good morning your honor may it please the court my name is jennifer wellman i represented some hope cam in the proceedings below i too would like to reserve two minutes for rebuttal and hopefully make two points this morning the first is denying early terminations absent a showing of change of circumstance runs afoul of the plain language of the statute as well as the legal standard for early terminations motions second the record as a whole  not explain what the district court would have done had it applied the relevant factors to the proper legal standard were asking the court to remain and so that the court could do so how much time is left at this point was five years and we filed the motion after he had successfully rehabilitated in the community for approximately four years a portion of that time was when he was early released from his incarceration assuming he didn't object to the length of the term when the judge originally set it nor did they file an appeal saying that the length of the term of supervised release was unreasonable you have represented him at sentencing i did not object to the length of the term of supervision because in my experience when there is a restitution order in particular unless the probation department is on reasonable in its assessment of the facts and  term recommended we defer to the court in that regard what we know now that and at that time we don't know what the future holds what we know now though is that he has been consistently paying towards that restitution for the past four years including when he was incarcerated still quite a bit in the rear so right there's no two hundred seventy thousand dollars on the original rights to in judgment he does still restitution your honor but the judiciary policy incurs says that that is not a barrier to a motion for early terminations in fact it's sad that these should be encouraged after eighteen months and if restitution is owing in the person has paid consistently for the last twelve months then that is that's a good fact that's not something that should go against the motion itself yes i'm a little confused about that because if it if it is a punitive justification for the length of the supervise released term in the first instance and you mention that you didn't object because you knew we had substantial restitution to pay and that at least going forward five years seem like a reasonable time to let him get that paid he doesn't have it paid he still owes a substantial amount and yet says he claims that it was somehow what unfair and reasonable for the district judge to say i'm not terminating supervised release yet the restitution hasn't been fulfilled i think i understand your honour's question i think that misstates what we're arguing what we're arguing is that if the district court judge had applied the facts that had been arranged the non frivolous facts and arguments had been raised related to the proper legal argument perhaps your are your honour's assessment is correct but we don't know from this record whether the court balance that fact under the proper legal standard the judge mentioned it did need in the denial it was a reason denial and he mentioned the fact that restitution had not been there was a substantial amount of restitution outstanding he didn't mention it but he mentions it in the context of the standard that was really urged by the district court i mean i'm sorry the government in their pleadings below and i urge your honor to look at e r fifteen through sixteen so it is meant to judge at your four five pacifically that kim has complied but has not demonstrated exceptionally good behavior that would warrant early termination and then that's where he mentions the restitution payments in terms of substantiating back conclusion or in that terms of that standard and next he says that kimmel so as not demonstrated a change of circumstances that would warrant early terminations and again in assessing whether or not there was an undue hardship in requiring continued supervision he mentions the restitution payment the government cites the oak decision with respect to this decision but nothing in the decision stands for the notion that the that restitution without more if you haven't applied the right standard is sufficient and i think  motion it stuck itself before the district when i looked up the case was actually based on an argument that the last figure was in correct and so that was what was before the court when it looked and said and it applied the proper legal standard and under the proper legal standard the facts warranted or did not warrant the belief or finding that he had abused his discretion different from their hear over defense objection  the court adopted the government's argument that thirty five eighty three gives the statutory authority to grant early terminations but that it is very limited it should be the exception not the rule and then immediately the air after gave this block quote from miller which is really from lew sure with respect to change of circumstances and what this court has made clear both and banbridge is that if a district court applied a rule that said it's essential that a person like mr kim has to show a change in circumstance to warrant relief that that is a that is an abuse of discretion a change of circumstance can be a factor but it's not a prerequisite and yet the government in this briefing made that argument again i urge your honour's to look at fifteen to sixteen they make that they say the statute itself gives the authority but it it's the exception not the rule and then they quote miller and then they apply all of the facts that we had raised although they do not dispute all of the facts that are in favor of early termination and say that it should not be granted in this case i'm not asking your honour's to assume from