when the lawyers are ready we're happy to hear argument in our third taste united states versus grant good morning your honor some may please the court because the knock is for christ and grant this court should follow almost every other circuit in the country and adopt the common law doctrine of credit for time at liberty and it should follow the majority rule of those circuits in adopting a rule that if any other case involved that kind of know your honor the majority of cases where this arises involves much more significant periods of time but i would point the court to the ninth circuit's decision in martina's which does mention if i could quote briefly  discussed how it would be unreasonable to expect defendants to understand the circumstance of their running so it would be at all somebody's got to fifteen days tennis as they three it would be but what the hey i'm getting ready to then the thing that i noticed about the district courts proposed by factor tax in addition to just having a personal in here with aversion to five active ten was the fact that none of these back in doggone it and they wouldn't let him do it does seem to me as though there might be in there should be some some ability for the district court to say this guy really did try to come back  situations and i think that especially for talking about consecutive and concurrent time with different sovereigns and things of that nature it can be quite confusing and i think in those circumstances it's difficult to tell exactly what steps a defendant or prisoner should have today that's not something that the district court could take into consideration in the appropriate circumstance it may not be a factor in certain facts and it may be a factor in other situations if you're going to have these factors or if you're going to have factors it would seem to me need to be some room for the district court to  it because the government never disputed that back but there is no there is no hearing to determine what exactly had occurred so the district judge either ignored that fact or this finding there is this  discussion these is less than a week after defendants release the probation official the prime steps is erroneous that's correct your honor we are star our stance but it would be erroneous they had not been made aware of it until counsel contact grant contacted me and you make another claim i think that the district court suggestion that this was not his first violation of supervised release is incorrect that's correct as well your honor mr grant s violation of only have one violation to give the court the background on the case mr grant's original conviction was for a possession of facts following that he was charged with state offenses which formed the basis for a violation of probation that was the only violation of probation until this the circumstances here were after mr grant was released the probation officer as a mechanism to get mr grant talking about later that they should wear that actually they believe him that's the guy they're really small that is allowed to work and the only serving this on the weekend so what do we do with all that do we have to send it back to that is that or if it had been if we can conclude that even with the factual findings being correct that this was no abuse of discretion in him in rejecting your argument we do well your honor if this court does adopt the five factor test which i would  legitimacy in the various factors that the district court talked about but we adopt whatever test we have one of our own what do we do with the findings of fact that are running your own i think you would still remain refusing to adopt your position but your i think at that point to remain would still be appropriate because at the time of the hearing we did not know what evidence to necessarily present we presided this prevented i'm sorry presented this evidence to provide context to the case but we did not we were not given the opportunity to go through each of these five factors least i don't want you to have any other evidence or if you're working somewhere you're on i think that part of it obviously would be such as more personal characteristics of mr grant  leave i don't get a do over just because you could've done a better job first of the question if there's evidence in the record that there is sufficient evidence in the record for us to decide on the basis of what the no your honor i don't think you could affirm partially because of what exactly happened mechanically with the sentence and i think what happened if it clee are you talking about other than the fact that we impose as we as we discuss relationship well but he maintains his work relationships he only serves these days and it was a good you received a considerable accommodation you and i would disagree with that oh oh excuse me grant's original position i cannot make a representation today really it will because he works on weekends but i mean i don't really understand i believe by jeff my class position was that he wanted to have this result the entire matter result in federal court it is don't continue i'm sick of the government on my show give the order time and then i'm through it all i commented and that's what your client said to the district court i want to go right now if i'm going to go i want to go now that was not the does it exist as a comment on doctrine the answer would not concede that doesn't exist as something where if there is some something beyond negligence government are acting recollect them number lease them sort of the seventh circuit that's right that's part of the government if there is such a doctrine recognized in federal court that's correct that and then we would say that it starts and ends with it assumed that there was a common law rule for credit at time of liberty applied what vague it called the three paramount interest that should underline such rule which is defendant's interest and resettlement the need to avoid this kind of arbitrary action and of course government society's interest in having prisoners serve out their full sentences and then constructed an analysis non exhaustive set of analysis of factors that  district court was getting at and again starting from the premise that the issue here is government arbitrary conduct and that the cases where the courts have found government arbitrary conduct or suggests that there might be arbitrary conduct is when the government or the marshals are put on notice that they're someone who has to detain or pending for example and the marshals do nothing repeatedly do nothing do nothing do nothing now i don't i wouldn't concede that in this case messily had the probation not so the the twenty six to twenty six is the docket that indicates that the probation officer filed a petition on probation on february twenty fifth