judge douglas skins for the district of columbia circuit he has sat with us before and has really helped us out in the process and we are very very happy that he has agreed to join us again  y so will give you a warning at the designated time depending on when you've asked for your rebuttal time and with that or almost ready to begin if we take you crampton communal conditions of confinement coupled with purvis of health problems have proven to be a deadly combination as a result over a one thousand federal prisoners have received compassionate release d of the last year while many federal courts have risen to the challenge the district court here fell short mr cook is an african american male with obesity hypertension diabetes and waiting to burgle o c s after the virus permeated his prison work continues to rage to this day he went to federal court pleading and fearing for his life the district court could not have been more dismissive without waiting to hear from the government and without even mentioning that can damage the district court issued a one sentence concludes read denial saying that mr cook's agent elements were not extraordinary in comp reasons for reduction to time served the fundamental problem now on appeal is and we don't know what that denial means or what the basis for it was for starters we don't know that this was an eligibility or a discretionary denial that ambiguity alone then the court moves to consider whether three thousand five hundred and fifty three dollars day warrants a reduction that's how most of the courts around the country have considered this including the th circuit in jones and that i think is how the sentencing court as sensing commission has understood is your contention with regards to how we have to interpret that language the extraordinary and compelling language in the statute well you're right i'm not i don't want to fight the hypothetical but i don't know that that's  served and if it was the latter then that's really a discretionary ruling that goes to the d length of we're dutch but as to the court's question extraordinary compelling in how we interpret that i think it's a mixed question of fact a lot the court you know w questions about a prisoner's medical conditions about the conditions of confinement about the current situation with the pandemic and those are factual questions and that whatever the those facts are do they rise to the level of extraordinary c accept the government's insaf you might have said a bio mass index of thirty six just isn't enough for me i don't know i can't really know whether it was because of obesity whether anything about things or or anything like that and looks to me like he went off on the reasons and said taken together they were not enough isn't that the fairest way to read what he would say and if the answer to the question is yes he he it is how do we separate aside and say he couldn't reach the itself a problem and the best way to resolve it is to send it back and ask for it but more recently now if if the court met if the district court met what your honor just said i think that of course the government is conceding the bat is wrong and i think that's a legal there he's got a tier one c d c risk factor with obesity courts around the country are almost unanimously recognized that the combination of the pandemic and the tier one c d c respect like obesity together are extraordinary and compelling and it's really real start a whole host of preexisting medical conditions can create really adverse situations for people who are exposed to the covert nineteen fires so what leeway  leeway there but of course in this situation there was no competing literature there just the government didn't even file a response in this case and i think what all the courts is really is looking to the c d c because the c d c is the a more institution on this and it puts out a cat it on its website there's two tiers of at risk conditions the st year as about a dozen conditions that the c d c has determined do x to create serious risks of severe illness from the virus and then there's a nd tier with conditions that may create as a risk of severe illness and so that's what courts have been looking to now where there is another condition that's not on the list that it gets a little trickier and factors and mr cooke basically also has type two diabetes which is another tier d one factor if you look on page five of exhibit one of our motion at the bottom it says he's got and you want to see level six three which is just shy of type two diabetes and that was  indeed the extraordinary and compelling circumstances language in the statute implies a degree of discretion now our position as the government is that obesity qualifies here because it is a tier one risk factor under the c d c s guidelines and we believe that under the policy statement it limits cook's ability to provide self care in prison however the district court may have thought and appears to have thought here that just because it qualifies it is not necessarily extraordinary and compelling there could be some space between the st and so in line with the problem  m s i just take it on its face and say he didn't climb any of these conditions either alone or in concert to be extraordinary  in this case but i do upfront want to acknowledge i mean the government of course understands that this is a two sentence order and it could be beneficial to have more explanation in situations like this but just to briefly explain why we think it's not necessary to remain and in this case i think it's important to remember that this is the same judge that sentenced hook originally and you know we have niece saying that you know when you have that situation that's the same judge you can look to the record and if it's clear from the record why the district court made this ruling you can consider that and i think when you look at the sentencing factors that the district court considered at the original sentencing media went through an exhaustive analysis and it's very clear that the court was concerned about danger to the public mr cook has quite serious mental illness the court focused on that he also has a recidivism issue the court focused on that i mean the court said expressly at sentencing someone