listed threat of being imprisoned for refusing to answer his probation officers incriminating questions the release terms of his supervision brenda sanction for violating his answer all conditions with invoking the privilege against self incrimination that could lead to revocation and re imprisonment and then the government's actions during his supervision rendered that threat real and concrete so his condition was independent shall answer truthfully all the inquiries by the probation officer this condition and it's plain unambiguous language were quiet him to answer all questions by definition this excluded the privilege against self incrimination which is a refus to answer question and the th circuit in concert and indeed agrees that that was the meanin probation officer explicitly threatened mr carr with imprisonment for violating his condition now in the particular violation but particular violation was for testing positive with drugs but nonetheless this was this was a explicit threat mr cox that conduct violating the conditions will result in imprisonment and the nd action is that the probation officer actually executed that threat and asked for fifteen days a month for violating his condition and yes you a question so if we're talking about sort of the penalty issue the magistrate judge the district court both found that  the government had not effectively penalized the invocation of the th amendment right do we review that for clear error is that a factual finding that we would look at for clear error  i believe that it's a i believe that's maybe you sorry a mix question of law in fact all to make determination is going to be a question of law but particular factual findings would be reviewed under clear error and so here i really i don't think there's you know big disagreements you know mr and i will be able to correct me if i'm wrong as to the facts of the question is what are the legal consequences of those facts so there's no contest then that the probation officer did not allude to this answer all questions condition did not say if you don't answer my questions we're going to revoke there's no evidence no direct evidence at the petitioner felt  threatened or compelled nothing particularly compelling about the context all of that we're just taking as a given yeah i mean yes there is and there is no evidence that the probation officer referenced the answer all condition during the meeting where the incriminating questions were asked but nonetheless the probation officer testified that she explained the terms and conditions which included the answer all conditions the probation officer threatened mr call with imprisonment for violating his condition and then the government actually do well wade in the imprisonment enforcement mechanism through unlawful means because six they they imprison him as punishment for  noncompliance threw him out of the cation proceeding so in that in that sense that is one of the critical distinguishing facts against the case united states versus lara where certain that it would follow from invocation of the th amendment right is that are you arguing that it was nearly certain here that had the defendant invoked supervised release would have been revoked well i'm arguing that this case satisfies lara's test and what lara said was quote the threat of revocation must be nearly certain so in all our it wasn't lara's was you know they had to complete sex offender treatment and the lara made incriminating statements and an intake interview and then had to submit to a polygraph testing deemed appropriate and then furthermore the kitchen conditions were just may be revoked upon good cause shown so that is far more a condition we have here which the drafter sentencing commission and th circuit have found squarely foreclosed and of course is a waiver of the self incrimination us and then secondly and lara they relied heavily on the fact la to get a hearing before a court at which the government could not revoke him for invoking the privilege you cannot rely on that assumption here the government's actions in that case directly undermined that that is how things would proceed they could and they did i am a petition and proceed on paper to imprison someone for to prison mr kopper violating his conditions through modification during which he never once spoke to a lawyer or a judge before he was sent to jail so the other week how do we even get to this question if reilly controls me it looks like riley looks to be on all full with this case and if he controls you lose don't you if reilly control i lose but reilly does not control and really does not control because because the supreme court's decision  united states is clearly undermined that case and therefore warrants this court reviewing the question under the current legal landscape how does hamman on the monitor because you've got a  of it and it is prize opinion that control i got the judgment of it and if that's all we had that's one thing but you have express language there and in the in his opinion how do we get around that well i mean and you know you can look at the judgment you know what the judgment is what but how to get there is really what's important in terms when we're talking about over ruling the prior case or the case of the th circuit and if it looks pretty explicit do  original sentencing and that is the best and correct interpretation of payment and you get there are you look at the facts that justice prior as well as justice courts and just plurality agree with johnson's your average supervised release revocation proceeding is analogous to a program vacation which is the entire premise of riley so i just don't understand how if we're working from justice briar's opinion his very  highly controlled out of a so you got to find a way but i think to for us to get there is not a question of whether you disagree is a question of tell me who are just as proud and harris just read the sentence at the beginning pretty straight on point he and justice drives opinion controls and he has severely limited the scope of his opinion jury trial right to quote