court issue a rule that says that in the middle of a rising pandemic when you have a medically vulnerable in meets the exhaustion requirement a compassionate release application should be waived and the district court should be allowed to weigh in on this for the thirty day period that the statute sets up for your client didn't didn't meet thirty far fifty three factors the reason is that the exhaustion requirement should be evaluated st even if even if you excuse it you still lose unless you can explain to her to our soirees in her ruling with respect to the statute was wrong don't you well i think that her factor in to whether the deserves early release on the merits i think your honor we're asking for a clear rule from this court to decide the issue of whether exhaustion should apply i'm sure many people would appreciate having a clear rule the question of whether this case requires us to decide to rule somebody comes along who has a great case on the merits and loses because of the exhaustion the q then we might have to address the exhaust in the you know i'm not saying that you're going to lose on the merits but you seem to be resisting even discussing the merits which is after all the whole point here right the whole don't want to talk about it with us because we're not as qualified or because we are more biased against news and that's why i read the side of the case on the merits no you're not i back to her and argue on the merits because she  we're used to hearing lawyer of talk that way and you can just pretend we're still different and that will make you more comfortable ok well what i would what i would ask any judge is and the reason the reason why i say to the other case in which judge bryant excused exhaustion rate i think it was the day after she decided this case is because you it seemed like the merits of that case impacted exhaustion analysis is what i'm saying that maybe that's right maybe that maybe the influence runs the other way that a judge is tempted to make a different ruling about exhaustion depending on what the merits of the c merits was her view of exhaustion was impacted by her view of the merits and what i'd like to hear here is what i'd like to say about the merits of your and this is what i think the best of my strongest thing is back in march new york city was the epicenter of the virus it was clear then and a continues to be clear now that diabetics are vulnerable to death more likely than other people if they get the virus there will be other pandemics in the future we're not done with this one yet there will be other emergencies and when inmates who are undisputed not about the merits of the day that's about the exhaustion issues and it's very interesting that you would like us from will for the benefit of both in the future but that that there would be an exhaust exhaustion to be excused but that's an advisory opinion this is not necessary for us to reach that if you in this case because in this what that parker was suggesting is if there is no need for us to address that advisory opinion for cases in the future about exhaustion because this case doesn't require it would not be an advisory opinion if what the court wrote was exotic there should be exceptions to exhaustion in pandemics and we're not sure that you didn't hear the merits you exhaustion through the because it was influenced by the fact that your guy doesn't deserve a reduction in the growth of the well to be fair to my guy we didn't even get a hearing he did we didn't get to present any more evidence than what i had submitted i last ten minutes so we've been offering to give you your hearing not an evidentiary hearing but a opportunity to be heard on the merits and you have spent the entire time resisting arguing the merits instead of supported out there were three alternative rulings in this case the st step of the district court's analysis the court determined that mr gamble at failed to satisfy the exhaustion requirement and that that failure could not be excuse was not wanted in that last step the district court went even further in so that compassionate release would actually undermine the goals of the sentence it had imposed just about four months earlier with respect to specific deterren and when you may have a condition like diabetes that there seems to be some argument that i made that because under treatment then the person is not a higher risk for that outcome if they contrac bad outcome what's your response yes thank you your honor i think what happened in this case is that the defendant filed his motion for compassionate release and attached zero medical records and the only information the district court had about his condition of diabetes came from the sentencing the p s r had noted that the diabetes is just beyond was pointed out was under control with medication it was unclear whether mr gamble had type one diabetes or type two diabetes and those are treated differently under the current version of the centers for disease control and prevention guidance regarding coated fifteen i'm sorry coke at nineteen and so i think what happened here was the discourse said look this is your birth you have to mr campbell establish extraordinary compelling reasons you haven't even trust you've pointed to this condition which at the time of sentencing we knew was well under control and that was just about four months ago but i understand your honor's point and i actually note in its opposition below the government deferred to the court as to whether the diabetes constituted extraordinary and compelling reasons the court decided it did not and now the government is defending that position as one of the alternative rulings and what i would say there's just there's a range of permissible decisions this is an abuse of discretion standard and the government's view is that in the absence of evidence highlighting that the heightened risk to mr gamble based on that diabetes aside from the general suggestion that those with diabetes face that rate or peril from kogan one team that bennett felt to meet that burden and the structured this as versus the questioning last and then there is is there an extraordinary circumstance and then one considers moral as in a free floating way whether diabetes control the way i've been thinking about it anyway a court could consider these questions in perhaps the order you're suggesting judge matsch but if there were no extraordinary and compelling reasons and there being no cause to reach the thirty five person and you know is there any reason to reduce the sentence at all d yes sure and i think this court's decision in the brucker case sort of opens the court's discretion to consider all sorts of factors against compassionate release a judge might balance those two and decide to grant compassion on the other hand maybe there's a defendant doesn't have much in the way of dire circumstances presented by coping nineteen or health risk factors mit thank you judge brian emphasized mr gambles extensive criminal history which placed him in category six the fact that his prior sentences and convictions and including a ten year sentence had failed to deter him the fact that he was in his mid forty's and was still king gaging in criminal conduct and what she described as a cavalier in on apologetic attitude towards his prior firearms conviction his recent firearms conviction the district court's analysis on those factors well within her discretion and so there may be interesting questions and some thorny issues that arise with respect to the exhaustion requirement or even the extraordinary compelling reasons analysis but on this record it's quite clear that the judge acted well within her to the court could have been put on some sort of extreme g p s monitoring home incarceration at his mother's house so that would have been one of the options available to judge wright  yes i remember that there were no medical records attach because i have received this is in the record i received a call from the federal defenders of new york saying in march saying the virus is spreading like wildfire in your client as one of the owner you will do something so that's when i talked to mr gamble on the phone he told me about the prison conditions they were not good i said a motion with the warden i'm going to do this and we'll try and get you something to be heard as soon as possible because if if you if you catch the paris tomorrow you can be dead before thirty days is that was the thinking then within a district court's discretion there could be a hearing and medical records take a little while to get and in the interim while we filed this motion we can go out of the medical records i could get whatever other evidence i could and present that here and we never had to he so that's a little bit why i don't have as much as i could and finally it would just be you know he mr gamble  had a lot of sympathy going for him that just didn't exactly she was exactly persuaded by that he had a lifetime of addiction and his son had been murdered not to mom and those those are you know part of the