in the united states versus darling first and then the calendar will follow along the regular order excusable neglect or good cause standard is an equitable one that focuses on the circumstances as a whole and not a one factor to the exclusion of the other in general this is a joint strike to interrupt you but can i sort of move you along short for the answer that is yes it seems to me and let me frame it this way that your best argument that you want to have a chance to have an appeal is that the court was without jurisdiction to do to impose the the term on the supervisor violation of supervised release would you agree with that i think that's one of the strongest yest a tonight i would tend to i'm speaking only for myself i would tend to agree with you on that so i would like to focus you on that argument if you don't mind ok that argument in the context of the late appeal or just the subs jurisdiction of the court to you to hew to impose a sentence and the vote supervised release violation that are sure claim here is a matter of statutory construction deals with whether under thirty six twenty four easy term a supervised release is told during a period of pretrial detention here mr darling's term a supervised release was to expire on june thirtieth of last year no warrant or summons was filed as might have extended to under thirty five eighty three i he was not sentenced until october of the same year on october first the same day  supervise release violation was heard and he was sentenced on that as well and our claim is that under thirty five thirty six twenty four each person is not imprisoned in connection with a conviction when that individual is to change pretrial circuit is in keeping with our interpretation they focus on you know the verb tense but i think the they're making the same distinction between pretrial detention and three trial detention is in pretrial detention a person is not imprisoned in connection with a conviction because a conviction has not yet happened that's the same facts fundamentally as we have here  backward looking alice  this the cases we think though that one of the strongest points is that the statutory scheme involved here where in title nine eighteen there are a number of imprisonment begins when a person is received into custody at the facility where the sentence will be served and then be expressly differentiates between pretrial detention and imprisonment now it says that pretrial credited towards term of imprisonment but it doesn't convert pretrial detention into imprisonment and we know from the supreme court that pretrial detention is not in it's not there's no magic it's not converting into imprisonment and we know as i was saying the supreme court has said pretrial detention is regulatory nature it's not punishment but if we wind up with the same the backward looking you know unless we follow this the clear rule set forth by the ninth circuit the d c circuit where if you want to extend jurisdiction filed a warrant or summons you wind up in a position where a district court's jurisdiction is going to be contingent on future action by the b o p granting that credit or a state department of corrections to grant that credit and we can think of no other circumstances in which you know an article three courts jurisdiction is unknown and contingent on you know a future acts by another branch of government i think it was  we don't agree with that you know the different kinds of jurisdiction the court has talked about and we haven't really briefed this issue in detail but you know the court had subject matter drug addiction in the sense that it was appropriately dealing with supervised release i mean the court had subject matter jurisdiction over supervised release the real question is whether or not it's sort of lost that power because of the timing issue set up by congress and the government would argue that that kind of subject matter there is a kind of jurisdictional issue that kind of question of court power is different from the kinds of court power that supreme court in this court have said the court always has the power to assess there are some kinds of lack of jurisdiction the court says is always curable no matter when it sort of comes up and we believe that in this case that hasn't been briefed this kind of power issue which is about sort of a system more like a statute of limitations sort of question than a subject matter jurisdiction question does not fall within that kind of ability for the court to always assess so we do think that the timing rules evil but that it's we've a bull by the defendant yes it's available by the fed and that is it says on should we be examining this issue for more clear sorry clear or well i mean we did not we have not raised the plain air argument which is which is which is out there because we think the other  organs we have are probably better and we didn't really feel like you know having too many arguments in this brief but i think planar analysis probably would apply if if one were to were to analyze it we think that the issue of whether the notice of appeal was properly whether the court abused his discretion in denying the late filing that it's very clear the facts in this case show that this defendant explicitly chose not to appeal during the fourteen day  period you know it took a while to get this out but it became clear after the court's analysis that on the thirteenth day of the appeal period defense counsel checked in with the defendant he did not want to appeal it's only till deep into the thirty days that he changes his mind and i think under pioneer investment and the other cases that this isn't even the elect let alone excusable neglect the supreme court in piner