was nothing good enough for today so this case presents a question of the proper application of the pretext that version of section thirty five eighty three of the title eighteen which is a statute that is directed to the court and requires the aggregation of prior imprisonment terms when determining how much the maximum term is it could be imposed on a defendant for to one month which was the time served aspect of the case and fifty weekends from friday through sunday morning of intermittent confinement and the question is whether that hundred fifty days or five months was required to be subtracted from the aggregate term which could be imposed which was thirty six months so if you have thirty six minus eighteen which is the first revocation minus one month which is the second revocation minus five months which is also part of the second revocation then the district court was constrained to a limit of twelve months but the district court said no that those hundred fifty days didn't count and the reason they didn't count was based upon we think the district court's mistaken reliance on reno vs coreg which addressed a completely different issue which has to do with the credit for time served or aggregation ignition thirty five eighty five thirty five eighty five is record actually directed to the bureau of prisons and how it administers a sentence and so that's directed to the executive branch thirty five eighty three is directed to the court and let's go back to the two hundred fifty days and ask you am i right that that never should have been imposed that that was erroneous when it was given i think there's a pretty good argument that that was an illegal sentence actually because the intermittent confinement at least currently is limited to modifications in the first year of supervised release but the district court concluded that because the statute would change that had taken is probably a fair argument what we're dealing with here i think is whether if those hundred fifty days should or should have been imposed they were still required to be aggregated it's just odd because it does seem that it's moot at this point  in terms of i mean he served those days so there's nothing we can really do about that at this point but the legal question it poses now a little bit odd because we have this category of confinement that he served that arguably should really exist as a question that should be the statute at all well that's why this case is a rather narrow one because it first of all has to do with protect act application so it's only get ever apply to people like mr sherman acorah whose offense was completed before two thousand and three and then comes back on a revocation and then comes back on an intermittent confinement aspect of revocation it seems to me it's quite possible this might be the only case in history that ever presents this question but fortunately well i think it's fortunate that the court this court has told us pretty much i think clearly in the night case how this should be decided and night was actually a post protect that case but in order to construe what the change in the language in the thirty five eighty three meant post protect act the court had to tell us what the protect act law was and did so clearly which is required aggregation of all terms of imprisonment so in the night case this court approvingly quoted the first circuit first it noted that all the circuits were in agreement on this point and then it noted that as an example it case of the first circuit which is that makes clear the language makes clear that the cap in this case thirty six months is to apply to the aggregate term of of presidents for release conditions violations so i think and i don't think they're contesting that the statute required aggregation they're just contesting whether this counts as something that should be aggregated or ok that's right and so the well though they've gone a little further that's what the district court said but the question of whether mr should have a crew was actually in prison is answered by the fact that he was actually an f t c honolulu and that a federal prison like it's to what should be aggregated i mean i can ask him to be sure but i didn't understand their brief to be saying we don't think night was decided correctly we don't think i guess it was required at all i just think they're saying this didn't count as a prison term that should be right and they're saying that but they're relying on reno versus career but that case george distinction between being in prison and not being in prison because in that case the question was when you're in community confinement or say the drug treatment program under conditions of confinement  that are equal and to prison should that count and the answer was no because they're under the bill reform act the person was released and then sent say to a drug treatment program and restricted couldn't leave couldn't do this couldn't do that here but the shingle curl was actually at the f t c and i think possibly a thought experiment might answer the question so he's there on friday evening saturday and sunday if he had escaped with the government say well he can't charge him with a skate because he's actually only had supervisor releases not really a prisoner or to take another one there's a statute that makes it illegal to possess prison contraband when you're in that edit it forbids possession of all the usual things but also forbids possession of some things while you're an inmate that you definitely could possess when you're not an inmate like united states currency or a cell phone and so it shows up a courier had walked in on friday evening to serve the three days on a particular weekend and said to the f t c guard you know what i'm keeping my cell phone because i'm not really a prisoner supervisor lease or i'm keeping my money does anyone doubt that and could tell them no you're not you're actually here you're under our control you're a prisoner at least for these three days and we're not going to let you do that and by the way it's a violation of law so if you keep insisting on it we'll see if you can be charged with a crime so i think that that kind of ends the inquiry i hope i see that would you like to his or i think i would thank you thank you coun morning your honour's so my name's ronald johnson i'm assisting united states attorney here on behalf of the united states the issue here is really one of what defendant can get credit for him serving time in some form of detention reno versus he wasn't prison  he was in a b o p facility that is correct so why isn't why i don't count that as prison time because he wasn't there under an official order of the tension he wasn't accepted by the attorney general and under reno versus corey within the exclusive control of the bureau of prisons so why does that matter under thirty five eighty three it matters because what defendant is asking for is credit for time served credit for time served but it doesn't say time served as time in prison under an official detention order where does it say that in thirty five eighty three it doesn't say that in thirty five eighty three and thirty five eighty three and under the night case what is is that the district court is required to subtract the agri length of any and all terms of revocation imprisonment the government would urge the court to look at that term revocation imprisonment he is sent to serve a term of imprisonment upon revocation