good morning my name is david bash and i represent the pallant in this case counsel may it please the court we have challenged the sentence in this case on two grounds one general and one specific we argue the first challenge is the specific argument this morning that this is the appellant was sentenced to thirty four months in prison for violating his supervised release this related to the appellant being intoxicated and passed out on the restroom floor in a mcdonald's restaurant and not reporting this to his supervising officer the thirty four months he received for violating his supervised release in this case was five months over the original sentence that he received back in two thousand and thirteen for the original offense and the first argument in the challenge is that his sentence is illegal that he was not given credit for that right and if we were legal if we were to agree that the there was violation of the statute because they're sure to be on a subtraction of the amount of time he had previously served wouldn't we just remember at that point without reaching the second issue that you raise the general issues well i would say that if you give him credit for time served in this case he served twenty eight months in prison  for the original offense and he came back and was violated and served eighteen that is forty six months and under fifty thirty seven he is in can be sentenced to no longer than five years in prison so you subtract forty eight months from sixty you get fourteen months and he has served his right we're that's my answer that's it that's exactly and so i didn't say it very well but assuming that we agree with you about the way to read the statute is there any need to reach any other issue in the case no ok thank you and we we strenuously ask the court to consider looking at the language of that statute and it clearly fifty thirty seven d five clearly allows or mandates that the juvenile who violates his conditions of supervised release receive credit is that is on novel issue i'm sorry your set on novel issue yes it is it it has there is no reported case on it and i believe the reason for that is that no judge has basically interpreted and implied applied the statute the way that this judge applied it  false just initially the disposition of a juvenile b involves the probation and that part b has no provision that allows for a credit for time previously served because the person on probation is not been serving time all the roads kind of lead to see to a and b for punishment of a juvenile under supervised release and it allows for the lesser of five years or the maximum of the guideline range that an adult would be facing isn't the government's interpretation i guess somewhat like yours  both possible because the statute isn't all that clear i believe that the statute is clear and i believe the government's interpretation basically negates a lot of the language in the statute in the gate specifically the language and in d five and i believe that this provision indy five clearly works in she did give some of the time s credit which is kind of inconsistent with the government's position or the district court's position so your position is that this is entirely a question of sad story interpretation the guidelines really don't have any application here because of the fact that he's a juvenile or in this particular argument the got the guidelines  b deals with people under twenty one and so if you if you have two defendants same age same circumstances both of done forty six months one defendant gets his disposition hearing before he turns twenty one he gets a credit if the other defendant waits a week and now he's twenty one he does not get the credit for time previously because of that could the wouldn't there be a rational explanation for why congress might want to treat someone under twenty one differently from someone over twenty one in other words to put it a different way that when when someone achieves adulthood we hold them to a higher standard of accountability than we do people under twenty one if that was the reason it certainly is kind of hidden i believe in the statute  think the government's interpretation creates more problems and more complexities and ignores direct provisions in the statute and i believe combining five with c to a and b makes for an easy application and a very consistent reading of this mean i think you've got a good legal argument it was clear to me from reading the transcript of the sentencing hearing that judge jorgensen was troubled both by the nature of the original second degree murder the details of that crime the fact that your client got a relatively light juvenile disposition on that charge and it was aggravated by the fact that he was under the influence of alcohol at the time of the crime he clearly has a drug and alcohol substance abuse problem and has not been amenable to probation supervision and that seemed to be what animated the district court to say i'm out of options or i'm just going to warehouse them for as long as i can to protect the community well is that a fair summary of where judge organs and was coming from judge jorgensen in my opinion i respectfully submit basically was following the direction of the prosecutor at the time who said who said this person needs rehabilitation and to do that we need to incarcerate him well and that's not backed off of that  case law in the ninth circuit that says you can't do it for the purpose of rehabilitation so i'm telling you that that's a hope but not a reason and you just need it because of all these other factors and i think she made a comment  other occasions one i'm going to do everything i can today to ensure that you're