good morning a man please the court allison brill assistant federal public defender on behalf of anthony roebuck who joins me in court today and i'd like to reserve three minutes from about the main issue in this case is whether mr roebuck who was convicted of a class a felony is subject to a five year or lifetime term of supervision which of just a tad of the main issue in this case is whether mr roebuck who was convicted of a class a felony the subject to a five year our lifetime of supervision after a court imposes post revocation imprisonment revocation sentences are premised on the grading of the offense and for this reason mr ab offense that resulted in the original term of supervised release the reason that the statute reads in that way is to prevent the court from looking at the violation as the conduct that would cause the term of supervised release to be imposed it's  forty one goes at age thirty five eighty three yields eight forty one in the context of the original sentencing the carvel folk and thirty five eighty three unless otherwise provided and in forty one  notwithstanding section thirty five eighty three were specifically amended at the same time to apply to original sentences there's no there's no text there's no similar carve out in thirty five eighty three age and that tax will difference is important because the post revocation supervision context is different than the original sentence in context i don't understand your argument is your argument that we are in be one of thirty five eighty three those are the terms of supervision that would be applicable here but why is not eight forty one applicable eight forty one is not applicable in the supervision in the supervised release contacts on correct he was convicted of a drug offender carry so why why is that not the prevailing section that governs what supervised release he can be given at this point in time because supervised release in the context of post revocation supervision is different than the original in position of center ok their age covers following revocation correct and each doesn't have the carve out for just this distinction between a three one and thirty five eighty three b in the original sentencing so there's other provisions thirty five eighty three each must be read as a whole and thirty five eighty three each must be read in the context of the entire structure of supervised release statute  a lifetime term of supervision is not contemplated by thirty five eighty three other than forgive me there is a five year correct but the five year is part of the thirty five eighty three general supervised release so i would be one accepted except as otherwise provided yes and yes and so be one absolutely plies of the original sentencing the carve out and be one and forty one was not originally was not intended to apply to the scenario there is nothing in the legislative history that it was intended to be applied in context there's nothing in the legislative history that a forty one defendants were meant to be subject to life terms of supervision with no limitation what what eight thirty five eighty three age is clear about is that limitations were intended to  imposed when congress amended the statute to specifically permit post revocation supervision limitations were always there we see that in the dependent cause of the same sentence that we're analyzing which says less any term of supervision of imprisonment has been previously imposed in this case because mr roebuck was subject to the five year term the judge said it should have subtracted thirty three months in the first instance and additional ten months in the second instance which has it which it applied then the government would have said that at any time other than before this direct appeal because mr roper has already faced two revocation sentences each time where the government talked about five years this court as well indo and brady also although it wasn't that the judge was was misinformed and ultimately made a decision based on that misinformation in fact the supervised release statute post revocation provides no term no recommended term no statutory term no at least five years and the judge here was informed that it was recommended at least five years everything the judge was and from that was incorrect but to that question goes back to the image and i argument which is that if we want doesn't apply in the post revocation context because of course all the other provisions of the for you one don't apply there's no minimum so whereas mr ruddock was originally subject to a five year mandatory completely discretionary provision the first sentence in the thirty five eighty three age that we're discussing here says when a term of supervised release is revoked and the defendant is required to serve a term of imprisonment the court may include a requirement  the defendant be placed on supervision so although it's talking about a minimum term and that he's there's no minimum required we know that it for you one isn't completely at play as it was at the original sentencing were clearly eight nothing else controls over  behalf of the government one of the church members question about whether there was a mandatory term here but to do that i have to come at it from the first question that was presented which is you know what is the maximum here yes there is a statutory max of five years in the forks which here's at least five years a year say at least five years for for custody and then there's at least five years for supervised release so it's like requested only two years of supervised to exactly no one suggested ever we were talking about maximum here and that's where the confusion is but no one ever suggested there was a mandatory minimum and that's the argument that now the defense is making on appeal and that would be an error if the district court had said there's a five year mandatory minimum or thought it had to impose at least five years that would say i don't agree honor that and the reason we know that that was never advocated to the court is that the government itself only recommended the sense of two years and at the same time the defense recommended a sentence of ninety days so she basically explained to me when the course says at least five years a u s a at least five years for custody and then there's at least five years for supervis initial issue of it's presented the maximum term of supervised release in a drug case they can be added to a revocation sentence is life and that's because the statute says it's the maximum is the term that was originally the prosecutor was mistaken about she was under the impression of what's been advocated incorrectly today it was a five year maximum amount of life maximum now miss patterson is an outstanding attorney i've talked to her about