the district court in this case found that george ward possessed drugs by a preponderance of the evidence and then imposed a mandatory sentence of twenty months a sentence that the court stated was too severe and that it would acknowledge for the second issue your honour's that we're here on plain error of you but we meet that standard in the court should find that there was error that was plain that affected mr ward substantial right and that this court should correct turning to the first two prongs which i will consolidate because it's really the same argument the twenty month mandatory minimum sentence imposed on mr ward is plainly unconstitutional in light of the supreme court's decision in a lane which came out before mr ward's revocation hearing and held the facts giving rise to a mandatory minimum sentence must be found beyond a reasonable doubt miss pratt if you could factor into your analysis back that context in which it was made this was a revocation proceeding and the standard of proof was simply preponderance of the evidence it was not proof beyond a reasonable doubt so an admission that maybe signal sufficient to trigger a finding of a violation under a conference standard and a finding that therefore triggers a mandatory minimum if that's established only by preponderance of the evidence it cannot fill fulfill the constitutional requirement that the that the violation be found beyond a reasonable doubt in order to widen or a minimum and perhaps even more importantly even with mr ward's admission the district court clearly did not want to give him a twenty month sentence revocation two points your honor first those cases all addressed booker's application to thirty five eighty three he not the provision at issue in this case which is thirty five eighty three g thirty five eighty three he is wholly discretionary the district court has discretion to find a violation in the first instance and then has complete discretion in what sentence to impose so thirty five eighty three are sort of wrapped around the role of the jury and you know you you you come before the jury with the presumption of innocence and everything the jury is there  predicated on the capacities of the of the jury that is correct in part i think they're also predicated just on as much on the standard of proof and in and i'm quoting from elaine here at the supreme court said that apprentice definitions of elements necessarily include not only facts that increase the ceiling but also those that increase the floor both kind of facts altered  prescribe range of sentences to which a defendant is exposed he doesn't see i'm sorry but it doesn't seem to me that you are responding directly to judge will consider this question which i also had about wherever i would point to book or judge duncan because booker dealt with sentencing after a finding of guilt and the question was when the guide sensing guidelines were mandatory did that then trigger a jury finding and the supreme court said in booker yes it did now the solution that the booker court found was not to actually find that the jury had to find facts but to make the particular statutory provision discretionary but and that's what we're asking here your armories also play a role in sentencing in the initial phase  no your honor not if you accept our remedy that the solution is to find that thirty five eighty three g is advisory in the same way that the supreme court found that thirty five fifty three b won had to be struck and therefore the guidelines  more so your honor than the supreme court did in booker and in fact to interpret the thirty five eighty three g s discretionary renders far less damage to the scheme that congress set up which is very clearly discretionary all that making thirty five eighty three g would do it i mean i realize that mandatory minimums are in or in some disfavor for various reasons mainly a lack of individual clear that the one third rule was mandatory and there's there's nothing wrong with with congress acting in that way the judiciary doesn't like it because it strips proceedings of their individuality and congress likes it because it's in many cases distrustful of the judiciary and in terms of their sums sentences are extraordinarily lenient even for serious crimes and you have this friction almost between the way the two branches regard mandatory minimums least in some cases but but but but if congress wants to act in that way they can that's what they did with thirty five eighty three g and if we were to put in a don't see that in our jury procedure let me try to address your concern will consume with a couple of points first congress actually involved this one third rule almost twenty years ago even before mr war fact that this is a revocation proceeding and not an original sentencing shouldn't matter imprisonment is imprisonment as this court has recognized and i'd like to quote from a decision from a couple of years ago united states two thousand and twelve decision of this court imprisonment is not some magic word incarceration constitutes imprisonment whether imposed upon an initial conviction or upon revocation of supervised release and in fact in the bennett decision the supreme court this court took a recent supreme court decision happy of hearses united states that came up in the context of an original sentencing and applied it to a revocation sentence on the basis that imprisonment is imprisonment the court further found that in light of the tapi a decision there was error in the revocation sentencing that was you simply asked this court to do the same type of thing with the power it in behind how is it possible i mean this is an interesting discussion but how do you get over the plain error bar when there is no precedent in  circuit in the supreme court has not ruled on this issue you know it's very interesting but i just don't see how possibly under our president you can demonstrate and there is no case that is directly on point that this court is actually writing on a blank slate if as a matter how do you have plane air because some i don't mean to be flip but sometimes an error is so obvious based on the drive the principles underlying underlining the doctrine that it that it has to be plain so i do this court shouldn't hesitate if that if the court agrees circuit again your honor those weren't addressing elaine directly they were addressing walker in the context of a revocation sentencing and found that there was no book a problem because the revocation proceeding is already so highly discretionary so there was no apprentice slash book or error revocation sentencing and trials have always been thought to be quite different as far back examination so you know stripped of all right but the court has the supreme court has never equated rather cation sentences with a with a trial revocation sentencing and revocation hearings into second trials they as i say there are certain rights that attach to them but they're not all blown saccharin trials and when we bring of randy and elaine and don't we just move them closer and closer to a trial model i disagree your honor both original of sentence as sentences have statutory ranges that's what we're talking about here let me just say that your supreme court has said that johnson said they're not criminal prosecutions but they are revocation penalties are part and parcel of the original penalty package for the offense now there may not be quite the same full blown panoply of rights but there the re does when it comes to taking away a person's liberty particularly with a mandatory minimum sentence there are there do you need there needs to be more protection just quickly as to marcy vs brew continue pointed out that that's a parole case parole is very different from supervised release parole is an act of grace by the executive branch to shorten an existing prison term it's not punishment for a new criminal offens point i know i think that the trend has been that revocation proceedings