and we will go on to appeal eighteen twenty one twenty eight united states versus william y i represent the block there are a number of procedural problems in this case but the most important is the district court lacked jurisdiction through both mr barak's term of supervised release after it had expired  you something real quickly i don't do anything quickly or if the law succeeds in this claim is he trading a revocation of supervised release for a possible new criminal case and conviction and others if that government is unable to use the allegations just referred supervised release doesn't that increase the likelihood that it will see criminal charges based on my conduct and with that a preferable outcome for him here well i suppose my friend can maybe answer that better than i can but i would hope that the u s government wouldn't make charging decisions about burdens of proof and  evidence based on the outcome of a revocation proceeding to you know that i suppose the question is a little bit irrelevant the court didn't have jurisdiction whether i would prefer that the sentence be served  doesn't really matter because the court didn't have the power to impose this revocation sentence but i mean well like in practical effects are you saying that the court should have handed him a summons to the probation officer recognized that the probation officer had a plan of you know here's a here's a blank songs when he comes in let's fill it out let's serve it on and then we will have to worry about the timing and maybe this was just a mistake it slipped through the cracks there is a different probation officer at the hearing then the officer who actually prepared the petition and the blank summons it's impracticality i think your honour's entirely correct and th decision this court made almost thirty years ago to say look as long as he's got notice as long as things have initiated we don't need to worry about revoking actually revoking the term after the term expires congress then amended the statute and said in no uncertain terms you need to issue a summons or warrant before the term expires maybe that's not the best practical solution but that's the solution that congress decided upon  there's no warrant or summons in this case no warrant or summons was issued i think the government's argument is basically to say we should read the statute as if it says a summons or warrant or something akin to that and of course that's just not what the statute says i think that the government's argument with would create a circuit split frankly i think it contradicts the second circuit in john deere the third circuit and re treat this statute as it jurisdictional stash and it's a bright line rule it's a lot like a notice of appeal in the civil case it doesn't matter why you filed a notice of appeal fifteen days later you're out of luck that the equities don't come into it hasn't come to his attention that it could be possible that the government would see criminal charges certainly well that's that's what he was asking for in the district court you know that and that and you and him would it be preferable very well of course we don't want him to be charged with wire fraud or mail fraud or any anything like that what i thi years or something like that and you know we came into this and said look judge you know this is a supervised release revocation if the government wants to charge him with something new they should have to get an indictment they should have to prove it beyond a reasonable doubt give them fifteen to twenty four months as as you know a breach of the course process and if the government wants to take further actions they can and the district court express to send sentiment which i think is common but a little bit disheartening for us when he says well this is supervisors we don't need to go through all that rigmarole and a sixteen year sentence was advocated by both the government and the probation office you know that there are relaxed protections and supervised release proceedings they are more informed seedings we want those due process protections we want an indictment to come if the government's going to seek such a lengthy term of imprisonment it should happen within the case not on supervised release ok let me just turn briefly to whether the term actually expired that's sort of the pack of argument to say well it was suspended while he was detained and so it never actually expired i think that that actually is is negated by the supreme court in that johnson case in two thousand they explicitly found that supervised release continues to run while you're in prison on a revocation of supervised release just the same would be true if you are in custody pending a revocation of supervised release section thirty six twenty forty refers to the relationship between the federal term of supervised release and a difference sen probation parole supervised release or run concurrently imprisonment will run consecutively mr block is not imprisoned in connection with another offense he was detained pending a revocation hearing is supervised release was running and it ran out in april of two thousand and seventeen and we know this from from a case from the circuit from three years ago united states versus gold and the government alleges that while somebody was detained pending revocation supervised release he committed a new violation and that he committed a battery in jail the district courts sustain that allegation and this court affirmed it would be impossible for him to have violated supervised release if supervised release was suspended while he was in detention so i think that that points are our commonsense understanding that supervised release continues to run while you are detained on a supervised release allegation  think our brief adequately addresses the other procedural issues in this case so i'll reserve whatever time i have for a bottle thank you the screen when you look at this statute you've got to look at the context we're not talking about a person who is not under the supervision of a or were interpreting the word summons in the context of someone who's in constructive custody of the court why should we take the language to mean exactly what it says well what that eight summons or warrant mosques must issue for a court to retain the power to revoke after expiration agree and so the question is what to sundin's need in the context of that statute not ad hoc in the context of the statute it's dealing with people under constructive custody of the court and the government's bottom line position is that when a defendant was put in custody by the court when he appeared and was put in custody and the court issued an order saying he will have his revocation hearing on i believe it's february or march sixth two thousand and of appeared well your honor if he hadn't appeared they he would have been the judge wouldn't if the judge that the rule to show cause hearing for mark six that eleven o'clock am and the defendant in custody had refused to come look at what we have here yes the probation officer suggests the court would lose jurisdiction if it didn't issue a warning or summons before the supervisor of these expired on april thirteenth attached a blank summons the report recommended waiting until block appeared in court to fill out and serve it wasn't wasn't served when he appeared prior to the expiration because and because of that failure to follow through we are forced and faced with these requirement i i mean well your honor that the response to that is that the quartet at hearing ordered him to change so was the probation officer then after he's taken into custody to have gone to the court and said could you also complete the summons and issue it to the defendant i believe that the reasonable understanding of all the parties at that point was he's in custody when the context of a person in constructive custody really require here a warrant or a summons clearly congress could have chosen to require only actual notice to the defendant order are always parolee or someone construct so why are you saying that a summons was issued before the expiration of the surprise release term yes well i mean that is the government's position in terms of reasonable interpretation in the context of this of this scenario where undefended is in custody i mean it should it would have if the probation officer as i say had gone to the court with the defendant in custody and said your honor please also issued a we would add is should you reach the issue of the illegal sentence the government continues to maintain that it would be a plain error but what i do want to make on the record is that even under harmless error even if this court were to find it's a harmless error analysis that is appeal clearly it's all within the statute of limitations but i have the one thing i will say about this defendant and the court's motivation in terms of talking about one hundred ninety two months of the government's motivation for probation officers motivation there is every indication this defendant will continue doing this i mean on that the record is clear so you know no likelihood of the government have to do address this defendant's conduct in some time in the future given his p conduct unfortunately is extremely likely whether it be but we can't take that is of course not but i'm just saying that the record here just to defend the government's position and the probation officer in terms of asking for one hundred ninety two months and argument that the government asked for one hundred ninety that's all i'm talking about there that the reason we asked oh absolutely the reason we asked for one hundred ninety two months was because even well he was he had been brought before the court on a that i think about ordering mr clarke immediately released from custody