punishment it's the executive branch then deciding punishment rather than something defined by the legislative branch well the real question is just what the statute means and lyster judge read words such see how the supreme court dealt with a similar situation and read certain parts of the adult sentencing statutes as a pleasurable to a juvenile basically saying that a similarly situated adult in r l c cannot be sentenced or rather juvenile cannot be sends more than what a similar situated adult would be sens under the sentencing guidelines so in that situation then in a sense they don't sensing statutes were read is reflective of what the intent of than adults and we do use different language relative to you know what i mean they're treated differently and whether it's something it's not necessarily a conviction or it's not necessarily a sentence they're not necessarily a defendant in all of that but my understanding is prior to you know what else do we look at in terms of it let's say that it is ambiguous let's say that you can create an ambiguous ambiguity what else do we look at in terms of you know there's all sorts of things floating around obviously you know that the canon of lenity for defendants in terms of apparently juveniles always got credit until this one just a court case where they d you know what policy considerations are we talking about work and we look you know where i know you at you give us i think a last minute case that you cited but you know i can look at that two ways from the standpoint you can look at it in terms of this is part of where they're getting credit but then on the other hand you can also look at it when they want to say juvenile or when they you know they know how to say it and  are several things you can look at it yeah i think i understand where you're going first of all you've got the beer present which is flip flopped in one thousand nine hundred nine they changed their policy and decided to deny credit for juveniles for pre disposition time that raises the question of how much deference this court should give to the agency discrimination for a lot of reasons that should not be of much deference but specifically in this court and youngers reno stated an agency's interpretation of a relevant provision which conflicts with the agency's earlier interpretation is not and is entitled to considerably less deference then a consistently held agency view so that's the first indication then the second is where do you go to decide what to do with the situation well the entire point the juvenile delinquency act is rehabilitation and not increasing severity of punishment that alone the reading of the juvenile delinquency act should indicate that this juvenile should get his credit for time served where else you can go is in the united states versus r l c the supreme court case it would be our position that there is not ambiguity here that the juvenile delinquency act would indicate a juvenile she could as pretty disposition custody time credited but even if there is no ambiguity the supreme court stated we do not think that there's any ambiguity that survives if any did however we would choose the construction yelling and yelling the shorter sentence by resting on the venerable rule of lenity so the rule of let it be which is a rule of statutory interpretation and construction if it could have done that but the district court here clearly stated that this was an issue in play in other words the issue was presented i objected to the pre sentence report specifically on this point and the district court stated well there can be an appeal  saying that you're right and that the juvenile should have gotten credit then do we send it back and has the court to resentence yes i would think you would that would be one option for one option this court would have to send it back to direct appeal case it is directly challenging the defendant here is carmona which was the warden and that is what we would urge you to do is order the bureau of prisons to give this child is thirty five months predisposition of custody i will also take some issue with the district court's order here now i'm talking about the district court that ruled on the on the petition they made several protestations that it was a strict constructionist view and therefore the juvenile should be denied his pretrial custody because there was no specific statute that pronouncement from the district court hears turns the rules of strict construction on their head the purpose of strict construction rules for reading penal statutes is to benefit the defendant as quoted normalcy the it's based on the instinctive distaste i'm up against men languishing in prison unless the law makers clearly said they should that's why we statute strictly that relate to how much punishment a person should get not in order to be used as a justification to deny this benefit to a juvenile here in that the district court is very similar to what the district court of the virgin islands didn't h essentially they distinguished r l c the district court judge in d h by saying well the juvenile detention statutes are different than the adult statutes therefore this benefit decrease in severity shouldn't apply to the juvenile if you boil these arguments down what they are saying is we will give a more severe punishment to a juvenile because the purpose of the juvenile delinquency act is to give them a less their punishment if you read d h and i've read it several times and third resolved well i could say that as well it is an absurd result if you read d h careful and i've done that several times if you read this is to court order several times they're saying because of the delinquency acts purpose we're going to ignore the purpose and give a child a more severe punishment that's what's