my name is kim keller i'm here today on behalf of appellant defendant wilbur brown this is a post diggles case about contradictory oral and written judgments and revocation tastes here there was quite a bit more in the written judgment than what was pronounced at the revocation hearing the court will be able to tell me if i'm wrong but i think the reason we're here today is to receive guidance from this court about what all about  this court has issued multiple post diggles cases grogan metal guadalupe martina's none of those cases have yet dealt with exactly what we're talking about here today but i think that maybe what i'll do is break it up into three parts most of the parts of the government has we have mr brown and the government have agreed on there's the special assessment the restitution and special conditions and i'll go right into restitution real quick because when we wrote our brief we were missing a part of the revocation hearing a part of our challenge was that there was not an oral pronouncement the district court  judge was not did not mention at least in the portion of the revocation hearing that we were provided did not discuss restitution directly the government was able to capture and get the rest of that hearing and put it into a supplemental  record which now having read it i do see an oral discussion by judge crone of restitution going into detail with a number and so we did raise a challenge about a contradiction between the oral pronouncement and the written judgment regarding restitution but i don't think that we're going to maintain that on this given ground if the court decides to not apply if the court decides not applied diggles t happens that complexity with with revocations is frequently judges designed to sense at the same time so the only unusual thing is do goes in large part acknowledge that you usually get a p s r you know a lot of time it's assumed that it was read that these are and those can be attributed to you but the problem with these cases especially delegated to him as straight it all happens at once but if the government is here now acknowledging the restitution point the government's answer is sufficient what's left that you're asking us to do that the government isn't acknowledge well i would like to court i mean i have had cases before the court where d d the government acknowledges that there should be a striking of certain parts of the judgment but the court disagrees and so on the five special through section three thousand five hundred and eighty three dollars and i was looking at the provisions and there's a footnote into goals where this court specifically speaks to and says we're using these terms discretionary mandatory this distinction specifically with reference to  disagree about the special assessment yes levy dollars that still outstanding that it is your contention that it wasn't announced at sentencing and therefore your client shouldn't have it yes and and do you think the government agrees with that position no i think the government's position is that because the special assessment is mandatory and if you apply diggles across and you use the discretionary mandatory categorization that the special assessment doesn't ever have to be spoken at that will pronounce that and i disagree with that and the reason i disagree with that is because when you look at the subsections of the three thousand five hundred and eighty three that speak specifically to revocation cases the entirety of the language used in those subsections is discretionary it's may there is no shall and so while in the original senates there is a shall that comes out in the subsection in the section cited by the government which is what makes them the special fee mandatory we are now not just governed by that statute we are governed by the subsections of three thousand five hundred and eighty three that authorize authorize this district court to make modifications and so with that authorization and that discretion my argument is that there should be an oral pronouncement of the special but he was he was revoked at the same time his sentence in the st violation supporting the revocation was the failure of his special system so why isn't  what i read about was the money wasn't all paid but it was hard to just take it to discern from the testimony was when he did make that one payment because he says he made three they said he made one was that payments made toward the restitution or was that payments made toward special assessment and so it was difficult for me to discern whether the testimony that was taken and the discussion that was going on was that talking about the failure to pay restitution which was also another where the failure to pay the special fee and so if there wasn't notice of the failure to pay the specialty that does not substitute in for the failure to orally pronounce the special assessment and then now we do have it in the written judgment there was some ambiguity in there and i would like to note for the record that it is very clear from the testimony that was given from the discussion even by the judge that there were some mental health issues for this gentleman mr brown was he wasn't he was i think he was put in for six months and missed mental institution shortly before all of this happened and so when we're talking about the notice the due process aspect and the supreme court has told us over and over again that revocation cases are separate and distinct it's not the same proceeding and due process is required so the question is was that enough what happened at this hearing was that enough the discussion that you didn't pay some money how much money didn't pay and he did talk about making three dollars payments was that enough to put him  sure at least on the specials that's right i guess my argument and i'm just trying to preserve all errors here my argument about the special assessment and the reason i do not want to wait that argument is because when you move into the other subsections of th and eighty three you do have nothing but discretionary language included and so i understand there is a statute on the books making a special assessment mandatory at a traditional sentencing but if we're now under the