away we have three cases this morning and i think experience counsel so you're familiar with our traffic light system which i'm going to try to enforce  sentencing judge and that it imposes a mandatory prison term taken together more closely resembles the punishment of a new criminal offense but without rain to get offended the rights that attend a new criminal prosecution and a new criminal prosecution demands those rights and processes before and during any admission or trial nd agreement is the appropriate course here to flush out any remaining questions surrounding the enforceability of section k which haven specifically left open the twenty eight team case but neither the admission nor the pro forma violation proceeding i'm sorry for the twenty eight team play can negate the import of hand here the admission resulted from a fundamentally flawed process  that was wholly inconsistent with payments and the guilty plea occurred in a separate process that cannot be grafted on to this case and i'd like to start by talking about mister  and our position your honor is that the admission does not negate the need for rebounds underpayment because it was the result of a fundamentally flawed process wholly inconsistent with what we now know from justice briar's binding concurrence and heymans that matters here our due process rights our constitutional protections they attach to the beginning of a prosecution and they stay with us until the end of the prosecution  and they're there whether you've confessed or there whether you have a prior conviction that is relevant to the instant prosecution mister savva is he asked for these protections here he was denied and the reason that matters here and i'll say perhaps most is that he was never advised in the section case of the elements of section k either before or during his admission section k it was not even mentioned during the final revocation hearing the exact nature of the offense itself especially as one completely independent from the underlying charge or the nice twenty eight dollars team case was never outlined for him and the proceedings were abbreviated perhaps even more so than a regular three thousand five hundred and eighty three ether the revocation hearing because they just a court had no discretion knew it had to impose a mandatory minimum specifically all the concerns of justice prior had about having this type of proceeding and it jury had found him guilty regarding that do you agree at that point that he would have had his jury trial rights with the same exact facts that led to the court imposing the five year consecutive sentence now your honor and the reason why is process in it finding by a jury or admission but i record and i think every other one i said that where there was an admission where someone you there pled guilty or went to trial the jury had found that even despite not knowing that that in fact was an element that needed to be found by a jury in that context the court looked at it and said even if we gave you that process it really didn't matter because we can see from the record itself that you had that drug amount or whatever that evidence once we got reach that same conclusion here no your honor because it matters here because even when you look at the process the process shows you that there is a double jeopardy concern that should have been raised is it does exist here and so it's it doesn't matter for mister savva to see much more than it would have that if that process ha existed for him to tell you know it you know use double jeopardy a few times you agree with me in the blue briefs there is no mention at least in the argument portion about there being a double jeopardy violation correct your honor we i think page seventeen of my initial brief reference but it's not the issue that was raised on appeal here right i think what we're raising on appeal is that he mentioned apply and when you apply payments he gets to a process that allows him to raise double jeopardy now under remaps and so what we're fact that the three features of section k make it more like a new prosecution talked about the umbrella of the two thousand year two thousand and johnson supreme court case that made it what made it that way references to play straight trial right straight including the jury trial rights as his words so he says all the rights attending a new prosecution comma including the jury trial right so i don't believe that justice prior tended to only provide a jury trial right he said what he's saying is that this is not like the rest of th eighty three so the rest of the statutory scheme is under this umbrella that we've historically treated one way section k is different and we know that because it has these three features that make it more like a new prosecution and so we ought to treat it differently and he said including the right to a jury trial right  as an example and so that that is my reading of justice briar's binding concurrence and if they elements of section and i think that the court rightfully brings the fact that the two thousand eight hundred dollars case is necessarily a lesser included of section k if if we were to litigate double jeopardy we would probably say that there's three elements of section k that you're on supervision but you are on supervision for an offense that you have to register sort of and three that then with the issue that i think that this court may not and should not address the double jeopardy issue simply because that's where where where my my call my my opponent has been focusing thirty three points on double jeopardy st on it is the court  whatever reason would be inclined to address this issue in this case there is an alternative to remain and that is simply to order something in a briefing but the final point i want to make is that i think it's clear as a matter of law that that that no double jeopardy issue here because double jeopardy requires more than separate offenses the supreme court has how old that the double jeopardy clause simply does it does no more than prevent defense in court from prescribing greater punishment than the legislature intended and so even if you assume that there are separate offenses here which is not at all clear from him and for double jeopardy purposes but even if you assume that the threshold question would be whether whether congress intended to provide cumulative separate punishment which it can do and the reason that i think that's what congress intended to post taking him into account is that the plain language of s logically seems to that logically requires more than just a finding of the conduct but a violation of the law which necessarily would involve its own separate cumulative punishment so so for those of you those reasons i don't think there's a double jeopardy here a double jeopardy issue here heyman does not suggest there is a double jeopardy issue here and this court shouldn't doesn't need to address the question but if the court wishes to address the think there would be any harm but there also would be purpose or benefit because there is no remedy to which mister savva receive would be entitled as a matter of law based on payment or any other authority from this court or the  haman did not hold subsection case they should be unconstitutional it held subsection k unconstitutional as applied to mister hammond in the very narrow circumstances where the district court in that case had made factual findings under a preponderance of the evidence where there were disputed facts in this case is is worlds apart from that not not just because mister savva e c he did guilty to a criminal offense based on the same conduct but even putting that aside because risi specifically admitted at his revocation hearing that he had committed that conduct that that conduct violated the terms of his supervised release and that that violation warranted revocation under subsection k rule and then we have to get in the way you can up and apply them so i'm just curious about your position i mean you're relying on the language from the print the i guess about a less a myth about the defendant no th amendment right to have a jury find facts that a criminal defendant has said has judicially admitted nor nor to have a jury find the fact of the murder i'm talking about this case so ok so that's very helpful you say the admission about that the defendant must be