going on here and that's what we've asked this court not to support i would like to reserve a bit of time unless there's for the questions now wh limitation of chapter expection forty one hundred that those statutes apply only to involving the transfer to or from cases of a foreign country but here's the potential relevance of the statute cited in this letter the argument that proved persuasive to the district judge in this case was that the words used in section thirty five eighty five satins defendant and o fence are not words that are normally used with respect to juveniles correct right and therefore this statute thirty five eighty five would not apply to use credit for pretrial incarceration doesn't apply correct but i read this statute which is to which our attention has now been recently been directed which clearly does apply to joe when isles and this statute says the fines offender reading thirty five eighty five to use words in a different way than there used here so what your response my response your honor is quite simply that the statutes show that congress two cases involving transfers to and from foreign countries that's the clear language your honor at forty one hundred very clear language this started because it does yes i think tells us something about what congress thinks the word sends an offender might possibly include and therefore it's hard to say well you know by the clear language of thirty five eighty five cents an offender can't possibly include juveniles obviously they do in this other statute passed by congress well yes your hon should never applied it you know your honor that is not my argument my argument is we must look to the language of the statute which apply and in this case we are specifically talking about the juvenile proceedings which are found in one section and adult sentenced in provisions which are found in a totally different section and congress amended the juvenile statute to include certain aspects of adult sentencing provisions for instance credit for good time after just position but not after even though it amended the juvenile provisions twice  and two thousand and two it did not include the credit for preachers position or pretrial custody which is found in the adult section it's not that i don't agree with you that we can resolve it on that i don't think that the court to consider this a harsh way first of all congress made clear and the law in this circuit is also clear that juvenile proceedings are totally separate and that congress are not for the rain a goal or possibly your honor the respondent is asking only for this court to determine whether or not it has any statutory authority that's the whole basis for its decision not anything else if the court if the district court had ordered the defendant to be sentenced but detained until the age case right yes your honor and so on the issue of deference to them interpret ng that seems a little bit hard if they interpret it one way before and then another way after your honor what this court must consider is that faced with a court interpretation the bureau and only then did the bureau changed it to change its provision there is no language no violating the court's final wait a minute it's a district court decision yesterday plex was prior district court decisions but there was clearly picking and choosing among district court no your honor i don't believe that that is correct predecessor started thirty five eighty five ninety nine that we found your honor i actually made it very clearly i may be mistaken that there were earlier district court opinions found one your honor and i would also again try to  for supervised release for juveniles and this court said that section thirty five eighty three where the provisions for supervised release are found does not apply to juveniles because juveniles are not defendants who are convicted of felonies or misdemeanors and so therefore a sentence or two supervised release was illegal and they reversed that to juveniles juveniles receive civil adjudication of status and they do not receive a conviction for either a felony or a misdemeanor and that is the to your honor that was as this court held a void transfer order at the time so yes he did serve a period of time during which he was transferred to the adult just dump but when this court finding that that issue of juvenile record certification was not in fact jurisdictional but at that time the petitioners case was already final the petitioner did not appeal and the petitioner also did not they just have three brief points in response the arguments about there are no statutes allowing for this the flip side the other side of that coin is there are no statutes precluding this those kind of rhetorical niceties  one side versus the other side have to be given weight only in the context of some dispute or statute here the context is the juvenile delinquency acts provisions that allow for less the veer punishment and in fact dictate less of your punishment so those arguments on the government side should fall in favor of the arguments for the juvenile here by the second point is again reading d h and the district court order essentially makes a flimflam out of the promise of the juvenile delinquency act the statute that i cited to which was the treaty transfer statute provides juveniles credit for pretrial custody an american citizen juvenile that commit policy my final point is that the legal niceties of the government's argument about the over two years that this should not spent in adult status should pale in comparison to what william blackstone this commentary stated a man cannot suffer more punishment than the last times but he may suffer less if that proposition is true for a man it most certainly must be true for a boy thank you thank you very