as an exhaustion law that you have to exhaust and we could see if there is substantial evidence supporting your claim if the they could bring it in the court and we look and see if there's substantial evidence i'm not one hundred percent sure that i but i understand your position is that the the district court would  substantial evidence standard of review so let me give you an example of maybe a hypothetical help so you have a defendant who suffers who's thirty days from dying they have stage four cancer and the  ok seems pretty extraordinary and compelling you would then it because it says in the last self you have to fully exhaust you would then bring your claim in district court and say substantial evidence supported i met factor number one whatever it is the health factor and there's substantial evidence supporting it in the district court would rule presumably in your favor in that instance because you would have substantial evidence you'd have medical evidence supporting it so  ok and i just want to clarify again your the standard would be that the movement would have to provide substantial evidence to the district court i mean i'm not saying substantial evidence is a right standard i'm saying that that's what we often do when we have exhaustion in administrative agencies is you go to a name a straight agency you try to exhaust it you can always bring a motion or an appeal in many instances in our court and you have to demonstrate substantial evidence that kind of brings all the pieces i'm not saying it's even the right interpretation i'm struggling with it to be candid with you but it says extraordinary and compelling reasons it seems to me the court should interpret what that means it says and that it's consistent with the policy statements it seems to me the policy statements don't necessarily apply to the court but they do apply to the b o p at the very least and then it gives three reasons that potentially would apply to the court and so if you meet one of those it you bring a motion in our court and we say if you see if it meets why isn't that the right way i'm just i'm thinking out loud to be honest sure and i think i understand better at this point  think that the nd circuit's position here sort of addresses that to some extent it notes that to the extent that those are the applicable standards they are applicable only to the bureau of prisons by the text of the policy statement itself may be likable to the ultimate court's review as well because we are reviewing in some sense what the b o p did the district court is if you have to exhaust don't you have to bring i mean isn't the whole principle there's just word that everyone's ignoring has fully exhausted all administrative rights in most cases where we talk about exhaustion it means you brought the same claim in front of the b o p yes so i think that i understand the merits of the the framework that your honor is proposing i think that if that were to be the standard it would  no that doesn't meet our thresh then a district court would review it she would submit it say look i submitted substantial evidence to meet the extraordinary and compelling reason standard this is extraordinary in compelling when combined with cove it and they should a let me out and the district court would look at it and then review that versus just starting from scratch which is what it seems to me the nd circuit allows yes and  i i guess that the the concern that we would have with with that framework based on the authority that we have is that i believe that that  framework would still flow from the application notice to the policy statement it's the the compelling the extraordinary and compelling reason scenarios in that application note  i think have no power to bind reviewing courts for their either for the reasons that the nd circuit has stated or for the reasoning that we advanced in our reply mister on in in in answering just the  question if it if the condition fits an application note a b or c it seems like that's pretty easy and it would happen exactly the way judges are speculating but the problem isn't the problem here it's and who gets to determine what's what are the other reasons and you know i think if the bureau of prisons doesn't have something that tells us what d d is then i guess in essence you are starting from scratch aren't you yes i think that's a that's a correct characterization but that again that is the operative portion here i think is that application no one is just that it's an application note and so whether the argument is that one should include district courts or that application that one is simply an applicable to district courts i think that the same arguments would still apply i see that my time is up i'm happy to answer any further questions otherwise i will reserve my arguments for about oh thank you mister on good morning may it please the court when i say healey on behalf of the united states the district court here properly exercised its discretion to deny compassionate release because messily as his medical conditions were not sufficiently serious as to i'd like to begin by briefly addressing some of the russians that the court raised with in relation to brooker out of the nd circuit as an initial matter the government's position is that the nd circuit there came to the incorrect conclusion and we believe that one b one dollar still is fully a pleasurable despite any date of language and how do i want to ask judge mckee's question how do you apply section d because that seems to have multiple problems with how it does record would apply that so our position is that the entire policy statement is still appl because the st step acted not changed any of the substantive standards for compassionate release it merely changed the process by which the compassionate release is brought to the court so used to be a court is well aware he was going to give you one let me give you an example i'm a inmate and i challenge under other reasons the b o p s says no you don't meet whatever we decide is other reasons i think that's the language whatever it is and then you go to a district court what what does a district or do in that situation the district court still has the ability to analyze the claims under a through see if they are bound by what the real prisons indicate as other reasons and i think the distinction