evidence that the district court understood that it had the authority to reduce mr potts sentence under the st step act of two thousand and eighteen and there's no assurance that it's one sentence alternative ruling was not impacted by the threshold mistake  on the government argued several erroneous theories in its response to mr potts for a four motion the district court indicated that it reviewed the probation officers report which contained previously undisclosed disciplinary incidents to which mr potts was not given the opportunity to respond and what what the district court did sixteen months later compassionate release case cannot retrospectively be used to cure the errors that occurred in the four of four proceeding so if i i can jump ahead to the compassionate release on if the court lights but i just want to go through some of the errors in the four of four proceeding st and then mistrustful before you did it let me ask you a question  mooted by the compassionate release grant but mr potts was also eligible for a reduction in the term of his supervisor at least from ten years to eight years which the district court gave no indication that it was aware of when it ruled on the motion for reality yes i mean in theory the district court could reduce said and make it run concurrently but as a practical matter it would have to be from ten dollars to eight dollars on the one conviction that's all we're talking about ten to eight on the one conviction yes your honor and i don't know considered the government's arguments in this case this was not a case where mr potts had filed a detailed motion articulating the three thousand five hundred and fifty three a factor as he filed a pro se one paragraph motion saying i think i'm eligible for release please give me a lawyer the judge then solicits responses from probation and the government and thereafter denies it so so this is not this court has never affirmed a case where the district court merely in candid i've considered as a matter of law he erred because everyone agrees now that he was covered under the st step that i agree your honor and i think that alone requires reversal because i guess i guess of but the problem is that we have an intervening reimpose is the term of supervised release and i understand i understand your argument that he believed he didn't have the authority at that moment in time to change to survive to term a supervised release but i guess my question is he really did go through all the factors the three hundred and fifty three a factors in the compassionate release were correct your honor he did and i actually think that that that helps us here and let me explain why what happened and what may not be clear from the briefing is that that compassionate resort or cancer on a sunday judge middlebrooks to his credit was very concerned about mr potts catching cold and dying in prison he said as much in the order and so what he did express pursuant to the compassionate release statute was he converted the remaining three years that mr potts had on his sentence earth to a term of supervisor least with a condition of home detention he expressed lee he wasn't looking at supervision at all he was trying to get this man out of prison so he didn't die and when i say mr pot was high risk i think that's very clear from the record with all his multiple medical provisions and judge millbrook said if i deny this motion it could be catastrophic and so all he did was convert the remaining term to home detention and i think he did that to give the parties the benefit of the bargain the government was adamant at the initial sentencing hearing which focused exclusively on mr potts cooperation the government came in and said they filed a five k but not a three thousand five hundred and fifty three dollars emotion which meant that the judge could only go to the mandatory minimum and the government said on the record with mr potts record with this case we would never go below twenty years and so what the district court did and i think the very last footnote of the government's compassionate release motion kind of geared him to this when he said what tools do i have to satisfy both parties i can save mr potts life and give the government more or less the benefit of its bargain by not having his sentence you said if he makes a mistake of law about the initial question of eligibility it necessarily any luck that lee requires a reimagined and i guess i don't because i've looked at the factors he's got a long record and cetera et cetera et cetera do you think under those circumstances we are required to send it back i think that would be a much harder case and i will say i think yesterday when we had this debate it's fascinating the problem there was the district court told us nothing if he did say and we talked about would it have been enough if he had said in addition to that that he had considered the three thousand five hundred and fifty three dollars factors and all of the operative circumstances which puts this in a in a arguably somewhat different context again we have a pro se request to reduce the sentence while he's still incarcerated so there's nothing in the record to suggest that supervisor was with even on to the district courts radar when he issued and the nd part is we have this entirely one justice a small you know minimal statement of reviewing of the three thousand five hundred and fifty three factors and the basis of that opinion is the court said they didn't want to elevate form over substance right because i'm not in that case it was very clear what the court of done it was a three month distinction they were arguing about we have said that we there is no magic incantation you don't have to articulate each and every single factor is sufficient to say i've considered the factors know one because there's no evidence that probation report was ever provided to mr potts i believe you know appellate counsel had to obtain it later on appeal and you know the district court denied the motion before mr prosperous a reply was even filed so there were no those words that he had considered the filings that are on record clearly he looked at the you know he knows the existence of defenses motion and he's looked at the government's response the probation number and he's considered the three thousand five hundred and fifty three factors and he he was the original sentencing judge he is aware of the entire palkee of this case and as the supreme court acknowledged in chavez maces where it was eight simply a form order the courts in rita for example which mistrustful cited yesterday not today but i'm sure it's in her brief this while the court simply said that the sentencing guidelines sentence was appropriate and we upheld that so those standards for what has been upheld in prior circumstances where it is not surely where where i've been this case that any sentence