because of the supreme court's decision in united states versus hanging on to where d the court declared subsection a thirty five through a totally united states code unconstitutional under the punishing the defendant's breach of trust is a violation of court imposed conditions and instead is more punishing the conduct itself and that makes it a violation of the jury right yet so so advocate for the broad view that three thousand five hundred and eighty three dollars g is unconstitutional because it links the mandatory minimum prison sentence to particular forms of conduct but there is a narrower option available to the court because if you look carefully at three thousand five hundred and eighty three g b it's arguments the government's made in defense of that faction g is that while it doesn't target crime and some protection kate does target crime now in my view that's a distinction without a material difference because the real issue here is whether you're punishing particular types of conduct not particular crimes but to the extent the court finds that argument persuasive subsection she one solely targets drug possession which is a federal crime under twenty one dollars u s c eight hundred and forty four dollars so even according to the government's argument on that point she won would still be unconstitutional you mean would not be a punishment to discrete conduct yes so i think that section eighty three dollars does that and we three had perfectly complying with the jury right it says that you know if the defendant violates the condition the judge may revoke supervise release so it's not linked to particular conduct and and that's ok what justice breyer says is that you know the whole concept of revocation is that you're punishing the defendant failure to follow the condition not the particular conduct underlying that failure and that's sort of the basis for the whole constitutional basis for revocation of relays and subsections cain to depart on that basis because they're targeting specific conduct  when you sort of give the judge discretion to look at the whole of the defendant's behavior and make a decision about whether it warrants revocation that that's perfectly acceptable but when you target specific conduct and require the judge to imprison the defendant as a result then you've really i mean refusing to comply with drug testing that's not a crime right right so what i would say is it's st i don't think it has to be a crime but justice breyer says in his concurrence in the paragraph just before he lists the three factors is that the traditional revocation is a punishment for the breach of trust not the particular conduct triggering the violation he doesn't say crimes of conduct and that's the key here you know he says when he left the three factors that k targets discrete set of federal criminal offenses because that's what k was targeting but i don't think there's any indication if you look at the principle animating his decision that it would have come out differently if case targeted conduct rather than offenses but you know to the extent you find that so to the extent that there's a distinction here between your classic greek of trust earth is kind of free standing quine subsection b is all about conditions of supervised release and that cross reference that subsection d a but then if you look at the provision of the part of the section the it's talking about it says that the court so order the explicit condition of supervisor leaves that the tenant refrain from any unlawful use of a controlled substance so it's just sort of cross referencing another provision that requires the condition of supervisor leave for having the defendant from committing a crime you know that i think should but i mean that there doesn't seem to be that intervening step the right one endpoint regardless but if we going to get to the same end point regardless then the distinction between breach of trust in violation of the statute seemed to be obliterated to me i mean i think that that sort of elevates form over substance here i don't think it's subsection k rabbit and cross referencing other criminal statutes just describe the criminal conduct the sexual offenses that would trigger the five year mandatory minimum of things just as prior would have said oh that's fine you know it's year mandatory minimum if you violate your supervisor leaves by committing a nd found that wouldn't solve the problem you really got to look at the substance of what if that you are doing which is that they're targeting particular conduct and requiring a prison sentence as a result and you're right they sort of take different formal routes to go in there in terms of the statute they cross reference but kay says if you commit this set of crimes you get a five year mandatory minimum and he says if you you know commit unlawful possession or use controlled substance then you do you get a mandatory prison sentence and i think in substance those are the same things and what the lesson of our jury right jurisprudent is that that facts and substance  are really the key here we don't want the government to evade the jury right through formal track i think my time's up i'm happy to answer any more questions or save the rest for a bottle let's let's move on to to the nd prong we're just this  also says and for how long isn't the case that the supreme court expressed concern about the fact that choir the five  but really what seemed to be the key to him is linking mandatory imprisonment to particular conduct and we do have that here i do think there is some overlap between factors two dollars and three dollars and apart ality actually points that out and footnote nine of the per ality opinion that there's some overlap there but ultimately i think that the key is that you're removing the judge's discretion to decide whether to imprison the defendant and the lank is not a determin factor well but if you judge all we need to pull one way doesn't that give the judge the latitude he or she needs to determine the gravity minimum but even one day in prison can really interfere with someone's life they can lose their job their kids are left alone their you know their home is left alone it can be really traumatic experience and  you know we're moving to the judge's discretion to decide whether to do that to