please the court my name is doug mikko and i represent john cho stagg in this appeal of his supervised release conditions the district court modified mr show state supervised release conditions to specifically disallow him from participating in minnesota's medical marijuana program and the court did so under this mistaken view that it felt like it was required to do so under clear federal law it's true that when a person uses drugs in violation of their terms of supervised release that is a violation unless there is an extenuating circumstance under eighteen u s c thirty five eighty three d participation in a drug treatment regime the error here really goes back to the mistaken view that this is a supremacy clause case that is that illegal drug use is prohibited or supervised release members that marijuana is illegal under federal law and that any conflicting state law then has no applicability that's the wrong way to analyze this case supremacy is not the question here really the question is whether or not a district court can harmonize two conflicting federal laws on one hand is the controlled substance act which deems marijuana a schedule one drug with no accepted medical use and on the other hand is the federal appropriations act that prohibits the department of justice from taking any steps that would interfere with the state's medical marijuana regime if these two laws operated in isolation it means that a supervisee who takes medical marijuana would violate the terms of their supervised release but there'd be no enforcement mechanism because the department of justice has been defunded from taking any steps that would interfere with the state's medical marijuana regime so if there's any constitutional question it's not one of supremacy it's really a question of separation of powers under the appropriations article of the constitution there is a way to harmonize those two conflicting federal laws short of reaching the constitutional question and that is what the district court failed to recognize eighteen u s c eighty five eighty three d itself provides the court with a type of safety valve a way out from forward drug users and that's considering whether or not drug treatment is involved if drug treatment is available or if the supervisee has taken part in drug treatment the court doesn't need to find a violation that's where the district court erred here here the district court said the law is clear and the law is clear when only considering the controlled substance act but the controlled substance at does not operate in isolation it's informed by the appropriations act which takes away funds from the department of justice to prosecute any of these violations including supervised release violations include the standard condition that a person not use drugs that's different than what we have here where the court is included a special condition and disallowing participation to the question of whether why the so than anything to do with what the court can do because of the enforcement mechanism that goes forward next the court left on change here the court could include a condition of supervised release where there's absolutely no in force but mechanism and actually there are contrary conditions for mr sinister shows that for instance one of his conditions was to take all prescribed medication he was issued a prescription for medical marijuana under the care of not only his treating doctor but also his drug treatment counselor and provider so that the district court view this not as a standard condition supervised release but a mandatory conditional supervisory i'm sorry that's what i all clear that the probation office is arm of the court so to the extent that the appropriations act does not apply to the court it doesn't apply to the probation officer as well but when we drill down a little bit further that distinction kind of falls apart because the matter has to come forward one way or another it would come forward by way of a a warrant through the u s marshals who wouldn't be authorized to execute the warrant because they have no funding if a person is found in violation they'd be sentenced to term of imprisonment at the bureau of prisons they couldn't accept them because there's no funding under the bureau of prisons so the distinction doesn't really hold up when we do when we drill down to it and really the distinction itself is one and the appropriations act itself is one that we're suggesting the district court should have considered that tension in context of thirty five eighty three d and realize that there's a different way out here than raising a constitutional question that we don't need to raise where the district court here says the law is clear this is illegal under federal law and i must i must disallow your participation in the medical marijuana program that's actually not right and that's why we asked the court to reverse and remand this to the district court finding that the district court erred in not recognizing that thirty five eighty three allowed this other choice and incidentally not only is this another choice it is the best choice for mr so stagg the record is replete with evidence here that mr show stagg ought to be able to participate in this medical marijuana regime minnesota has one of the strictest medical marijuana regimes of any state participating looted within the appropriations act such that the department of justice cannot interfere with minnesota's program and it is an interference with minnesota's medical marijuana program where somebody is not allowed to participate the way to address that tension is remaining to the district court for the district court to consider whether or not mr show stags drug treatment half and perhaps future mitigates the notion that he is in violation of a supervised release and i see i have let into my time for rebuttal so i would like to reserve a couple of moment entirely new one nowhere in the district court was there a claim that there was a constitutional tension between the appropriations act and the supervised release procedures used here and it appears nowhere in mr shaw stags briefs that claim  been waived to the extent it's being made here and there's been no opportunity for the government to respond to it i think the court initial reaction with respect to the distinction between a  condition not unlawfully possess a controlled substance would that be more specific law than the appropriations act as to this issue it would your honor it would be a more specific law and in fact  with respect to congressional intent congressional intent is clear that possession of marijuana is pretty limited under federal law and that no federal supervisee can either violate federal law or possess a controlled substance in violation of federal law there's a course with respect to what actually happened in the district court below there is both another waiver argument but i think the judgment was question an important starting point is what actually happened in the district court the district court did not fine mr show stagg in violation mr show stagg admitted you there's no question about that but as the district court indicates and it's written order mr show stagg denied a violation and his counsel indicated that the reason he would  violation was because one of the standard conditions permitted the use of a controlled substance upon prescription and it was mr shows text pretty explicit position below that he complied with the g and c because he had been perscribe to marijuana what the district court said again explicitly at the hearing was to the extent it is not clear from the conditions of supervised release to the extent there is any confusion between the condition that prohibits