reduction opportunity that is as i believe judge marcus said in there isn't this is this is kind of an ex partner communication i'm not saying probation didn't have every right to do year and i'm not even commenting about the accuracy of what was support as it's considering it under joe's that is if it wants to rely on anything in this that is considered to be new that it would need to be produced so the court is again reminded of what its obligations are and one presumes that the court i would assume we want to do with the court just as we would a jury does what it's instructed to do or does what the law requires of it that the court knows that it has to consider this in a very careful and sparing manner and the fact that it was a produce to the defense counsel seed of course that if we started with the sentence from the beginning of course that it's on the proceed with the expertise to the station of the probation report without sharing with the defendant as counsel ones of the government as well for the obvious reason that it's critical to how the court may feel about its past how they calculate the guidelines and satirists no one would presume because certainly appropriate to do so the only thing that troubles me is the defendant was unaware of it and had no way to respond to it and it contained information that vista's if and for all so that was not the tools argument has not been presented to this court previous to today that satisfy discussing the actual merits of the of the concept in the course of this proceeding the probation memorandum that's at issue here is a document he is an arm of the court mistrustful may not feel the probation officers are impartial but they are an arm of the work they are not an arm of the government they are not a branch  the original sentencing parameters were for this defendant and then it set forth the only modification that was and that is available now for consideration it correctly set forth the lower penalties that would have been out all have jones already come down in the statutory provisions and the court have that information in its hand when it rules so we know that there was a change from ten to eight because it's before the court it knew that from at least one of the already including the arm that argues to it that serves to it that it had full discretion and it therefore made as the court as judge marcus was discussing i will allow me to go a pro alternate unfoldings the law at the time that this court entered this form for order was still very in flux jones's all euro way from coming down and this court ruled as it did but it also ruled in the alternative and in the alternative it more than amply met the charges may still rida it will store whichever standard you would like to to consider because it had the opportunity to fully consider the fact m was used the phrase that's not in full so not discussion there is no requirement in an original settle saying that the court give a full some discussion what is required is that it be clear that the district court had say that it's the court shouldn't look at those factors it is as the jones opinion said may look at those factors when it considers a congressional alteration of the statute and in this case the look at it all the cause the post hoc discussion come sixteen months later and therefore it doesn't really reflect what is it appropriate for us to look at next when a given in an arguably different context sixteen months later in order to shed light on what the judge had in mind when the reasonable interpretation of the court's acceptance of those factors but for his medical help all of the other factors which were of significant concern at the time of the four of four being a factor this court continues to and i don't i don't think that appropriate or inappropriate but when i say dangerous i mean the fact that this defendant and his crime was binal it he has a strictly long history of violence he had guns involved there are thirty convictions and consideration of the difference in his help concerns those factors were sufficient to leave him in jail at the time that it gets to the coke release the courts is clear in its release motion that that the playing field  changed because of the health issue now this defendant had many of these health issues where he went into jail he was hiv positive he was on crutches he was disable he was those things when he committed these crimes the fourteen years in prison his health and the pentameter in the face of the nd major prong of the st step back to make this change its mind at a later point in time why i think that this motion this memorandum is useful incarceration period it didn't have to make the ten years and five years of supervised release from the original order that reposed consecutive even have the opportunity to make rational a different sentence and the court chose not to and so what that compassionate release now random does for us is as judge paul mentioned is show us that there is no reason to send this back this court has made clear that in the context of this man with this history both as to his crimes his criminal history is past conduct and his current health concerns that this is the appropriate sentence to issue and it probably had gave you a recognition that it made that federal public defender's office and moved to be appointed and in the federal public defender's reply brief we did raise the i'm sorry the jewels issue so that is not being presented to the court for the st time here i want to talk about three thousand five hundred and eighty two c one a i think it's very important as judge paul mentioned that detention as an equivalent of imprisonment but it at no point authorizes a district court to reduce a constructive term of supervised release so i don't think it's clear that even if judgment works had wanted to reduce the term supervisor least he could have done it difficulty emulating all these things was there any indication that is medical condition had changed in any way from the outset middlebrooks slated or latin carrots laid all of this out is different from the question of the compassionate release later because there were very powerful reasons to do exactly what judge middlebrooks did later but i'm asking a time when file is for reply which was not received by the court until after the party denied the motion in any case pro se reply he mentioned that the prisons were overcrowded and he wasn't getting try to get medical care and that is the only thing on the record on that issue this case where there was no special supervisor needs it was unclear if the court believed he could reduce that i think that a more i don't think that the court statement that he considered the three thousand five hundred and fifty three factors was sufficient where the only thing in front of after wonderful day and thank you again for for coming again today