appearance for the record your name and your appearance and proceed discuss the move next st and then otherwise and let me know if you want to reserve anything i think the clock isn't moving so ok go ahead thank you your hon he will be released on monday presuming that circumstances stance they are the issue in this case has not been rendered moot by the grant of compassionate release and got is clear based on th erroneous late at night of consideration for early release even though the sentence that was imposed and was being served as well full the error in denying consideration for early release is an error that can be amenable to and the st day after that this error had accrued and the harm to mr milledge occurred the court had at the already on that st day to consider equitable exceptions didn't you that that was an error and although mr milledge had later received consideration of a renewed motion that initial error hasn't been remedied and you had a partial remedy remains and so on the up or down question of movements this case is not news and that's exactly why i say there was no error and we interpret this statute saying he mandatorily had to wait for the thirty days then you can't can you still make that motion we can meet the mission but we don't have that equitable factor in favor of it but you could make the motion regardless of what we said the law is we can make and discretionary on the part of the district court yes early termination it's discretionary just like the sentence reduction here would have been discretionary but what the partial remedy is is that the court has recognized the error and that creates a legal factor in favor of aquittal early termination the district court doesn't have to  really contribute is i mean isn't entirely in the discretion of the district court and you could make this argument to the district who are the mr milledge was cause to necessarily even if this court we're not reviewing that before us and what that what the district court get at this point were just to interpret in the statute right what appeal is from the original denial of compassionate release whether it was error to deny it without reasonable possibility that judge simon would reduce your client's term of supervised release based on this book or to err right or a non trivial possibility at least there's a threshold showing it's not just that there  radically the relief is available is that correct and this court has recognized that it's not merely speculative and multiple cases including united states versus d m another case involving a discretionary sentence reduction although it wasn't even clear in indiana th just like judge simon in this case and that error after the defendant was released was deemed remedy remedy able by an opinion establishing the error because the opinion establishing the error contributes to equitable circularly terminations we don't have to establish that judge simon will grant early termination all we have to establish is that this court's ruling would give us an equitable factor which it will the court has also sent in pieces involving bureau of prisons discretionary early release from completely lawful sentences as an art out residential drug abuse program situation and also in the boot camp situation and in these situations i think it's telling because in those cases early release is not in the back early release it's only permitted if the person gets discretional wayne accepted into the program which is usually where meant they have to have no violations during the program they have to successfully complete it they have no violations during the remainder of their sentences and only after that is that your prisons decide as a matter of its discretion whether to grant early release but this court has held numerous occasions that if he and michelle consideration is denied and the person doesn't have the opportunity to even get that that is the ruling impediment for you with other clients that you're trying to get out correct absolutely can i start with what i think is the heart of the matter as to the merits given them the minimal amount of time left i want to talk about how this part decides i which is not an up or down our being in the taxed or not because every case there has been cited to this court there's no equitable expansions in the tax and yet time and again the supreme court and this court have found equitable exceptions available for mandatory claim processing now but if you look at the language here of the relevant language the statute provides that a court may not modify a term  motion of the defendant after he has since lost if his the ministry of remedies or thirty days have lapsed why doesn't that language preclude equitable exceptions you're either going to play or the may not phrasing is not standards that come after the words if it binds so your statute does not say may not the statute says may not in the introductory provision modification of an imposed term of imprisonment the court may not so if the statute really says what you're saying it says why do we need an amendment your honor there hasn't been to iran and what we're looking at is not just one they're trying to get one and i think statutes can always be more clear but we can't use congressional intent to decide what congress decided in two thousand and eighteen and i think the question is have a congress considered a fast moving hand gumming overwhelms prison systems in a matter of weeks not months have a congress considered an administrative scheme where the agency as a policy choice has declined to intervene has granted no motions for compassion compassionate release to the attention of the courts based on the coronavirus what congress have approved measured in prudent narrow exceptions faced on a balancing of all of the factors of a thirty day rule and on that point i want to know that it's not necessarily an exception for exhaustion but an exception for thirty three minutes if you want to raise or yes your honor thank you all right we'll hear from the government thank you jim please the court hotter on behalf of the united states i'll start with the issue of this what makes this case different from the case is that this court in which this court has decided that a defendant who has the released from custody has a viable claim related to his sentence is that in all of those cases the bennetts were challenging their sentence whether it was challenging the guidelines that were used for that sentence or challenging how the bureau of prisons calculated sentence but in this case what the defendant is saying is i get that you impose a lovely impose sentence but now my life has changed something has happened and i want to you to excuse me from having to serve that sentence and the other important fact is that judge simon said i cannot decide this right now in the