case number twenty dash five thousand seven hundred and forty eight united states of america versus keith you can arguments not to exceed fifteen minutes per side mr on you may proceed for the  that afternoon afternoon may please the courts my name is matthew on and i represent keith ruff and the appellant in this case i'd like to reserve three minutes for a bottle very well thank you district or its committed two errors in this case when it denied she threaten compassionate release st it committed a legal error by improperly deferring to application note one of the sentencing standard to determine whether mr ruffin was a danger to the community and by improperly applying the factors i'd like to start briefly with the application that mr rocco i can i ask a point of clarification before you dive into that yes so your argument it seems to me is that we need not just for two application no one and you are not making a claim that you could stated directly but mr up in suburbs from serious medical conditions but the district court stated that it could not find extraordinary and compelling circumstances because it had to find that mr ruffin's ability for self care was substantially diminished in the prison setting this is a requirement that's only found in application no one but one b one point one three was written for a version of the compassionate release statute that has since been amended as a result the nd circuit has recently ruled that the policy statement and its relevant application notes are inapplicable to situations where defendants bring compassionate release motions directly to the why do you think that is it seems to me it still applies it just might it just might not be as been official to defendants as as you would like to tell us it seem commission them we're not going to change any of the substantive requirements including extraordinary circumstances which we've delegated to the sit ins commission's findings so why why would we interpret the st step backwards to change the substance and d not just the process of the of the policy statement no longer in force they determined that that policy statement was only applicable to motions brought by the bureau of prisons and that could have been brought before the st step act and it found support for this both in the text of the policy statement itself which says upon motion of the director of the bureau of prisons and also in application note for two section one b one dollar which states that reductions under this policy statement can only be granted if the upon motion of the director of the bureau of out on the word applicable and a political just means relevant or appropriate i mean it does seem like it's in the ballpark of what's going on going to defend files a compassionate release emotion sense it's the policy statement addressing compassionate release emotions so it's a pretty narrow view of the word clickable to say it's just simply irrelevant to what if and file a motion and i think that our argument is not that the application notes cannot be considered at all our argument is merely that the courts are not bound by the application of what is your argument for instance does your argument mean so one of the other factors is that  district court has to find that a defendant would not be a threat to public safety that's the nd factor under one b one dollar but under that under the nd circuit's view that the entire policy statement is simply not applicable to defendants filed motions does that mean that district court no longer need find no threat to public safety so even if a defendant would be a threat to public safety a district court could still release them simply because they pick a policy statement is not the political one you see what i'm saying yes and i think that that is the logical conclusion of the nd circuit's position but because of the district court so i believe but but the nd circuit's reasoning and broker is sensible it is consistent with the argument that we advanced in briefing that application that one fails to qualify for deference or respect under our chef or on or transition question i was would you concede that you have to meet both that even would you concede that even if a district court sound extraordinary circumstances the district assure the safety of the community the district court quote at this language directly in its order but despite this the district court's assessment of the three thousand one hundred and forty two g factors was devoid of any mention of possible conditions of release that might be imposed on mr ruffing should his motion be granted this matters because conditions of release including home confinement were specifically requested in mr ruffin's original motion the court was obligated to consider whether home confinement would reasonably assure the safety of the community in this case the judge and the district court in its order did not make any mention of conditions of release judges make bond determinations constantly in their criminal cases and in those situations the district courts virtually always make sure to state but no conditions of release would ensure the safety of the community in this case the district court did not even do that despite the fact that potential conditions of release were briefed and this is not just a matter of reciting magic words if the district court considered the conditions of release as required this would require the court to consider how home confinement would potentially skewer the safety of the community in light of the covert one thousand pandemic mr ruffin has been incarcerated for some time including for the entire duration of the kovac one thousand pandemic and he has not had as much freedom to social distance as we have and he thus understands the risks of cope at nineteen as viscerally if not more than any of us he would take to heart the requirements of home confinement especially in light of his rehabilitation over the last ten years this ties directly into the secondary at the district court made when assessing the three thousand five hundred and fifty three a factors improperly applied the law by discounting mr reference current status which would take into account the rehabilitative efforts mr ruffin has made over time as well as the changes and the deterioration in his medical status that have