ringback umbrella of revocation hearings and all of the languages may may may then how does that jibe with diggles where dibbles draws a fine line between what is mandatory and what is discretionary i believe the reading of some of the subsections makes most of the decisions made by the truck by the district other defendants i know what the records showed that he owed thirty one dollars and that at most he made three payments that's what he testified to under oath and now we've got a reduction of twenty four so he did not appeal the original senate the original judgment which is where he would have launched his challenge about the thirty one that number he didn't make any challenges there saying this was too much they didn't pick the right people there's no between me and the people that i'm being held accountable for so i don't see how we could now make a collateral attack on that amount based on the revocation hearing and i also am not i mean i don't want to make a housekeeping than anything so as i am logged on today it seemed to me that mr brown was challenging most everything but just to confirm him he does not challenge the condition of supervised release them posies the one hundred and eighty days of home detention correct he does not challenge that ok unless the court has any other questions i will give my time back to the court ok thank you gleaned from the record is that there were two main victims they had mr brown those restitution to and that would make sense a judge has discretion then you get a guy like mr brown's at least competence here she's never had a chopper's life he's got no assets so it's plausible the district board said you know this is really frustrating but i'm not going to make you pay the those questions include why doesn't hand in thing take care of the due process argument and that's what we're looking at and  for an entry of an appropriate judgment or you can require your further proceedings to be had as maybe just under the court also noted that he had eight blatant disregard for supervised release i would point to also that the initial petition to also the fact that he has paid only ten to up nurse court restitution excuse me he toured his special assessment and that i think to go back to what that might be a is supplied to him but the six conditions the court ordered here were there he important and they were necessary for your argument in oral argument counsel d is that your opposing counsel has never heard this and my nd question is could you responded george will it's question jim is keller looking at the supervised release term you may know it off the top your head i had noticed this originally but it looks like he might have been given a longer term than is permissible under the statute if that's true even though ms keller hasn't asked for relief what would you what would you recommend that we do and joins then you could instruct and recognize that the district cooler is in a superior as the core was pointing out in that decodes argument supervised release conditions are important because they help the defendant enter a gre conditions that the the judge chrome he is allowing access to his financial records no new credit charges or lines of credit no gambling no psycho active substances drug abuse trial testing and treatment and preaches a patient in psychiatric psychological and mental health treatment are all appropriate conditions and the district court should be given the opportunity to reimpose that and what that will stand on our brief and our argument shoes i i can respond to the argument by the government asking to have a romantic and recent saying just pointing out a few things st of all mr brown was released from his confinement in august of two thousand and twenty since that time he's been complying with the terms of supervised release d we have not seen another situation arise for this gentleman he has so we're talking about two years of supervised release remaining within that period of time you've got one hundred and eighty dollars days with an ankle monitor you've got all of the other standard conditions that are imposed on looking at the judgment page one hundred and seventy nine dollars of the records and there are thirteen different conditions that gives the government and the probation office quite a bit of power to supervise and control the conduct of mr brown we've had we had one revocation hearing done already then we have the nd one that we had the parties brought back again to to allow the allocution sometimes it's time to close the book on a case and we're talking about a very short sentence with a very short period of time for supervised release all of this the conditions that are a political and mr brown talked about he was trying to get social security benefits so that he would have a source of funding to be able they were in the process of doing that so i think this would just open not only a pandora's box for mr brown case but also quite a precedent to be set for every single time a mistake is made on a revocation hearing and that would be asked for every single tie by the government if this court does do that the proper remedy is to vacate those additional terms that were not talked about in the three different hearings that were held and to allow the process to work we've got supervised release going on right now he he did submit to perhaps i was off base with that but it's just a thought i came across that somewhere on one question before you walked off it doesn't it doesn't matter that at the initial revocation he opportunity to object then i saw it such an ambiguous statement but i agree i read that this morning and i thought i thought that's what i was going to hear as the argument against my position i just don't think it's enough because at the end of the paired needing extra help notice to make that objection right then and there and i don't think it's enough when the court looked at digitals and gave him sort of on going over just one quick point the court talked about go to the p s r and point to specific provisions in the p s r specifically point things out to the defendant that didn't happen here unless the court has any further questions i'll give my minus thirty seconds i took it b