silence that the district court applied the wrong standard my point in telling you about the government's brief as that i think it clarifies exactly what was encouraged and without very much elaboration the court adopted the standard adopted by the government and in fact in its answering brief the government actually it's not warranted because there is no proof of a change in circumstance the statute is the authority but it's also the leakers legal standard the standard is whether or not the conduct of the accused and the interests of justice warranted relief and as the judiciary policy points out there is a presumption early termination after eighteen months we do not as suggested by the government say that that confers an entitlement or a right but it is one of the non frivolous arguments that were raised before the district court that are not addressed in his honour's order our second ground for relief is that the explanation itself does not address those relevant factors relevant to the legal standard and in that sense is an insufficient explanation that warrants remain and the duty to explain i believe the parties are in agreement the duty to explain our decisions  congress and the sentencing commission and well you know but that would be that would be much stronger evidence that it would be from a guide to judicial policy i'm not sure i understand your honour's well if congress had said something about a presumption of eighteen months that that might be much more powerful or maybe even the sentencing commission that said something this isn't our guy judicial process i'm trying to figure out where this comes from well consumption in favor of recommending early termination and you want to cite the policy to the district judge and say you've got to come up with some good reasons otherwise you have to let my client out after eighteen months if i understand your honor's question i think how you phrased it makes it sound like i'm saying that the policy gave in and title meant to relieve i'm not i'm trying to figure out where the presumption comes from i'm not sure where they came up with that language i think there has been a push i think it's reflected in the article we gave to the district court judge there's been a push to this is does this come from probation maybe there is a probation guide that also supports this that herm's of wasting so those are those are those are binding on the district court no but under thirty five eighty three it incorporates thirty five fifty three a factors that say policies can be taken into consideration and i think this court's decisions that embrace  the miller idea in as a factor as opposed to the standard say that the courts enjoy great discretion and can and can address any number of factors however they cannot including policies but they good morning marie dalton for the united states may it please the court the district court properly exercised its broad discretion in denying the defendants motion for early terminations of supervised release it identified and applied t correct legal standard and neither said that undue hardship nor extraordinary conduct wrecked with it the defendant obtaining this form of discretionary relief and said the clerk looked at the particular facts and circumstances of this defendant including the fact that restitution was outstanding and that the probation in this case was narrowly tailored to address this defendant's financial risks and the need to maintain that restitution payment and in doing so did not abuse its discretion in denying the defendants motion i want to start with restitution here as the court said an imp thirty five eighty three a judge who is determining whether to grant a defendant's motion for early terminations of supervised release is required to look at whether restitution is owing to a victim in this case there was more than two hundred two hundred seventy thousand dollars of restitution still outstanding and owed to those victims and i think in this case this defendant poses some interesting risks and non repayment of that restitution that the judge was particularly concerned about if you look at the p s r which was attached to the fender and opening motion its motion to terminate supervision early the r specifically identifies the defendant said to this judge at sentencing the reason why i committed these longstanding and repeated financial frauds was because they could not keep control of my personal finances i incurred substantial credit debt and because of that i had to steal the identities of my client open credit lines in their names in order to pay off that debt the judge recognized that risk at sentencing and in doing so crafted a judgment that included several special convictions of supervision all of those conditions relate to the financial risks that this defendant posed they said things like you can only have one bank account you have to deposit your check into that bank account and all expenses out of that bank account and your probation officer has to look at that bank account and make sure you are balancing your budget and also said things like you have to pay ten percent of your income towards restitution so faced with that when this defendant came out of incarceration and went on to supervision the probation office in this case narrowly tailored supervision to address those particular risks posed by this particular defendant that the judge recognize and i said ok as part of your supervision you need to meet with your probation officer every ninety days every thirty days you need to submit a report to your probation officer showing how you are essentially keeping your finances in complying with those special conditions that address this financial risk and so this particular defendant's probation was mary narrowly tailored to address those kinds of concerns and we