may please the court there are three basic reasons why the chuckle camacho does not control this case the first is that intervening supreme court authority on statutory construction undermines the validity of the potential camacho p game of going to before the rule of one of the second is that because this is a multi year sentence rather than a year and a day we are concerned with the first sentence of the statute siro the agency the immigration naturalization service had a statute and they decided to about who could be deported and they plighted retrospectively had everything was in place to go l martinez the next two in again hitting the footnotes eight tells us that the in construing whether the drunk driving offense constituted an aggravated felony but there is in deciding whether the agency should apply rule of lenity the courts as well it has both criminal and non criminal applications therefore if there were that you used the traditional tools with these glasses and martinez we get the actual text saying that in that case it was constitutional avoidance for the due process problem of an indefinite detention of mariel cubans i understand you be first of all to separation of powers question if we're not sure that the legislature wanted that degree of parchment we don't give it to the department of justice to decide that question it's a question for the courts and the court resolve that to trump the chevron doctrine under those circumstances and it's not in general it always operates that way but it does operate that way where the question is directly addressed in the statu so what if you get five hundred forty you get yes he gets it's his reward for good behavior in prison no control at all absolutely they have complete control of peace misbehaved if he has misbehaved there's no in the next year or getting another fifty four days if that is the way that your presence is computing and i don't think it makes any sense the way it should be done is the person serves three hundred eleven days within fifteen days there after credit for time rather than actual time in prison are like and read it and the statute says the fifty four days is for each year served each year of the term of imprisonment i believe now the statute says for because you're going to get a fifty four year fifty four days for the first year and at the end of the first year and then you're going to compound that again because it's part of the second year of service not if what you're just ten of them and if there's ten years of imprisonment and you say that there's fifty four days for each of those charms it comes out to three eleven days rather than three hundred nineteen as the bureau of prisons is calculating  then come back and start serving his second year now if you were counting the fifty four day credit given at the end of the first year as part of service in the second here i don't believe that i believe the mc that's what's bothering the bureau  doesn't control and that is that in the first sentence where they say greater than a term of imprisonment term imprisonment of up to lie and then statement about at the end of each year of the term of imprisonment if those are the sentence but i think it's mode of reasoning not of analysis and reasoning have definitely been they've got the cart before the horse and there's i believe it's very clear from san siro martinez and locale that you apply the traditional rules of statutory construction under these circumstances and that did not happen here if you look at the analysis in the williams view moreland and white this reports and each look at the basic black letter rules of statutory construction raised the first issue in this case which is jurisdiction and the reason it's with trepidation is because as i view all all the taxpayers money being spent litigating this issue for myself mr sabin here today and i pull these cases from around the country and i'm sure the lawyers on both sides are being paid that by taxpayers but jurisdiction is one of those issues that can never be waived so i want to review as i reviewed mr casey's brief and mr sadie's breach of the day the facts in the record of this i shared and when he filed the petition for writ of habeas corpus in december two thousand and two at that time he named as the respondent and the only response in this case warden daniels he was in the district of oregon the war was in the district of oregon the district court in oregon had jurisdiction on january ninth two thousand and three he was transferred to f b i federal correctional institution at lompoc on august fourth eighteenth two thousand and four was the initial hearing and the reason i bring that up in this context is there's a statement made by mr casey at the end of that where he says well the jurisdictional argument we gave up on that what what he w submitting was the jurisdictional argument about a new warden being in charge of the respondent in this case and i'm going to get to the situation as it now exists in a minute obviously the case was last notice of appeal was filed on november fifth two thousand and three the petitioner was released from the custody of the bureau of prisons and that's important because some of the cases that are cited by the parties are from a time when a parole commission existed and not from the sentencing guidelines and as we all know the pro commission your sentence you were under if you were serving that sentence whether was in prison or on the street till the sentence was completely served three last briefing this matter was filed in april two thousand and four on june twenty eighth two thousand and four the supreme court decided rumsfeld there's this idea and in that case and i will submit to you because you've been sloppy with twenty to forty ones over the years extending jurisdiction everywhere the supreme court specifically found you've got to name and sue your custodian if you're going to bring out if you're going to bring in twenty to forty one and you must file and district where you're located  as we know from johnson persons united states they specifically found supreme court that in guideline sentence cases you're done when you're released from prison the situation as it now exists is the petitioner is  alaska he's serving a supervised release term he has not named his custodian if in fact