somebody a time particular conduct if it's if the punishment for the conduct and doesn't let the judge sort of take into account but the whole of the defendant's behavior and compliance with a  obvious error here we also have to show an effect on substantial rights and i think we have shown that because mandatory revocation sends a strong message to the district court and the government actually concedes that in its brief it says it h twenty  commonly associated with aggravated and food and they're meant to heighten the consequences for that behavior so when the court is sentencing mr siegman it knows that congress thinks drug possession is one of the most serious ways you can violate your supervisor leave that requires a prison sentence reactionary center yeah i mean i think that you know i think she would have revoked his release even with out subsection d but the key is that when she was deciding what the senate should be she had in her head well this is one of the most serious violations you can commit and i know that because congress requires revocation any circumstances so perhaps if she was proceeding under subsection eighty three she would have only given any team up for twenty months but instead she knew and the prosecutor actually made it a point to didn't express mandatory revocation right yeah what the pentagon could have then then i mean then it's hard it's hard to make a potential rights rights play or not i'm not sure that's right i mean tejano the court explained the standard for finding pi an error on a statutory range error cave and you know we don't have to show that it's more likely than not she would have imposed a lower sentence all we have to show is that the air with significant enough to undermine your confidence in the outcome and in the currie case which we have in our brief from the th circuit i believe and that case the court applied the wrong mandatory minimum but said that the sentence was reasonable under the circumstances and it would have been a lawful sentence even without a mandatory minimum the th circuit still found a point error and an effect on the defendant substantial rights because it said the mandatory minimum is necessarily one of the circumstances that the judge has to consider and in fact in tejano this court said an area for the mandatory minimum is arguably far more prejudicial than ever as to the statutory maximum so i think so i think that you know the bar is a little bit lower in this case i will say you know this is not a case where we can point to something the i was just going to put it the best thing you know if you find clear obvious there i think that is a situation where you know it's best to get the district court another shot at it you know because mandatory revocation fence such a strong message that we should give the court the chance to apply one day two thousand three hundred and sixty months and one day to three hundred and sixteen months and the district judge then decides well mandatory minimum is one day max is three hundred and sixty months i'm going with sixty month no you know i mean are we supposed to say the presence of that one day mandatory minimum invalidate you know effects substantial rights such that absent that one  mandatory minimum we would have substantial because about one day an interim minimum we don't have confidence that the three hundred and sixty month sentence was you know properly arrived and you reject the presumption of prejudice for statutory range errors so you really just have to look at the record in that case and you know if the judge referenced the mandatory minimum of one day when imposing events as a factor as a consideration then i would say that that actual prejudice and we do have that here again is that an explanation is short but the prosecutor specifically in both mandatory revocation the court said that relief must be revoked and it quite said that it was considering all the factors and all the circumstances presented here and of course that includes a mandatory minimum so you know in your hypothetical it would depend on the record and the court kind of thing explanation and when you look at it in this case i think it does show actual prejudice here was not plain and did not affect mr sigman schedule rights or the fairness and integrity of the hearing in large part because of the district court stated that it would have prevented mr sigman to release even if that were not mandatory and i think regardless of whether you look at g of the whole or g one it's still clear that there is a punishment for a breach of trust and a breach of the condition of a conditional release that are permissible and that congress defendant will abuse substances so there are signals that drugs are a broad category of behavior that congress wanted people recently released from prison to be separated from to stay away from all of which appears to be linked to is drug addiction and his usage of illegal drugs until it was i think it would be a reasonable judgment and it was a reasonable judgment for congress to say we want drug to meaning feel kind of you know kind of plot that's correct that's correct i mean certainly certainly if the chapters that are listed there are connected with  in violation of the condition that for subsection d and so i asked you for opposing counsel about what is the role of this word and the condition because it release doesn't that move into the breach of trust category as opposed to just the women hated offenses categories so i guess the hypothetical would be what if your case would be much more like subsection k if the phrase of the conditions that for thing wasn't there but just straight up dead didn't finish will not commit another federal state or local drug crime conditions and then those conditions seem to be it's almost like he is saying these are the circumstances that we want to say you would breach trust under needs i think that we need to have trust under not necessarily we're concerned about these then you know or what will elevating form over substance or process over over outcome yeah i think that exactly right i think that's exactly right and could do  question to my opponent i think it would be very difficult to come up with a conduct that would not be discreet conduct in the sense that justice pryor seem to be the length of him in the