states or says brown mr bryant whenever you're ready we'll hear from you prior case law and ask just that it made a statement about what it requires i thought they guideline suggested that it included unsupervised probation that's correct actual supervision during the course of the probationary period is not required right not active supervisions as unsupervised well i think i want to be clear i ask you what unsupervised means it means no supervision over the probation period i think it means passive supervision there are means not doesn't it i think it means not active supervision that somebody has a continuing reporting duties or  condition residency restrictions or certain things like that but unsupervised revolt those two things are different two conditions of your supervisor bishan is one thing supervision is where somebody overlooks and checks in on you i think reporting would be supervision unsupervised would still could still have a condition and in this case of course the condition was that he be of good behavior now if he failed that condition his sentence could be reimposed right that's correct but i want to make two things clear first the revocation is a consequence of a violation but does not in and of itself say that somebody is under supervision and what this court's cases have done unpublished cases have basically assume they've used the phrase functionally equivalent between good behavior and unsupervised probation but looking deeper into virginia law in practice there are functional distinctions and someone who is on unsupervised probation is still within the control of the probation officer still subject to monitoring and there's a virginia statute i apologize only been cited in the brief but it's fifty three point one dash one forty five the powers and duties of probation officers gives probation officers the authority to check on to monitor to assist people who are on probation and does not draw a distinction between supervised and unsupervised so a probation officer could call up somebody who's on unsupervised probation even though they don't have a reporting requirement and could say i want to come in and take a drug test where that person could reach out to the probation officer and say i need help getting a job or a place to live or into drug treatment or something like that and i'm probation officer would be able to assist when someone is just on good behavior and has been completely released even for months supervised probation that relationship no longer exists and the virginia department of corrections when he has a sentence that requires him to be a good behavior for a period of time that's a condition of his that's a condition of probation isn't it that's a form of probation we disagree on probation we disagree that is a form of it is a condition of the suspension of sentence and so if a person is are we playing with words well i think words matter which they do as well whether there is a difference between probation and saying somebody sentence can be reinstated if you violate a condition that's absolutely or point because what the guideline requires the guideline is not hung up on labels the guideline says it can be called parole probation supervised release whatever what the guideline requires custodial or supervisory component and there is no supervision guideline statement that it includes unsupervised and i have i have no problem with that the the question is whether this is unsupervised probation and my point is it is not since even though it's a condition that's on someone in that's in that sense it's similar to a fine and the guideline specifically excludes fines even though if someone if he assaulted somebody seriously or murdered somebody three years after being sentenced his former senator would be reinstated right i don't dispute that but that doesn't mean he's  on supervision at probation well the condition in other words he gets a suspended sentence on the condition he behaves himself if he doesn't behave himself he doesn't get the suspension i don't i don't disagree with that but that doesn't make this unsupervised probation because the guideline requires supervision and it says that unsupervised probation counts and even though that seems somewhat contradictory in terms it requires active supervisions what's the difference i'm sorry what requires a guideline as has a low active this is although active supervision is not required so how do you define that what's what's the distinction that you're making the distinction is between even passive supervision and no supervision at all and our point is that when someone of virginia has nothing but a good behavior condition and is not on probation whether supervised or unsupervis that person has no supervision and therefore it's not even passive unsupervised unsupervised probation if all they have is this hanging over their head this comeback time because in that case it's similar to a fine somebody could be sentenced to prison if they willfully fail to pay a fine but the fact that there's that consequence and the fact that they could get prison time reimposed doesn't mean that they're on supervision or under supervision what's the purpose of the yearly in other words in this case ten years but if they suspended sentence on the on a condition that you stay out of trouble for ten years if you stay out of trouble for ten years you're you're free but if you get into trouble during that ten year period you're suspended sentence can be reinstated and i don't disagree with him but that doesn't mean the supervised i'm not suggesting it is i'm suggesting that is a probation and other words the probation is the condition that you stay out of trouble for ten years but the guidelines require supervision and there's no monitoring were control and one thing that i can cite for an example of that this judicial notice of virginia state records in the virginia department of corrections keeps a tally of all the people within its custody in control around the state and if you look at that monthly tally there's a category for people on probation there's no category for people with a sentence how can the state supervise someone if they don't even know how many there are or where they are there are no restrictions that person could leave the state or the country and yes if there's a violation at some point in the future that person could  consequences under state law as a result of us but the what the guideline requires is ongoing supervision it doesn't have to be active it can be called whatever you want to call it you could call it virtual imprisonment but that doesn't mean it's supervision as an example it says a term of unsupervised probation would be included and we don't disagree disagree with that mr brown was not even on unsupervised probation virginia does have a distinction between supervising unsupervised probation but it also there are state law that's very clear that says unsupervised probation and a good behavior condition are legally distinct under virginia law how are they different well because the probation officer has a list record of people who are even on unsupervised probation has the ability to check on that person and the duty to help that person if they need help and also unsupervised probation can modified so someone for example is messing up but it doesn't rise to the level of all violation the judge can call a person in and change the conditions they can be lessened they can be taken away and say that's a different proposition court can