c thirty one forty three b this is an exceptional and unique situation before the court just suffers from a rare and life threatening disease that is imagine it harvey and actually all depending what you say will also want the government to comment on this on page one says page three of the letter in the final formulary and it says medical providers may submit a non formulary request and prescribe the requested medication pending approval of the request and so what i want to know is if the doctor says right yeah sorry so i mean that makes a big difference to me because one of the things that you were concerned about which is certainly understandable is some long bureaucratic process before he would be able to get  the drug that he needs but the question is what happens in the middle you know is he getting it until they say no or is he not going to get it until they say yes it's a good question and that's part of the unknown which causes of so much concern because i don't believe he says he will get it he says when this happens here's the process that goes that the bureau of prisons goes through their own doctor i mean here's my issue with that me i totally understand you know for this man there's a lot of evidence that he needs this particular drug but a world in which the prison doctors have no discretion over the drugs doesn't seem sensible to me either some prisoner thinks he needs  oxycontin and the prison thinks no you really don't you know you can make it with ibuprofen or something there's there's got to be some cognition going on in the prison and so i'm not quite sure i understand what you would like is kind of a guarantee i guess that he's going to get this but i don't know that that's the way usually works why i guess what we'd like is the court to recognize that there's no harm in allowing mr rutherford to stay out pending appeal because there's a chance that this court may determine after review that his sentence was unreasonable and so not only will he have gone into the bureau of prisons facing the possibility that he can't get the drugs or they determine that he's not entitled to the drug but he also may have started to serve a sentence in prison rather than for example his probation recommended a halfway house suggested a halfway house and home detention so there's really when you balance the equities there's a lot more harm sending him to prison now formulary medical providers may submit a non formulary request and prescribe the requested medication pending approval of the west does that mean that the provider likelihood of success on appeal if you look at the traditional criteria under the statute that certainly a factor but if we thought i mean of course if we thought there was a huge chance of success that would be a strong reason for somebody who's not a risk to be left outside of prison that if it was thought to be a very long shot isn't it a little different it is and again i think the record supports the fact that perhaps the sentence of twenty four months in the bureau of prisons was unreasonable and we believe that there's a likelihood after the court considers all of the briefs that it may fact determine that the court got it wrong and sometimes it just are courts get it wrong and those are the arguments for an unreasonable sentence other than the fact that thirty five fifty three a analysis it will find that we've got a nonviolent offender that we've got someone who does suffer from the serious medical condition which is a fact and circumstance that under thirty five fifty three the court should take serious consideration it's money but who committed this  while he was on probation for a comparable offense and i acknowledge that agree with that however i think again when you balance that versus the other conditions perhaps a sentence outside of the bureau of prisons but still for twenty four months two and a half years i think it's protein three years with no violations judge young found he was not a flight risk and the government did not disagree he's not a flight risk he is not a danger to the community he is gainfully employed and since his conviction he's made restitution payments so i think those things are all in his favor and and waiting another six or nine months while this court determines whether or not it's going to remand the case doesn't harm anyone the government is it no less period within the next seven days within the next seven days seven days i don't know why i should take them part i'm sorry i don't understand why the process should go to mars but then it happily will file their brief and they'll be your reply time for buttle if i think i've made our points again when you look on balance i don't think there's any harm in allowing the state to continue i don't think the government can point to any harm other than its desire that mr rothbart start serving a sentence immediately and we don't think that that on equity but that that's the most appropriate resolution for us rob thank you thank you mr garcia mr sheppard and mr sheppard if you could begin with a gun combined answer to judge posner's question of mind what does this sentence mean just that mean you write a prescription but it never gets filled until there is an approval or disagreeing that pending approval the non formulary drug can be used by the person i don't know for certain i don't think that i don't you know for certain you want to know for certain possible your honor the next sentence alleviates any concern as to the question specifically that when the medical acquittal and medication would not be clinically appropriate for this approval process for the nonfunctional area medication can be expedited and approval generally occurs within twenty four hours of receiv class so if it's a twenty four hour turnaround then that's not very much you know approval or denial i guess of approval slash denial that's what that says i couldn't prevent this through production and approval slashed and i'll know there was a ruling on the request occurs within twenty four hours after receiving your press in the central office that's correct so i'm not but is there any way that this could be resolved i mean i don't understand why we have to sit here guessing about what the o p s going to do it can't be resolved your honor because he hasn't gone to the prison and been evaluated by because what he has not