traditional sentencing factors even though those trisha traditional sentencing factors may include legislatively prescribed punishment so so he is allowing th just want to tell you my concern about this and give you a chance to address it this this is my concern it just it seems to me that it's sort of our obligation when we have circuit precedent on point and then a supreme court decision to try to harmonize them if we can and there is a way to harmonize these we we absolutely could say that you know the supreme court held in haman that some constitutional protections are going to apply in some supervise not an actual conflict i don't want to be in a situation where one panel can ignore a prior panel precedents just because they think you know there's been a supreme court decision that certainly shed some new light on this area and down the road it might have implications and i'm thinking in particular of the whole castleman line of cases where we as a court have spent a lot of time sort of really very finely going through and saying look castleman sure a change is generally the way we think about what counts says you know violent force under the force clause but unless it's really inconsistent with a particular clause of one of our prior opinions we're going to go with the prior opinion and that seems like the right approach to me to have a very high standard for when one panel is able to say you know as i look ahead to where supreme court precedent might take us i feel that i am no longer bound by what my own court said last year that's my concern right and it's the very valid concern and you know i completely understand that i think this is the rare case where it meets that standard i do not is irreconcilable or payment is irreconcilable with riley and so you know and because of the bright line rules so it's not my argument may seem general but that's not a feature of my own argument that it's a feature of the riley decision the riley decision didn't address the th amendment anyways they said well no you're putting the cart before the horse the st question is are supervised release proceedings part of a criminal prosecution to which the constitutional guarantees can even apply in any case and riley said no and hammond heman says that's not right so you know if this court had had a prior preceden saying public school children don't have constitutional rights in school and then the supreme court decided hey it's public school children have a right to the burst amendment to wear black armbands to protest the vietnam war that prior precedent treated the same as sentence and the only difference is that the final the majority cream were only go along with the sentencing rights that justice prior agrees with and we know just fired three is the privilege against self incrimination applies at sentencing he held that much with the court in mitchell versus the united states criminal trial not to the price of this case if you will die happy to us we can spend a little time going into all of the facts but that we need to at least address that if the rally case we've discussed back and forth authentic how she interprets the human decision is heaven overrule our rally decision and we need to go to the reasoning of it it does seem clear to me was the basis for riley and it remains intact this court as it is it held in taylor vs groves it does not overturn its own precedent lightly you need something that really undercuts it ended up pinion like him and issue because it's disaffect least he specifically distinguishes between a revocation proceeding under three thousand five hundred and eighty three k and he says because that is so much more like a criminal prosecution in the traditional sense upon the new penalty for a new offense then it's much more like a criminal offense to which the full panoply of constitutional rights should attach and because they don't it's unconstitutional in that instance but then he specifically distinguish it distinguished th constitutional protections outdoes receive some there's a th amendment due process rights that attaches and there are a number of statutory and rule based rights including a qualified right against hearsay in an ordinary revocation proceeding but the supreme court specifically has address to the extent justice breyer addressed three thousand five hundred and eighty three he specifically addressed that and conducted what i think is essentially the kind of analysis you're talking about and concluded that it is more like traditional parole and ordinarily those not involve the entire panel plea of constitutional rights and i certainly understand your honour's concerns that you expressed with this but i do think this court's in a position where it is by owned by its president and the that of the supreme court including justice breyer's controlling opinion in payment so  because riley's reasoning was that look supervised release revocations three thousand five hundred and eighty three economy and our like traditional parole and that's essentially what justice breyer himself concluded in that opinion  i do want to talk briefly even if even if this court were to disagree with me on that i don't believe this is an example where mr cause statements were compelled because another example where a precedent is controlling minnesota versus murphy oil held that a general obligation to appear in answer questions truthfully does not convert an otherwise voluntary statement into compelled ones and it gave us a standard it wasn't minnesota versus murphy wasn't about magic words if that general obligation uses the term all or any or it just says answer questions truthfully that wasn't what it was looking at what it held was is was the defendant under a legal compulsion comparable to the legal compulsion that attaches that any witness faces if they show up to testify at a grand jury proceeding or at a trial or is it more than that and a murphy are you is it important to your argument that the district court was correct in the way it construed the supervised release condition here in the desert quite specifically finds that