counsel please the court my name's brianna a cocky and i am from missouri montana here on behalf of the appellant cian white through appointment under the criminal justice act this is both my first revocation case and my first argument before the ninth circuit so i apologize in advance if my nerves show through a little bit  so after kind of careful consideration of all of the papers that have been filed in this matter as well as as well as ob been case law the primary issue we are here to focus on today is whether the five months that mr white served on home confinement as the result of an eighteen united states code section thirty five eighty three efore order must be considered a term of imprisonment for the purpose of determining the maximum time available on supervised release onder section thirty five eighty three sub age the second issue i would like to discuss if we get to it is whether the court is required to determine credit for time served awaiting sentence of revocation in order to properly calculate the maximum term of supervised release under section thirty five eighty three age as to the first issue i really want to focus on deprivation of liberty not some antics of when a b o p term starts or if your feet are inside of a b o p facility or not i think really what what the a geisha in principle found in the previous protect act  stands which makes it clear that the term imprisonment notwithstanding is not the fine does not include home confinement well i think that this is a this is kind of the crux of the argument is that we have to make the four and age hang together and we have to make it all make sense and realistically what happens here if we go with that interpretation under the current interpretation by the district court the same deprivation of liberty that mr white is suffering is being treated differently depending on which side of the ledger it falls and by ledger i mean you know night night makes it very clear that there are two things where for that we are to get credited credit goes into place on revocation first it comes off the maximum term of incarceration that that may be served on red revocation in our case that's twenty four months second night tells us that the that the credit also must come off of any time served him well come off of the maximum term of supervised release which in our case is thirty six months so thirty four five eighty three he referred to home detention as an alternative to incarceration and isn't home detention a condition of probation so why does it why doesn't that just dispose of the argument well because that argument treats the same exact deprivation of liberty two different ways under the current interpretation because he was mr white was given less than eleven months if he had gotten more than eleven months all of a sudden that same five months that he served would be treated differently because it would be see here with your equating their home detention and incarceration which are two very different levels of restriction for an individual indeed that's true but this is this sits in efore order is what i want to call it because it's not really a modification and it's not really a revocation it's a hybrid of e p two any three and so efore order sits in place of incarceration because the only option that you would have would be revocation imprisonment if it were not for the for and i think congress made clear that they want you to have credit for those deprivations of liberty by using the phrase as an alternative for incarceration and that's the way it's also treated under the guidelines so it appears the sentencing commission also picked up on congress's intent that we focus on the deprivation of liberty rather than the semantics of when supervisor lease begins or ends or if it's a condition or if it's not it's still the same person serving the same amount of time and even the government because the only thing that's stopping you from going to prison is efore and that's home confinement which is a much greater deprivation of liberty than community confinement or some of the other things that are comparable as conditions of probation or supervised release the government even concedes that home confinement is much more severe deprivation of liberty and it's papers that quote restricts the defendant's liberty perhaps more than any other discretionary condition into this kind of weird situation is is making the four and age mean something all of the phrases in those statutes have to mean something and any time served in incarceration or an alternative there to cannot exceed any maximum term of imprisonment on revocation so it's clear from ferguson and boy her that home confinement is to be considered imprisonment for aggregation purposes and so therefore that one side a ledger was credited the maximum term of incarceration that can be served the other side of the ledger must also be credited though the maximum term of supervisor lease must also be credited and under night this time must come off both sides of the ledger in shane's case that wasn't done he was only given the credit under the incarceration maximum incarceration portion of his sentence and so under the current interpretation the the same deprivation of liberty as i spoke about earlier is being treated differently depending on if he was given eleven months or good morning your honour's leave johnson for the and for the united states and meant please the court our position here is that thirty five eighty three sub h should be read by itself and under the plain terms of that prison institution incarceration in a penal institution and secondly we take issue with the fact that it could have occurred here that there was a that there was a that the modification didn't occur pursu the statute because it was imposed upon a modification of conditions not upon rep revocation as required by the statute and i'd like to address each of those issues very briefly first in this court's prior decisions  an incarceration setting perhaps the best decision discussing that is united states versus phipps a seventh circuit decision by judge easterbrook in which the court was considering whether or not the defendant in that case got credit for time served because he was serving or he hadn't understood arge to term of home detention from a state court proceeding and in that case judge easterbrook looked across the guidelines and said you know term of imprisonment does not equate with home detention within the meaning of that word as a whole and the court concluded that that phrase has a particular meaning and it means sentence in an incarceration setting with guards at the door and behind bars that is the common understanding or the common meaning of the phrase in the guidelines context well i think can be used as can be used i mean people are often given eighty three two or four i'm assuming it was to your honor because it was a modification of supervised release pursuant to us guidelines section seventy one point three  of conditions under thirty five eighty three he who is the quote i have come incarceration yes but you also are going to need to look at thirty five eighty three age to do that and five eighth the fourth tell us that home detention is only applied as an alternative to incarceration if done under that section get done under that section exactly and what it tells me is that i mean one way of eating that who say well in other circumstances are equivalent but when done here they're not equivalent they have to go out of their way to say the two are not equivalent to make an exception to the general rule that's another way of leading foreigners and that in a way that's not helpful to you well that is another way a reading for but again we want to ask the court to also look at some h which requires that the home detention be applied upon modification  and that's actually fairly significant i think in the reading of that provision which part of a show you're very so we're looking at h at the very end which states that less any term of imprisonment that give rise to credit under this provision and that probably i think augurs towards our larger argument that a form of that but that's just the two things are not treated the same and then we knew we should limit  hoovering to what two means because h suggests that maybe the cons were yes yes or the court could simply rule i think consistent with its prior cases that a term of imprisonment does not include does not not support you bought argument that home detention always is different from incarceration in fact it cuts against that why that argument we think that the five a three h support imprisonment itself never includes home detention because home detention doesn't give rise or can occur outside of the monica modification context that is it gives rise to an ambiguity of the statute if you read it that way if you read term of imprisonment to only include prison as judge easterbrook says within an incarceration then upon revocation would always meant well but by then they would not have had the phrase sense when you read that in context with the other guideline provisions this court has discussed we just don't think term of imprisonment includes home detention for the purposes of this provision but granted if the court were willing to go down the road that we've discussed that the term applied under sub to here then obviously it wouldn't be subtracted in this particular case because it was not applied upon revocation so i think we're talking about two alternate ways to reach the same result in this case we think term of imprisonment consistent with the hague or decision and the polydore decision never includes these substitutes for actual incarceration and counsel if you want to say anything about the other issue credit for  thank you may it please the court i just want to briefly touch upon so age and that the time is only counted if it's upon revocation this sentence was imposed under the four the choices to mr white were get revoked and go to prison or under if or we're going to do a de facto revocation modify put  be what would best be done with mr white because he was having quite a few issues on supervision and so he was going through drug treatment issues they wanted to keep him going to his counselor as well so they kept him on home confinement rather than sending him back to prison he was also scheduled for a back surgery right in there and i believe they wanted him to pay for that so that's part of the reason why they kept him out  and and if you'll notice this is a probation form forty nine it was a court request to modify the conditions with the consent of the offender and what they did was exactly what you four calls for you  for modifying the conditions that one yes ok it's requested eventually was for signed obviously and where where in that form does it say thirty five eighty three eighty four it doesn't say efore or two but when you look at what happened he was either going to get revoked and go to prison or this was going to happen and that's exactly what  actually do have occasion for that some of the judge could have decided not to do either of those things and pose some other condition the judge made a choice and the choice was to modify