when the court issues a judgment and he is turned over to the custody of the attorney general and the bureau of prisons so what's contemplated even in that statutory scheme is that he be credited for periods of official detention when he is the court relinquishes  him so it's hard to hold him to go out in the yard could he say i have to call the judge and ask whether i really have to go out in the yard know at any halfway house communities correction center or any other less restrictive condition of confinement they have to follow the rules and that is but no one calls those in prison today no one calls i mean i rehabilitation for work programs that are still custodial situations where they are under official orders of the tension but yet they're out in the community farming or working in an industry or doing something that is in a attorney general bureau a prison sponsored program as long as they're committed under an order of the tension as corey said that time pounds if the released then they are not under the exclusive control of the bureau of prisons and that time does not count and that is one of the key factors because the united states believes that the controlling statute in this instance is thirty five eighty five b which basically says it has to be under official detention the but isn't that a statute about how the bureau of prisons calculates how it holds someone and i don't even know how a district judge imposing supervised release would use that statute that have to call the b o p and say what kind of credit would you give how how would you even do it well what would happen is she did it in this case correctly because what she did was she judged mol way revoke the defendant on the first his first term of supervision revoked and he got eighteen months in prison the eighteen months were served he came out bureau prisons determined from what they that started to what day that ended and what credit to give him under thirty five eighty five b did she ever ask the bureau of prisons how they would count one hundred fifty days what she did was she referenced the prisons prisons policy statement she went through their analysis and core a but she did it not the bureau of prisons and doesn't thirty five eighty five talk about the bureau of prisons doing this this is correct for credit for time s what she did was she was determining what maximum term of imprisonment remained after the bureau of prisons had calculated both the term for the first revocation and the one month credit on the second revocation where the intermittent confinement was given as a discretionary term so that eighteen and a one or definitively calculated by the bureau of prisons and those were terms served by the defendant the calculation of those terms is left to the bureau of prisons because it can't the calculation cannot begin until the defendant is surrendered to serve the term so am i right it say we disagree with you and we think that this intermediate confinement counts am i right that you have never contested that the amount of inner confinement he served was one hundred fifty days that is correct he did serve one hundred fifty days of intermittent compartment he is clearly the intermittent confinement under multiple analysis is a discretionary condition of supervised release and under corey he is not under what is what is the judgment say because the judge would have revoked supervised release yes and then reimpose it and so what exactly did the judgment say as you can impose you can as a condition of probation or supervise you can give a sentence that says i'm going to sentence you for six months but i mean you're going to serve it on the weekends and but that's a sentence i know because i've done that and that's just serving it over the course of six months i mean it's serving the six months  hundred eighty days over the course of a weekend so what is the judgment say here that the judge did your honor i believe what she did was she gave him credit for time served which was approximately one month that he days right he was sentenced to two hundred fifty days he was ordered to surrender himself to the bureau of prisons for service of intermittent confinement while on supervised release  possible right there is a limb it i believe your honor to the intermittent confinement up to one year within the statute so but you could do it one hundred times so you could serve the rest of his weekends of his life in prison i don't believe that's correct i intermittent confinement provision normally it is given upon the first upon a first revocation well this was the second so it was your honor so where's the provision that tells us it can only be given on within the  find any other circumstance and you don't know of other people on supervised release and why you were reporting every weekend in this kind of situation not to my knowledge and i don't believe there have been any multiple impositions of intermittent confinement on successive terms of supervised release to my knowledge in this particular instance we don't believe that the court erred in making that determination that she could because she had not given intermittent confinement prior to this she had revoked him for eighteen months  that if you're wrong about this he's already been in prison for too long his release date is currently set for august i believe that was in the brief and that's why the defense requested expedited hearing on this and that's why we agreed he would  to aggregate one hundred fifty days on a second or a vacation to determine what was the maxim sense on the third revocation was it seventeen months which was imposed or twelve months that's what we content on the second revocation to answer your question i think it was  chief judge thomas that what the what the court said is that the defendant shall serve one hundred fifty days of intermittent confinement for fifty consecutive weekends the federal detention center honolulu starting on july thirty first twenty fifteen at six pm and ending on sunday one hundred fifty days might not seem like a big thing unless you're the person asked to serve it but an intermittent confinement there was nothing that constrained the court as i would understand it from saying you know what mr s why don't you serve from  monday at ten am until sunday at three pm and that's intermittent confinement and do that every week so that actually that would you know since he's released a little bit i guess would be an intermittent but that's basically every day  week because you get credit for any part of a day or a day served and it can't really be the case that the court could just do this and then the court maybe could do it but then it can't on the next revocation say well that didn't count that was nothing and the key and the reason why this cases we think controlled by night and not reno versus cory is that the person in charge of mr some of the current when he was at the f t c was the f t c warden and the adult correctional officers yes the judge had some power to end it or change it or do something but this case is really about we think thirty five eighty three which constrains what the court can do and not thirty five eighty five which tells the executive branch what it's supposed to do and giving credit if there's any questions there's not thank you very much thank you counsel thank you both for your arguments today the case just argue to the savannah for a decision and we will proceed with arguments in the case of