pointed all of these things out in our opposition to the defendant's motion for early termination of supervised release we showed those risks and we said to the court this supervision is important because the defendant needs to structure an accountability to continue to pay the restitution that this court imposed that it showed him that it should have to pay and so in this context the defendant did not meet their burden of showing either that their conduct was sufficient to warrant early termination of supervised release or alternatively that the interests of justice were sufficient to warrant early termination of supervised release and the cour court needs to take an individualized assessment of a particular defendant look at the thirty five fifty three a factors look at the defendant's conduct in the interests of justice and then make a decision based upon those factors going down all that by actually a different question  what could mr kim have done other than what he did do to show that he wanted early termination i think in looking at all those factors the court has to make an individualized determination based upon each person in your bag and generalizations is there instance mr kim could have gone above and beyond what was required by his probation officer taking courses for instance and how to maintain his own budget pay more than the restitution that he was obliged to pay every month he could have done things like we see it in and many sentencing arguments we have these kinds of arguments presented before us where a person comes forward and says my particular defendant is extraordinary they have professional skills they're connected to their community they've done more in the time you know before incarceration to try to give back and make a difference and so i think the same kinds of arguments that judges are presented with at sentencing to say why someone should not receive or should receive a below guideline sentence are equally applicable in this context restitution judgment for the balance that's right so what we would have to be have to pursue alternative remedies to go ahead in and seek that full restitution restitution would still be going you'd have things to to seek the restitution like you could s if the defendant for instance had property you could see garnishment of a bank account for instance if the defendant had money into a bank account there is nothing that is comparable to what he is currently doing with his probation officer now right now his probation officer a nally works as a financial planner sits down with the defendant maps out his budget and helps him make sure that he can pay ten percent each and every month towards that payment the end of the provision he no longer has that obligation to pay that ten percent and two minutes if you want them i just like to address some of the issues raised by miss dalton one i disagree with her comments about there is no equivalent with respect to restitution i think if there is a representative here from the civil division of her office they would disagree they do the financial planning and the so long as my clients continue to make regular payments they are in compliance and that is the expectation otherwise they're in conte secondly with respect to her arguments as to what happened at the sentencing i think it overstates what happened at the sentencing the term of supervision was not the focus of the hearing and in fact  the bulk of the hearing was related to what was the appropriate term a supervision so it's true your honor that i i did not object to the term imposed but i also know in this jurisdiction that early terminations is a viable option for our clients even when restitution is at stake and this doesn't go directly to the merits but i'm just curious even even at the time you made the motion let alone now i mean i understand we schedule arguments on and there are only four months left but at the time you made the motion why did he care or rather how onerous was this supervision and why did he want so much to get out from under it that he's willing to make the motion and now done percent of his income and various forms of supervision right correct and anything more than that well i think he gets visits by the probation officer regularly in terms of  compliance and he has to still comply with all terms on the on the judgement so it so you know mr came as a wonderful person to to represent because it was straightforward i will say in that regard your honor the government below did not dispute any of the facts that we suggested warranted relief it's only on appeal that they are now saying that this is somehow a weak showing and that and even now in her or allow q showing that there was more we background although i will say i looked yesterday for an ass statement of reasons for and i could not find it in our files at the practice back then was not to share those with us so i don't have that to share with your honor's the third point and last point i'd like to make your honour's is here the district court's order articulate why the facts do not support a finding of undue hardship which again is something i did not argue below and the facts and the  court's decision also articulate why in his few this was not exceptionally good behavior although i would agree that there i don't know that there is more that any individual could do in terms of zero violations over the course of the last four years but it fails to state why the district court believed that the absence of these change in circumstances was somehow adequate to reject all the non frivolous arguments that we did raise and the order also fails to reflect the relevant thirty five fifty three factors are wide they do not weigh in his favor under the proper legal standard and so in that sense i think to conclude otherwise your honor has to to