a counsel or heather carr and expanding a compassionate release under the st step back congress elected by the people told us in the judicial system to determine on a case by case basis whether someone should be shown compassion we should not allow compassion be stripped from the analysis of compassionate release titian's and allow courts to define extraordinary and compelling circumstances so narrowly that despite congress's clear directive the results of prisoners seeking compassionate release is no different than the results of the bureau of prisons nonexistent efforts to see compassionate release here congress granted  power to expand compassionate release because with lifetime appointment it allows us to do that which is politically difficult if not impossible show compassion to criminals and this case is a perfect example of how easily we can strip compassion out of than alice's how that leads to more suffering and trauma that only serves to perpetuate the poverty to prison cycle and how being compassionate can reverse that cycle in in this case the district court relied on cited to and deemed it cabined by the sentencing guidelines section one b one point one three definition of extraordinary and compelling but this court should follow the lead of the nd th th and six circuits and hold that that section of the guidelines is not only not binding but not applicable indeed that the commission comments the application notes which i guess i quaint to the application notes of the civil rules or the the the criminal rules are obviously not binding and they are particularly in applicable because those application notes were created long before the st step back expanded compassionate release to allow a prisoner to petition a court mr was so if we agree with that proposition then is there  limit or constraint on the district court's discretion in applying to extraordinary telling application i mean it's it is an abuse of discretion or to a district court's discretion here sure well i think the guideline itself could be looked at by a district court much like the traditional guidelines no longer sense in guidelines no longer mandatory can be looked at however i don't think this quarter any court should in a compassionate release context deem it as a sexually defacto or reasonable or a de facto non abuse of discretion to simply follow that roadmap as your honor put it and the reason being is that compassionate at least is a fundamentally different analysis than the sentencing guidelines obviously the goal of sentencing multiple defendants across multiple jurisdictions is to create some consistency so that the sentence for one crime in colorado is the same as the sentence for the same crime in new york whereas compassion at least by very its very definition is a case by case analysis based on the unique circumstances of each prisoner so the the district court's discretion is confined by the pla n language of extraordinary and compelling and the plain language and meaning of extraordinary and compelling obviously is not limited to the definitions as set forth by the commission which is essentially as applicable to this case with regard to the family circumstances that the caregiver is dead or physically incapacitated here the there are i think the governments and the government suggest to the district court didn't necessarily believe that it was bound by the by the guideline language and therefore any error here with the harmless what's your research yours response without argument says further that hardship quote hardship endured by the primary caregiver is not an extraordinary and compelling reason justifying a modification of car sentence the court essentially did no analysis of all of the evidence that this car mustered including to two parts issues that i think are some something that would if considered by the court would have swayed it if it didn't believe that it was limited to finding that the family circumstances require death or physical incapacitation number one is miss carr's extraordinary efforts while imprisoned to demonstrate not only remorse but also to improve herself with forty different certificates being asked by the prison to come back because she's been such a model prisoner to help instruct people and number two as raised in her petition and as discussed in our opening brief that had she actually been a drug addict and been able to therefore participate in drug rehabilitation classes at prison her sentence would have been reduced by approximately zero if not at least one year meaning she would probably be out of prison already so what is in effect happening in this case again a case by case analysis for compassionate release it is that she is being punished for not being a drug addict which  demonstrates that the court did not actually exercise its discretion when the court simply said well ariana is not dead and she's not physically incapacitated despite the the clear evidence that when m carter was sentenced her children through her older daughter arianna had a very at least potentially stable living environment including living with arianna and her then husband in a single family home whereas after she was sentenced as a result of her youngest son's severe autism and learning disabilities that marital relationship completely fell apart requiring ariana to move into an apartment with her  four siblings a completely different scenario that was on perceivable at the time of sentencing the original sentence and so what what this case and what every compassionate relief case must consider is that arbitrary or quote unquote objective tests simply don't fit and they don't fit because compassionate release is not designed to be something  the best practice is to of course do so and certainly in this case the court absolutely should have once this court clarifies as we think it should that section one be one point one three is not binding and is not applicable then in a case just like this in fact on remain and what the district court should do in this case is say all right is this an extraordinary and compelling reason imposed in the us has already been served served its purpose to deter and then look at why is miss carr asking for a compassionate release is it because she just simply wants to get out of prison no it is so that we do not perpetuate the cycle of poverty to prison her or her two youngest minor children are and are in jeopardy truly particularly her youngest son who could very well end up in a foster system which is unlikely to be as good of an outcome as miss carr particularly miss cars backstory which is you know laid out with an arbitration in our brief that despite being a runaway to age fourteen and pregnant at age seventeen he could have fallen into the trap that so many people unfortunately do in turn to like let me let me let me stop you there that's sort of the sort of making the pitch that you need to make below it sounds to me like you're advocating for the a very broad type of information to be considered by the district court that almost anything should be able to be considered by the district court in making a determination of whether the circumstances are extraordinary and compelling i mean is up there  that's the case it seems like the district court could also look at one b one point one three and say you know what this seems like a good definition of the act we're just going to use that yes your hon question was well what can the court consider and i think that's a different issue than what could constitute extraordinary