attended by rule eleven protections us the government's position right that that is how i am that is my understanding of protections associated with with the admission of mister severi easy in the beginning of that in in my reading and i'm i'm just want to give you an opportunity to address that and then you know he goes the just goes on to sen you know just i don't know ten or twenty pages later and says without any you know hammering whatsoever i'm going to make this concurrent so i don't that's my i mean how did that i don't he got the rule eleven protections in the admissions that he made about the supervised release so i don't think i mean just do you understand my question i do in my answer that would be that rule of levon isn't what applied to the op portion of that the hearing involving his revocation because revocation of the protections that are afforded to a criminal defendant reputation are covered by federal criminal procedures thirty to dot one then at that so this is what i don't understand about that i thought you just homing that you know a pretty in that whole lot of cases require an admission by the in this context federal criminal procedure thirty two dot line would be the proxy analogue to ruhleben in this context and i'm not aware of any case suggesting that it would be anything that that the th amendment right supreme court identified in him and what was it had to do with with mister savva easy's right to have the jury determined disputed facts bearing on his revocation and the court did specifically advise m that's yes i don't dispute that i just i don't see that as being relevant to mister savva easy's or any formal defendant's right to have a jury determine facts that have already been admitted  holds is that criminal defendants don't have the right to have a jury make have a jury determine a fact of a prior conviction and under subsection k the fact of a prior conviction is enough to invoke eighty eight you were convicted of in florida of a bitch will traffic offense which is driving while license suspended for th or more time and then in two thousand and eighteen you were found by the police with a at trial do you need to prove to a jury or to the judge or to anybody that you were previously convicted of the offense in  that to a jury beyond a reasonable doubt that that particular fact that element of these acts i'm not aware of any cases so holding ok so let's talk about subsection k subsection k says you need to been on supervision for an offense and that is reflected in what that's reflected in the judgement from that of underlying offense yes that's really reflected in that judgment it's also reflected in the violation of supervised release petition  need to register under specific chapters and again that would be simply reflected in the underlying judgment from a prior conviction right and in the sort of statute itself yes right so no facts and you to be proved and then the last thing is that you committed another one of these offenses right yes and can that be proved by a prior conviction yes i don't like couldn't be that's that's that's why i don't see that mister savva receive has any possible remedy on remand here because we have the prior conviction we also have his separate admissions so either one i think underground he would be sufficient if you have a concern about relying on one or the other and that prior conviction the more recent of the two prior convictions that you would introduce assuming that you got all ruhleben rights action other words you knew your right to a jury trial you knew your right to call witnesses to cross examine witnesses at all for all your attendant rights and you explicitly waive them knowing exactly what those rights are and did so knowingly voluntarily intelligently as found by the district court which you need today and prove that very conviction to a jury no and all of that happened in m to the extent that mister savva e c is attempting to collaterally attack his criminal conviction on the on the underlying tout the supreme court has held that you generally can't do that in the cost of case which which involve something like call this like a special revocation proceeding to talk about thirty two dollars you create one this is according to justice pryor my reading of that back in currents completely separate and apart from everything we've historically understood about revocations and all of their parts of three thousand five hundred and eighty three and that would include thirty two point one and the ways we usually deal procedurally with those cases in the district court and and justice prior call it like a new prosecution and with that attend that attaches certain rights including the right to a jury trial when somebody has a confession we deal with that all the time and that doesn't remove any process from that from that individual they are still entitle to absolute notice before and during any admission or any trial and so that the government has a confession may make their job a whole lot easier on the after example doesn't remove any process doesn't remove any rights from that person same i would say for a prior conviction for it for example a felon in possession if they have that far conviction and that's one of the elements it doesn't remove any process it doesn't remove any rights they can still go to trial and we do all she stipulations for those types of things i'm sometimes we attack them because we say that's not our client or there was some improper procedure that we try to our conviction but that's it away their rights and so out of clear for that they'd still be under will lebanon and advised fully of all their rights before they waive those who plead guilty or to trial that the jury is instructed fully on that element dollars and those types of situations we are now according to justice prior to completely new round we don't know exactly how that should be and for but we know that certain rights are attaching according to justice priors concurrence and we know that mister every here was not given those rights both constitutionally and just procedurally at this hearing he was not given any type of rule eleven type notice at all before or during his admission and i would also know that the twenty eight team process and i said before process there cannot substitute for a process here in the section hey case apart from just i think that there being a constitutional problem with trying to substitute one for the other we also don't have anything on the record from the twenty eight team case and so we can look at a timeline of procedurally what happened in that case and say that yes a month before he moved under him and you just missed and find fifty six memmott rights he pled guilty in that other case but we don't have a plea colloquy and we know just practically speaking what happens in district courts is that our clients in the new law violation don't get advised under a leaven for what may be happening to them in the separate violation proceeding it doesn't happen and so i think just practically speak in there's no way mister severi sees rights under due process rights and advisement rule eleven was satisfied in a different proceeding in the twenty eight team case that could substitute here and so i want to be mindful of my time i just want to wrap up i by saying that you know i understand we're not arguing double jeopardy here and i'm not asking the court for double jeopardy ruling here today i'm simply asking the court to apply him and which now tells us that there is something about section k that isn't the same as every other revocation proceeding and mister savva e c was treated like a regular revocation proceeding be able to go back and not argue the things that he asked aren't before and was denied the way i see it i see the government trying to rewrite him and ignoring the parts doesn't like and trying to say that it is somehow the special education proceeding or you know somehow kweisi new prosecution has some rights but only if you want to go to trial but if you admit it or they bring another prosecution against you you don't get those rights and that's not what i believe just saying at all and so we're asking with court for email and under him and so that we can flesh out these issues and the court will thank you very much thank you very much we appreciate the presentation from both coun very helpful