're reviewing for plane error here yes we are gonna well where the issue involved appears to arguably at least involve a circuit split and where the issue that we're talking about the brings us all here is one month of home detention how are the requirements plain error has to be one plane it's got to be obvious it's something the judge should have known even though he wasn't he or she was not flagged about it and normally it has to be something that would result in serious prejudice well to begin with the fact that it's one month long detention this court it's clearly held that any sentence on authorised as a matter of law has an effect on substantial rights and never more so clear we have said that  clear under current law right i'd like to turn to the question of clear i was just addressing here the question of prejudice or substantial rights i don't believe that's wrong can be debate at all with respect to whether the error was clear the first point is that we're looking at a single statutory provision fewer than ten words in it and the key word is alternative that word has a single definition no matter what their actions are you look to and it's that there are two things that are mutually exclusive so if one thing is chosen the other must be rejected if a period of home detention is chosen an equal period of imprisonment must be rejected in as much as we're at the statutory maximum for the combined terms with respect to the circuit split the one decision that runs against us was among the earliest decided and frankly does not stand up under even light scrutiny it had two points to make about why supposedly the statute should be read as the government reads it here the first is that home detention and imprisonment are not equivalent certainly that's true that does not mean that home detention cannot displa an equal period of imprisonment of congress so mandates and high risk but there's nothing that says that if you give home detention it's to be considered the equal and of imprisonment for purposes of the months of imprisonment that you can give i mean your you make a leap you say home detention can be given only as an alternative to imprisonment and you say aha so when all turns when tension is given we must consider that equal to imprisonment for purposes of a statutory cap to my mind i read the provision that it's equal to imprisonment meaning that after imprisonment over and they're in probation or supervised release you can't impose a condition and that's really what this is impose a condition of hunk of time but you can only do it if you judge believe that you really think this person needs to confined some more i mean how do you get away from the concept that number one it's a condition of supervised release and probation i mean once you say it's that it's not imprisonment under the guidelines and to how do you make the leap from just the language that it's an alternative to to say it's equal to for purposes should be counted as equal to for purposes of the number of months in prison you can get well your honor i would suggest it's functionally equal to and to see why ok functionally equal to so when i'm giving home detention as a conditional release because i want this person to be confined y three and the four together now under ether eight a court can impose a term of imprisonment only upon finding a violation of supervised release by preponderance of the evidence and under thirty four a person can be sentenced to home detention only as an alternative to incarceration so necessarily that means that the person must be subject to incarceration if a court is to place them under home detention  alternative but if it's a condition it's the only way you get home confinement as a condition imposed on supervised release or probation the person has to be on probation or supervised release when it's imposed and the imprisonment over i mean i was district court judge and you have imprisonment then you have probation or supervised release and if this is a condition imposed on probation or supervised release you're not in the imprisonment phase do you read it the way i'm reading it it says you know special it's in the special conditions it's way down there in one thousand and you can oppose this you know if we can impose home confinement but only as an alternative to to imprisonment so if i this i just think you know i just think i want to do this but i don't really believe that you need to be confined then you probably violated the spirit of the guideline in terms of what one you when you're really supposed to give detention that's the way i and i'll turn an alternative way that i would read that provision why is that not permissible well the first point to see and let me add because there's no changed under those guidelines to say you can't if you don't think it's good enough you can confine the person to two rooms and that i mean you can take away the things that would otherwise be not confin something which is even more restrictive community confinement of me detention the same as in prison well the reason we wouldn't honors because we're not arguing from some general notion about what the most unit of punishments were are going from very specific language in a statute which addresses home detention regardless of what the truth is about the relative restrictive ness of community confinement and home detention what congress has spoken to is what a judge must revelation to be drawn from the legislative history which is entirely about what's to happen to sex offenders that the rule of lenity is going to prohibit the government's interpretation ok thank you thank you the original prosecution of miss williams for bank robbery which is what leads us here you don't have that which important newsweek move let me start off with a question that goes to the heart of it for me at least yes or what home detention may be imposed only as an alternative to incarceration we've got to give some meaning i think to only but only as an alternative to incarceration what it doesn't mean what your friends across the aisle say it means what what does it mean both will puzzled and puzzled i'm having trouble coming up with some reasonable reasonable meaning to give it we admit to a bit of puzzlement ourselves and the best answer we can give having thought about this very hard is it that language is there for emphasis that language is there to make clear as i disagree with what my friend said about the twenty four my cap is for each revocation but for each revocation there is a statutory maximum of twenty four months in prison and so the argument that's being presented to your honor's today is that that twenty four my cap his reduce that i mean before you find that the thing that makes me think that maybe the argument is and some were based in sector within policy heavy discussion i've been a part of in terms of states guidelines in federal government in the been a lot of ration and you move them don't get violent and if that's the passage driving this was the thing on the record to suggest this except it is consistent with that language and why would that language fit perfectly into that kind of a policy well it could it could also cut the other way one could say that one should not have the home detention option at all if that were the circumstance the legislative history here is interesting ron who would be incarceration rates well there's debates on both sides of whether we want more incarceration or less but the legislative history i interesting the statute thirty five sixty three which struck stapleton appropriately focuses on that was part of the on the best comprehensive crime control act of one thousand nine hundred four that is the act they gave us the sentencing guidelines the revolutionised sentencing and this home detention provision of the twenty or so conditions listed for supervised release was not there and it was added in one nine hundred eighty eight by itself with this odd language that we see before us it was added to thirty five sixty three it was added a thirty five eighty three regarding revocation or modification and it was added to the sensing guidelines and even the sensing commission said