may please the court my name is kimberly albright from the federal public defender's office in south carolina and i represent the appellant mr katter i will start with the issue that the court asked for supplemental briefing on which is the issue i think the the what appears to be the case that would resolve the munis issue is the spencer v khem they cased from the united states supreme court but as it turns  out a lot of circuits after that case issued considered whether a case was moot when an appellant challenge his sentence that he had already served but was still serving supervised release so what do you expect to get from this i think that mr katter deserved an explanation for why his sentence was time served instead of a guidelines and that's when that's what he asked for and there is a possibility that the district court could reconsider his supervised release term because he was not given the minimum that he could get i had read your papers saying you weren't challenging the supervise release term that that is true we were not challenging the late breaking development i wouldn't even say that i'm asserting an argument about the supervised release term now is the the reason i mean when we had to address the  mutinous issue it ought to be honest that's what i i first really thought about this issue at all because his since the way he was sentenced in the fact that no reasons were given and that his trial attorney did specifically asked for a guideline  s i focused initially on the reasonableness and it seems pretty clear if you get past the mutinous issue that he was not given reasons an improper factor was considered and the only reason  it doesn't get him any relief no he can't get relief there's no doubt he cannot get relief from the time that he's over sir but he could conceivably get relief on the term of supervised release but you didn't challenge that in your paper that's correct so that's don't but what you're saying is when we ask you to look at moodiness you look at administratively the difference is now he's served a year or more a year more than a year he can be considered now to be released initial issue is is just that he was improperly sentenced and i never cited this case but i went back and re read the supreme court's case in molina martinez and that case while it involved an incorrect calculation of a guideline range i think the supreme court gave a wonderful explanation of why it is important for a person to be informed of why they were sentenced the way they work and i i i me i'll let you go i really will but i just want to be sure that i understand because let's leave aside for a moment the supervised release it's let's just say that he you didn't have a supervised release argument that he's now free of supervised release and he's lost and that we wouldn't send it back to the district court to give him a better explanation about why he got the sentence that there's that no that doesn't get him anything that doesn't remove the set that doesn't remove the conviction it doesn't do anything it doesn't but as i indicated his judgment doesn't reflect that he was hit what his guideline range was i understand your argument on the merits but there's no nothing we can do for him he's already served that time and you don't make the argument that he gets credit the next time he commits a crime you can say well i served additional five years i served to serve you can't say that right now he  is not going to assert anything about the conditions of a supervised release his term of supervised release that isn't his issue his issue was solely related to the reasons been and we can just that's something that i think it's going to my second question to you which i think contradicted what you just said to church gregory he can't do anything about his term of supervised release or he doesn't like or he does it's not an appeal issue he is not going to to i didn't i'm sorry if i've been confusing about that he is obvious me his supervisor the lease term we did not challenge that and so i think you're right that the case the seem to think that this is is all together it's the crime it's the part that you're in prison and it's a part of supervisors release and if something is still in play then we can it's not moot and maybe it's not moo here because the supervised release term is still in play but any error is harmless because you don't challenge the term a supervised release well i think the moodiness cases the point about the meanest cases are because there's any chance that if you ruled on the sentencing or the reasonable ness of the sentence or the substance of reasonableness of the sentence and did remand the case under your position as well we can't do anything to help him for his term of imprisonment that's true but i do believe that based on what the decision of this court is as far as the fact that no reasons were given that he ended up having a senate that was almost three times the high end of his guideline range but most importantly the fact that the improper improper fact that was used directly related to a supervised release this court could make a decision on that and remand it back so that not reasons are challenges which you didn't let me  as the terms of release come up with a total punish the guidelines say that if the senate says every year you have to impose terms really the guidelines are advise so the judge in this case best but is that your argument with respect wives not my argument with why it's not made and i believe all the cases that i cited particularly in the twenty eight j letter that i filed on monday i don't think it's relevant whether the term i don't think that the supervised release term was challenged in most of those moodiness cases the only the underlying sentence was challenged and the reason that it's not that or not have you made the argument that there's a realistic possibility that the term supervised release would be changed i think you're right i did you make that argument i made that argument when i was asked to address me i've not only met that i never raise anything about the supervised release in the initial brief it was because the filmmaker are you make