there is one you say if in fact there is one well i'm not sure who the custodian is when you're ser supervised release term who is controlling you it's in the court in alaska or it's a parole or probation officer who goes to the court in alaska and so you you join the probation officer and send the case to alaska i think that it has to be refiled as a twenty to forty one in alaska this case is over well then you are saying if you transfer a prisoner from one state to the next and you have a different warden you can substitute one warden for the other that's not well rule twenty six that substitute probation officer an officer of the united states government for a warden who is an officer of the united states government then that's the rule well i mean be consistent place your rule twenty three says as follows ending a decision he has corpus three proceedings commenced before a court justice or judge of the united states for release of a prisoner the person having question the president must not transfer must not transfer custody to another in less of a transfer as directed in accordance with says when you finish serving your sentence that's it's not like probation i don't see that i don't see the correlation of the connection between the two and all you have to really stretch to make that argument seems to me i don't think you have to address make that  second successive attention right then to be reaching a different issue and i've never know that's discretionary i've not seen this court in force that very often because i don't you know we do quite well not in twenty to forty one's out of my district instance first of all i believe that mr camacho is rightly decided and controls in this case but if you read the cases that have been cited by the various parties it seems like the majority have said the ambiguous if it is ambiguous then sharon applies when i was reading the breach yesterday there was one anomaly that i had to go back and read again which was in mr cases on page thirteen he cites the statute in question here eighteen u s c thirty six twenty four and in his citation it reads differently than all the other citations to the statute that i've read in the cases and when i decided i'd better find out why it's because he was citing from a version of the statute in one thousand nine hundred three and in that particular statute if you look at it it says that the prisoner in that first sentence where we talk about ma receive credit and then it goes on to say a fifty four days in the amendments that the statute that we've been talking about in camacho child disappears and it now says may receive credit and it as of up to fifty four days the statute itself goes on to use shell several other times to say that he shall not get credit if something happens that i stand and change but i'm not sure that changes his mean that same way i don't have a problem with the but evidently other courts do have a problem with it and so if they do have a problem with that it's ambiguous and i believe that it was ambiguous so i guess we're stuck with that and so if you go past that and you then get to the submit to you once you get to the change in a statute from shell to may the permissive and from the up to fifty four days from the statement of fifty four days congress obviously intended for the bureau of prisons  regulations about how that statute was beat to be applied and if you reach that and it's ambiguous then the chevron deference applies and the bureau of prisons has set out the rules and regulations about how the statute should be applied and under chevron should be given construction i suppose you have to go back to the rule lenity and whether this was a criminal statute or not i would think that would be a starting point and discussion of that or are we really talking about the calculation of a service of a sentence and i suppose that is the basic criteria on difference between the rule of lenity it is my understanding that the rule of one of the applies in criminal statutes and i think you have to kick off your discussion from there is it a criminal stature isn't a criminal statu i think it is appears that the court said that it really isn't otherwise they wouldn't have gone to the government deference or it is a combination of both but it is not clearly a criminal statute i think that's where you have to start your discussion whether i can  are not i'm not sure but if you ask me how do you get there i think that's where you get to end and obviously there are a lot of judges that have reached that conclusion before me or else we wouldn't have these cases like the seventh circuit recently decided their case and reverse a district court judge and as a last as i said i think the statute is clear but if we have to go through the issue of it's not clear i would submit the changes in the statu if i could start last place first this a penal statute in title eighteen crimes in criminal law that's pretty good hand tells us how long somebody's going to spend in prison it's another good hint and the three supreme court case decided on page twenty eight  of the rule of interest actually consistency arguments and then decided well you can make a different construction of that third usage and basically went straight to the straight to deference so instead of doing the proper analysis where you would first of all apply in three step directions consistency which you can easily do in this case just call a term of the underlying arguments are much the same but to the extent there is any change of course it could not apply retrospectively to the disadvantage of the petitioner because of the ex post facto class and it also shows how strong the direction was about congress to saying how much time you get not your prisons on the jurisdictional questions but the i believe is in new york and then we had the brig in south carolina you didn't  the last one i'd like to make is i'm really concerned about the concern expressed by of the windfall that is supposedly occurring for these prisoners and i would refer the court to the moral and opinion that is not a situation where they're trying to get something for nothing is a situation where the trying to get the time that this congress authorized at the full amount when senator biden said eighty five percent of the term he used the ten year example