good morning i'm john rhodes i'm from the missoula office of the federal defenders of montana i represent pat le guen the imposition of the revocation sentence here violated double jeopardy by imposing a multipl which clarified that final sentence includes any sentence imposed upon revocation of supervised release and i think that's particularly important because the supreme court's supreme court has clarified that when a revocation sentences impose life time supervised release for the receipt of child pornography what's what's the authority with you know a revocation hearing for the district court to reach back and to vacate one of the one of the one of the convictions it's the double jeopardy clause and i think that's a real one right there and you have to read it but even with the constant with other you know with constitutional rights you have to look to do a procedural mechanism otherwise at any time you could go back in and vacate a sentence and that's not w the district court could say ah we now know under davenport and under this recent supreme court case that that one of these convictions is this therefore we need to vacate once a conviction a vacated yes if it's not and that you think that that's permissible yes and it's not a discretionary decision it's mandatory because what the district what janet says that it's mandatory that's a real red herring in this case the idea that there has to be statutory authority for the courts to enforce the constitution that's why we went back to marbury back to mccullough versus marilyn oh there's no you know twenty to fifty five is just there for looks well would be there for looks if there was no revocation p five you know it is based on a concept usually it's based on a constitutional violation allegedly you know raise ineffective assistance of counsel typically twenty to fifty five yes but it's the revocation proceedings that provide the revocation proceeding and then proceed on the other why isn't that sufficient to avoid any double jeopardy harm so i advocated for two remedies two avenues for relief st being the double jeopardy problem alternatively both myself and the u s attorney's office advocated for terminating either sentence either term of supervised release in the district court refused to do that that would get as to the same bottom line result and go ahead as of the didn't discard do that because it was a reading reading it as the conduct of the senate and in the interest of justice yes my my understanding of the district court was just that your honor that the district court looked at the violation conduct may be reaching back to the underlying offense conduct and didn't feel that the interest of justice which as you know is the governing standard to terminate a term of supervised release didn't feel it was appropriate here which i was actually advocating under a characteristic standard as well as protecting the public promoting respect for the law the need for rehabilitation that certainly if such a fact should mr le guen be back before any court that the court would be free to consider in terms of imposing and fifty three a the general sentencing statute which again judge burgess you're intimately familiar with there's nothing in there that says constitutional protections apply congress has mandated that it's the bill of rights and it's the court's job to enforce the bill of rights and this idea that somehow the statute doesn't permit it therefore there is no avenue for relief then none of the bill of rights would be enforced because when you look at the th th th and th amendments there's no remedies in there those have all  recognized as necessary to enforce the substantive rights and that's what's happening here and i would like to note that this court in waiting and in her earlier in my opinion anticipated what the supreme court said and he meant that the final two terms of supervised release they are separate and distinct so let me ask you this i understand your argument and the time the sentencing in this case davenport had not been issued ok actually davenport had issued them at the time he was sentenced yes sorry take that back to issue the next month he was sentenced in february davenport issued in march you're correct your honor sorry was not it was not on the books when he was sentenced correct do is to remand to the district court tell the district court vacate one of those sentences convictions and then proceed on the other correct that's what you want us to do ok and the procedural statutory basis for that is what this court statutory appellate review and again the double jeopardy cla to point out the government saying there's no practical consequence while there is here he's going to lifetime terms of supervision he has to register as a sex offender so anyone that looks him up will see he's serving two counts of conviction which has incredible social stigma there's twenty six conditions of soup of supervised release he's serving dual conditions which gets the flipside to that point here at a practical level the double jeopardy clause will be enforced and the bottom line is relief you swimming against the tide in both simmons us and the castro case that we've cited in our briefs those cases stand for really a two part proposition number one the defendant cannot use the revocation process to circumvent the procedures in twenty to fifty five that he is seeking to do here and secondly that the district court should as symons court stated consider the underlying convictions valid for the purposes of the revocation so that final pronk of this case law the governing case law of the circuit really undermines the defendant's arguments here he is arguing in i don't really understand completely how or why or how it fits together but that somehow the double jeopardy violation carries forward in the revocation proceeding if the district court properly considered the underlying multiplicity this conviction and that is the possession conviction as ballad completely undermines his argument that there is somehow some carry over well the imposition of  supervised release is part and parcel of the original sentence yes it is but as as the court has made clear underlying constitutional issues in in the sentence don't carry over in the supervised release revocation setting that that was the case in in simmons in sim is the the defendant was basically arguing that he was coerced in his confession would have been basically an invalid waiver of his right to counsel and the court said in that case we have to in the revocation proceeding do with the district court did here which was treat that underlying conviction is valid now in this case clearly judgment boys understood that there was a this problem in the underlying conviction i mean the district court brought that up and he was completely aware of that and that's why he only sentenced the defendant to one term or one revocation on count one and not two revocation so he avoided any harm to the defendant in this proceeding that would have carried forward from the nd conviction but that's just judge malloy is practical solution to this problem by calling in along and says hey i disagree i'm i'm glad i'm going to vote on both of these and i think that could be a problem for a later day obviously your honor and we do think though and i think judge moore touched on this  that would be a case where the district court would have to deal with that in the revocation proceeding itself in other words it's still couldn't reach back and vacate the multiplicities conviction it would have to address whatever harm the presume exercise its discretion to terminate one of the terms of supervision and you're not opposed to that we didn't oppose that in the district court because we thought that was a practical solution to this appeal which really has no impact on the defendant whatsoever at this stage given the district court's wise ruling however the district court and as it points out in his ruling i think was well grounded in the statute to say well wait a minute you know three thousand five hundred and eighty three really does state that i can terminate this term but that it has to be justified by the defendant's conduct and if you look at the defendants on the in the interest of justice and in the interest of justice and given the defendant's conduct the district court exercised its discretion not to do that as an initiative justice to to correct this double jeopardy problem i don't see that there is any interest of justice in that because it has no practical effect on the defendant in any in any way and in this proceeding obviously the district court  this case from some of the precedent which we think is controlling here he suggested supervised release is treated differently this court in castro cited a number of other circuit cases several of which deal with supervised release revocation so that's not a distinction this court has unpublished decisions they're cited in castro as well that had to do with supervised release revocations also the constitutional sort of dimensions of the problem here don't distinguish this case as i mentioned earlier i think simmons stands for that proposition and finally we don't see that the human case really alters or affects five in a revocation proceeding or to otherwise treat the underlying conviction as anything but valid if the court has what was the well let me ask you what was the conduct that was  sordid allegations but some of it had to do with frequenting at all shops and associating with young people in the community and creating what the probation office that's the kind that judge is referring to yes and i think so some of the conduct related to creating some relationships that that took the defendant outside of his treatment program there was other conduct as sexual in nature that was not the basis for the actual revocation it was dismissed in the revocation but i think the court fairly considered the entirety of the conduct to be presidents is that the district court has some discretion to deal with problems as they arise in revocation and that discretion is contained in the statute three thousand five hundred and eighty three and we don't think the court abused that discretion s i think a suggestion our part that simply would have avoided this appeal and any controversy involving this issue because the defendant is clearly not impacted in any way by the outcome here ok says castro verdugo the person the defendant was challenging the district court's jurisdiction here we're saying it's the revocation sentence revocation proceedings that creates the district court's jurisdiction in this idea that this is a problem to be left for another day the supreme court in this court has been very clear that collateral consequences that are subject to anticipatory events can violate double jeopardy so this idea that there's no practical fact in any way to serve two lifetimes terms of supervised release st of all there are practical facts like i said if you're a registered sex offender the community is going to know four important