this she's on detail right now overseas so i'm not trying to throw under the bus but the fact is no one raised the issue of what the maximum was this is not something where you can look at a flashing red light that says it's a life maximum for supervised release in a drug case you have to work your way through two or three statutes and then it all becomes very clear no one called on anybody to do this here and so she just glanced a very five eighty three b and said it's a five year maximum for supervised release that was wrong it was a lifetime maximum and in fact that mistake benefits the defense it gives a far lower maximum than actually exists so the district court is asking does everybody agree that the recommended satch time max is five years in the past year incorrectly says yes and then have been a number of cases in which the issue of the maximum is not squarely presented to the court and so you just take a glance and you say oh it's thirty five eighty three big that's what happened in dover that's what happened it's not controlling because the it didn't matter and the issue w t before the court so there isn't a mistaken suggestion made by the government here for which we apologize with regard to the maximo no one ever says you must impose you have a minimum you must impose at least years i got to do at least five years and you know i don't we bear to give line there is a piece to twelve of the appendix of course the recommended statutory max is a least five years for supervised release that's what he says he doesn't say minimum maximum and then he gives the five years we should have been at most five years we'll know as it turns out he's right when he says at least five years because it's really life and that we know from clearly from who the statute are so the there's an error here in the suggestion made by the government by the maximum it's beneficial to defendant and it turns out it doesn't matter the government then recommends two years clearly acknowledging that there's no now of course we're in plainer territory because there's no objection that's made here in any of us but there is nowhere in all the supreme court said that when you somehow miscalculate the that affects wasn't as far as what the supreme court has recently clarified if you were talking there about the fourth pronk of plane or if you do so but first you've got to have an error and you have to have an error that's plain and in error that you know there's a reasonable probability defect of the result and then the supreme court court is that the district court somehow said i must impose at least five years supervised release i have a minimum here i have a mandatory minimum it's not here it's not on pace to twelve it's not anywhere else the court says the max is at least five years fact is the max is life so if the judge is saying anything wrong he sang it to the defendant's benefit if we're to the revocation sentence we don't think there should be lifetimes to gradually so in this case will advocate two years again and i imagine the judge will give five years again because he gave very cogent reasons for doing that now of course one plan or review your honor so that means end she's very capable and but i think in this case it's pretty clear that the confusion about the maximum doesn't affect anything but i have to respectfully disagree with my friend miss bell on reading this record saying that he thought there was a man a time minimum somebody it happens every day in conversation people get confused by something the said almost everybody in this courtroom has or has had it happened sometime in the last few weeks it's just the way it is and it was it was an error a misstatement by the court and the usa didn't i didn't correct it in fact restated what the court said at least five years ago maybe you're right maybe maybe you know recommended statutory max is at least five years for supervised release miss patterson says your honor yes there is a statutory max of five years and the quit says it least five years and this person says at least five years for custody and has to impose at least five years discussing the maximum with the prosecutor the same prosecutor who is saying give two years they're not talking about a minimum here it's obvious from that exchange the they're talking about the maximum the government says it wrong to the defendant's benefit the district court starts heading in the right direction by saying at least five years would be the source of we are and i think i'll leave it to the courts a determination but i do think that if the record is fairly clear and certainly there's no demonstration of  context of post revocation supervision and the discussions that my colleague is making about minimum and maximum terms doesn't answer the question if it was discretionary or mandatory the decision that the district court made with regard to the five year term of supervised release it's clear from the language that at least means that the judge believe that there was no discretion to go under five years so do we can we take into account the reasons why for years and take into account short this court permits the  ocation decision on imprisonment and supervision to be included in a sane statement of reasons that make it harder for you to make your argument your question answers to issues that i'd like to raise in this rebuttal which is that there are no limitations if it were it were saying that the life time to messy business applicable here and there there is really no way to ever argue against what the judge is imposing any on a forty one defendants and any time could be reasonable there's really no way to appeal a sentence of post revocation supervision when there's no guidelines recommended there's no legislative history what would be a reasonable term oppose revocation supervision and there's the tale because court discussed in united states versus williams which is at some point a supervised release ends and that the passport you post revocation imprisonment ends and there's there's a limitation of general sentencing practices when we have some structure we know that we would get to procedural reason reasonableness by first looking at whether the court correctly applied the balance there's no guidelines are completely discretionary and so the the fact that the government's proposition sets were no limitations and we're talking about a statute that if you just take a glance at the government said maybe it does look like the mr robots reading of it will be accurate and were for into that we would be permitting endless cycles of revocation particularly for defendants who are sentence after two thousand and three for subject to the maximum term of imprisonment every time with no limitation on it so i ask this court to the court deciding that