occurred on the on the st point   did rely on the rehabilitation factor as the basis for for granting a below guidelines from thirty years to twenty five so it isn't a in some respects that you're asking the district merit i think our response would be that mr ruffin's rehabilitated efforts over the course of the years that have followed that period of sentencing as well as his further deterioration in his medical status since that sentencing should be sort of taken into account by the court and i believe that both in the three thousand one hundred and forty two g factors and the analysis that the court made and incorporating that analysis into its three thousand five hundred and fifty three a analysis the court's fails to account for those conditions of release and the way in which those conditions of release would affect ruff and ensure the safety of the community those changes in mr ruffin's medical status by the way include a painful hernia which the district court noted that the p o p has not operated on they had offered surgery to mr roughened but they require him to change his anti coagulant medication to a medication that he knows causes him to your innate blood as a result he has chosen he said that after consideration i i find a substantial reduction in this case would not reflect the seriousness of the offenses of conviction would not promote respect for the law or affor well i believe in the in so far as they are there were relevant three thousand five hundred and fifty three a factors that have changed since the last time the court that he did not expressly address them that's that's what you judge batchelder any questions at this time judge murphy all right let's let's hear from the government and each of those reasons provides an independent basis on which this court could confirm but to fire him we agree that the st step back to change something but the thing that it changed was access to the courthouse it invited defendants to file motions directly with the court and interest to the thirty day exemption to the exhaustive requirement it also enabled them to obtain expedited judicial review if the b o p was not processing their paperwork quickly so depending on your perspective the st step back to either gave defendants one more rights or two more rights either way those only involve the process by which their claims get to the court they don't change the applicable standards and mr reference conceded in his opening brief page eleven that one by one hundred and thirteen and the commentary were binding before the st step back we view the st step back in the statutory context that congress created it it works along with th and eighty two as previously written that says any reduction has to be consistent with the policy statements issued by the sentencing commission and we read that in conjunction with twenty eight dollars u s c nine hundred and ninety four dollars in which congress specifically delegated to the commission the obligation to issue those policy statements that in our view is the main reason why the nd circuit got it wrong and booker let's hear you agree though that the policy statement is now out dated because it clearly and thirteen fully consistent some of the application notes i realize aren't result quite as easily as that but those application notes are again only interpreting how one b one  delegate authority to find out what extraordinary circumstances means so the sensible commission how is that how is this application at all consistent with that delegation because what it says is where some delegating to the bureau of prisons that strikes me as pat meehan consistent with the statute because the statute says no it's the sentencing commissions that should be making this decision not the bureau of prisons or the courts because it's as if the court finds extraordinary and compelling circumstances so i wonder like i mean you talked about carving out but the text of the beginning but we could also start carve out the text of a one d as determined by the director of the bureau of prisons and just say from there there exist any other extraordinary circumstances and that would be the way for a catch all that the opposing counsel is arguing for to be consistent with  is one possible interpretation many district courts if if taken that strategy i don't think it's fully consistent with what congress actually did in the st step act because repeals by implication are highly disfavored and to the extent there may be a problem with some delegates in for example the remedy would be to strike that provision not necessarily to broaden it and redefine it  there is some utility at bank in allowing the bureau of prisons to identify what circumstances looked extraordinary and compelling given their unique perspective in overseeing  application no one is inconsistent the remedy would be to strike that provision not to invalidate all of one b one hundred and thirteen dollars or even all of application one that would leave defendant with the three traditional base days which are specifically identified with the by the sentence of the mission serious medical conditions that affect his ability to provide self care within the within a correctional facility environment his age combined with the amount of sentence he's already served again along with deteriorating health due to age or extraordinary family circumstances instances where family care is required for minor children or a spouse due to incapacitation or death of the otherwise available caregivers those are historically had traditionally the reasons on which compassionate release is ordinarily granted so even if one d were excised from the guideline there are still able mechanisms that affect the sentencing commission's duty under nine thousand and forty two dollars describe what is extraordinary and compelling to include the criteria and to provide a list of specific examples we dispute mr ruffin suggestion that the scope of the and that's part of the reason it's unsurprising that this happens in the application notes because that is where the sins of commission ordinarily defines terms that are used these are not terms that are ambiguous in that they have two or more clear meanings in the intended meaning is is is cannot be discerned at worst the phrase extraordinary and compelling reasons is vague in