six days later i believe that the date that the probation officer you think he just put that in showing the government when they found that they act quickly that's correct and certainly there was evidence before the district court and i believe that there's there's no indication of discord did not imposed because of some mistake by somebody on line is not the exact bit but i do know anything that fits these phone used to be the law for test of the federal this you cannot have an agent carefully before invoking common law here and i believe that's what judge posner and judge winch were getting at and done from the seventh circuit and espinosa from the first circuit and that congress has spoken clearly on certain areas in terms of for example good time credit under eighteen u s c thirty five eighty five to reduce the sound that's right or under thirty five eighty four congress has spoken about how multiple terms of imprisonment should be calculated when they're posed for there wasn't a common law doctrine but that you had to find have it was based on the finding that the government had been intentional and i should clarify i'm not i don't necessarily know that it would be a common law doctrine i think if there was the at some point and without committing the government and in the future case at some point it would be if it if a u s marshals arbitrarily releasing someone and collecting them in a police and collecting them i think this just make a claim that could be a way for somebody to read to get relief based on government condo outside commodore would be a process that's exactly right in a case where you have truly agree just action those so that what would you have us do is just say to the motion for important factors that go to this paramount interest of the i take your point which duncan that did not explicitly get to the equities of actions taken by the defendant that that should count i would say didn't do so explicitly i think factor three which pointed out the timing of when the ration officer was notified and then how quickly the  took action as i said before i think with the district court was getting it mostly there was a probation officer didn't do it dally but i think that certainly the facts are before the district court and district court was aware that this was a defendant who had brought up  that brought this to the to the probation officers to the tension but also point out this is not a defendant who brought that up immediately as he was being released he was released he reached out to his counsels so this was not the case where or how much time  but i think yes i mean to to the extent that the court has disagreements with particular factors that the district court relied upon i think that the court can make those disagreements clear but that and watched the court were to find that the district court would have applied the factors differently or that those factors would have made a difference i think that the abuse of discretion so we could articulate it mean you're not dealing with the equity that well i would say you know it was literally accurate but to to borrow a phrase also what the district court meant was clear and that perhaps the district court was saying this was the second violation on supervisor lease which the literally accurate i take the court's point that the second violation wasn't really a violation but i think what the court that the for the rest of the court's analysis this was a repeat offender and that was what the district court was emphasizing distribution so from the district point just records point of view this was a repeat offender i take the court's point that it would have been better to say that that was not a repeat violation on on probation because although technically correct that's not really in substance with what was getting out but i'm not sure that i would agree that it was a clear error here and i want to pick really quick judgments to get you pointed out when i said what but remember that mr grant is not the defendant who benefits from the rule of immediately telling the jailer hey you're letting me out too early and you rightly said well he brought it up a few days later when i was trying to get out there you know artfully was the other cases there were cases find either a due process violation or something getting close to arbitrary government conduct it's what your honour's were asking mr knox about earlier which is a case where a defendant is about to be let out and he says no aware of where a defendant defender was released as a result of mere negligence and that defendant was also confused about his release date so to get the judge judge point earlier all the cases that are cited  of the governments where there's no case of word and it was ronnie asleep released and was confused about his or her really state which gets to the point that defendants are generally not confused about the release states except in cases where they protest and are jacketed from the penitentiary as soon as i'm white and the only reason for my question about a category was this the circumstances where it might be appropriate just if we were looking at chess and i think there are certainly i think that doesn't form the test and i think it would be to the extent that the court does want to adopt it a task i've read urged not to go to the extent that it does other side says we but the egg we didn't know we had the same thing about i think the court could make that harmlessness determination up particularly because as i think of i hope i've answered the court's questions about the potential where errors it was in the record i believe or at least represented by defense counsel time and certainly not disputed by the government at any point of view thank you very  discretion the point we made about their quality of circumstances to us but none of it is really dispositive you can just report noted that in its own opinion it was essentially completely and it's in its discretion appiah and so based on that we don't think  workable in any way and i think inherently it would authorize an abuse of discretion based on its own standard therefore that's one reason we believe this court should adopt a more bright line rule and we believe that other courts have also followed suit in adopting a more right line r well that if we adopted for example the ninth or the seventh circuit bright line rule then there is no basis for reversal here i would disagree with that in terms of the facts of the dunn case once again in d the defender was essentially only moved from custody once although there are the same syllabi there move from federal custody to state custody back to federal us which is essentially what's happened here i would respectfully offer to court but as the courts discuss this cat and mouse game we're really only typically