have has been taken more and more casual way and this more to its credit has taken some steps to try to limit that we simply are asking  court to take another step in that direction and to find that a mandatory minimum sentence that when one has to be imposed which is going to be in very very few cases that this point this is a very unusual case given its age great many more i disagree your honor in terms of with this particular statute the people it's going to affect is a limited class of people people who committed their and i can think of all the different implications of it strikes me to quite large why would it affect everybody who is coming up for revocation and facing incarceration because i mean logically seems to me it has to be because there's still a factual finding required there and subject to the mandatory minimum but why wouldn't this still be a fact that from your analysis that had to be found by a jury because the statutory maximum set by congress isn't changing here it's the mandatory minimum right a strange thing but so you're saying that just because they could see i see i can just see it seems to me that the logic behind it though the the mandatory minimum is not really a true distinction from your analytical standpoint that the germans are more concerned with the fact that this factual finding is not being made by a jury and logically seems to me that there really isn't much difference between a factual finding that has to be made by jury with regard to  i mean you would have wouldn't you have been a you to it seems to me you'd have a situation in any case were you would be asking for a factual finding to be made by jury why wouldn't you what i'm actually more concerned with your honor is not so much the jury right but the standard of proof that it is beyond a reasonable doubt and i don't believe that it should in court as artists talk to that and johnson said you don't get beyond a reasonable doubt in may and they  were addressing revocation perceive him so i'm just worried i guess follow up on what judge wilkinson said that you're really trying to fashion a whole new concept in proceedings that really nobody anywhere has sanction you're asking us to kind of tread out there and do something entirely and utterly no your honor i would disagree i'm simply asking this court to do what the supreme court did in poker which is find that this problem  constitutional problem can be solved by making the offending i'd lines though as dr drew constance said this is the statute the provision that the court struck in booker was also a statute and so i don't see that there's a i'm robert brennan him assistant united states attorney for the eastern district of virginia representing the government's own just to highlight some of the arguments that were brought up by the court and addressed more thoroughly in the brief george ward was convicted twenty years ago fact i was the prosecutor in the case twenty years ago there were four service a significant amount of violated the terms of his supervised always a hearing was conducted and there was no request for jury trial at the district court level he admitted to all the violations that were numerated in the in the petition and the two a done you know for that and they are for based on the thirty five eighty three g statute that was in effect at the time of his offenses not the time of his revocation hearing but the time of his offenses and the katydid that the court must give at least one third of his supervised release for active prison time mr braden i was wondering if you could help me understand what the relief that is being sought would look like structurally how would you work would and there was no there was no jury trial here what how would the need to have a jury finding  the factual matters in contention come about you know this posture well as a practical matter i don't think the district courts around the country could handle the number of jury trials that would be had  violations and whether those violations in fact occurred and we'd have to have special instructions just that resulted in a factual finding and whether he admitted to a whether he didn't admit to  have to really impanel a jury you can't just do it for certain purposes and not do it for and not do it for others i mean you know this would work a revolutionary change in trial trials or supervised release hearings and i think it's a great step if we're stepping into that particular area and i think focusing on the fact  that the thirty five eighty three g at the time of the offense is important and those case that was prior to september nine hundred ninety four when the underlying offense occurred the ex post facto is an interesting principle because it works both ways and that is after the time of the offense you can increase the penalty but conversely if the penalty  isn't in place at the time of the offense you have to face it yes or unless there's some kind of exception written by congress yesterday in that would override the saving statute and have and expect and the repeal would would would write in an exception but we don't in the repealing of the one third rule we don't have anything written in the exception and there's clauses they certainly should yes and a great many situations but then there are other there are other us other situations where expose facto principles work in the other direction yes yes one everybody had noticed that was that one of the point of contentions about whether the judge had to follow the three september nine hundred ninety four thirty five eighty three g and impose one third of the five years and that was a point we've covered about everything i would just note that the that the revocation table range in the god lives for this class b offenses with a prime minister category  th three points your honor was first in terms of how the relief would work there is no reason to think that a plea rate for revocation proceedings would work any differently than it does in proceedings for an original offense that is that there would be very very few trials in the eastern district of virginia the guilty plea rate for original offenses is close to ninety five percent so revocation proceedings i think would be resolved at the same rate secondly making thirty five eighty three g discretionary would be far less revolutionary than actually extending the jury trial right and that's why we asked the court simply to find that that provision should be discretionary and finally in terms of notice there was no notice at the original guilty plea hearing in one thousand nine hundred five or one thousand nine hundred four the mr ward would actually face a mandatory minimum sentence he might have he would have been advised certainly under rule eleven that if he violated he could go back to prison but he was never told what that statutory maximum was and he certainly was not told what the mandatory minimum was for the highly speculative notion storage with knowledge of the statutes on the books up to a point you're on a rule eleven does require that the district court advise the defendant of the statutory maximum any mandatory minimum penalty and the maximum terms of supervised release it does not require anything about mandatory minimums for supervised release moreover at the revocation hearing the district court never advised mr ward before he found him in violation that he faced a mandatory minimum and finally the fact that the guideline range is higher than the twenty month sentence is simply irrelevant the district court could not have been clear that it thought the twenty months was too severe and that it would not have imposed that much time in its discretion so in  in conclusion we asked the court to vacate mr ward sentence we further asked that if the court agrees with the mr ward should not have been subjected to this mandatory minimum sentence that an issue an order to that effect as quickly as possible to be followed by an opinion thank you