could get killed and even mr cooke's defense lawyer at sentencing agreed that there's quote no question he needs to be in prison and he needs help so i think when you look at the record as a whole combined with the district judges statements here it's clear and it's also important to know that  determine what the reasoning was so in this instance it would be the court's decision on the passionate release motion and the record here supports the discretionary denial and again and says in concert so you seem to suggest that i should read this is saying he went off on those other reasons rather than is finding that these ailments were not enough that's my heart i just can't don't believe you're misstating my view and as i said we recognize this is the two sentence order and more clarity could be beneficial and if the score would like more clarity and would like to see  just frankly the government will not object to that i had a good and i do think that from the record as a whole combined with what the district court said here it just jumps out at them from the record that mr cook has not be released and given his considerations and again the question in toward my opposing counsel suggested that you know overall this is a discretionary determination and even though the government concedes that obesity qualifies as something that could be extraordinary and compelling these are important and need to agree i mean there's some degree of discretion so again overall i think that the record supports this but of before would like more explanation i mean we just we don't object that here's here's one of my concerns to play devil's advocate on the other side they still sell and that is that we're certainly aware of the government's position with language or some more discussion understanding the government's position maybe even to say i disagree with the government's position and obesity is not an extraordinary and compelling circumstance alone or in conjunction with all the other elements i would be much more constable waits with enough firm and if the district for the reasons you state it if the government had been able to respond and we knew that district court at least knew government's position again to play devil's advocate it wasn't aware of the government's position because you weren't given your time to to respond to this trick were ruled a couple of days before your time ran so that's at least one of my potential concerns and i don't disagree with that i mean i think that ideally in surgery situations like this it is helpful for the government to have its position on the record again i think that our position on appeal is simply that the record makes it pretty clear what the problems with releasing mr cook are and why the district corps thought that at least in the past a nothing mr but decided in the sight of nothing that changes that i mean he hasn't presented any evidence that mental illness is gone yes and printed presented any evidence that he's no longer dangerous so g along the way let me just ask one other question what's the government's view of hypertension and that being an extraordinary circumstance if the of the c d c has said hypertension doesn't necessarily increase the risk but it may and so the government in hypertension cases has evaluated those on a case by case basis across the country in some circumstances the government may agree that hypertension is an extraordinary and compelling circumstance but it has not agreed in all cases and we didn't take a position on that here in this case simply because we do believe that obesity qualifies as an extraordinary and compelling circumstance and so mr cook makes it through that door here but the government's position we value a hypertension on a case by case basis on the standard of review in these cases we have thought about that i would say you know we as the government obviously we think that the policy statement remains binding on district courts you know we would say obesity qualifies as something that inhibits a prisoner's ability to provide self care in the prison set in we would say that is a legal determination however it may be that even something that qualifies under the policy statement a district court might not need to accept that and so it could be still a matter of discretion whether even though  qualifies under the policy statement criteria the district court may still have discretion to say whether he thinks that is extraordinary and compelling so at the end of the day i do think it's an abuse of discretion review i think the court you know in determining what medical condition the petitioner has that could be a factual determination subject to clear error review you know if if the per prisoner says i have hypertension but there's simply no support for that that might be reviewed for clear error but ultimately i think this is a discretionary ruling but that is an interesting case is that question that hasn't been flushed out in the briefing in this i believe in this case i mean i would not agree that the district or abused its discretion here at most i think there could be a rematch for more clarification but insufficient detail and that's where the government you know we acknowledge that more reasoning could be beneficial again given the whole record we don't think an abuse of discretion happen objection to sending us back and it seems to have been a waste of everyone's time here this is these are life and death circumstances here we're not asking for much we're just asking for the district work to provide an intelligible reason for its ruling so that i can explain what happened here to mr cook and it is incredibly frustrating as a lawyer not to be able to tell my client like you lost a properly filed compelling compassionate release motion especially where the stakes are so high with any degree of confidence whether you will receive the ransom was not here extraordinary compelling whether there was something else in the background that may or compound the district cour its position maybe it would have given more reasons but at the end of the day we just don't know and so i think this court cannot fulfill its role hierarchy here where we just don't know what word we're looking at here so if the court has no further question we respect