good morning your honor is may it please the court christy hughes on behalf of mr infante copier oh your honour's i initially raised the constitutional challenge to the supervised release issue to preserve as i said for on bonkers supreme court review but then the supreme court decided hammond and there's a lot of support in hammond for the constitutional challenge and i think the broad language in a man is inconsistent with prior opinions on this issue for instance the says that we can't send a free man back to prison for years based on judge found facts the plurality says only a jury acting on proof beyond a reasonable doubt me take a person's liberty and they say the constitution requires any accusation triggering a new an additional punishment has to be proven to the satisfaction of a jury beyond a reasonable doubt but inherent in the court was addressing a different statute that provided for a mandatory minimum term of imprisonment if a person had been convicted of certain crimes and then was alleged to have violated certain conditions and that particular statute allowed for a sentence that exceeded  for the underlying offense is not correct yes and so that's where the a print day issues became problematic in the pluralities view and that the judge was exceeding the statutory maximum for the underlying conviction not  not a jury jury wasn't finding that is not correct that is your honor and that's not what happened here under this statute and in fact the plurality and haman acknowledges probably six hundred and seventy eight times the differences between the two   even if you were sense to an additional three years of imprisonment that would be well within these twenty year statutory maximum what it would your honor so the judge would not be exceeding the statutory maximum by making findings on a preponderance rather than having a jury do it beyond a reasonable doubt is that correct i'm sorry can your i repeat the your argument that his constitutional problem would be that you have a judge making a finding based on a preponderance of the evidence rather than a jury making a finding on a proponent excuse me beyond a reasonable doubt but here that is not exceeding the statutory maximum it's within the range and heyman said that it didn't it did not change  jones which said that supervised release is part of the initial sentence correct but one of the points that the plurality makes the name and is that we can't the revocation proceeding remains part of the criminal proceeding for that point your honor it's part of the original sentence and so it's sort of chastises the government for saying the th amendment doesn't necessarily apply it says we can't really label parts of the criminal proceeding unlike a revocation proceeding and thereby dog it says the th amendment and i think for instance that reasoning there is inconsistent with prior opinions that the plurality sensually calls out the dissent and says that the to censor basically crying wolf over this because this decision and hayman is going to have so little six minute problem with it i think it does and however the plurality leaves in this very broad language despite the dissent pointed out several times you know it doesn't include narrowing language about statutory maximum it says any additional punishment i mean it leaves in this very broad language and i think that reasoning is inconsistent with prior opinions and i think if we sort of step back and just look at the way supervisor lease operates and just kind of look at it from a fairness standpoint this operates very much like a criminal proceeding there's a charging document in the a c there's an accusation that the defendant has committed some sort of violation and he's entitled to some sort of due process rights have to have a hearing a judge finds whether he committed this violation and then he sent back to prison and in some cases like for mr infante khajuraho he could be sent to prison for three years when he for the violation when he only served thirty months for the underlying criminal offense so i think the effect of supervised release is that it really function the least for the defendant like a new criminal proceeding and i think if we look at that from sort of a fairness standpoint and then we look at the very broad language and then reasoning from the  people that are our custody back to jail without a jury making those findings i think that a lot of the decision doesn't say that it says we don't do that when it increases the punishment when it goes beyond what was the statutory maximum from the underlying conviction which is not the case here and i noted that you argued repeatedly through your briefs that the plea agreement only authorized a thirty month sentence but he pled without excuse me there was no plea agreement he pled straight he didn't have a plea agreement and so when he did that he could have been sentenced to the statutory maximum isn't that correct he could have your honor right so there was no limit that he could only ever receive three months because that happened to be with the district judg post that's correct and i think my point i wasn't clear but i think my point on this is while yes that is the explicit holding of the prologue plurality that it's tied to the statutory maximum there are several places which i quote in the brief where the  plurality does not cabinet to the statutory maximum they say several places additional punishment with no limitation and that's the broad reasoning that i think is irreconcilable with prior opinions on this issue whereas in your argument is still premature well i think as this court of the supreme court has recognized supervised release is a component of the sentence and so he is yes but yet the bins you know he hasn't been revoked or reason charged with violating supervised release r well this isn't like your own are those cases where we're claiming that his ultimate sentence would be above the statutory maximum because it's dependent upon so i think it's a little bit different richard i think it's a little bit different in that there's no facts to be found here and we know what it's going to happen and then we know that this component so we can go we know that the special condition that if he is removed from the united states that this this particular condition won't apply we know those things are going to happen we don't know that but we know how any revocation is going to operate we know that a jury is not going to find these facts we know that he's not going to have a beyond reasonable doubt standard we know those things because there is no different from us i think it because it's not dependent on the ultimate sentence that he that he receives there's no it's not dependent on any fact that's not my list it's on it it didn't turn on what you know whether the in fact the court didn't get to that issue the court said it wasn't right before even getting to the about whether the the the revocation sentence would exceed what was authorized by the statute she said it isn't right because we're talking about prospective future events that may or may not occur which seems to be exactly what we're talking about here i think the difference with lamar is he only had an argument to raise if he got a revocation sentence that was long enough to put him over the statutory max and we had to know what that ultimate without revocation sentence was here we don't have to know which then since he's going to receive we already know they're going to we don't care if he's even going to in here we don't know that he's going to violate and you're so you're saying it's just assume that he does violate in the future then there's going to be a constitutional problem that seems to pose a pretty classic ripeness problem well i think it's not assume that he's going to violate in the future but it's that we imposed that you're complaining about you're complaining about the procedures that could occur at a possible future revocation well it's an entire scheme and entire set of conditions that are imposed and the way this this scheme is governed is a judge makes these propounder and findings morning again zac how on behalf of the united states this constitutional claim is on ripe under the law in our as in montenegro decisions the when ours decision did turn on what it said was a potential revocation of supervised release at page nine of the opening brief the explanation for why there's a constitutional problem here is because infante could spend more time in custody if a judge finds him in violation of supervised release it's the same claim that this court found on ripe there's also no merits to the constitutional question under this court's where to the mental case and its progeny the hayman decision didn't change that it expressly reserved this question that footnote seven  the brief but the commentary that it did give on this supervised release provision suggested that this court got it right in where to put mental the court said that there was quote critical differences between this provision and eighty three k the one that the court struck down in the prior concurrence also says that those differences existed so you have five justices who to the extent they did address this question agreed with this court's where  mental decision and then just briefly on the imposition of supervised release the district court at page seventeen of the record properly adopted the government's and the p s r's rationale for imposing supervised release which was a deterrence rationale that is the express rationale that guidelines commentary no five at fifty three thousand and eleven dollars says that you should rely on if you're going to impose supervised release on a deportable lately and so under this court's daniels decision under the cardi decision the decision that was appropriate for imposing that supervised release if there were no other questions i would ask that this court affirm and i have to yield my time if i could just address the nd argument that counsel just raised about the imposition of supervisor elise contrary to five the one point one counsel said that the district court expressly adopted the deterrence rationale it's not actually clear which the court embraced the probation officer and the prosecutor's arguments but it's not clear which rationale the district court was embracing and either rationale i think still fails the government was talking about the government was talking crimes in general any future crimes which if this court looks of all did you know florist and domingo dominguez alvarado are all over as all over auto excuse me the fist circuit case that relies on they both are explicitly talking about deterring future illegal re entries not just attorney and future crimes in general so i think relying on either deterrence rationale is insufficient i think you know there's thank you we appreciate your events in the matter submitted at