morning i'm jennifer kaufman and i'm here today on behalf of johnnie bailey i'd like to reserve three minutes of my time thank you everybody in this case agree that because ms already has a body mass index over thirty she is at increased risk of serious illness and death should she contract coping nineteen while incarcerated in the custody of the bureau of prisons it would also agree  this risk of harm to her this risk of harm to her constitute an extraordinary and compelling circumstance that makes her eligible for greece from the custody of b o p two for so right now there are fifty seven inmates at the syllabi where she's housed f p c alderson as of yesterday there were fifty seven inmates out of five hundred and forty who were vaccinated so it is and i haven't been able to get her on the phone as a result of the lockdown it's very difficult for us to get our clients on the phone so i don't know actually if she has been but i would say the answer to that question is that as as of now we are in a situation where we don't know what other kinds of variants are out there where the vaccine is not effective against we are still in a state of uncertainty i would say with respect to vaccinations so that it would be i think difficult for us to say that it would be mooted if she were vaccinated but the nd thing i'd like to say is that because of the way that these cases have been decided in the eastern district of tennessee we have what is a problem that is going to recur which is that the courts in the eastern tennessee are using what appears to be a sort of defacto presumption against compassionate release if the person hasn't served a certain portion of their sentence which over the past year is shaken out to look about fifty percent and this is going to occur regardless of the nature of the extraordinary and compelling circumstance so it's something that i believe and address even if mrs bailey somehow has gotten backs unaided i just don't know about it  and i would say what i would say about that is that it is difficult to see in this case because it was decided in august but our office has been understanding order to represent defendants in the review of their cases on the filing  compassionate release motion so we've been pretty close to the process all along and i can say that in our office we have not actually seen a grant of compassion or at least for anyone who has served less than what has been chopped elated to be  half or more so it does appear to be operating a little bit like a presumption where the court uses the amount of time served as sort of a substitute for engaging in the actual three th this special contacts exceptional contacts possibly even you could say radical context in the sense that congress has provided courts or the mechanism to do something that is entirely different from the original sense calculation it's to take into account a new unexpected possibly dangerous circumstance into account and to to consider what would be the appropriate thing to do under those new change possibly emergent circumstances and  case we're talking about a risk to her or her life it's not it's not a change in the law it's something that it's not it's something that every day is present for her and so to to to use that  are in fact the way it stated and expressed in this case is a perfect illustration of that in the sense that the judge when the judge says she served only twenty four months of her seventy eight month sentence it doesn't the judge did not tire that to any thirty five dollars to three dollars factor it stands alone as something that is supposed to tell us that she should be serving more time and yet we don't know why we don't know why if she could die while serving time when the judge impose sentence that is short enough that she could be expected to get out and live a fruitful filling life i don't know why this offense is so much so serious that she must more time so counsel what do you do about the fact that the courts have said that you can consider how much time has been served you mean i think you're thinking i assume they're talking about the several cases that have been from this certainly ruffin for example or  d upon which were often was based well one thing you know when you look at profit is that it actually only refers to one purpose of sentencing when it talks about the relevance of the amount of time served and that is the seriousness of offense or the need for just punishment which is the root tributed of purpose of sentencing there is no other purpose mentioned there the st thing i would say is the judge in this case did not actually tied the amount of time served to that purpose of sentencing although it isn't the same paragraph the judge didn't say and so i don't think that you have served in that time to reflect the seriousness of your the nd thing i would say is that my argument is not that it's irrelevant because i can imagine ways that the amount of time served could be part of a relevant conversation with respect to a perfectly censoring it's that is operating in our district like a freestanding factor that prevents the court from going further into a thirty five to three analysis because the person have enough time were and when it's about the pandemic or a chance accident or something that occurs happens in her case to have been earlier in her sentence that it functions like an arbitrary factor and so wh bailey is saying is there's a due process problem when you have something like a presumption or something even close to one in a district that you can measure by looking at the fact that no case actually  if it's very i don't know that it's clear from the record in this case that there's some free standing requirement that you serve over half of your sentence what do we do with th you're giving us about the practice in the district well i would say that in this very case though the proceedings in the britain heatings s pleadings filed by the government that says that you know defendants typically at the service of scandal around time and there's a lot talk about the percentage of time not tied to any three thousand five hundred and fifty three dollars and factor but just because that's what one of the things that everybody anticipated that the judge