an argument now and you made it when you looked at the movements right and in the supplemental brief and i think that the key issue here that makes it perhaps even less meat than some of the other mutinous cases i cited is the fact that the improper factor that i put in the original brief was that mr keller never raised the issue of whether he'd get banked time should he violate his supervised release term that's an improper factor i think even the government in would agree with that they put in their brief they cited a case watson or wilson i believe is the case where they they agree that that's that's an improper factor i don't think anyone disagrees that it's improper for the district court to consider whether or not mr katter would have received bank time against some future violation of supervised release keller asked for guidelines since he was given a time served sentence is attorney objected and the response by the district court was a law i understand that the b o p my bank time against these over serve senate says but i don't really think i should decide that and that's exactly correct as the government cited in one of their briefs the b o p and the attorney general is who should decide whether over served time  credited against a future senates mr katter never raised that issue and mr katter thinks it was completely improper for that to be the reason for him to get a time served rather than guideline sentence and how his argument about the the guideline suits vs the time serve sentence relates tied in with the mutinous issue is the fact that the supervised release term was brought up and it shouldn't have been brought  or i'm looking at your i had not realized that you claimed that there was a realistic possibility that the term supervised release would be changed by the district court a free man and you represent me you didn't do it in your fridge no grease but you did it in your supplemental brief on manners i've been looking for that maybe you can direct me to where you say you believe there is a realistic possibility that the district court on remained in this case would change the term a supervis release i'm not sure that i used the term realistic well isn't that what the other cases that talk about mootness talk about well they know they refer to whether it's there the second the ninth circuit call call say a case is not made if there's a there can be effectual relief granted and refer there have to be a realistic possibility ok i'll buy that if there is a factual relief do you say somewhere in this brief that there is a factual relief because he could get because and merry it too because there is this effect to the district court could possibly due on remand i believe the term most of the case uses the possibility discuss how the district court specifically relied on the improper sentencing factor that directly related to his term of supervised release do i worded exactly like you say it no but the idea was that  you know the district court raised on its own this over service of time but that wasn't not not appropriate and then just as this was just so ok therefore the collateral consequences of kether supervis of these other cases that have addressed and a lot of them specifically referenced chem not that that what they said was just the possibility the fact that someone still unsupervised release it that means they're still in the custody of the united states that the supervisor lease is considered part of the senate's and punishment and that was enough to overcome the mutinous issue and maybe i didn't directly address all of that history of moodiness to mr  because the fact was he is still on supervised release as acknowledged one of the government's brief he's violated once you have to do that because so much to me counterintuitive but if you over serve you not only can you not bank you but you  suspension are to be off of supervised release five now and then court talks about the challenge portion of the sentence and so where is that the supreme court talks about the challenge portion of the sentence  striking about this and i just wonder i don't know that this is the challenge portion of the sentence but i think i understand your position well i mean the cases that i cite and i apologize for the lateness of the twenty a j letter because honestly that's the way i should have written the supplemental brief which is is now obviously causing me a problem but the i think those cases that i cited and i can understand i'm i'm aware of this court's unpublished opinion and we're not bound by public right i understand but you're also not bound by all of the out of circuit authority that i cited either but i do think they gave good reasons because of all what i've already court the united states will respectfully request that this court affirm the senate saying in conviction or not the conviction that the sentencing that's at issue in this case mr katter appellant heather sentence was lawful it was within the statutory framework maybe you can address this but certainly we we also believe that the case of course is minute while i appreciate the supervis release arguments that opposing counsel is put forward what i feel like is getting lost here is the fact that he can make those arguments to the district court judge he could have made them in any point in recent in the past few months he's served approximately a year and a half of supervised release he has not asked the district court to terminate his supervision or anything like that we reached the question of whether it's moot here i mean that's interesting oh no i just m to the extent they are relying on the ability for the district court judge to go back and say there's a realistic probability that he's going to revise the term of supervised release i'm just saying that could have been done but i think that  because there is there probably is more realistic possibility if we should say that the sentence itself was wrong the time the prison sentence was wrong that he would change the term supervised release but nobody has said that to the district court you are correct that that has not been said but yes we believe it is made the supreme court's