investment analyzes the  definition of neglect first that it then analyzes the definition of excusable what's excusable neglect and the government's position would be that it would be unfortunate for this court to say that a defendant has basically forty four days to change their mind and decide to appeal because that's really what the defense is arguing there is no decision during the fourteen days that just wasn't brought to the court's attention in time this is a defendant who is deep into the thirty day extension deciding to trigger his right to appeal and that we believe would set rule for on a ted turning to the fact that the court was talking about with regard to the tolling provision my recollection here is that judge rice excepted the play at the time of the guilty plea i believe she did defer decision on the plea agreement until the plea until the sentencing hearing because it was at which time it was  and she she waited until the pre sentence report to decide that when she accepted that guilty plea and a judge him guilty he was in a different place he was no longer in pretrial detention in fact in the bail statute as i'm sure the court is aware there's a different bail provision different attention rules for somebody before the guilty plea and then after the guilty plea i think by any reading of the statute other than the ninth circuit he was imprisoned in connection you know as a result of his conviction he was now detained because he was convicted of a felony and so even under the d c circuit view judge livingston we'd argue that  mr darling doesn't that it was told at least as of june twenty second so really the only the only case that in the government's view would benefit mr darling is the ninth circuit's analysis and we disagree for the reasons you state in our brief that the court should follow the ninth circuit's view indeed who or whether the court should even reach the issue in this sort of tangled little area in light of all the other circumstances on this appeal unless the court has ala questions let me push you a hypothetical and i know your first response is going to be so you don't have to give it that well that's not the facts of this case but let's say somebody is is held as mr darling was pretrial detention instead of detention time count terms of some form of tolling and some no for pure pretrial detention as for detention before the guilty plea if somehow or another that conviction were to not go forward for some reason the case for a fall apart then tolling would not apply there is at least for that period before the guilty plea some looking back that is necessary under the statute under the  bulk of the courts have held that is the fourth circuit the sixth circuit the fifth circuit and the eleventh circuit all acknowledge that there might be a need for some looking back but that looking back made sense to those courts and the government certainly believes that that's the best  still the best reading of the statute if the court needs to reach that issue but yes the court would sort of not be able to toll when the case fell apart and other questions for the government thank your hon the issue was raised to a certain extent the judge rice obviously ruled on the motions for reconsideration and said she did not believe there was a jurisdictional problem but there is fundamentally there's a bright line rule that stems from the ninth circuit or d c circuits reading and that is it gives everyone clarity you file the warrant or summons when there's any chance that the time of supervised release might run  in terms of whether change of mind someone's change of mind can be excusable neglect as counsel says the pioneer court analyzes neglect and excuse ability separately but defines neglect to be  something that encompasses both simple faultless inus simple faultless emissions to act in more commonly emissions caused by carelessness and we submit that a change of mind falls within this definition as a kind of simple failure  carelessness as to deadlines in terms of that hypothetical i think that the court is getting at there are more instances in which there's going to be this sort of backward looking contingent jurisdiction which is troubling for example it's not just you know where this fact pattern where the cases proceed and a supervised release and underlying criminal case proceed in tandem it's not unusual for a supervised release case to be heard first maybe someone wants to do some discovery put witnesses on the stand and you know if the subsequent criminal case doesn't result in a conviction then then you know the jurisdiction evaporates and this is you know we know we have some clarity about when the b o p purpose in setting up the statute the way you would have us well i think maybe you're to respond to some of the courts talking about supply age we don't we don't see surplusage so the inconnection imprisonment in connection with a conviction we think one reason one reasonable reading of that is there are several different types of sentences that can be opposed upon conviction imprisonment as one of those and so specifying imprisonment in connection with a conviction just tells us as opposed to probation him as opposed to probation or home detention or a fine or location miring now i'm not sure of that entirely answer your question but  was trying to guard against and tried to cabinet the way it has i think it had in mind the circumstances where someone actually sustains a conviction is in custody serving that conviction and sometime there after the supervised release term runs and that's what they mind congress also as the d c circuit said you know put in place a bright line rule to eliminate all doubt all you've got to do is