incarcerated for the lengthiest period of time so those services will be available to you right but that was because he wasn't amenable to intensive supervised release on the outside well i mean she said that clearly on the record that you know about well it's hard to say what what he is amenable to there was no exploration of basically of valuations or treatment i believe the court basically walked away from the treatment center and then he disappeared from active probation supervision and maybe you and i are reading the record differently no we're not he is a troubled person he has challenges but nonetheless under the juvenile delinquency act we believe that he's entitled to something different than what an adult would receive in this case for a is in the sentencing hearing the judge clearly saying i'm looking at your twenty at line twenty two you will receive credit for all the time that you have served so far relating to this matter and why why doesn't that simply take care of the problem i think there are two explanations for that your honor first of all credit for time served in federal sentencing is basically a term of art and it's a credit that you get for the time you're in custody for the proceeding that you're in custody for in this case a supervised release revocation proceeding then then the other thing is so you don't think there's any ambiguity in that statement i don't think so the way it's usually used it's actually the way it's always used by judges credit for time served is only for the  time they did they are in custody on that offense or that proceeding moreover it's actually the bureau of prisons job to calculate credit for time served that's not the judge's job well know that but that's exactly why seemed ambiguous to me and well i would i be i don't know a excuse me another way to approach it would be there are two issues in this case the first is what's the statutory maximum the judge couldn't pose and the second is what sense did the judge impose it's the judge's job to calculate the order to determine the statutory maximum clearly that's not the bureau of prisons function in this case judge sure gets in determined that the maximum the statutory maximum was up to the defendant's twenty sixth birthday if he was going to agree to make reductions in that sense he imposed she would have had to do a subtraction in the judgment well she would have but the reason i'm asking the question is that we have standard case law that says that if there was a difference between the oral pronouncement of sentence and the written judgment that follows the oral pronouncement governs and so we wouldn't have that case law if there were always a perfect match between what the judge said and what the written judgment looked like at the end i would also suggest your if you look at the sen that i think that's absolutely clear from the record so if there is any ambiguity in that that sentence i think the entire transcript kind of makes a clear and as i said before the definition credit for time served that's actually a term of art that only means the time served he simply had not been amenable to any other form of supervised really well i would agree with that except i would not use the word warehouse i think that sure gets in with determining that this defendant needed the most structure interpretation as the court is noted the statute is kind of perhaps badly worded but i think it's clear it's got two sections or not sections two parts the first part applies to juveniles which is defined by another statute as somebody who is under the age of twenty one at the time of the proceedings and that statute says that part of the  to fifty thirty seven say it was any term of official detention then there's a second part of the statute the ten is if the juvenile is over age twenty one at the time of the revocation proceeding again you look at fifty thirty seven b but it does not contain that language less any term official detention it actually has other limitations so if you look at the statute judge surance interpretation of section certainly was possible and a you let me make sure you have the record straight at the time he was found intoxicated and passed out in the bathroom of the mcdonald's by the pima county sheriff's deputies he was over twenty one years and he was twenty two at that point that really doesn't matter with regard to whether what is age was at the time of the disposition hearing he was clearly past twenty one and the matter how you cut it right exactly ok and then just one the one for the question judge and did state affirmatively that she was aware that she could not give an increase in space in the hope of getting the defendant who drug rehabilitation program i mean she she gave the sense because and her quote is i'm giving you the maximum term in prison because i think that it's the least restrictive means to accomplish rehabilitation and protect the community and in that she was doing exactly what the judge should do with the judicial disposition hearing unless the co has any further questions but i just wanted to be clear that in your cook from your position the last clause of section five third of seventy five alters the operation of the second sentence by implicitly eliminating credit for previously thought of terms of official detention yes by repeating my analysis by repeating the reference he thirty seven eight and then poll imposing different limitations on it that are not in the top part and eliminating a limitation board and then there are some tweaks at the and that's a oh by the way you can't continue beyond a certain birthday but the problem with that reading in the government for your honor is that the first part of statute