appeared checked into the prison and been evaluated by the prison staff but why is that so much i mean there's a medical record here and it's it's a little bothersome to think you know you've got the department of justice wearing one hat that you're wearing right sure there's no deleterious break in his medication seems a little weird that we have to decide this without some kind of sensible middle ground where maybe this one instance it is but i think when you look at all the inmates who are coming into the bureau of prisons from around the country all with very well and sent a lot of them are certainly they don't even have prescriptions for things that are not in the formulary it's a pretty decent formulary but there are a few people in the government's not contesting that this man's illness is potentially fatal if he goes off medication and he's not in remission anymore well certainly not going to have your case you need it too right you know what was it you are sorry i said you could have your cake and eat it too just get him a valuated at butner someplace where well he was in fact designated t place any place they want yeah i don't care where they designate that you know just to get this done in some way so that instead of putting him the risk of somebody sitting around for weeks while they meditate on whether he should get is a lot new you know just find out look at the records evaluate him i can't believe it's all that difficult what i can state is that's not the way th married that he's going to go to butner what's that you're is it clear that that's where he'll go that is where he was designated to go before this stay went into place he had a report date and he was designated to f m c some special repository of medical knowledge why should the bureau of prisons have to rule well this thing along for one thing but wouldn't it be the same thing by revaluing under their own doctors under one of their record and that it's impossible for him to just go to butner or for that matter lexington or any of these other places and be evaluated on what i'm going to just call roughly an outpatient basis so that while his appeal is a pending a n answer to this question can he come to i don't know they could they couldn't i know they don't i also would just as i that's going to ban it i mean you know it's an satisfactory answer in that  it creates a problem with there might not need to be one but nothing that we are looking at is what the law seems to say or the test the test pacifically that we're supposed to look at substantial question that the sentence will be overturned and ordered to do that the defense has to point to some sort of we're on top of that one problem has the defense pointed to anything the district court did really expedited this his brief is coming in a week we told you to file a brief seven days later we get a reply brief four days after that and we just pop it on argument calendar and resolve the whole thing your honor again i two trials on february sixth that two trials on march the sixth so trying to fit that in with that trial prep is going and to be difficult i also just think that that since the wrong message but i get his answer to a simple question ok yes of course you live in which is simply if you let me finish is simply is the issue here whether there's a substitute for a new low tenet that the that you know the prison system is interested in exploring now well if we if we all agree that he needs the new look to him doesn't that eliminate every issue i don't know that we're agreeing that he needs  that's different than his very substitute i don't wait i don't understand that you think there may be a substitute i don't know but i don't know if it is the issue of one of the issues whether he needs evaluation as as the gospel that's one of the things about the defendant's motion that you have to accept i don't know that that's mr gates i'm not a medical professional those sure dr harley en twenty two thousand dollars a month on a drug for the sky that may be the case i would state that the taxpayers are essentially already paying twenty two thousand if you'll notice what his benefit statement was indeed why that's a medicaid what bothers me i'm out of time if the court commission i had responded otherwise of course i think that that would unfairly that unfairly assumes people on top of the med according to the letter it's the medical professionals who would be making the determinations what drugs are necessary and there's an expedited position or should be procedure in place to get  that's what's they determine is necessary and for all those reasons i don't believe he's met his burden he defense has not shown that there's a substantial likelihood or spend no allegation of procedural or factual defect it's just well approve the yes i know but medical providers have recommended this off the formularies drug now according to this letter this has to be approved and you say has to be approved by the central office  my question is by the people in that office i date doctors i don't know the answer that question if then i had doctors i'm not sure on what basis they approve except they might be very worried about the amount of money if that were the case your honor myla trim would never have been provided and as the letter goes on specifically states that it has been provided in the past with persons medical additions very similar to mr all that information was before the district corps and specifically relied upon the district court not once but twice how often has it been provided that information was not provided to you don't have a lot of information in this affidavit is that he received uninterrupted treatment with the night of the trip yes there are other drugs that are available however given mr roth bards individual response to the nile a trip he would recommend that that's what he continue to receive and that any interruption of that may likely result in a relapse or take him out of remission and as he indicates in paragraph twelve if there is any type of inability for him to receive it it's likely that he may die if he goes back into relapse so on balance i certainly understand where the government's coming from with their arguments but on balance we would ask this court to continue this day thank you ira thank you very much  motion as soon as we can a court will be in re