here but let's go back to judgment two and hypothetical if you if the sentencing is only a month and the art out program and step one requires in house five hundred hours of intensive treatment it's physically impossible for him to do five hundred hours in one month so would he still be an eligible prisoner under your definition of that term if the person wanted to stay  have treatment i presume in that situation the court could we don't allow overstay don't get to you don't get to stay extra and hardly anybody wants right so in that situation the person is physically unable to complete that portion of the treatment that is required by the statute not the situation could not physically complete what's required by the statute the court may find that that's a reasonable construction and a reasonable area for p r presents discretion that's not what was here why is it unreasonable for the bureau to determine in its experimentation and its history of more than ten years with the program that a successful completion of the program includes more than just the five hundred hours it also includes the second column point which is i guess the classroom portion within the prison and then the third complement being follow up care in a community based halfway house or wherever the inmate is located after he is sent to the community the bureau of prisons would have that would not be considered eligible if you couldn't complete the residential portion and the problem with your client is he can't complete the community based after care because he's got detainers and he's going to be turned over to the state of california the problem is that th enroll in it if that can't be what congress if there was an administrative record that said people and you know in fact i'm going to retract that answer the statute is clear your presence has a duty to provide six months of residential treatment the remainder have in the administrative record that the reason why the bureau wanted the after care was because of the risk of relapse and we're trying to reduce relapses by following up with community based aftercare in essence we're trying to make the program more effective so how does that vary with congressional intent that we provide meaningful drug treatment for people who have a drug problem and are willing to do something about  administer the residential program that the statute requires that would be different than having a categorical exclusion saying nobody in that circumstance is out legible let me ask you then about jurisdiction because you seem to have let the program into two parts and that is some drug treatment and then the possibility of the one year reduction if you successfully complete and go through the aftercare and everything we've already made a determination in mclean as to the second part under and that there was just at least the they assumed jurisdiction under twenty two forty one but when she split the program and you say prisoners are entitled to drug rehabilitation care or treatment how does that come under twenty to forty one why isn't that a conditions of confinement claim this court has exercised twenty to forty one of participation in the residential inpatient program and that's what he was sentenced to when he was sentenced for whatever his crime of conviction that one of the requirements as a condition of a sentence is that the bureau comply with thirty six twenty one to some degree once you split your quote cause of action into these two things we have to look at your wrist action for each one you do you agree with that proposition i agree my response to that if the court determines that length of the sentence is required for twenty to forty one j unless you can get the completion so in other words if the g o p has the authority to figure out what the end game is and it ought to have the same authority to figure out what the beginning game is so you kind of want it both ways and maybe i'm just hearing you because you want him to get in and it's like i can get in i don't know if i can get out under these conditions it's not it's like the flip of hotel california but then you turn around and say but these are merged for purposes of jurisdiction so tell me in order to get jurisdiction under twenty two forty one the second response is that yes the court can sometimes just decide a case without considering the jurisdictional question but here we have many many cases that are deciding presidential drug treatment issues determinations that are based on discretion i think of it as directly controlling here right thank you morning may please the court my name is not only white i'm going to state united states attorney i represent the federal bureau of prisons if the bureau of prisons transferred mr sanderson to a halfway house today he could be arrested and placed in a california jail tomorrow i think that petitioner is asking the bureau of prisons to ignore everything that has based these programs on the purpose of the programs are not just the incentive it fact there's a very similar one the non residential treatment program which is nearly identical to our tap without that residential portion there are also individualized drug treatment programs likely tailored to each individual inmate whether they are learning based through video they have things that can be done in the shoes special housing unit to treat drug treatment problems but none of them provide the carrot do they the only one that gives you the credit is the art of program that's that's correct if you are looking for the  is unavailable if a human community requirement is valid then he is left with only participation which is what they had at that time in the end you're talking about someone who will not be able to complete the art because are you saying that the portion of the statute is actually complied with because they do get treatment they just might not get this treatment well treatment is available to decide and when you look at that statute it thirty six twenty one you can look at the portion addressed by petitioner which talks about that the two part definition of eligibility are eligible there's additional part if you look at another section of thirty six twenty prisons duty to report to congress how they have actually defined eligibility and to explain that how they have to find and design the programs that they're talking about there's a lot of discretion your honor limited number of beds available and the are that program is not available in all of the hundred and twenty nine prisons in the federal prisons us that's correct your honor this is something that the court earlier addressed also jurisdiction and it also addressed the riba argument and whether or not abbott applies whether or not close applies and i do feel like petitioner is trying to carve out or cut away the discretionary individualized may have someone with a teen or who may or may not be able to go that unit team within the institution and has to contact outside local authorities to find out whether or not these changes are actually going to be acted on this is an individual very personalized pro that's part of the enforcement but if we are to release him to the community which is what occurs not release him but actually transfer him to a community confinement center for the purpose of art at that would be releasing him into the community would have to notify the local authorities that he would be the unique one for a vietnam's citizen where when we contacted ice it was more of a form of formality to place at the scene or they had no intent on actually executing that stayner now the bureau of prisons is weighing whether or not that detain or something that's actually with that program because it includes both the placement in the program and also possibly the one year be reviewable by us under twenty two forty one you're saying that if the program did include an automatic absolute you cannot participate with a detainer if that if it was a pure categorical this decision something like you saw in mclean in that authority of thirty six twenty one so the short answer to my question would be yes there's just action and there are twenty to forty one oh no your honor that's one of our alternative arguments it's something that you mentioned earlier it's not addressed by or the early release benefit however they will go on to decide some reviews of the statutes and program statements involving it but if we step back to the original jurisdiction in the liberty interest if we're talking about just participation there is no liberty interest if this inmate does not have that early release that he can rely on i mean what what if he's sentenced and treatment under this section as part of  a type review or constitutional violation analysis trying to find our sticks in that way but as far as haiti is twenty two forty one position it does seem inappropriate when you are just challenging your art of participation or early eligibility when those things are not guaranteed well he i think he's challenging he would probably bring himself at least for purposes of jurisdiction under mclean  feather mariette whether that's not additional k but also it's an individualized determination if he successfully completes the program whether he'll even be given the credit for the one year isn't that right right so if i can back up for just  the first determination in this case that he's not eligible for community confinement is absolutely individualized and is not being challenged on appeal what's being challenged is the result of that determination which is that implication of the categorical role anybody this situation in terms of looking at it categorically categorically doesn't the word normally modify categorically in effect that ordinarily is what the community corrections determination and doesn't relate thank you very much the case just argued sanderson versus feather is submitted and i think both counsel for your argument this morning