mark mack and steph at its most basic level this case is controlled by syllogism section five one point one of the guidelines called that no one defines community confinement to include a mental health facility and what else it includes half way houses drug and alcohol placement but doesn't it go on and make it and with its statement is find a mental health facility where another health facility alcohol or drug rehabilitation center or other community facility and then it goes on with what and participation in gainful employment employment search efforts community service folks training treatment educational programs or similar facility approved programs during nonresidential hours is nicely so it's talking about places where you're where you have nonresidential hours there's a state lockup for mental patients have nonresidential hours you know i'm not familiar with the workings of the warm springs  hospital particularly back in the early nineties but presume where you are right given the general understanding of mental health hospitals going back to your point i don't think there's a lesson you just look at that out and not read the rest i mean obviously they're talking about i disagree your honor i don't think they were just plucking that out these are listed to mean the community can find it includes these various placements including a mental health facility but also including a facility where you're permitted to go somebody couldn't say oh well i need x and therefore it's there's some kind of logical thing about that you know i can put it more symbolically nice that this community confinement means me well under that means are you going to wonder that reason your honor in order to qualify as community confinement the place would have to be a community treatment center and a halfway house an that for instance alcohol or drug rehabilitation center certainly were aware of inpatient treatment twenty a day programs and military there's a twenty eight day state funded program in view where it is i patient in other words you're not permitted to leave during those twenty days you're locked down this that doesn't seem to meet this either our position is it does it's an alcohol or what i was speaking of in this situation is alcohol or drug i really understand your position and i'm rather sympathetic to the notion of a mental hospital is not the same as as a state prison but what i'm trying to understand better  i understand what you're saying but i want you to tell me lies usually why one can say well he's in a community confinement facility because he's in a mental health hospital when t i know they're not released for any purpose it's inpatient for twenty eight days and i think that would clearly meet this definition of community confinement moreover going to this court's decision in latin america which is was going to be the second step of the s incarceration and that's what we look at we don't look how it's executed or implemented which gets to the two points that were just raised with respect to halfway house or hospitalization you look at the sentence imposed i've got one going to last i'd like to reserve that  thank you your honor like that for the united states again if we go on following up with mr oakes final comment about what gatherings what happened at the outset or when the sentence was imposed we need to look at what an state judge judge in no way is akin to a community confinement situation mental health facility which is governed and as we talked about you know i think sentencing guidelines five one point one this is much more a teen as judge erickson described to sentence when questioned by the pre sentence report writer as the custodial sentence with the treatment component the lattimer case just doesn't help mr  it in fact as the government pointed out it really it really highlights why what happened with mr mack instead in the situation is not a community treatment confinement but imprisonment mr lattimer they talk about the vander line case as well and make this point the difference between the community treatment center and imprisonment is whether there is continue with confinement  and needed to be sent to a state mental hospital but it committed no crime would i have been sent somewhere other than the montana state hospital i don't know that there iran i believe the story here the only one criminals and non criminals exactly if i were not a criminal i would have gone to the states montana state hospital that correct i believe so yes or how do i know he's how do i know that he's being in prison as opposed to being if he were a civil person being to spend through the state mental hospital because he's not now and the court sends me to the state mental hospital i take it that's custodial it is custodial so this this will turn on what the judge later institutions and he explained that later as the custodial sentence was the treatment component but i think it was the words sentence that makes this that makes painting on mental leave without leave of course he wasn't free to come and go this was not he wasn't free to come and go as he pleased or well neither of these other people i was taught i understand these are just other things t rod judge erickson manton at the time in his judgment is well i don't see i don't see why you're adding that other thing when it applies to both non penitentiary and penitentiary it seems he doesn't anything it's just across the also in the judgement and i think it's important to note that there was an explanation of his reasons for the sentence given and what judge erickson welfare in his judgment is to and step from society so that he can't victimize other persons during this time so i think that also fueled the time the understanding of what joe jackson wanted to do here about the earlier that in order to show that hospitalization qualifies as community confinement my client would have somehow been able to walk off the premises i don't i don't recall saying anything about it or i said there was a semicolon revoked further shows there's a distinction between prison and hospitalization knowing generally but in this case specifically two final points one is the government keeps trying to talk about what judge erickson told the probation officer at the time the sentencing in this case the court's case for clearly prevents that i think it doesn't generally to maintain uniformity that's why we have to tailor a categorical approach used in all sorts of guideline determinations lattimer specifically this case should not be scored this prior conviction should not be scored as the president but instead the ambiguity of the doubt you go to my client should be score as a hospitalization for that reason if you have to do with time i conduct and what we think the effect has on people who might if they had known the law might have misread it ok well the law's unclear and their primary conduct outside the