opinions and the kim the case and lengthy williams going back all the way to north carolina of the rice we believe that that line of cases shows that there is not an actual case or controversy before this court as i think we just heard it seems somewhat clear that the defendant is just challenging the imposition of this time serve sentence and of course it is time served our hands are tied this is what happened post johnson the district court released this defendant as quickly as he possibly could we got the recent acing hearing the district court entered time served and i think actually the be a piece said he served one day more because the b o p couldn't release him i guess that particular day but he all of those things there are precedent the supreme court has said in terms of all these things call and reasonable sentence and procedural looking at the factors that's all he could have done maybe the whole point is this i've served the time you can't take back but you can at least give me a sentence that reflects appropriately what should have been my sentence even though that's insult to injury almost you say ok times are also prominent you happy no i'm the fate is complete so that's all i can do but that's not all you would agree that that's not all the court could have done with the court could have sentenced him anywhere between zero to one hundred twenty months and i guess it is the government disagree i think the transcript shows that the district court in this case said i've considered the thirty five fifty three a factors trad this case us you know he i think if we view it in the light of the sixth circuit which the majority of the sixth circuit in the nichols to such a thing yes it has to be considered a variance senate what's the basis for the basis for the variance is the thirty five fifty three a factor is the fact that trial he testified falsely and he got convicted in the district court again and that there's a short paragraph but it says i've considered the thirty five fifty three factors i tried this case and looked at the you know the conduct the again not knowing that it was going to be a variance since we're looking at of course in hindsight yes it could have been more thorough and should this court remanded obviously you know there would hopefully be a stronger record i mean if this court remains that it would be the government's position that we would move forward upwards marion's in order to get to that same sentence we do believe in time to that because that was the appropriate senator on it again in his you know you would you would try to argue to make it fit the make it fit the time sir and you would argue the court that to give reasons to make the variance how what was the variance how many how many months over the top of the guideline range been thirty three months to whatever between seven and eight years so i mean it's more than double for sure but again we're looking at it in this vein of you know congress in this and the courts are asking us to handle really difficult task first they tell us this guy is you know a fifteen year mandatory minimum case you know that's what the u s attorney's office takes cases like this they look at somebody with an extensive criminal history and i think this is somebody worthy of federal prosecution will do it so we take the case we take it to trial and then of course we think that's a reasonable senates the district court's hands were tied our hands were tied that was the sentence the supreme court it turned out we were doing it wrong the supreme court told us that wasn't right and now he's a maximum of one hundred twenty months  there you could have very easily already one hundred twenty months it's very basic you just say judge johnson applies but you're still free to consider those convictions and if you think they're more serious than what johnson has unfortunately he got the worse and then the other gang members and again he went to trial he testified that he testified falsely you know and unfortunately since he got out of prison he has been doing very well out of there you know again i know you don't want to i don't want to think the government is being unjust but of course he's got it was doing very well you'd be telling us about that right that's exactly right what you know what i was going to tell you is that he has his supervised release stylish report has been ready for know of course the government said no no no we don't want the hearing this case is being orally argued we would not double down on the defendant and have a supervised release violation hearing knowing that the court may have a problem with the underlying  government considers this to be your honor unfortunately it is tom that he has already served there is nothing the supreme court has said as part of the mitten a stock turn whatever you're asking for basically it's a total sentence and so when a judge and fastening that sentance considers that the defendant has served eighty three months whatever the number is eighty four months that may lead to a particular conclusion as to how long the term of supervised release if if on the other hand eighty four months as times are but there's something else that maybe could have been imposed on the first instance the way a senate sing works these days under thirty fifty three a we're applying those factors to the total sentence therefore it may very well be that this conclusion as to the term of imprisonment led to a different conclusion or an unusual conclusion as to super bass really you agree and i'm posing this do you agree with that or disagree that depending on the facts in the case unfortunately i think in this case  think it's difficult we would be in a much different situation if in the opening brief it said appellant header is appealing his time served sentence and his two years of supervised release but instead we didn't get that instead the situation that presented us you appeal the sentence right that's what they're he's appealing occasionally but i think in some of the cases that we've seen some of them are not doing that they are appealing just the term of supervised release they just want to talk about i know