here is that wire i mean it seems to me congress delegated this to the commission not to the b o p so you've got a double delegation problem can you really have the sentencing commission then delegate that authority to someone else yes the sentencing commission here delegated that authority to be o p before the st step act was in place because of their unique position in supervising all of these criminal defendants and their understanding of the compassionate release process a the counsel that i think you're i think what you're saying is that's what the sentencing commission did maybe they did but where did they get the authority to do that i thought it was a basic principle of administrative law that congress delegates to an agency the agency can read delegate within the agency itself but their presence is not within the sentencing commission so how is that even valid for the sentencing commission to delegate this is already the bigger presence of the st but the senate the commission was tasked with defining extraordinary and compelling and providing examples and specific criteria which they do in the application note which is written in a procedurally neutral way st the beginning sections a through c e that has nothing to do with whether the defendant files or b o p files and doesn't give additional authority to define in medical reasons family circumstances etc based on the way that the statute was previously written where only a motion from b o p could be brought for compassionate release the other reasons category went to be opie based on their position as the one bringing motion so why couldn't i'm still not following so i bring something for other reasons to the b o p go back to my exhaustion example the other reasons  assuming the b o p can even do this which i agree with judge larson has some independent problems but it's denied you now go to a district where you're saying you've exhausted according to the statute you're saying the district court can't release someone in the other reasons category because it's as one hundred and twenty three and other reasons why wouldn't that be exhausted such that you could bring in the district court based on the language the statute itself and the language of the policy statement the district court can consider the evidence in front of it and can make a decision to reduce the sentence based on a showing of extraordinary and compelling what the statute does not allow the district court to do is to actually come up with its own extraordinary and compelling reasons to on an individual basis define away at the end game and what the district court can correct based on the language of the policy state the government's position would be that the full policy statement is still a clickable and when you look at application notes one thing even if you want to pull that out separately that is fi neutral and it has nothing to do with whether or not by the fed in his brain your claim or be oh so that one even if you need to put aside the language upon a motion from b o p would still be a pluggable here and for example the sentencing commission when tasked with the finding this criteria they could have written that application note as a standalone policy statement one be one dollar so it still has the full wave effect because it's defining the criteria as they were tasked to do you through the statute and even if we take one b one point one three completely out of the picture here in this specific case the district court in no way abused its discretion by determining that ms ilyasah is hypertension did not constitute extraordinary and compelling and as mister i noted there arguing that the district court ignored the medical sources and relied solely on case counts and that's just not the case here in terms of mysterious his medical condition as an initial matter she did not submit any medical records to support the claim that she had hypertension or suffered from sedentary activities based on her previous calls i mean there are numerous court district court cases dealing with compassionate release that highlight the burden of the defendant including the burden to provide medical records so the district court even though it did not rely on that it could have denied on that basis alone next hypertension the court properly concluded that this was insufficient grounds for compassionate release because it's not a terminal illness as defined in application no a and the presence of coded night teen doesn't change that analysis at all the c d c has issued specific guidance related to what creates a higher risk for suffering from at nineteen and at the time of the court's order which was back in june hypertension was not on that list therefore by having hypertension she's not at a higher risk of contracting and there was no evidence that she wasn't able to provide self care in prison now the c d c did provide stuff with later in june and they put hypertension on the nd left of this is something that might cause a higher  risk but again many courts have decided that hypertension on its own because it's not a terminal illness and it doesn't affect the ability to provide health care doesn't reach the level of extraordinary and compelling the c d c itself estimates that hypertension affects nearly forty four percent of the united states population is a common condition that can constitute extraordinary and compelling in these circumstances well s so i i understand all that and i think what you're trying to to say to us is we that the the district court here assumes the legal authority that that appellant's wants the district court to have that is to define extraordinary and compelling for itself and still rejected the complaint but the claim but i want to ask you a question just about your prior theory which is that d binds both the bureau of prisons right to bear prisons gets to define what's extraordinary and telling and then those criteria also bind the district court so th application no is there any distinction that should be relevant to us between an application note and a policy state a general policy statement i'm not quite sure what the relationship is between those two things and whether it affects the validity of your theory yes throughout her and many times there is a significant distinction between the policy statement itself and the application note