nd factor so the five years anyone i think would agree much much longer than one day or one hour of imprisonment or time so here so so i mean to the extent that these are factors and each factor has to give can it be given it to do weight i mean i guess it your position that yeah you lose the nd factor because there's a one day minimum here but you don't lose if i much position you have to win all three or that you don't lose it all onto earth that your opponent had to win on all free i don't think we have to win all three i think the question is whether this is more like ordinary revocation of punishment for range that kate provides five year minimum to life on earth is the possible terms imprisonment other life laid out underneath three which are you know two year back so so good to break that down i mean you know two teams that have two parts to it right it has to take away the judge's discretion to the fact of whether a violation of the condition of supervised release should result in prison and so so that's the st one and i think you lose there but then there's the nd part of the nd condition which has and for how long and so maybe your point is ok well you know we'll wind up st one but there's still a lot of question for how long until maybe maybe two is awash in cakes and it's not a wash i mean we've still got pong to off playing air and it's hard to say that maybe that's playing i don't know what he thought i think i think that i think that's right i think too and i think to have more than a wash for us because under g e the range is just so similar to the pretty good thing range underneath three you still have a man and you still have a knack of amount of international but you still have a maximum prison sentence that is linked to the but certainly have you back on the back of the junkie thinking of the effect on the ultimate result it's going to be much smaller here than it was for k and it's much more consistent with what what don't don't have to look at the record to hide there i mean i mean it could potentially be much smaller i agree with you but but i mean it's not a guarantee because it's not a guarantee don't we don't don't we have to look to the record and see what the soon specifically did that on the date of his current offense he wouldn't have been on supervisor lead then he would have been able to be imprisoned for violating a condition of his supervised release so it seems that if you work to go back and get refund and if that resenting work could be smaller so small that might strain the imagination to get it so small that he wouldn't have been on supervised release on the day of the current value we look at we look at the standing on the date a person invokes jurisdiction it was active on that day it might not be nearly as is viable today if it was then but don't you have to prove that it's a completely it's not his burden his burden is that he has to show that he had standing on the date that he bought the cake now you want to show movement now it's your burden to show that what  prevailing on that st that people would have any impact yeah i think i think that it diminished based on what we are now but diminished isn't the standard i think it's a good thing wish that the standing has to be extinguished in order for something to be moved the relief that he seeks would have to be complete gets the benefit of speculating on it's your job to show how much i get my part of it what if as a result of the two thousand and seventeen violation in his appeal he work to get that sentence redone and let's just say that that depends were to be so small including the term of supervised release that on the date of his current offense he would not have and on supervised release in that case wouldn't he gave all the faith i should have been on supervised release th attentive even subject me to this condition on the day that i voted that condition and if that's a possibility then it's not no i don't think that's right i don't think of the right way to look at it because if he would oblige to abide by the nineteen and even if that if and this case it's particularly clear he had he never been revoked in twenty seven hearing his three years of supervised release that began in may twenty seven pain bill would have been running  purely formal argument which is that drug possession is not a discrete offense because subsection g one doesn't cite to the u s code but i just can't understand why that should make a difference when it comes to the constitutional right to a jury trial sections you want to cross reference is a violation of the condition and subsection d but d prohibits unlawful drug possession so i again i think that's really just putting form over substance and i'd you know put the hypothetical out there that subsection  that says geez too harsh there's nothing in there that says he would have been ok if it was a one year mandatory minimum you know he said it limits the judge's discretion in a particular way by requiring a mandatory minimum term of imprisonment of not less right and there's plenty of times where people are subject to mandatory revocation and aren't locked up beforehand i just consulted on a case last year where the person was facing a mandatory revocation of supervisor lease for using medical marijuana in compliance with state law and you know he wasn't detained pretty before the hearing he walked into the hearing and if we lost that hearing the judge would have had to put him in prison for that and he wouldn't have been able to get time served if he hadn't been detained so that's not going to be present in every case at least when it comes down to the merits i don't think that should be a factor you know in terms of the substantial rights point you know leniency can take many forms so you know it's not like if the judge really wanted to be lenient with him she would have only given him one day she might have given him eighteen months and that would have been lenient sentence but instead she gave him twenty four months and and i'd already that that was informed by the mandatory revocation decided not to revoke mr sequence release he'd then be serving a term of supervised release of the initial term without any way to have challenge that sentence and not be be really anomalous so so i agree with you ok all right anything further from