post johnson in some cases the defendants have are only complaining about supervised release because they've gotten time served you know and also i want to make sure also the court understands the context in which this came if you look at docket entries one eighty three and one eighty six you'll see that the attorneys for ken are you know they didn't specifically asked for a specific sentence they said you know they were seeking twenty to fifty five relief we want to sentence  you know below the one hundred twenty month maximum and i think myself included i would readily admit this we were all taken a little bit back when he got time served and objected to that and that was not something that i foresaw was going to be a problem i know when i look at the case in sol but it's got a lot of range was going to be and how much time he served i said oh my goodness we'll agree with time served of course because you know we could have asked for one hundred twenty months but we didn't feel like that was appropriate but what he had served seemed reasonable and so we went forward with that proposition only to find out at the hearing after the judge pronounced the sentence that he says you know i want you know the twenty seven to thirty three months so i will say you know again we're all doing this in hindsight we're figuring out these posts johnson cases and it is i'm not making excuses but we're we're doing the best we can a lot of talk about what he did or did not do in his group when he did when you you are the you are the master of this you should be putting two or three arguments you have absolutely and we didn't do that again that was brought to the parties attention by the court and you know i think that goes is redress because even he regardless of the total stance even he is not complaining about a two year period of supervised release as opposed to a three year period that is correct and the fact that he in the sixth circuit and also the court has not brought this up but i just want to make sure the court is aware there's been some reference to a february twelfth two thousand and eighteen memo by the department of justice that addresses cases where they are being  where they have sentenced above the amount of time that they've served is above the statutory maximum and what the department's guidance has been to its lawyers that does not apply in this case i have to have of course consulted with the department of justice about mr katter subpoena and i have been informed that in fact we should of course continue to push forth this time served sentence with respect to his case so make sure you know that we're not here in south carolina running afoul of the department of justice guidance just wanted to clarify that  carol thank you i just wanted to briefly address a couple of things one thing is the question of how much time mr katter served just so the court is clear on that ninety three months is what i understand maybe a month or two more than  that that's five years over the high end of what his guideline range should have been in three years about his twenty to fifty five was spending the government also mention the nichols case which i did not have a chance to address an initially  appeal i try to always advise my clients about that so that kind of goes back to the movement's question it seems it seems that even if there is some injury there's a pretty significant chance your government brought up the nichols case which i didn't address and i would say it besides the fact that he had over served the statutory maximum in that case independently the sixth circuit addressed the failure to give any reasons whatsoever and i think those are compelling reasons i know i've had a hard time i believe convincing the panel of that but some of the reasons are that there was no analysis for the corrected sentence in nichols it's very similar to mr katter's case they the court didn't recognize that a time served sentence was a major department departure from the guidelines and i don't think the just recorded in this case either and that this court and mr katter and anyone else who looks at it cannot tell from the record whether the district were actually use the guidelines at all to impose the sentence and they also specifically pointed out that just because mr katter already served ninety three months the nichols defendant had already served whatever he served and that was not a reason to give a time serve sentence in other words just because he's already served x number of time that's not a reason that falls within the thirty five fifty three a factors and again back to molina martinez case from the supreme court regardless of the circumstances the court is required to explain the these i think that to overcome the mutinous i think there's cases while the government did cite some cases where they also challenge the supervised release some of these cases i know a couple of the cases and i think the ones that this court site cited in the towns opinion they challenge b o p regulations of good time credit and not supervised release or clearly some of these issues that are they don't have to the appellant has not had to raise the supervised release in addition to the senate's that's already been served in order to overcome the minuteness of it let me ask you this but if he had been not imposed any term a supervised release then no term supervised release i think it would be me but so the explanation gets you really nowhere i mean that's what you featured all along i mean i think you're personally offended maybe the office is offended by what happened and maybe we're offended the government's not offended but you know so but i had ok i was trying about if there was remember we had my hypothetical where there was no supervised release and you acknowledge that would be moot right even though you're deeply offended by the fact that there was no explanation right but i still think that even though i haven't raised the supervised release challenge the conditions that that still is part of the sentence and there is the chance that the district court might reconsider it in light of what this court might say about the way the case was than