anyway we are here regarding a wonderful man who has undergone a kafkaesque experience due to our federal government this is not a kid who wants to just use his medical marijuana card to party or to get high he's a sixty four year old man who's undergone six back surgery he has  back he has undergone heart attacks stents several operations and as a consequence he has i'm bearable chronic pain a really are not his medical records in the record yes they are and they're in the p s r which the probation officer explained in the p s r that she reviewed all of those medical record you point me to where those actual records are like are they attached to the p s r they are not it's just that they were reviewed the p s r the probation officer said she reviewed those documents so the answer then is that the records of the medical records themselves are not in the record or not in the record however at the hearing on the probation modification i did express and it's in my briefs where if the court is the district court were unsatisfied with the medical findings that i was i wanted to have a hearing and bring in his doctors and the court never to you on that but i want to make sure i'm i understand what this appeal is then because the argument you're making it makes sense to me why you'd be making them but that would be challenging the district court's decision to impose the condition on the facts and whereas in the briefing it was about how the justice department and  and his team are prohibited from basically sitting on that side of the room today and that's different from the pain he's in so i want to make sure we frame your grade on it mr wiley has the power to sit at that table here today sharon less than thirty am i right about that so isn't this teetering on the brink of becoming absolutely moot yes it is and then then why are we here yeah exactly has it's wrong and as defense counsel and as my client if you look at what's wrong it's wrong what is it is this is wrong that the court felt it had no power based upon the arguments of the government to modify the probation or to even terminate probation early because it was federal law that controlled substance act apply period in federal court however now we have the five forty two of the appropriations act that prevents the justice puts like mcintosh what it puts defense counsel the court clients in let's say right now instead of trying to be a law abiding citizen and seek a modification of his probation he decides look i'm in too great a pain i am going to smoke some marijuana he test positive under mcintosh the prosecution cannot appear they cannot have any funds in prosecuting that new violation but it's not a prosecution no i mean this is this is the court determining whether or not the defendant has follow the terms of the court's sentence that's not a prosecut who's going to present that evidence you're putting the court in the position that it has to prosecute its own violation or you're buying yeah you're describing a probation violation situation that i just don't remember  probation department always carry the water on those things that report that to the court and i will go they make a most they they certainly ximena reform act like exactly if the defendant challenges that report saying hey i disagree with that report then you have a hearing so you have to have you have a hearing where the prosecutor presents evidence and you make your arguments and the court rules on that effort but you can't do that without a pro trying to help your client with this hypothetical that didn't really happen here because as i understand it you said in this case that the prosecutor had to be there so why have you no wave to the argument in your case that the prosecutor in  it came about and initially through he ended up admitting the violation because his medical marijuana card had lapsed so he was not in strict compliance with california law let's say does it make any difference in your case right why do you have standing to start on with the let's say in the hypothetical because mr nixon wants to be able to follow the law but he also wants to have  out you know not have all that incredible side effects that he's experiencing doing due to having to be on morphine but so so as i understand your claim it really this issue of whether he could somehow not be in pain and yet be in compliance seems to me much more like anything men might claim and then like a something about the appropriations it is yes i think i did raise that but my but my issue is did you raise an eighth amendment claim in the district court well i see no  rule i said it was very cruel in the palace did i actually i mean did you make did you make any kind of eighth amendment challenge to his probation based on his medical records no i did not brief but how can we say it didn't exercise discretion when you didn't ask it to you really so i mean it seems to me you're only kind of colorable argument now is this if amendment one but because it wasn't raised below were in plain error there's no law with this kind of claim that we can use to say it was plain err i mean you're kind of in a procedural box now that i'm not sure what the basis for the remaining would be and if you think that a rematch and is going to get something done before november eleventh goodnight is that's not going to happen whatever the quickest way to you what i think i think what was not raised below or was raised below but i don't think the court considered was that the conditions of probation must provide defendants with needed medical care in the most effective manner and that's under the rules of probation the court felt they had no discretion and it must impose no use of marijuana based upon the government's arguments i think this court should it saying that look the prosecutor cannot appear you can argue he can't file any brief can't do anything and the court should exercise its discretion under the proper rules of probation that it does ha because the district court i believe felt it had no discretion that it could not modify if the prosecutor showed up how do we know the prosecutor would be enforcing the marijuana laws rather than enforcing a probation condition that is something i consider but it would be that is a good point because you're right it is talking about conditions of probation i don't think it was really be a prosecution it would be enforcing a probation violation based on my experience a lot of prosecutors don't want to show up at these things but they you know they do i'm not sure in this case history that mr levy certainly did but anyway thank you very much