was going to look at that was back in august since then we still have not seen a grant in a case where the person had served less than half the time sometimes  who or to these cases there was one recently where there was a dispute between operators about how much time the time the defendant mr court asked it's just that it was very important to the court to know exactly how much time the person served and i do recognize that it's hard to show from what he i don't know let's assume you're right i mean there is still relevant because it still does go to just punishment let's say that presumption would be would be erroneous but the only thing i've got to go on is the order the judge's order right i mean we i don't the judge doesn't indicate yes the judge mentions it so it but he can mention it's relevant so what do i do how do i figure out that there's a presumption from the actual decision why do agree with you that the decision stopped and not that well we can look at the proceedings in this case to see that the parties were operating under the idea that there was a need to show a certain amount of time served but i'd also say that in golf for example where what was happening across the country was courts were using a percentage of time served to decide whether the variance was reasonable they weren't saying this is are hard and fast rule they were just saying well this is one hundred percent variance so or so it's not going to be reasonable they were not saying we will never give  one hundred percent variance but they so often said that this was an important factor that it became something like a presumption and that springboards said you can't do that we can't be using these mathematical formulas instead we have the extent of the variance is relevant so it's the same thing it's well meant but we can't be using it like a presumption so what i would say is what i would ask the court to do is to say that we can't be using a presumption that if there is one we can't be doing it but in this case the district courts not actually tom i the amount of time served to sensing so even if you don't fear you could say that that amount of time is relevant and this judge did not explain how it's that the judge said it's a serious offense but in all honesty you could say that about every federal case every person who comes or compassion or at least the judge could say this is a serious offense but  sympathetic to to the argument i mean it would it would make sense to me for the judge to consider necessary considering the nature and circumstances we like the seriousness respect for law it was already below the sentence ring why isn't that  if you really look at it the judge is just reciting the thirty five dollars to three dollars actors and also saying that her sense of her offense was very serious again really could say about every federal case it's a serious what do we i mean we we in publish decisions we've been affirming denials that are basically one paragraph orders i mean that's basically the law of our circuit at this for you to be judged by these yes or judges do not have to do a lot they have to indicate that they considered the factors but haven't we basically said look at that he just doesn't require a time this is a six this order is more extensive than most of the ones that i've seen in these cases i'm just it's seems like it would be in congress for us to send this one back when we prove so many others i have there are only two quick things i'd like to say and i'll take me just for just a moment to say at the st one is that in this case however jenny bailey is saying that there is a constitutional problem with the way that the eastern district of tennessee is see is viewing time served and because because it imports this arbitrary time factor without tying it to three thousand five hundred and fifty three explicitly so that's that's why i would say this is a little bit different the nd thing as the judge talks about the disparity creating disparity but doesn't say it in the context of the act will statute which is the need to avoid unwarranted sperry so i would say that there are two things about this case that make it something the courtship three man with and with with instructions to the court that when you're thinking of disparity the think into account the fact that there is an existing extraordinary circumstance that changes the disparity in us that we're not comparing to people who don't have that story and if we and i don't i know you want to remain and he just basically said ok fine i'll give you a one paragraph form order just like no borrow and some of these other cases can get whatever the that's it right then you go then you don't have an argument great well it would depend on what the order said i mean i think i don't consider thirty five you do three a twelve thousand and three and there the court said if you agree do you agree that if there were essentially a presumption that that would be problematic if you're basically going to go into it saying if it's about half their sentences by convince me otherwise wouldn't i don't know that that would be ok you think it wouldn't be well your honor i think that the key point is whether or not the district court considers the know i don't think it's a problem so long as the court is making an individualized decision based on that specific defendant's circumstances and that specific defendant's offense and that specific defendant's background and so long the court's doing that and that's that's one of the instructions from all is that we're making all of these decisions all the sentencing decisions are individualized that we're not sort of imposing blanket rules then i think that would be ok yeah ok i mean in terms of how we talk about what is a presumption i guess you could have a different vision of what a presumption is but  the large amount of methamphetamine that she conspired to distribute and the district court also discusses that she only served twenty four months of her seventy eight month sentence and then the court says those facts show that the sentence imposed is necessary considering in addition there's three reasons that i think show that the district court properly considered the amount of time miss bailey had served and the