early days i can decide this i'm going to follow what congress told me to do which is give the okey thirty days to decide that he waited thirty days and judge simon has told us what he wants to happen and what is going to happen a judge i meant a judge in this issue and mr milledge will be released on monday and mr gillat will have a three year term of supervised release the exact same term supervised release that was imposed initially so at this point mr village has received a seven month windfall his sentence is very short seven months already so in terms of showing a non trivial believe that this extra thirty days would result in seven and eight months when paul shouldn't meet the requirements to overcome newton this i also think that it's important  to note that the thirty days we seem to be operating under the assumption that the minute a filing is made the court is going to decide it there's no obligation for court to the side a compassionate release motion the minutes decided in fact in this case from the time of the nd motion until judge simon decided it was twenty eight days so these things are going to take time the purpose of the statute and congress intent was when congress amended the statute what would they have done if they knew a pandemic was coming because this is the answer to that because when they passed the keris act they didn't focus on compassionate lease they focused on home complied and they s presents we want you to start using home confinement more and so when misteries is the bureau of prisons has not filed for compassion or not requested from the court compassionate release on behalf of any of these inmates or we don't is how many of these inmates who typically simultaneously ask either put me on home confinement or grant me compassionate release are actually granted home confinement and the reason that we want to focus on home combine it with the bureau of prisons is that is what the bureau of prisons itself can do the bureau of prisons itself cannot read compassionate release but the bureau of prisons can do is say i've looked at this case i think this is a good case for compassionate release us attorney's office please tell the district court that's what we think but with home confinement they can immediately release someone to home confinement now yes i agree some people are not being released on confinement that perhaps mistakenly or others they should perhaps it's not significant number of people have been released those numbers are available on the be ok website which is cited rather briefs and what we're seeing is he is trying is it perfect no no one saying it's perfect but we look and i agree with this daily that you know he wasn't brave enough compassionately says congress decided ok we're going to make it so that district courts can do this but when congress did that it said do your work you can do this but only reductions were identical to this one for to purposes of business well they're also identical for purposes of jurisdiction and this court has repeatedly said that three thousand five hundred and eighty two c is a jurisdictional provision so in terms of looking at  sentencing guidelines reductions retroactive search sentencing guideline reductions this corps has said that it's a jurisdictional question does the defendant meet the minimum requirements to qualify for the sentencing guideline reduction the answer if the answer is no that's a jurisdictional issue and the court cannot consider the provision so we totally just a court and this case was right and wrong and you have refused to waive the requirement but it invited the government equitable exception to the provisions the cases where courts have divided equitable exception have involved judicially created claims processing rules not what is in the statute congress made very very clear that it wants the thirty day period provision and that i understand in the th circuit knows there's a footnote in the fort bend cision from i believe it was twenty one thousand where the supreme court says maybe even reserve this we're not going to address this to the extent the court decided it was a mandatory claims processing rule the only option to avoid that was if the government chose to waive it and we did not choose to waive it in this case and as we've said there is no equitable exception to be created because when congress may anything exhaustion it's required the supreme court said has said that repeatedly it is required and i also think it's important to talk about what is actually being asked here they're asking inmates to notify the warden of the institution over the last two months we've decided that writing a letter that list all the defendants that a particular lawyer represents a certain institution and saying we believe all of these people qualify for compassionate release that's sufficient to start the thirty day clock and then we're tying up thirty days we'll look at some of the cases where there is significant concerns about exhaustion requirements the score and months of delay to even get in the courthouse door this is a thirty day requirement during which all the things we talked about are being done they're talking to the victims they're examining  appeared to be additional questions ari thank you right now i think you have three minutes we're not all ok so in several cases where you may have the courts have looked at the text of the statutes and have not found equitable exceptions they said or in fact where they have found equitable exceptions they've said even though that agency plays a role under the statute there can be exceptions and that was something that came up in forester versus chertoff in the e e o c context the statute tells that you see once an administrative request is made you should do x y and z you should investigate you should notify the potential defendants you should attempt informal reconciliation between the parties if your presence has no statutory role to play none of those things that miss po referenced are required by statute congress simply permitted of your presence to be involved if they could do so quickly but they didn't mandate that the b o p b involves think that's an important point when comparing that is exactly what we're looking for here balancing of the relevant factors and i want to talk for a moment about the th circuit and the rd circuit's opinions and where have they went wrong and  based on the coronavirus plan that they've told congress that they are not that is not their policy they are not doing it there also is an issue of what exactly the rule is that we're asking because in alarm and  th circuit and rd circuit pieces they addressed broad exceptions you can't except that just because it's futile you can't accept it just because there might be hard what the court said in mccarthy is that there has to be an intensely practical