because often the application note is not submitted  and it's not submitted to congress in the same way that the actual policy statement itself however here there are a couple different distinctions the sentencing commission wrote the policy statement and the can and the application note together they used the application note to actually define extraordinary compelling and give the criteria that congress asked them to lay out on top of that in two thousand and sixteen which was the most recent amendment to section one b one dollar the policy statement and the application note itself were subject to a public hearing and submitted to congress which separates it from many of the other guidelines where that wasn't the case statement you're saying here they went through the equivalent process so there's no reason to get hung up on labels i was wondering why they would have done it this way any and yes and unfortunately i can't speak for the sentencing commission as to why they initially chose back you know in twenty million sixty two thousand and seven they started adding more detail to the guideline only through the application out  unfortunately i don't know the reasoning behind that but what i do know is that it still went through the process most recently in two thousand and sixteen which gives it the force of law that it needs and makes it so that you could look at it as if that was i'd like to just briefly address mr and argument with relation to that occurrence in the follow up question to that i mean i think that's an interesting argument but i'm thinking back to being a district judge so when you're trying to figure out whether you're bound by something that you then every time you're sentencing somebody you have to figure out if an application note was happen to be appended to a policy statement that was submitted to congress this is a practical matter how the district judges even know unless they did the legislative search that you did well here i think what is meaningful is that the statute itself says that it has to be consistent with the policy statement and the policy statement is in full with one b one dollar and the actual act with haitian no because that's what puts the meat on the bones that's what actually carries out the directive from congress in providing examples and establishing the criteria for extraordinary and compelling that that's an answer but it didn't answer the question of practically the district courts they are tasked with relying on the guideline itself and the application know whether or not they're doing the the legal research and vote wagger slate of research into the history this is what has been provided to them and what is a political ball guideline and consistent with the statement i get that but your whole argument is some some application notes have the force of law and some don't and they don't say on the face of them which are which right that's correct ok i'd like to just briefly addressed with my minute remaining the use of the district court relying on code cases at f p c alderson ileus claims that this was the only thing that the district court relied on m in order to deny compassionate release which was not the case here at all the district court relied on the fact that hypertension did not constitute an extraordinary and compelling reason and in light of code it did not constitute a can an extraordinary compelling reason either and courts across the country during the pandemic have used the syllabi counts as an important factor in determining the risk of co bad and at the time of the district court's order there were very little cases that f b c all their sound and that is still the case and i'd like to point out just in comparison that mysterious was actually requesting to be released to stark county which in comparison is one of ohio's top ten counties with the most coated  brief points in rebuttal st i'd like to note for the court that the th circuit already has a test for determining what the distinction is between an application note in a policy statement and the our test is relatively limited in scope in application and there are several circumstances where the test should not be applied including when the  agency's regulation merely parrots statutory language that is exactly what happened here in the text of one b one point one three and thus that sort of deference should not apply in this case the government also notes that the b o p was vested with the power to decide other reasons because they were the ones bringing the motion in the st place  i think that from a structural standpoint it makes more sense to read it as if the b o p were the initial gatekeeper in terms of deciding whether these motions had merit that's no longer the case at this point t courts are the gatekeeper for compassionate release motions even if this court rejects the nd circuit's test and believes that excuse me sorry even if this court rejects the nd circuit's test and believes the policy statement is applicable it is the district courts who are deciding these as the gatekeeper in the state of the law as it is now i finally just like to note the government stated that because hypertension is so common they believe that it is not extraordinary and compelling neither the word extraordinary nor  compelling by their normal definitions say anything about the common mis of a particular extraordinary and compelling circumstance if a circumstance is extraordinary and compelling extraordinary means it's out of the norm right so if it effects the norm if it affects that sixty percent of the population then certainly it would be extraordinary right i think that depends on how you i understand the courts as sort of concerned but for example covert nineteen is something that is affecting large portions of the country and it is out of the ordinary and i think that this is a case where something can be extraordinary and common and so the fact that i don't think that the government's position that an extraordinary and compelling circumstance can never be common is the proper test to use in this case has drawn your time's up do you have a one sentence wrap up or is that it will rest on my arguments thank you very much thank you both very much for your thoughtful arguments and your briefs in this case we appreciate you answering the questions and the case will be submitted