thank you counsel good morning may please the court kevin lolly on behalf of the united states here's why mandy would be a reman would be futile six weeks ago this court in mackintosh reaffirmed two basic precepts relating to the controlled substances act first that controlled substances act proscribes the manufacture distribution and possession of marijuana and second which is sort of a corollary to that and that anyone who says manufactures or distributes marijuana a schedule one controlled substance commits a federal crime eighteen u s c section thirty five sixty three day mandates that want to probationary sentence is possess a controlled substance so the court doesn't have an option in this instance and because and that is the exact circumstance that he the court faced the first time around the defendant filed a motion to strike those mandatory conditions of probation and did so for the express reason to so that the defendant could possess and use marijuana in direct contravention of federal law the district court then as it would do on any remand looked at the law and assessed the law and came to the only conclusion that was consistent with the law and that was that the request to modify the conditions of probation had to be denied that ruling was a what happens on this hypothetical that your present counsel is discussing where the dischord imposes that condition the defendant violates it and then what happens then we have a violation hearing as we did  before and your position is that the prosecutor can show up absolutely and just as it was before and for a variety of reasons but as we argued before and as this court has noted this is a probation revocation proceeding it's that it's a mess and we're actually even removed what at that point would be a probation revocation proceeding with respect to the modification it's a step removed because it's actually a defendant and issue a did request to modify a court ordered condition but within the situation with respect to a revocation proceeding it's a scenario again where the conviction is final the prosecution is final the court has imposed various conditions of probation and the defendant and the court is seeking through the probation office to enforce those and so so that is that's the first layer of analysis but the additional layers of analysis and so you don't think there's a problem with the right or the oppression appropriations right or that the violation would be something that otherwise can be prosecuted absolutely not and it's limited only in those instances in which the defendant has strictly complied with with the clickable state law on the manufacture use possession and cultivation of marijuana so in scenarios like that and as was the case in macintosh the government where it does not believe that the defendant has been in strict compliance with state law has to be able to be present in order to litigate that position and the mackintosh court recognized that the government was present at the argument before the court and in its order the this court specifically states sent the matters back on remained for the government to consider whether was going to proceed and if so that they got the government and the defense were to proceed to an hearing to determine the a place ability of five forty two and that's what would have to happen here we have to have a hearing to determine whether or not this case fell within or outside of section five forty two it falls outside and this isn't a scenario like macintosh where it's early in litigation and we don't really know what has been litigated what the actual underlying facts are here we have convictions we have the defendants admissions at those fraudulent documents conceal the involvement of the principal owner who is a two time convicted drug trafficker the operation made twenty five million dollars in five years it was a for profit drug distribution operation in violation of law it destroyed documents to conceal the involvement post all these facts were led up to the defendant's conviction but post conviction the defendant engaged in the use of marijuana in violation of both federal and state law because on multiple occasions he used it including in violation of state law without a california recommendation card then when he was subject revocation proceedings federally and he realized well hey it might be useful for me to least get a revocation card was he able to get one from his cardiologist an individual who had been prescribing him medication at the time no was he able to get the card from his penis from special someone whose entire profession revolves evaluations to a doctor who at the time was hat in the process of having his license revoked for giving out bogus marijuana recommendation cards it is a scenario where was he in strict  with the law with california law absolutely not we would establish that any hearing that were to arise and we would be entitled to proceed at those proceedings and to seek the revocation of his probation so i understand that you think his facts don't support a claim but do you think anyone could ever have an eighth amendment claim based on the need for medical marijuana but we're here today relating to this particular what's the answer to the question it's purely defendant is convicted of a standard narcotics trafficking offense those brought to the federal government are typically punished punishable by life in prison and ten year mandatory minimums even if we have something like we did here where it doesn't have a minute or a minimum offense or isn't quite life it's still a serious felony where he the individual is looking at twenty to twenty years in prison and significant supervised release the  defendant here based only a probationary sentence and one of the conditions was it which is a condition that applies nationwide in every single instance in every single case regardless of whether or not it's a marijuana case or not is  to any of the cases that i'm aware least where courts may have founded on that ground means as we cited in our brief there are instances where courts impose lifetime supervised release in first instances of child pornography do you know of any case considering as applied eighth amendment challenge to appeal to the use of marijuana i'm not this this would be the first in it as your honor recognized it was only raise on appeal and not below so unless you're on our side any additional questions the government would simply submit on the fact that the court's determination was firmly within its discretion and should be thanking the court also last recognizably mr nixon is now in attendance