the deal it does not explain how extraordinary reason must be in order to be extraordinary congress recognized that flaw and that's why they delegated in the st instance to the sentencing commission having delegated to the sentencing commission that imposes two requirements here that the district court found mr rough and could not satisfy found that he had not satisfied any extraordinary and compelling reason for release and it also found that he had not established that he would not be a danger to the society to society the court did review the factors listed in three thousand one hundred and forty two dollars g b significantly that statute which is ordinarily involving pretrial detention the factors weigh out a little differently in this context when we look at the nature and circumstance of the offense that's unchanged in the pretrial context but the weight of the evidence at this point involves four convictions proven guilt as found by a jury the history and characteristics of the person this information the court detailed a lot of information here mr ruffin's criminal history includes prior drug offenses prior weapons offenses he had a criminal history category of five he was on probation at the time he committed these offenses which three thousand one hundred and forty two dollars g specifically flags as a factor to be considered although the district court may not have explicitly said that is a reason why home confinement is an appropriate the court did say that time and time again he had been imprisoned he had been afforded probation and he had returned to crime the court therefore determined that anything less than imprisonment would be insufficient to protect the public it repeated some of that same analysis when looking at the three thousand five hundred and fifty three dollars i factors it also highlighted the amount of time remaining on the defendant sentence he was again convicted of four serious conspiracies to drug traffic offenses one involving more than five kilograms of cocaine involving crack cocaine a money laundering conspiracy and eye witness tampering witness retaliation conspiracy these are all very serious offenses and although the court previously gave him reduction for his rehabilitative efforts and imposed a three hundred month sentence to date mr roughen has served only one hundred and twenty three months and eight days of that sentence he has more than one hundred and thirty two months remaining he has served less than half of the sentence disputing that he has serious medical conditions the district court found that the district court remembered that from his two thousand and fourteen re sentencing proceeding at that time he was in a wheelchair but mr ruff and had many of these same medical conditions at the time but that's not an extraordinary reason simply because it is now an ordinary risk every person incarcerated or not is facing that threat i realize that it's more difficult for prisoners to social distance or take other precautions but this is a risk an unfortunate risk but that faces everyone by definition that is not extraordinary it is ordinary the department of justice has nonetheless to adopt policy in which we're using that in conjunction with the c d c s guidance regarding defendants whose preexisting medical conditions placed them at risk of severe illness from coded and we are using that tell courts process cases in light of application no one because even if a defendant a medical condition on its own might not be sufficiently serious as we put in our response if that medical condition combined with the threat of severe illness stood a company one thousand that might change the court's analysis  what's your what's the government's interpretation of the word political so if you adopt the nd circuit's view there is no need to engage in any type of realty or you know  did not change that background principle well you would agree though that when in doubt be i mean that's an easy look at the government's position actually requires us to engage in some type of this policy statement having to worry about the room well and in this case i don't think it makes any difference to the outcome given the court's finding under the three thousand five hundred and fifty three a factors which again incorporates that dangerousness analysis whether or and thirteen is in effect and for that reason it wouldn't make a difference for mr roughen and if this court is concerned about reaching that issue it would not need to decide that in this case we submit that the totality of the statutory framework the way three thousand five hundred and eighty two forks within ninety four and what congress actually did in the st act signaled that it was not intending to invalidate one of the one hundred and thirteen especially in the current context when we do not have a functioning sentencing interpretation would make the most sense but if there is some excising to be done to save the policy statement i believe that you would have to remove the language about you know at at be based upon motion of the director of the bureau of prisons my apologies you would have to remove that language from each place it exists in the in the policy statement that includes from application of one d to the point that the sentencing commission was delegated to provide a definitional sort of its don't go through the same processes that the guidelines provisions themselves do and i think that that matters in this case to the extent that you know is available against the defendant all of these cases involve defendants who have been convicted that factor is going to become stronger in the government's favor in every case that being said if we are to understand that we need to reweigh the thirty one forty two dollars g factors to determine whether compassionate release is available those factors must be able to  had not had a previous term of incarceration i believe over one year according to the p s r he's now served over ten years for the for the instant convictions finally the  note about covert being an ordinary risk over sixteen thousand dollars inmates have tested positive for cove it in the federal system that's almost fourteen percent of the current prison population that would equate to almost fifty million all right thank you very much counsel a case will be submitted