here is precisely the same as the circuits one of the interesting aspects of this case is that the medical condition of the defendant the risk of the don't break the code that in one susceptibility to do escalated medical conditions is is it is one of the components in common one to one the one point one three and so there is no question that that could the extraordinary going  reasons for compassionate release and so what is wrong with judge gonzales saying ok i'm not going beyond the three enumerated circumstances i'm looking specifically at one of the of the test one of the components that is unquestionably appropriate to be considered measurable ease and i'm simply going to use the test for medical conditions that is  one is the person suffering from a terminal that illness or two is a person suffering from something that substantially diminishes the ability of the defendant to provide self care within the environment of a correctional facility is very limited we have seen compassionate release analysis within the right framework he could have found that mr delgado just based on his medical can just sit conditions his physiological age that there were extraordinary milling reasons that didn't finally a gun the th circuit determine section one b one point one three addresses motions with her terminations of the director not motions by prisoners so the prevailing legal b was correct the plain and unambiguous text of one b one point one three well i think a judge can certainly take factors in one being one point one three into account but i think the judge also has to recognize the correct framework that he or she is allowed to decide under which is completely in our view independent of one b one  five references in a nine page order to one b one point one three and as an example as as you mentioned briefly judge earlier in terms of medical condition it in quotes  had the power within the proper framework to find extraordinary compelling circumstances and had not i mean if you just acknowledge what's proper frame was he could have certainly done that it just didn't meet the standard  applies we do have the the limitation this is not like your unary case we do have a limitation that the defendant has to show extraordinary and compelling situation right yet ovoid that in any event no so so if we were to look at this and say yeah these these points about his progress and his rehabilitation and the fact the california case was discharged in and so forth might make a difference if this came up in a normal sentencing situation but when we're talking about this context of extraordinary and compelling circumstances these don't meet that whether or not you make reference to us s g one b one point one three if we if we don't think it's even close that these arguments he makes would satisfy compelling and correct framework from which he needs to make a decision i do argued that if we were to say of judgments always on the arguments that were made by us to us are compelling and extraordinary  works and it was applied by the district court is it's very narrow and when we bring all these factors out of a total of let's say five in terms of age in terms of a standard that needs assistance in terms of pre primary or conviction being remanded to let me take all these factors together i think those could be extraordinary compelling within the proper framework so i think that i don't think there is enough information from the memorandum in order to are missing i thought we had all the facts and we know exactly what this defendant is arguing he's held it out in very great detail if this were a bigger case with a vengeance as i want to make a lot of arguments you know i got them all figured out yet that might be one thing but here he is telling us exactly what he was to argue i guess here's my analogy is as a simple answer and i'm not great at analogies he has pushed these factors inside a small square if that square became a larger circle that might allow these factors to get to extraordinary polling even by judging solace he has limited his analysis to a very small box and he may very well decide actually these are extraordinary compelling because i can look at this i can combine these factors like how wonder i wonder if your stronger argument would be maybe you're right that these don't satisfy the extraordinary and compelling but it's really really close what else we could get if we could get the district judge to agree we'd have an additional arrow in a quiver we don't have now which means we would have the presumption of correctness from the district judges decision judge that makes a lot of sense and i would take my cue that that is a very strong argument um  i would also i would also suggest that as a as a practitioner who has filed several uncompassionate least motions what judge gonzales in his order attempts to strike down or does strike down in the limited box i have seen compassionate release granted for these are these types of factors so i don't think it is a long shot that viewed in the proper framework saying is that there are all these other backers family circumstances because in your reply brief i thought you had responded to miss walters argument where she pointed out that in the very sentence that follows the one that you're relying on argument in saying i'm not i miswrote am not arguing that family circumstances arctics or very compelling reason i am only arguing the medical condition i had written it in family circumstances only because once i showed that there were experienc extraordinary blowing reasons you are relying solely on medical conditions in my robin yes i know the reference to the family i think what we're arguing and what i was arguing in the reply brief is that perhaps the family situation in mexico where there's a mother in law and a young daughter perhaps that alone is not extraordinary and compelling but yes our argument remains that that combined with other factors we thank you your honor may it please the choir counsel tiffany walters for the united states mr delgado contends the district court denial of his motion for compassionate release must now must be reversed for a single rea reach this alternate points because the district court did not commit the error that mr delgado montoya watches in the case here the district court specifically said that the sentencing guidelines were advisory  because we have that language that says that the district courts find that they're advisory and whether or not advisory is the correct term it's certainly almost the opposite of binding it's specifically rejects that particularly against the backdrop of mr  argument that it is in fact binding and here mr don't tell you is arguing that perhaps that if the district court could look beyond this box that is a policy statement that he could establish extraordinary compelling circumstances the difficulty here is this court has pointed out is that the circumstances or the reasons provided by mr don't got them until you actually fit within the box of the policy statements in this case mr ill gotten money is race raising an argument that we've seen time and time again and the time of coal bed but he is substantially higher risk of complications