he's the court congress required that the bureau of prisons provide residential substance abuse treatment for all eligible prisoners beginning in one nine hundred ninety seven congress also provided a specific statute defining what an eligible prisoner was someone suffering from a substance abuse problem someone willing to participate in residential treatment in two thousand and nine for the first time the bureau of prisons initiated a third criteria that third criteria was that the person had also to be eligible for community corrections at the beginning of the residential problem program this additional criteria eliminated forty four percent of the bruce in population from possible eligibility for residential treatment shane abbott suffered remedial injury from the application of this rule he lost any opportunity for a sentence reduction he lost any opportunity for more than six months of community corrections the addition of this right furia violated the plain meaning of the statute unlike mclean where the court was construing thirty six twenty one to which involves may this case involves thirty six twenty until third criteria in addition to that the statutory violations also violated rule seven zero six there was no notice that this was the type of change that was in two thousand and nine there was no adequate notice there was no reasoning whatsoever there was not even clearly stated that this huge effect on forty four percent of the prison population was even occurring it again in terms of the bureau of prisons rule what is the third rate tyria literally the literal third criteria is that they have to be eligible for community corrections at the beginning of the residential program and that third grade shiria is set out in the program statement  treatment or is it necessary to get a sense of the critical distinction with mclean is this is for participation in the program at all if you can't park just that in community corrections you cannot participate in the treatment programs never mind the sentence reduction so those are two separate things this is the innovation of two thousand and nine because now maybe i'm confused a little on the facts but eliminated any chance for him to obtain the sentence reduction or more than six months of community corrections separately from that the bureau of prisons on soley the sentence reduction said that the kidnapping criteria for prior conviction exclusion applied to him we tried to raise that issue because we wanted to district court have the first shot at correcting that and that being held that you know this is an individual discretionary decision and under review there was the relief would be the same as in a whole slew of the r dept cases where he is can be partially remediated by having under thirty five eighty three he going back to the district judge and say look i did not finding that his and his rights were violated in the court think the rationale from johnson and the other cases are that where there is a finding that the person had his rights violated during the service of the sentence and as a consequence over serve the sentence that that is the type of finding the true choir to provide this acquittal considerations of great importance johnson talks about as a reason for the reduction here the  would be asking for it would be a grant of the rich declaration that his rights were violated by both the delay and participation based on the additional criteria and that any of that and that it for the sentencing court should take any further action there is a limitation to thirty five even that doesn't have to serve one year of supervised release before you can ask for the reduction so it wouldn't be as initially because of the war because if they're saying that it's a lay was caused by the germination that he was eligible for the sentence reduction as opposed to participation then there would still be an active issue that we would be that ok so you're not relying on that those are the two changes that occurred that changed the factual flooding of this entire case but then there was a determination as i understand it that he was just qualified because that montana conviction that's correct initially he had been denied are kept in mission and that was because of these outstanding warrants ok and and then later on when he was granted admission into  data then a review was done for early release eligibility ok so is opposing counsel right then we nice we still need to rule on if if i'm understanding correctly or at least you're certainly not conceding this issue about actually been quashed prior to the case even being filed at the district court level and so the other issue that occurred was the realization that this new memo which did not exist at the time when the plaintiff or petitioner was first reviewed her art that it came into effect a few months after the test so it was not in place news for from you however it wasn't place when he was reviewed finally by our doubt it just was the delayed issues and this goes also to miss and some of the difficulties the court would actually have in trying to rule on these earlier claims or filed in the original brief to this court that that was based on after a fact so now we have inaccurate facts we knew this entirely new position and so in order to review those those claims that were submitted it would be a lot of guessing a lot of speculation if that's something that we could have to terminate way or early on that may have changed the entire face of this case that was not brought to the court's attention at the time of the baby's petition filing or any time during the district court proceedings and so where to point the actual blame for delay and what cost it could be based on a several different factors there are so many different factors even if you had been granted our definition at the time there's no way to be certain when he would have started how much time would her main as you know he already did to complete our debt program and was given six entire months of c c c placement for transitional purposes which has been deemed appropriate for most inmates his argument is there given to complete the program a sentence reduction and he's not he lost out on that even though he completed the program and it's sort of this represents some what we're saying that he didn't get this early due to his inability to complete c c c time this is again based on he initial brief but that is not correct he was not denied early still be shortened first chance your expression your honor it's important to point out that well first he does have i believe three years of supervised release and that he he certainly has the opportunity to go to the court and that's to reduce that amount of supervised release and there are many factors that go into that beyond whether or not he was not given a certain amount of early release time from our that program supervis involves all sorts of factors and purposes that differ however and it also in response to your question if there is a standard you are saying that if you do decide that you are able to review the determination that the earlier wrote about regarding early release that evaluation has to be considered in the framework of the a p a they are trying persons standard it's not whether or not unlawful restraint doesn't equate to kidnapping the question of whether you use is to compare prior offenses and the u c r definition when you apply unlawful restraint will lead you to the category of kidnapping and that's considered a group offense where on lawful restraint is categorize this is found in the record and when you compare those elements to the montana statute they are nearly identical in fact if you go back to the montana statute which i believe petitioner has issues with the word restraint on the elements of the those two crimes that's to the extent it's a lesser included by definition it's missing you know and it's missing something well what it's missing in montana in far as the kidnapping statute goes are the elements of being secluded in the secretive place or the threat or use of force and if you compare that to the u c r definitions those are not required and that is what bureau of prisons do they require they compare the montana statues the u c r definition restraint definition does match up they equate and so does the kidnapping statute there's a reason why the bureau of prisons and i think i am of him but there is a reason why the prisons allowed both felony and misdemeanor say i asked one judge a cool mike my question for the government attorney is whether or not locking somebody you know room without their knowledge would satisfy the elements of unlawful restraint under montana law locking someone without their knowledge is the person walking in the room unaware that they're locking them in the room the person is in the room one person is in the room and somebody else locks the door intentionally and the person in the room doesn't know that first of all the new memo page the further exit records one sixty one basically is the adopting the exact same ordinarily standard in seventy three ten point zero four that was always in effect to the facts just don't matter why the person isn't in a community corrections the problem is if you can't be in community corrections for any reason you should be eligible for the program should have started right then third at york to fifty six not three years it's five years of significant benefit for him and fourth as far as the u c r the term that was adopted in the regulations is simply kidnapping kidnapping has a generic federal meaning we have