we're adding this language i think it's five f one point two just because congress added in the stature no one provides any explanation  they talk about months imprisonment months imprisonment their charts with months in prison somewhere should reference that this can be fulfilled either by prison or by imposing a pris short prison term plus a supervised release term you know with with home confinement i that seems to me there's a bit of a leap you know that's making you argue that is an excellent point and i'm ashamed thinking here this anger that we didn't think of half of the sense in zone c and all of the sentences on the by home detention community find that these alternatives so clearly they know how to explicitly say this when they want to say and i think that's an outstanding point that i wish i had thought of before this moment  the other point that i want to make that i don't think was completely clear in our brief is looking at it as a condition of supervisor laich which is what it is and as judge stapleton said in looking at thirty five sixty play think of it this way what if the court here impose thousand months of imprisonment and twelve months of supervised release with no conditions that was a sentence and then came back when the person served the term of imprisonment and after one thousand months the judge said you know i've been thinking about this and i want to call you back and i'm going to modify the terms and i'm going to include home detention undoubtedly the judge can do that under thirty five eighty three d the fourth clause doesn't require revocation it's a modification if the court can do that and say i'm going back and present this is an alternative i'm not revoking you yet but i think you should have home detention that has historically been you know within the power of the of the district court so i agree with what your honour's are all saying that if we're giving out prizes for statutory interpretation this statute is not on the list but we have to interpret it in a logical fashion and in a logical fashion it has to mean that when you're giving home to tension and not give me imprisonment but it does not reduce the statutory this quote is you know been very faithful your honor judgment the wrote the i mean the quotes leading decision i think is adams and in two thousand and one regarding the universal applicability a plane air and that has to apply here a day to say that a sentence above the statutory maximum is always plain air it's always a fundamental wrong that puts the cart before the horse you first have to decide that you have a plane there we certainly agree that if at the end of the analysis the error is plain that someone was sentence statutory maximum then yes probably that person is due relief but you have to go through the steps there are many supreme court cases where people have argued not only that their sentences were too long but almost but that they should even been convicted  the supreme court faithfully applies playing their review in deciding whether to even get to that question i have an existence of conflicting opinions stable point well that's it that's fundamental i mean you do not have plane air where the error is stop playing and certainly here we have a split in the circuits we have a healthy debate here over what the statute means it is not playing there but i think you also have to look to i don't want to abandon the other plans that it offends fundamental rights and that and th wanted to impose the maximum and the maximum it's twenty four months and he had every reason to do that and they defense gave the wrong information and the government failed to correct it the defense said well you know you gave five months before for one of the last violations so that reduces it from twenty four to ninety and so the judge gave one thousand months of imprisonment followed by supervised release that information was wrong because under the two thousand and three amendment a huge no longer reduces by the previous terms that were given it's twenty four months every time so the defense is playing an interesting game here i mean do they want to go back to judge davis now the world we of can we focus on this and tell him well i should get less on detention but you should give me perfectly legal sentence that gets you right into those that third and fourth prong are we really dealing with a case here in which the defense is showing of a violation of fundamental rights and an error that this  different what you do under the current law you can get twenty four months over and over again if you keep violating you cannot the amount of extra supervised release you could get to follow as a tail decreases and would eventually get down to zero based on all of that imprisonment yes under the current law and by the way that's why i disagree with with my colleagues on the other side about the two thousand and three law the only reason for the addition of those two words was to make it clear they're going to a lot of debate before two thousand and three a lot of criticism from the justice department that the amount of time you could get kept decreasing as you as you got time even if somebody was graciously violated surprise relays that was the only point of that amendment was to make it clear that you can now get it doesn't happen i can't tell you i've heard twenty four months because there are five counts and it's quite held in d s that a quote if it's reasonable can stack these two or three or sentences whatever have you on individual counts you can revoke counts individually miss williams really is facing one hundred twenty months you know if she if she continues to press or lock in and judge davis approaches thank you very much chances but judge davis on that on the point of addressing the two thousand and three amendment one very quick thing i'd like to say is that it's not been briefed to the government has placed it on the footnotes and it's not presented by this case where i'm not we have to be concerned with we have to consider that this before says instead well if you do have to read it when you're radioing a statute but i don't think it applies to the situation here i think the words only as an alternative to incarceration are the operative ones as far as the question of plane error and the existence of a circuits i refer the court to the second circuit case of united states v brown three five two f thirty six five four there the six second circuit said we can in certain cases i've noticed plain error in the absence of direct precedence or even where uniformity among the circuits or among state courts is lacking now the one circuit that's outlying here the fourth circuit and it's hagar case first of all is a split decision a two one decision second did not have the benefit of the much more extensive analysis in the leading case the fifth circuit decision in ferguson and is also before  you can combine imprisonment and home to tension coming up with the the amount it's the olds if they wanted to do so they knew how to do so and they didn't do so right and i think the key thing about that provision is that it states that home imprisonment is substituted on a one to one ratio that's five c one point one of the guidelines so yes it does in certain it does limit it to to rezone exactly but that's the sentencing commission's determination which has of course now is advisory and congress has stated that the one to one ratio is a statutory mandate by its only as an alternative language so i wouldn't get too distracted by the limitation the sentencing commission has placed on that i'd focus on the fact that it too has found it to be a one to one ratio moreover that particular provision of the sentencing guidelines was adopted in response to the one nine hundred eighty eight legislation that mr allison has referred to and to cite just one portion of what i would agree with mr thousand is not of her belly revealing legislative history but the fine what guidance we can represent effort to inaugurate home detention as something and federal law as you judge mckee have have stated has been a long running debate the court has no further questions i thank you for your time