the violation of federal law by supervised supervisee and the condition that says you can use controlled substances if prescribed that to the extent there was any confusion that mr court took responsibility for that you would acknowledge counsel that the government asked the court to send a clear message  what the government was building on was the argument that there was some ambiguity in the supervised release conditions the government was saying to the extent there's ambiguity the purpose of this hearing has to be to make clear to mr show state that he cannot be using  marijuana in any form or under a prescription and that's precisely what the district court did by modifying the conditions of supervised release but of course a district court can modify the conditions of supervised release without finding a defendant in violation it happens all the time condition you violated it and therefore revoking you were imposing some consequence what the district court said was to the extent there's any ambiguity about whether you can't use under prescribed prescribe marijuana i'm going to resolve it here today by modifying your conditions missed it but it still at the end of the day it's not a discretionary call correct i mean judge judge frank did not say as a matter of my discretion in the imposition of supervised release conditions i'm going to pick this can i mean the conditions that are in conflict are that you know it's will survive i'd in a federal state local law and you're not supposed to use a controlled substance but then you also have a special condition that says you must take any prescribed tax position is marijuana is prescribed there is that specific conditions i must take it if it's prescribed right i think that's right your honor and actually that third layer has not been amplified in the briefs but i think it's a fair point that there was a third condition that also bore upon mr show state's argument that there was a conflict between the conditions but the judge frank didn't say it was a matter of discretion i'm going to pick one or the other you say it as a matter of mandatory federal law in picking one or the other so so we we do review that they know all right this isn't the typical use of discretion whether or not you know you shouldn't be looking at a computer if you've got a child porn conviction i mean you know and those are the typical type we get i think so your honor although i don't think that conflict between the conditions is really mr shell stags claim here what mr szostak claims in his briefs at least his first brief put aside the reply brief in his argument here today was that the district court committed legal air because the district court failed to recognize in a thirty five eighty three d that the court shall consider drug treatment as an alternative to the mandatory revocation provisions of thirty five eighty three g that was the argument in the opening and there was no legal error by the district court in part importantly because the district court did not revoke mr show stay so thirty five eighty three g and the thirty five eighty three d treatment alternative did not apply secondly asked as a as any sanction imposed that there be no sanction and that mr shoke stagg be given two weeks to come to conform his conduct with the modification that's what the district court did that's the government's waiver argument which i won't spend any more time on here to damn the court has questions judge more you're reaching really a critical point which is ok well what is the defendant claim the legal error is again in the opening brief is that the district court failed to recognize it shall consider drug treatment as an alternative to to incarceration in the reply brief that morphs into something more general that the district court can always order drug treatment under any circumstance revocation or not which is certainly true that a modification could be made here today we have an appropriations act argument which  again i don't intend to address further unless the court has questions so let's focus if we could on what the claim is the claim isn't really the government's a mess that the district court didn't understand it could it could order drug treatment the district court had done were interfering with his outpatient patient treatment as counsel indicated in in the opening argument one of the letters received from the court was by someone who is associated with the genesis treatment program that that mr show stag was participating i you also have an experienced district court judge here there's no question the district court judge knew it could have ordered drug treatment no one was suggesting that was what was required mr shows that was using medical marijuana he did not test positive again for math and this wasn't a typical drug an area where they they felt anyone felt like drug treatment or what was what was required the authentic claim that the defendant is making an appeal never presented below to the district court was that the district court should have countenanced the use of medical marijuana under a drug treatment umbrella for this court to remain to the district court and say you failed to realize you could send him to drug treatment resolves nothing the district court knew it could and that wasn't the issue here what this district court would have to  thinking about that question the way the government framed its brief was this issue of cognize ability for and i didn't the government did not raise jurisdiction and here is why the defendant can appeal a modification order and if mr show could come to this court and  think that district court abused its discretion by modoc by clearing a condition that explicit that made explicit that he could not violate federal law by using marijuana that that was an abuse of discretion that would be an appeal over which this court respect to cognize ability was that now that it's before you and you have jurisdiction over the modification he's not stating a valid claim for relief because he's relying on thirty five eighty three d and g but release i'd take that a step further under thirty five eighty three g there's been discussion today about whether that would require revocation of somebody's supervised release when there's evidence of drug use the statute actually goes further and discusses any action taken clearly hear the call and response was mr show stagg tested positive for medical marijuana and the district court responded by adding the condition that's an appealable matter let me speak to the issue of the issue you're talking about is the explanation of what the law is no your honor i'm talking about the special condition that disallowed mr so staggs the use or participation or attempt to get a prescription card or have a which was already prohibit your honor it's true that and this is again where we believe the district court's error was under the controlled substances act there's no question that marijuana is a schedule one drug and considered  but but there's no enforcement mechanism which puts that law in tension the question of whether or not we waive that argument on in our brief it page sixteen there's an extended discussion in the quote of the appropriations act  district court in the transcript the court will see at page eight there's discussion about whether there's going to be in any additional prosecution of this matter in the court will also see that there's discussion from mr show state's counsel about asking him not just to have a two week  period to come into compliance but generally to be allowed to use medical marijuana the court will find that at page five of the transcript i see there are no further questions in my time is up thank you you counsel