facts looked quite different suppose i agreed with the government that at the time that judge kryten made his decision there was little basis or specific concern about mr wrone at rochester but it appears from reliable sources that that things have changed but that change information is not in the record and then i heard something else he said that yes there are one hundred and one people who tested positive but there are sixteen active cases which tells me that just what i know from the web site there's a good reason why i shouldn't simply on one straight bit of information from a website because there may be other information that leads to a slightly less dramatic conclusion and what the significant not suggesting what the significance of that is maybe a one hundred and one positive test even if people are asymptomatic is a really serious problem but what i'm getting at is in short if i were to think that just get me was within his discretion in june but things may saying but you're reciting things that again are not in the record and there's a reason why we rely on the i'm not suggesting your information is unreliable but things that are drawn from newspapers and scientific studies reported at nd hand or even if you read them st hand i certainly haven't what my question is should can we remember this to the district court again assuming that we think that based on the record that we're actually reviewing the judge made a perfectly reasonable decision in june is the next thing to happen if we think that that we just affirm and leave it to you to bring a new motion or should we spare everyone the trouble of that and just send it back and ask the judge to reconsider based on whatever new information you might present that would be one way to address that your honor i think part of the problem with example well but that would that would fix his misstep here but that would suggest that every sentence prisoner and every detainee who is in a vulnerable category ought to be released now that may be an argument that you want to look at these new conditions and when if it's let me just ask this is judge livingston if we send this back to the district court what wouldn't that mean that in any case any time that we we have the same procedural posture that we're always going to be sending it back on remand for the district court because there's always going to be some change from the record given the evolving nature of this fire so so your argument must be that these changes are sufficiently serious in some sense that it needs to be remanded yes it does your honor i think the nature of this virus in the inability of very ill prisoners to care for themselves and to sufficiently protect was not was not appropriate but then said even if i were to find that there were extraordinary circumstances here on consideration to be nice baxter's i would not think release appropriate want to address that because that would ground a conclusion that we good morning they have placed a court can everyone hear me yes thank you my name is tiffany lee and i represent the united states this cortisol only about whether or not the district court abused it discretion when it didn't like mr romney's motion for compassionate release and when you're looking at the record here and in terms of what the district court with you the district court went through every step and said on  the st in the st instance it did not find that mr rohani had met his burden in terms of showing extraordinary and compelling reasons but even if he had the district court in evaluating the section thirty five  made the determination that those factors were militate towards not releasing or not reducing mr rohani sentence i wanted to turn to judge lynch's question about how do you handle  statutory provision which is very limited given that the sentencing reform act purpose was to ensure finality of sentences basically state does not have a limitation i guess in terms of how many it does and the reality is the st step back provided a thirty day limit when it when it amended that section of the compassionate release so it was then either the exhaustion of when obviously in the courts well as we're looking at whether or not you know ministre to remedy could have been exhausted they they might further litigate that in terms of saying wait a minute you know my situation is so dire  that you need to look beyond the thirty day requirement that that's that's still an open issue in terms of interpretations that at the very least the statute talks speaks of thirty days or exhaustion of an administrator's remedy for whichever basically said you couldn't meet that you you mr rohani even were i to accept that there are extraordinary and compelling circumstances here that doesn't complete the analysis in terms of under the court district court's discretion what it can do so it doesn't mean that that's an automatic trigger or the district court to decide whether to release or reduced basically there is the statute does talk about and moreover this is a individual who himself had a history of contact contact actual contact with children so looking at evaluating the spot where the district court that point about six months closer to finishing that sentence anyway so that circumstance might change as well all of that would be a new thing for the district court dollars factors only by putting himself back whatever it is more than a decade in time and considering at the time of the original sentence can you reflect on that in terms of the record  i think in terms of the record i cannot say that you did not just look back but i guess the question is i guess i don't understand how  district courts would consider the sentence because the reality is the original sentence is imposed there's a presumption of finality and all the basis that all those factors that went forth at the day of sentencing you know there are supposed to statute is looking at it is whether or not taking the whole package including what happened at the original sentencing it makes sense to produce or release a particular defend so on the day of the consideration of the three by fifty three a factors in terms of when a district court is facing a motion for a compassionate release it just doesn't make sense that they're looking from that day forward well i'm not sure about that if you're looking at i mean this is somewhat theoretical discussion i suppose but if there are extraordinary circumstances that might well warrant a compassionate release or actually a reduction though given the arguments that are made here of course it's it would be silly to say taking three months off the end of his sentence is something you'd want to do it's either release or nothing it seems to me but if there are it doesn't seem to me to be that the statute says you can never revisit the need for the original sentence in light of change developments where there are extraordinary circumstances  jerry ok i was just going to say it sounds to me that what you're saying is the judge is within his discretion in looking back at the original sentence and saying look there are real reasons why this was a long sentence and those reasons persist exactly a judge to do something and i think you might want to be a little careful what you wish for in terms of guidance from the circuit and giving guidelines you know you've got situations where prisoners may have been  released on compassionate release and the government has chosen not to appeal and the prisoner benefits from generous decision by a district court that's what happens when you increase the discretion allocated to district judges now some may think that's a good thing some may think it's a bad thing but i'm not sure that tightening getting more uniformity on district judges is  vulnerable category is not enough but maybe if the cases get even worse in prison things would change and then you have a precedent that you have to fight a case all the way up to the court of appeals again to  get it revised in light of changed circumstances it seems to me the district courts on the ground close to the prisons close to the prisoners are in a much better position than we are to evaluate the circumstances as they exist