change a sentence as many people it's not meaningful the court issued a suspended sentence and said it's suspended on the condition you stay out of trouble for ten years that is a condition of his sentence i don't disagree with that proposition i think we disagree about the import of that condition on his sentence and virginia draws a legal distinction between unsupervised probation and good behavior in one additional one that i mention your honor is that a good behavior condition cannot be modified in a freestanding way so that somebody has twenty years of good behavior ten years from now the judge can say well you've been doing well enough i'm going to take that away the judge doesn't have freestanding authority to modify good behavior condition it's simply a trigger for recidivist penalty if somebody violates in the future what the guideline requires a supervision and so the state could call it whatever they want they could treat it like  that's what the guidelines say is your honor said it includes unsupervised probation in other words the point is sure it's a supervised release that's pretty easy but the explanation is the breadth of it  chain by the word unsupervised well it's a little bit confusing the language to say that supervision is required unsupervised probation counsel and i think that where that problem may have come from is that this guideline there's no deep explanation for the commission's decision to put this in the guidelines but it's taken pretty directly from the old parole guidelines the pre sentencing reform act parole guidelines lay all this out and someone would be eligible for parole sooner if they were not already under criminal justice sentence and it's in that unsupervised probation counts would spells out if in the particular state there is no attempt at actual supervision then it doesn't count and i think the way that the commission reconciled all of that maybe in a in a less wordy manner is to say that unsupervised probation counts as long as there's a super actual supervisory component it doesn't have to be active it doesn't have to  language you say it has a supervisory component well that's in the commentary too it's note for under four a one point one d it says criminal justice sentence m under forty one point two having a custom were supervisory component although active supervision is not required and for example unsupervised right right but the that explains that it goes beyond that and you go to the respect unsupervised probation and conditions a simple condition of good behavior worse than the record some record to some degree i think we cite some case law i have the name slips my mind there is a case that says that it's not modifiable as a freestanding condition we also psyche slow that it's an implicit condition of any i was more interested in the description that you gave about this list so call list that differentiates between those who are subject to some kind of supervision and those who simply disappear from virginia's rolls where's that record it's not in the record but this corker to judicial notice of virginia state records and so there's a state statute fifty three point one dash one forty five that defines the powers and duties of probation officers in the virginia department of corrections on its website has that tally i can provide those to the court this afternoon if you'd like but there there were very easy to find out i apologize that they were in the record i think we continue to think about the case even after the briefing was complete but the what's your best i mean you cite a couple of cases one a nice circuit decision which i think can be the sting worse on the ground that that was a case where the judge deferred sentence and something akin to a prayer for judgment continued which is what we have in north carolina and so there was never a sentence to be dealt with from the get go so in that sense a little bit different but what's actual conditions on someone other than don't commit another violation or a new crime when there's no supervision that's what matters for purposes of this guy blind regardless of what the state calls it even if it's called probation if there is not supervision it doesn't have to be active but it has to be actual johnson i'm looking at johnson it's a stay of the imposition of a sentence on condition that in the uk to enter the sentence well that you're right thing that happened there well i think there are there are always going to be state variations and that's why the guideline want to uniformity the guy who wants a federal definition and what matters is whether there's actual supervision not necessarily morning hours may please the court the district court in this case correctly concluded that mr brown remained under a criminal justice sentence and light of the suspended sentence imposed on him conditioned on good behavior as the district  as long as they have the ability to bring him back he still under the auspices of the court this court should affirm the district court's conclusion which is consistent with at least eight unpublished decisions of this court as this quarter stated a suspended sentence conditioned on good behavior is functionally the same as unsupervised probation and it counts under four a one point one d is wong as the defendant is subject to revocation for violation of the conditions imposed that's consistent with  and the suspended sentence where there's an actual sentence entered and can condition to be re stated there's do doubt a difference under state law for purposes of the guidelines i think that there is no difference because under for a you got a suspended sentence here which can be revoked that's true but i would say that this provision matters for for example for a one point t c which question which applies when you when you have to figure out if a previous conviction of probation counts as a for a criminal history points and in those instances for example and even if probation has not been in just you want to have something that says if a court for the entry of a sentence or a judgment that that should be included that's correct because under for a one point t not these facts but the those those other cases from other circuits are all doing the same thing which is you have a sentence conditioned a conditional sentence conditioned on compliance with certain requirements whether it's after judgment other probation mr brown doesn't dispute that unsupervised probation plainly counts as probation under the guidelines that's the plain text of the guideline the fight here is whether a suspended sentence under virginia law plainly qualifies and if you look at profess faves treatise if you look at black's law dictionary if you look at webster's every concept of probation defines it as to quote black's a court imposed criminal sanctions that subject stated conditions releases a convicted person into the community sort of setting the criminal to jail blacks even defines a suspended sentence as quote a suspended sentence is in effect a form of probation the textural point makes sense because there's no practical distinction between it  conditionally suspended sentence and unsupervised probation mr bryant didn't provide one in his briefs he has not been able to write one to now and i certainly can't provide one to you or he see he suggested that virginia makes of this think and they keep apparently two separate list the where they keep track of individuals one where the dough but i'm not sure that that's a distinction with a