the government however conceded that mr black was eligible for compassionate release now the district court rejected that concession and the government says somewhat rightly that the court doesn't have to accept a party's concessions because of course the judges make a law not a party but if a judge is going to be just the concession the judge must have of being in confinement so that the the courts will all really never presented a good reason for rejecting that the judge's conception and even if we treat this as somehow now being governed by guns and the government's confession makes no difference at all what the judge did here with was really very very unusual on the lovett level gun in finding that the courts were not limited to the policy statement provided that can be ascertained you know we we think that the sentencing guidelines are useful guidance and judges who stray too far beyond that guidance find that they've abused their discretion and done seems to say that you know maybe you shouldn't be going too far above the guidelines but here we have a judge who's saying you know i i see that you're the guideline and the government seems in us actually when we read the case that this was a person who was eligible for compassionate release in the justice no i'm not i'm going to take an even more restricted view of eligibility but then that sum to what is the basis for his saying he has a more restricted view and what he doesn't appear that black is going to die prostate cancer very soon well that really misses the point the queen and what is exposure to death or serious injury from seems to have been a pretty clear to gun error with respect to mr black's eligibility for release and so i would be primarily interested in you addressing that put this on top of whatever the guidelines now you know maybe mr tyson is your taste let me ask i understand that's your position but that was not judged at least from what i read that is decidedly not judge guzman's decision he did not say anything about when he analyzed the three thousand five hundred and fifty three factors he did not say anything about at least from the way i read his opinion about mandatory minimums or about he doesn't agree at all with what you just said about deterrence and promote respect for the law and that that your client is already satisfy those three thousand five hundred and fifty three conditions he says exactly the opposite in his in the last paragraph of his opinion and don't we have to give some sentencing to respond to the defendants aren't and this was a major argument that the defendant made about how he had this extraordinary warmth and it wasn't based on the guidelines and you know it's certainly reasonable to talk about he's sure that it's respect for the law but in order to come to any sort of reasonable who you know the judge has to least acknowledge and deal with the the argument that these mandatory statutory sentences were different i mean without a doubt he disagreed but that's not the point if the judge is going to make the reasonable decision the judge has to engage with the arguments not just blow past them and deal in generalities that ignore crucial distinction between guideline sentences and statutory sense so do you think we need to very scary i was talking here about you know a very substantial volume of cases in the district courts highly discretionary decisions well i think we then then the judge has an obligation to consider not only point out the two district courts in the northern district and already granted this type of relief and the government never appealed those cases so here we got  district court didn't deal with the argument the sentence was driven by a mandatory minimum that it wouldn't apply if mr black was sentenced today and this is this is my question the district court clearly acknowledged the forty year sentence that mr black received here should the district court should the district court in these instances be required to deal with that in other words if the defendant were to make an argument that under the sentencing guidelines that well you know when he was originally sentenced for child pornography got the two point computer and handsome and everybody uses the computer ever ever to use a computer now and district court judges are  discounting that enhancement routinely when they sentence defendants in child pornography cases and that's our argument here that if he was sentenced today he would have received something less than he had received at the time he was sentenced and that should the judge should consider that in the three thousand five hundred and fifty three analysis that to me seems to have some far reaching consequences if if we were to acquire district judges to do that should we do that should we require district judge to go back and say i have considered the manner in which this sentence was originally imposed and i'm going to consider the three thousand and fifty three factors with that in mind no your honor the judge should not be required to do that and it thought was the most important thing was the extreme seriousness of the defendant's conduct and an offense and expressly found that because of the extreme seriousness of i reasonable and it's not as though the court did not acknowledge that the art at the argument was not me the court quoted it at the beginning of its opinion and by not addressing it specifically the court and presently found anything and so i'm just trying to charts he and i have and i have another question for you regarding judge guzman's analysis with particular with respect to butner it appeared at the time of the at the time of the sentence i couldn't i couldn't tell exactly at the time of the motion whether he was at the at at the butner medical facility or if he was at the butner camp but regardless he was at butner and i understand he no longer is there that he is no longer at but how should we how should we deal with that if that is in fact the case well i'm not sure that that is necessarily relevant to i mean i actually i don't think that those necessary relevant to the question presented here which is whether the district court abused its discretion in denying motion it the reality of the situation is that it  defendant went at the time of the motion at the time of decision the defendant had completed his head was a year away from having completed a previously a year earlier completed his radiation treatment and had just taken his toward having his cancer was solved at that time but you know wasn't there i assume that the transfer is reflects that he's further away from from those problems but i really don't know and and certainly it would be appropriate for the court for the district court to consider the current situation in reaching its conclusion and reaching a new conclusion about whether compassionate release is  so with respect with respect to the specific argument about the about the sentence but the change in in the law concerning a sentence three things st they didn't know way likable so that would not have happened and as far as i think if i heard him correctly i believe that mr tice commented that the defendant may have maxed apply the new house one hundred and twenty four c penalties to him from the beginning which of course the government would not agree to that would be appropriate i don't agree with that because i think that the by my calculations that correct i don't believe that he has reached that place in his in the service of it's that i could be i could be more specific if i had before me that that actual figures and i don't apologise for that but i don't think it's true that he is maxed out and i don't think that it was very clear that the judge didn't consider his sentence to be egregiously large for however it got there just from the record just from the facts of the amounts not not from anything from the transcript or anything are not based in on that so i don't have access to that right now but just from the facts it does not it appears that the court may very well have taken into account the consecutive that was imposed putting aside consecutive statutory terms he had already next down and they had and the acceptance represented under the guidelines a judgment as to what would be the appropriate sentence for someone who committed these crimes and indeed if our he had not been charged who had been convicted of separate crimes that would have been allowed the judge to make the because even under the new law the judge would be obliged to close to five years consecutive terms to each other consecutive to that the guidelines he couldn't get relief and there it is not really accurate courts have come to the conclusion that when they grant compassionate release they can grant a sentence of time sir people who have received life sentences get a time served or can get a sense of time served if the judge decides that compassionate release is it's appropriate so i just i hope this have you got this confused and that's my effort to try to clarify things