or death from kobe and the district court considered all the grounds that he raised in his motion for compassionate release it considered whether or has cholesterol an age of fifty nine made him at high risk and also considered whether or not there's been a substantial outbreak in the facility and found that there'd been only two cases in the facility and against that backdrop there the problem is that it let me ask you this this way things will i don't think that there's any question in my mind at least that you're right in th sense that judgments always did mention the fact that there were only two that instances it receives them played the significance of the outbreak and yet and so he did when you were arguing harmlessness i think as if it is not advisory but the definitive binding test that was drawn from comment one well that is certainly not a binding test if it corresponds to a policy statement that is by definition even if the court was applying a narrower standard that may have applied under the statute infrequently when you see just court judges struggling with this idea that i'd like to i'd like to say it's an individual sentence but i feel bound by a statutory minimum and you'll see statements in the district or suspicions in those cases where you can see that the court is struggling with that tension i would like to go beyond this because i feel in this case there are statutory extraordinary into polling reasons but in fact i'm bound by these guidelines and i'm restricted and i can't do what i would feel most comfortable doing we don't see any indication in this court's decision that judge gonzales was having any about internal struggle what we see is that it's considered he's considering the run of the one source of guidance that we do have in this in this case which is the guidance the sentencing commission has provided in b o p motions and he's saying that looking at that i've not seeing how under these facts we have extraordinary compelling reasons so given the decision in this particular case i don't think we have that tension between whether or not the court would have found it under the statute versus the policy statement because here we see that the district court was really deciding on the facts of this case and seeing that not only are the susceptibility to cold it insufficient to constitute extraordinary composer extraordinary and compelling reasons but also the court went beyond what the defendant asked and considered everything in the motion consider the evidence every bill taishan considered the family circumstances considered anything that was for it and found that none of these rose to the level of extraordinary and compelling circumstances based on the facts and these are facts that  hasn't challenge and the defendant hasn't argued that the judge abused its discretion beyond this question of whether or not the court was bound by the guidelines in this case regardless of whether or not that advisory label was was the correct label it certainly doesn't reflect that the district court felt limited and there is nothing else in the district court's decision that shows that women did and the citation and the reference to the policy statement alone could not be an abuse of discretion or this is the same policy statement that this court has continued to refer to after the st step act and referred to it even if the court hasn't reached the question of whether or not it's a political so the court certainly didn't error by citing the piece of persuasive authority that it did have in this case  this are quite here considered all of the grounds that mr delgado my entire race this isn't a case where we have you know an usually long sentence or some other ground that falls outside of the three boxes that we have in the policy statement this is a case that falls squarely within those boxes and so for those reasons it really ultimately doesn't make a difference whether or not the policy statement is binding or advisory or simply just persuasive in this case because the districts are considered everything that was in front of it we need to decide in this case whether this is binding or advisory or otherwise the court does not need to decide that and this case this case turns on the fact that st the district court didn't find that itself was bound and then because of that appellant hasn't shown that the only year he led actually occurred in that case and even if it did it doesn't matter because under the facts of this case the circuit of the reasons raised by the defendant fit within the box policy statement so it doesn't make a difference whether or not it was binding or merely persuasive because ultimately the court considered the facts in this case and there's no challenge to factual findings there's no indication that anything would have turned out anyway differently and the question ultimately of whether or not the policy statement is binding or persuasive or what role it plays it's a complicated question clearly it's split district courts other circuits have weighed in on this question issue and it cannot be avoided in that case it's been fully briefed and fully argued and the government would respectfully submit that a case like that where the issue is squarely before the court presence of better vehicle to decide this case  the case such as this where it's really unclear well there's just no no indication that the fact that is binding versus persuasive makes any difference at all in the case because the reason it's really within the policy  statement and there's just no challenge to the district courts ultimate factual findings or abuse of discretion that the defendant's age of fifty nine and high cholesterol were sufficient to grant asli relief even combined with the family circumstances in which  the district court found that he had not shown that his mother in law could not care for his daughter or that there were not anyone else available who could assist with that for all these reasons because this case does not turn on the question of whether or not the policy guide policy statement is binding the united states would respectfully submit that the court should affirm for the reasons provided by the district court simply because this case does not that the district court did not commit the error of finding that the that the policy statement is in fact binding thank you  suggests that that nothing is extraordinary about this case and that it falls or nothing falls really outside of one b one dollar so really it was harmless error well we do think two things  one the conviction that was vacated that then would not increase his guidelines for sixteen levels that's extraordinary to mr delgado we do think it's extraordinary i don't think the judge discussed that in his memorandum in reason yes yes yes yes vacated sixteen level often screw fiction i think that just raise eyebrows and suggest maybe it's time to consider compassionate release based on multiple grounds including stuck to one b one point one three saying that alone is not enough so i think what we're arguing why this is potentially straining putting everything together i think we need to send a snack and remanded to judgment solace to figure out under the proper