and compelling so just to use a sort of off the top hypothetical so if somebody petitions for compassionate release and says the court should consider that you know i'm a huge fan of star wars in the new star wars movie is coming out and therefore i should be released kimock or consider it of course the court considered could consider it would that equate to  compelling reasons of course not so what can be considered vs what constitutes extraordinary compelling reasons are not mutually exclusive how about how about my mom is sixt and it's really makes your tired to keep these kids but she needs indicated that she was willing to do so at home or even get this dress is going to aid her quickly and so i should be let out to take care of these kids and she don't want to do it sure so in that situation the court could consider that and then if the court said that's not sufficient that certainly is not extraordinary and compelling this court would review that determination for an abuse of discretion and could easily say that is not an abuse of discretion because somebody simply being tired but being more than willing and otherwise able is is not extraordinary and compelling but that's not the situation we have here here we have a woman who was thrust into the care of two minor siblings who previously had a stable relationship that dissolved as a result of that burden and so what a court can and should do is look at the what the prisoner brings forth and determine whether or not it's extraordinary and compelling and i don't think we have to go as lucy lucy has just stewart saying obscenity and pornography you know i know what when i see it because what is allowed to be requested yes the court can consider one b one point one three but until the sentencing commission a good morning your honour's counsel may please the court michael johnson for the united states i'd like to start by addressing miss karts claim that the district court erred by quote strictly and without discretion issue a district court here appeared to contemplate the possibility of other circumstances beyond those that were set forth in one b one point one three but based on the claim that the one point one three definition it doesn't appear so your honor and the best reading of the district court's order suggests that the court thought that the policy statement was merely advisory the began its consideration of the merits of miss carr's compassionate release motion by providing in a in a in a somewhat lengthy paragraph the district of utah's decision in mt now and pointing out that a majority of district courts that have looked at yes you have ruled that they are not bound by the sensing commission's policy statement best reading of the district court's decision here a given its its reference to ma'am out in that paragraph is that the court section one of the one point one three was advisory because otherwise what was the point of citing mt now in that initial paragraph if the court thought it was bound by the policy statement then why do you include the paragraph in if it thought it was bound by the it cited mt now it doesn't specifically say and therefore unfollowing maumelle and the other courts that has said i'm not bound and it doesn't say despite now  i am bound on so we're it's not i mean it's not at all clear to me which way the district court is going here it is the best reading we submit your honor that that  we have come to after reading the court order is that the court cited that paragraph as as a basis for for a determination that it could go beyond  policy statement it was cited that paragraph in it cited mout as as support for going beyond the policy statement and that was the premise the framework behind its analysis of the claim seems like it's relying on that definition it appears to have relied on the definition to resolve miss carr's motion that is correct but it doesn't suggest that the court ms carr's favor for reasons other than those set forth and want to be one dollar it's not clear what the court meant by of the phrase for other reasons but a possible reading of that is that the court meant for reasons other than those set forth  that that's a fallback position here for miss carr if she doesn't follow family circumstances then we should look at and under other reasons and the court suggested that the court was going beyond what was merely set forth in the motion and the motion focused solely on family circumstances in its request for relief based on extraordinary and compelling reasons i'm just your honor that's the government's position and in this case does the record reveal if ms carter asked the bureau of prisons the you know file supported motion compassionate release by which she would be released from prison at this point i could determine that in then submitted twenty a j letter to the court have been reduced and neither of those considerations were raised in her motion for compassionate release that she filed to the district court she didn't she didn't exhaust  remedies and she didn't preserve the issue by raising it and her motion below all she raced below in her motion for compassionate release as to the her request for release based on extraordinary compelling reasons is that she she had shown to her family circumstances constitute an extraordinary and compelling reason we submit that that because of this whether the defendant should in fact be released so that the way the thirty five eighty two dollars see when a is structured seems to say that if the defendant shows an extraordinary compelling reason that's consistent with and that  statement that that showing makes the defendant eligible for release and then once a defendant is shown to be eligible then the district court will look at the three thousand five hundred and fifty three dollars a factors to determine whether in fact the defendant should be statement is binding or military or early advisory that issue has been fully briefed and argued in mouth and on and on like in this case the carcase it actually matters to the outcome of mao here it doesn't matter because it's as we've argued the district courts reading can fairly demonstrate that the crew just record was of the view that it had discretion that the policy statement was advisory but the court looked at the policy statement because that was the best mechanism being a drug addict on in her motion that's a page three hundred and forty two of the record number to her sentence was fifty seven months four years and nine months she has currently serve thirty seven months three years and one month and has approximately one year and eight months remaining on her sentence i would like to turn to hugh's questions to the government with regard to the district court's analysis  appreciate your honor's confusion somewhat with regard to what the district court was doing but i think a close look at the court's order gives some clarification mili after discussing amount how the court as your honor pointed out cites relies on one b one dollar the court then says miss brown cars eldest daughter quote is not incapacitated or deceased that language comes directly from the commission's comment notes and is the court demonstrating it believes the definition of extraordinary and compelling is limited by the commission's comment further on in the order the court says  this is on page forty nine of the record that missing the record does not show that miss brown is incapable of providing care which again comes from the sentencing commission i see my time has expired if counsel