this morning is pope against her do state are you prepared right now to talk about whether the fact that he's on supervised release is enough to keep this case alive or would you like the opportunity to file a supplemental brief on that point what would you like to do  i'm prepared to talk about that issue today we would also like to file a supplemental brief with within the time provided by the federal rules of the poll procedure yeah i think it's fine for us i think it would be useful for the court to have supplemental briefs on this point so we will order for simultaneous filing by both sides i think everybody understands perfectly well what the question is i tried but you can say you did it feel free to say what you want to say here to please the court as this court knows we presented three arguments in our briefs i'd like to focus on the second argument which is that mr pope's sentence commenced on august thirty one two thousand and nine when he was delivered to the chicago m c c a federal facility without government a sentence cannot commence notwithstanding the existence of a federal statute that's thirty five eighty five a governing the commencement of a sentence the government's position is that the sentence cannot commence until b o p s designates the prisoner years one hundred years federal prison under federal authorities and if e o p never designates that person that sentence has never commenced that cannot be the law congress passed this statute soon to be never makes mistakes right relinquish custody to the b o p yes your honor which seems to be an important question yes your honor and that is the only evidence on the question that was provided by the government by their own out in the district court accept that explanation and there's no other explanation in the record and because the state's understanding was that federal custody is governed by the first sentencing sovereign when they delivered mr pope into federal custody their intent was that he be placed in primary federal custody and that is federal sentence comments so what if they had realized you know just a week later that hopes you know that we shouldn't have transferred important for there to be a bright line rule here if we start to get into two you know one week the sentence hasn't commenced but if it's a year it has into that sort of grey area i think that's a problem particularly because when mr pope was transferred on august thirty one two thousand nine he didn't know whose custody he was in the us to say really and prisoners need to know which sovereign is holding them whose custody of their end it may affect the extent of disciplinary proceedings you know the kind of case cases they can bring but as a fundamental matter they deserve to know who is holding them so any rule that's based on some sort of ex post analysis of what happened is insufficient there needs to be a bright line i would submit that a bright line is prisoner's status but you don't want to just be seated the pants exactly there needs to be some sort of documentation so that everybody knows what's going on and they can't just say a year or ten years or fifty years after the fact well no that's not actually what we met look we never bothered to designate him so all of that is irrelevant i mean under the government's rule you could literally shift a prisoner back and forth between the sovereigns every day there'd be no effect you could shuttle around the whole time that's not fair to prisoners  if you were to succeed on this point you see i'm kind of going back in my first statement but would with the consequence in your view be a reduction of mr pope's period of supervised release by this number of days but we can't make him not be in prison at this point for that number of days yes your honor but under thirty five eighty three of the court can reduce his supervised release it can change the conditions of his supervised release and if allow the sentencing court to take over your honor this case is not moot because there is a live case or controversy existing right now over whether mr pope is over incarcerated by only one is there any remedy that this current that this district court in this proceeding sentencing court is that what you imagine i'm not sure i would say that but the majority of circuits have agreed in the a b s context that where petitioner challenges the length of his sentence in a hay vs proceeding that that is not moot so long as the petition still on supervised release and that will make sense mr pope filed this petition over three years ago it's taken him over three years to get his day in court today well with regard to the issue before us so that it's moot he belongs back with the sense in court i mean with regard to not the parties with regard to the court that gave us this case i disagree your honor respectfully the government essentially acknowledges that there is a life case or controversy here over whether mr pope was over incarcerated they would just have this entire case which has taken over three years to make its way here but as days later want to you want to declaratory judgment then you could take it to the to the sense in court right but we've had a number of cases white against indiana parole board which we've called parole a form of custody you know link between good time credits and release we've had other unpublished decisions in which we've said supervised release satisfies the in custody requirement for though you were over incarcerated the sentencing court can't do this because they're not the right court and the original court can't maybe what what really has happened is that they respond it has changed and we do substitute respondents regularly because of what i believe the normal rule is to respond and in supervised release situations maybe the tourney general not the warden of the particular prison but if it's the attorney general then the attorney general can implement northern district of illinois is within this court's jurisdiction i see no reason that the court could not simply remand this case to back or that would prevent the extreme wastefulness of having us start from square one three years later on these very same issues that are being three lip thoroughly litigated and i quote this court can no longer issue a judgment that has more than speculate chance of affecting road rights we cannot modify a sentence now that is been completed and we are not allowed his sentence hasn't been completed here that i mean we need to intersect that concept with the fact that when somebody as you well know is on supervised release that person could at any moment be returned to incarceration if they fail to show up for urine drops if they fail to tell their probation officer that they've gone to nebraska for their sister's wedding in other words things that are not cell anees i'm specifically focusing on the risk of losing supervised release and so it's quite meaningful for defendants to have whatever it is two hundred thirty four days of supervised release lopped off the sentence the only question is what's the ers two hundred sixty eight days whatever it is the only question is what's the procedural mechanism does one send just one rule on the hades case order to haiti a score in central district to transfer further proceedings back to the northern district so that the order can be properly implemented by the sentencing for transfers of course between federal district courts happen all the time or anything i if you have a solution that's anything but tough luck you know i would like to hear it because if this man has been incarcerated for two hundred sixty eight too many days tough luck is a very unsatisfactory answer if he's still in supervised release which he is he just started and i understand the equity issues energy and the government have an answer to the tough luck scenario so the answer to that is that what he needs to do is go to a court that can actually address this which is the northern district here and he needs to address it in the  government actually went to mike my initial question is do you believe it can be resolved between the two of you without coming back to this court in arguing i don't believe so in the sense that even if i wanted to reduce the term of supervised release that is entirely the sentencing court's discretion and i would if you if you have proposed an order or have suggested we send it back to the northern district of illinois prison two hundred sixty eight days too long that becomes law of