difference but maybe you can talk about that the under virginia law i think it's good to part answer which is clearly under the statute the statute contemplates probation and it contemplates a suspended sentence two different things in that sense and i believe that when the statute talks about probation it's talking about what your  are getting out earlier which is active specific conditions under supervision of a probation officer just knew my earlier asked are is a condition of good behavior probation in this day answer to that for purposes of the guidelines for virginia law is also yes and i point the court to the virginia supreme court's opinion and dyke in that case there was no term of probation imposed as part of the sentence but the court kept talking about probation so what is clear under virginia and virginia cases is that there are two concepts of probation one the act of probation where you're talking about what the probation officer does your active supervision and the other which is probation is just the other side of the coing of a conditional sentence you could not have if you had probation without a condition there'd be no point because there be no two to the per to the probation if you are conditions it could be sorry if you had probation without a suspended sentence it would be pointless because you couldn't enforce the terms of probation likewise if you had a suspended sentence without probation it would also be pointless because you could never really you know reimpose the suspended sentence so in in that morning to your to your honor's is that under the commentary two for a one point one the a suspended sentence does not have a custodial or supervisory component but the answer to that is that in the context of the guidelines it's clear the supervision here is the court's supervision that's what the second circuit held in united states versus ramirez for twenty one after it one sixty four the second circuit said the guidelines for use of the phrase supervisory component means quote that the sentencing court can revoke or modify the sentence if the defendant violates a condition first circuit in frasier three eighty eight f thirty three seven six so the same thing criminal disposition custodial or supervisory component where the sentencing court imposes conditions that if violated could result in revocation or of the more lenient disposition and imposition of the harsher one the text of the guideline and the definition of probation is also supported by the purpose of the steps of the guideline which here is to punish those who have previously committed crimes and often been the beneficiaries of leniency but nonetheless during the period of that sentence or during the period that leniency go forward in committed crimes it's not as mr bryant says simply to provide additional punishment to those who are under the active i have the court to use the phrase from his breeze finally i want to touch on harmless error in this case we believe that we should win on the merits but we also believe that if the court disagrees any  harmless the court must be quote certain and he cites montoya's for as for the proposition as far as put the word certain in scare quotes and i don't believe that certainty in life or in law is ever possible  certainly not the test year the test under saddle on which modest for a cite is one whether this court can have knowledge that the district court would have reached the same result and to whether this court can confidently determine th harmless even without the explicit statement by the district judge that he or she would have given the same sentence if the guidelines calculation had come up the other way in here if we look at what was put in front of judge jackson we can see that  first mr brown's criminal history here was grossly under represented alive in pages of convictions in the p s r and despite those eleven pages he only had three points because only one of his prior convictions counted and absent the two points applying here this were argued would be a case for an up or departure under forty one point three two mr brown strenuously argued for a below guideline sentence of twenty four to thirty month put six pages of argument in sixteen cases with allegedly similar facts and lower sentences he put in seven pages of argument about the flaws in the other sentencing guidelines that he was challenging and provided extensive discussion of mr brown's personal history and included letters of support from family and friends number three the district court explicitly said that the guidelines were not the decisive factor the dischord said on a ninety two ninety three that the advisory guidelines alone in the court's view don't necessarily justify sentence within that range the court has to look at other things beyond that and the court has looked at other things beyond that number for the district court emphatically rejected the lower sentence proposed  brown the district court said on j ninety three that that sentence was absolutely inappropriate he said the mr brown's criminal history was absolutely awful he told mr brown that he represented a danger to the community and noted that  brown it previously received as we've been discussing this morning a sense of good behavior but it meant absolutely nothing to him so district or did not explicitly say that it would pose the same sentence i believe in this case under this court's precedent the court can reach h case that is a case where somebody had a sentence that was imposed but only had a condition of no additional violations this is something that the commission could very easily fix if it wanted to to make very clear the good behavior was included with the language of the commission that the requirement of supervision and the court should be mindful of the very harsh consequences that flow from this not only will in most cases raise someone's a criminal history category an entire level it would make someone categor ineligible for the safety valve and especially in a situation in virginia where a good behavior condition can be implicit for up to the statutory maximum somebody could have a a state sentence that doesn't say anything about good behavior and there are long off of probation and they might have twenty forty years life terms of good behavior hanging over him that they don't even know about and yet have this consequence come back on them if they end up in federal court and that's such a harsh consequence of the guidelines would be very clear if nothing else the rule of lenity would suggest that this court should not import good behavior in here when there is not a supervisory component to that sentence in the last thing i'd like to touch on very briefly because the government devoted so much time to it was harmless error first of course it's it's not our burden to show that the sentence would be lower it's the government's burden to show that the sentence would be the same and not only do we not have a statement from the court that sa s that it would impose the same sentence regardless there are also indications here first the judge said i'd be interested to see what happens if you take this up on appeal i think that suggests that the court's mind was not closed and also although the judge rejected request for a lower sentence did not go to the top of the guideline range and will in fact impose a sentence towards the lower end of the range and so we would suggest that if the range was even lower the proportionate counsel take short recess