st of those is that the court's decision followed a bedrock principle of law and that's that sentencing courts can consider the widest possible breath of information about a defendant the nd reason is that the district court's decision followed a statutory command three thousand five hundred and fifty three a requires the court to ensure that miss bailey sentence is sufficient but not greater than necessary to meet the purposes of sentencing a district court would have a hard time doing that without considering the length of the sentence reduction itself and i ask you about that but the person has served some time now so what do you do with who with who are you comparing this person to in terms of just parity or is the disparity fact there are even applicable at all i think defendants with who have committed similar offenses and have similar criminal records and i think who are making compassionate release motions or what i mean i understand that but there's a little bit of a mismatch here they are taking it's not even applicable here we don't even you know why would you look at the why would you look at what other defendants similar records are or whatever when you're doing a passionate weeks well you are i think there's a a few in and there's three responses to that number one is that the thirty five hundred and fifty three dollars a factors are required under the statute for the court to consider them and so i think that whether or not there's a sentence and compassionate release contacts i think congress would have said that it would be a very cryptic way to instruct courts not to consider thirty five thousand five hundred and thirty six i think instead the more natural reading of the and one example would be let's say a defendant had been sentenced at the top of their guidelines range or even above their guidelines range and you know under those circumstances if the defendant had served  substantial amount of their sentence reducing their sentence might cause no sentence disparity because that reduced sentence would fall at or near their guidelines range  somebody would think the least that when considering the disparity that the court didn't simply say look it will create a disparity that's the end of it that there's now to be consideration of the circumstances that permit the recent incident to begin with that the court has to consider what the real situation is for this particular defendant in that jail i don't know maybe you don't agree your honor i think that i do agree that that is something that the district court can consider  when it's assessing sentence disparities and i think here you know if if if we look at the entirety of the district court's decision i think we can see that the district court was aware of the risk posed by coded covert is a terrible disease and it's a dangerous disease and i think the district court knew that and knew the risk that posed that miss bailey is risk factor of obesity posed to her and the district court also noted that at the time there were zero cases of covert positive inmates at f t c alderson as of yesterday three pm there's one there's currently one positive case of  so i think the district court did consider those things that didn't it didn't spell that out and the specific paragraph where it talked about unwarranted disparities but it was part of the district court's decision making and i think this analysis here is you know not that the court parses through line by line but that whether the district court set forth enough to show that it had a reason basis for its decision and here if we're  looking at the district court's decision i think it meant that requirement circumstances this court should affirm thank you thank you that the guideline range i'm going to presume that the guideline range is the appropriate sentence in this case and you convinced me otherwise we would be in the land of quads i mandatory guidelines and that would be reversible error and that those cases were decided years ago so no a trial court could not have a presumption that puts the burden on the defendant convinced otherwise that certain outcome or percentage is the appropriate amount of time the person has to serve in order to meet the purpose of serving you know the need to address the seriousness of the offense so i think i would strongly disagree with any suggestion that the trial could court could actually employ such a presumption i think the case law is already pretty strongly against the the next thing i would like to say and i'd like to go to the question judges not the andean that you asked about disparity and about whether thirty five to three a six in its in its operation in an original sentencing is even a pleasurable and in the compassionate release context and i think the answer to that is that you know even if it's not wholly in a likeable it's a clip of billy the extent to which is limited because we've already sort of blasted through its normal operation by having an extraordinary compelling circumstance that doesn't exist in a regional sensing the other thing i'd like to say is that we're talking  range so the fact that ms bailey got a below range sentence which yes the district court mention was not actually an unusual thing in her case she was safe the belt eligible water that is below the mandatory minimum she also got a varian also safety valves related that had to do with the st step x change to the safety belt statute so that was not out of the ordinary the rest of her sentence was based on a government departure so her though the seventy eight months that she got was actually all within the realm of what is a normal ordinary sentence and now she has this extraordinary circumstance that for some reason because she hasn't served enough time because the pandemic came too soon for her she's not able to avoid the danger or crack lines and so i guess the only the last thing i'd like to say is that although there is only currently one positive person at the facility that she's that i believe as of yesterday it's the opi website said that seventeen people have been have tested positive so it's not as if the virus hasn't made it there and could likely continue to arrive there the way that it is and so many other facilities and so for these reasons