the case if we were to say that and the remedy would be to reduce by two hundred sixty eight days the amount of time he is quote in custody recalling that supervised release counts as quote in custody and i don't see anything tough about i don't i actually i don't think that's correct in the sense that if you look at the johnson case that he cites the two thousand supreme court case what that says is that surprise release and custody imprisonment i should say sir very different functions and that merely being overstated in your sentence is not sufficient on its own to reduce it is one of the equities that a court should weigh on a thirty well it's a pretty strong equity and i would say we have a lot of cases everybody understands that being behind bars isn't quite the same thing as being out with the probation officer but our long line of supervised release cases indicates that they are both aspects of the sentence when the government gets an appeal waiver if it gets an appeal waiver only of the imprisonment part and not the supervised release part you can file an appeal on the supervised release part  it's it's all part and parcel you know a fine these special assessment the period of incarceration and supervised release are all elements of a criminal sentence i've no objection of that i also have and i'm just saying if you can i bet if you did a poll of the people who went across the street to the probation office and asked the people would you rather have you know two hundred sixty eight days less of supervised release much as they may love their probation officers they to take over but this is not that this is not whether or not the original sense in court as part of that sense impact of how it weighed those this is literally b o p company because if you screwed up and this is lasted so long that the government's answer what i'm hearing from you is tough because now i'll dispute that we screwed up but also point out that spencer talks about what happens with regard to dilatory tactics or anything like that and they don't change the fact that this that has no impact on whether or not the case don't want to i also don't believe that that they did in this as exactly my point so you want to do with them so you're going to force us and to come down and rule against you basically to get to the same point you know i certainly hope not melt i'll point to a case i  understand equities of this case because he was there for nine months right i understand that that looks bad but anything this court says as you're on a pointed out has to apply to a much smaller and much narrower ranges and let me point out just a very basic example when there are natural disasters a state prison may talk with a federal facility and then there's the opportunity which b o p i think also mishandled to do the now proton designation b o p acted as though the stats or case had never been decided and that's a whole separate problem with this decision so i reckon i'll point out real quick that the opi decision came about before the states are decision it doesn't mean that it's right the ok apparently has not been reading stats or based on what we see from other circuits now also real quick that regardless of the movement's argument of the over state sense i think and i'll be surprised if there briefing is different on this point but it on other question the nun protonic is i think undeniably moved because the remedy there would be to send it back to be opie for something it won't even consider i think it probably should take some time to address the issue of mm three years too early he was in b o p for two months before wisconsin said o'dowd realized their mistake and brought him back and what this court said was that that mistake did not lincoln his sentence because the state gave him credit that  a non presidential disposition however of course and you know both that there's a reason we make these things non presidential they are not fully argued as this is and i would not myself regard as is bound by that absolutely  have and that's why i didn't cite to it i don't make any suggestions binding there is in fact no actual binding law that says is transfer without a writ automatically transfer now you've probably visited prisons these are huge institutions certainly in every state there are enormous institutions without the proper paper trail showing who's in which institution under whose custody for what reason chaos would rain i mean i remember walking into the records room of a illinois maximum security prison once and i was horrified they were files all over the pace polices of paper falling out of them  but i really think it matters to have that writ of habeas corpus at prosequi or whatever other there's some other procreate piece of paper we need to give people legal certainty on these points  to the pan so we didn't designate you is not a very good substitute so that's why i probably there is no precedent because ninety nine point nine nine percent of time this is done appropriately or they don't catch it in the i'm not certainly possible i see that amount of time if i know you can finish your thought i will say that on on this case i think that the designation question no it's been attacked significantly fits exactly within this are not saying that the government can never designate somebody because if it never designated somebody it would be in violation of thirty six twenty one it says government shall designate so be able to bring a separate action we're also not saying that the designation date is the date that sets the commencement to be clear about this our point is that if somebody is transferred into primary custody and then held in holdover status a transfer on the first and then designated on the thirty first that does ignatius what triggers the commencement to be calculated from the first and that first is then what you do you figure out what's before that the suggestion that we are arguing that we can hold out forever is simply wrong we make no such suggestion and that i could use in this case and just the reality of prison trying to transport suggest that this court should not hold that a transfer without a writ is automatically beginning of a federal census and the west bank me intent to relinquish and then for me at least it would not just be a transfer without a writ with the intent to relinquish primary authority to a different jurisdiction and in this case petitioner's appendix at two fifty four and so i mean the answer maybe ok maybe we need more fact finding about what that is but that to me highlights the moon as issue we're going to send it back to the central district for more fact finding on something that the sensing court might not even care about the my that was my questions this was he was sense in which district he was sentenced in the northern district and were in the central district and the northern district while it is a heavy equity if you look at thirty five eighty three that's not there's no part of thirty five eighty three that says a just for overstate it is an equity situation where thirty five eighty three to one does say if he has complied with everything and deserves it by his conduct and the equities demand so we were reading a lot a lot into that last i was saying he was the same district but different judges but just two different district that's correct answer different different answers all right thank you very much a few points in rebuttal your honor of first on the designation point the notion that when someone is transferred retroactively that can be declared the commencement of the sentence if someone is designated later that's going to put a tremendous amount of uncertainty into this process a prisoner who  transferred is not going to know whether they have actually commenced their federal sentence intil at some point be opie designates them or decides not to ever designate them to the point about page two fifty four of the appendix the basis for the determination that he was in custody from illinois perspective he's going to get credit for all this time because the sentences are running concurrently so that provides no indication that they didn't consider it a transfer to primary federal custody things like natural disasters and medical emergencies you know we wouldn't necessarily oppose some sort of exception to the requirement that there be a writ in those situations this is not that case so certainly there could be narrow exceptions in those instances i see my time has has expired if