clearly is treated as part of him as he was originally a juvenile at the time of the offense but they have a specific provision for somebody who is and they use kind of the oxymoron phrase a juvenile over the age of twenty one but if counsel that the sentence in question doesn't say that it says the term of official detention which is authorized upon revocation of juvenile delinquent supervision shall not exceed the term authorized in section blah blah blah unless any term of official detention previously ordered so that sentence doesn't refer to age it doesn't refer to juveniles it refers to how much detention is authorized upon revocation so why wouldn't that just apply across the board to all revocation and and all terms of official detention because i think if you look at the first sentence of the five which does say if a juvenile violates i think that again as i see the breaking point in the statute it's if if the if the first part is dealing with a juvenile who by definition is under age twenty one the second part is dealing with somebody who is over the age of twenty one except at the end of it obviously we're thinks of juveniles over the age of twenty one so if you read this section as a whole the word juvenile has to have the same meaning throughout and it's clear that congress thought you could be over twenty one and still be considered a juvenile for purposes of this section i think the difficulty i have with your reading that the definition of juvenile in fifty thirty one is somebody who is under the age of eighteen at the time of the pants or somebody who is under the age of twenty one of the time of the proceeding it's so you don't believe that congressional intent here tried to treat juveniles over twenty one the intention was to treat them all generously than similar situated adults i think the intent of car i actually i think what car it was doing with using poorly clocked it crafted language to have a provision for people over the age of twenty one because they don't meet the definition of juvenile and they use a like i said awkward phrase of juvenile over the age of twenty that's right but normally we would read one section which this is subsection five as a whole and if you do that it's clear that juvenile doesn't just mean someone under the age of eighteen because it says juveniles over the age of twenty one so if the first part of the section seems to cover anyone who is under juvenile delinquent supervision this may be  will continue conference with my colleague but it seems to me that that reading ignores the sentence in the middle of sub division five that says the application of sections fifty thirty seven c to a and b shall be determined based upon the age of the juvenile at the time of the disposition of the revocation proceed i read that to say there's a difference based on age between the application of c to a and b i think that's correct and it's also i think it's plausible that maurice didn't want to limit a judge's ability to impose a sentence on a person who was originally convicted as a juvenile who is a player protein his mid twenty's and still isn't on the right track is this defendant clearly was not also just as a final point   supports that we believe that it's an illegal statute and it's and it's prejudicial and it's reversible just per se if if you follow our argument and the challenge is successful it's illegal sentence and it's reversible under plain air i would say that there is no law distinguishing juveniles over twenty one from the juvenile delinquency act and i don't know of any also there was no connection in the record between that purported dangerousness here and the reason to isolate this gentleman sure that he saw the substance abuse problem with that was present at the time of the murder and has been a consistent theme throughout the defendant's subsequent violations of supervisor really two hundred simply back in two thousand and thirteen but particularly counsel following up with judge thomas question particularly in a context where after each released from detention including  release service and then another violation of supervisor lease using that term those delinquent supervision it was during the matter of a few months after each mean the record is is showing  a juvenile who is just not complying with conditions of imposed by the court on multiple occasions i don't i know that you made an argument concerning the rehabilitation issue but  just separately from that just jarvis and seem to have been straining to find some remedy to get him relief and and perhaps you know you did you say she just following the prosecution's side i just don't see that here you understand my point i understand your point i i believe it is our contention that he basically was warehouse supervised drug abuse treatment which is just how permit the offender to walk away from the treatment center as your client when he was at the private facility in tucson we're many times the court have to listen to i promise give me a second chair well this is offensive volved being intoxicated and passed out in a restroom floor that's that's what he received thirty for no cause i may be reading between the lines but it seems to me that he has admitted to his credit his violations in the pass and to his credit in so admitting it there really was no objection to the time th sentence that doesn't say he's waived it to raise this issue that you're raising for him but he seems like he's crying out for help i thought the judge here was trying to fashion something to give him help that may be  proper interpretation and i believe that he was kind of opening up and admitting his mistakes but again i don't see how why that justifies the