this condition that you shall truthfully all inquiries does not require you to answer all inquiries if i think that's wrong can i still agree with you on this i think so you know i think the way the court parsed out the language is not necessarily the controlling factor but on that very same page of the court's holding it referred to the oath and said this is not more of a compulsion than the oh so even if even if even if you even if you took the condition as stating a general requirement that you have to answer any question the probation officer might put to you what white said is that look somebody faced with that ordinary requirement is still going to understand and still going to have to say look i'm not going to do that i'm good instead invoked my right to self incrimination because the privilege would not be self executing in that and i do an empty note something in response to my friend's assertion the requirement is that you impose a penalty the state has to impose or threaten a penalty for indication of the right against self incrimination it's not enough to impose a penalty for drug use or failing a drug test and we we have not done that and we cannot do that not only did murphy that but this court held that in lara the supreme court has reiterated it in or do go work yet is it is not something we could do and the chief the chief judge of the western district of north carolina says that is the condition standard condition doesn't require that and that it wouldn't be enforceable in any event so that is a relevant fact to the same extent it was relevant in minnesota versus mercy he didn't face didn't face any more of an obligation to give up his right of self incrimination as an ordinary trial and for that reason or his statements were not compelled in any event now if the court doesn't have any more questions i'd be happy to yield the balance of my time but i want to make sure i've answered everything the court might want to  condition is like murder that is simply not true the condition in murphy was simply to be truthful with the probation officer in all matters and so that we are opening to refuse to answer  questions it is the contrary yeah i can see about that because in murphy itself it seems like what the court really emphasize look there is nothing that expressly says you may not decline to answer questions and there is nothing that expressly says you have to waive your th amendment right and if there were any questions about any of this it sort of on the probation are to try to clarify the scope and so i do understand what you're saying about the difference maybe in the conditions but what really seemed important to the court in murphy is that sort of just a general condition saying you have to answer you know you basically have to answer truthfully like any witness who shows up at trial unless there's some express statement this means you can't decline to answer the court was not going to find that that imposed a penalty how do i address that part of the language in murphy well i think just by looking at the language of the condition and so murphy fifty have some questions about whether or not we have an obligation to reconcile riley and hammond and i think that it's the wrong inquiry you guys should be excuse me groener should be making the increase should be what is the most faithful interpretation of the supreme court's opinion in ham so just this past just recently the whole or the circuit had to decide whether or not they could find a way to reconcile sessions and dimaio with prior cases of burma nine hundred and twenty four was there a way sure a dissenting justices of the supreme court laid out a way you could write style that too but the correct and most faithful interpretation was that to my and johnson made it so nine hundred and twenty four c's residual clause had to fall and that is the case in that is what we have here could even could you adopt the most narrow possible ruling to find that three thousand five hundred and eighty three k gets constitutional rights but everyone else does i just want to point out every single justice all three opinions in heyman recognize the practical factual difference between supervised release revolutions and probation and parole in supervised release revocations you're adjusting and adding on to th sentence with you know a huge swath of judicial discretion versus probation and parole you're just really activating the sentence that was originally and cut at the original sentence now so they all agreed that th actual difference but in handing it either the justices said that that matter is when it comes to what constitutional rights defendants supervised release revocations versus parole and probation and that is the point  case really interesting is really not the law it's really the facts i mean you somehow you get lost and we use judges and lawyers get lost in what's really happening here you've got an individual who keeps testing if you tell them you come back and pop pass going back this is sad sad case to no matter how this turns out for this defendant that was missing here is there's nothing here to indicate it is taking here the real problem this case this guy again and that's not part of the record but it is tremendously frustrating for me as a judge to sit here and engage in a colloquy on law and how we can do on supreme court case what rally whatever needs to be done with that is really not the problem this case and economically i have a but you know i don't i just felt the need to say that that's this is this is a sad situation to me that this is the state of our law we going back to jail if i had to make a good prediction to you one way out of and i think everybody here knows that unless some miracle happens to get him some help but what he really needs help for and assess a sad situation i don't know how we get around it mental health treatment so you know he has been doing well and he has he does still have about a year to go on his supervised the punishment he should get the get mental help treatment and get something to help you know he's got a problem and th