thank you the question before you today is singular what is the plain meaning of section three five eight three g as written by congress the very existence of that subsection can only mean one thing that congress meant subsection g to operate did it differently than revocations or other offenses when they mandated a punishment based on a specified new crime they were punishing for that new crime when congress says if you commit a new crime of possession of a firearm while you are on supervised release your supervised release must be revoked and prison time must be imposed it is the new crime causing the revocation that's required and the prison time that's required again if congress did not mean to punish for the specified new crime that section would not exist that is why jeopardy attached in my case and as the only reason we are here today i'm not arguing that mr wilson supervised release hearing by elated his right to a jury trial or that his sentence had some kind of the case is going to the supreme court and payment will affect the outcome of this case in terms of problems you know well i think i think the issue is very similar in that case of course i'm basing a lot of my argument on the  foundation of that which is involves a similar argument regarding subsection k so the government did petition for writ of which has now been granted by the supreme court the government has filed its opening brief the response brief is due friday and oral argument is now set for february twenty sixth could that have an effect on this case absolutely now there is also some other arguments in that case that don't have a specific effect on this case but absolutely depending on the wording of that supreme court decision it could happen affect on this case allowing simultaneous supervised release revocations for the commission of a new offense and prosecution for a new offense is deeply rooted in the theory that the new prosecution is for the new offense and the supervised release revocation is a modification of the original sentence a modification based on many factors independent of the actual new offense courts have long recognized the modification of judgment based on a breach of trust or a failure to abide by terms of release is appropriate but in recognizing that theory courts have cautioned that that they are he fails if punishment is based on the new offense which is what is happening under subsection jeep until now in that cone circuit opinion as i understood it the core was saying that after the supervised release violation there was a new maximum punishment of bail that was not available at the time of the original sentencing and in this case as i understand it there's no change of the available penalties it's still the same range as it was available at the original sentence is that true and does that make man it is partially true that tenth circuit case had to do specifically with the constitutionality of subsection k and the court held it unconstitutional for two reasons one re congress just says a term of imprisonment which is an all district court judge means could be anything from time served to the statutory maximum and saw really already still is in power and we bested in the district judge simply be what happened what's the failure to comply with the court's previous order and you were there's nothing here that requires you to punish someone specifically for another triggering offense or it could be probably that the same range of potential sentences is present for the new gun felony versus a drug possession in the same range is available to the district sentencing judge that would be available if the triggering offense was a drug offense versus a weapon offense that this was yes that change option for a judge under she two i do not believe that time served would be an option i believe that there must be a mandatory prison time as required under that statute and saw somebody sat  so yes so times are great so here's here's the distinction i'm sorry and here's why i answered the question the way that i did i was i was under the impression that your question to me about time served was the time served in the original my my guy was taken into custody he was released pending application for a warrant but once the supervised release officer filed for revocation he was then arrested and he did  fact he started serving some time he was not given time served in this particular case well but if if it's true that the judge could say that doesn't that defeat your argument that the statute requires something more for a firearm possession than for any other violation it doesn't matter that the statute says it can be an extremely minimal amount of prison time it is still punishment for a new offense even if it is forty eight hours even if it is forty two minutes it is still punishment for that new crime the government in the opening brief to the supreme court on page forty nine cites the dissenting opinion and hammond and it basically sa some violations that are particularly serious offenses and it's not really mandating based on what the offense is it's just kind of listing what these particularly serious offenses are and they actually cite the dissenting opinion where judge kelly says congress can determine that the commission of certain crimes constitutes a more serious breach of trust and that is what the government argues that the plain meaning assigned to k in that particular case congress was that wasn't congress's intent they were just simply pointing out certain crimes constituted a more serious breach of trust and here's why that argument fails first you know what's not on that list murder apparently if your new crime is murder your supervised release has no mandatory revocation or carries no mandatory prison time mer patently can it be dealt with under section three five eight three eat and the second reason that argument fails is that the intent of congress is irrelevant where the plain meaning of the statute can be determined and there's nothing confusing or undecipherable about the language  my argument doesn't mean that the sky is falling absent subsection g revenue revocation proceedings can proceed under three five eight three the court can look at all the factors listed in three five five three to determine how to appropriately handle the be breach of trust and the failure to comply if g had not existed in mr wilson's case he would have been subject to the revocation proceeding under subsection he or the court would have made its own determination as to the factors and three five five three assessed mr wilson situation the facts before it and administered the appropriate sentence of modification based upon the breach of trust mr wilson would have been subject to his pending federal crime his guideline range for the new offense would have been advanced by virtue of his committing it while unsupervised release and he would still be subject to the pending state case in jefferson county but subsection d jed did exist and this court can reach no other conclusion than the district court judge did as exactly as mandated by congress and imposed punishment for that new offense until now this language in subsection g has been a sleeping giant now awakened it's a slap in the face to the court's longstanding theory about modification of the original sentence it's a slap in the face to the fifth amendment it begs to be recognized and extinguished again the sky is not falling there is a hesitancy when faced with the wording of a longstanding and well used statute that a declaration as to its defective would have an resolvable and costal consequences and that's not the case here while a ruling in my favor would affect a good number of cases congress can simply eliminate subsection g and solve this problem please the core on behalf of the united states i am asking that the court affirmed the district court's denial of the defendant's motion to dismiss the indictment by finding that title eighteen united states code section thirty five eighty three g is not trigger the double jeopardy clause that's precluding the indictment that was filed in this case i think it is important for the court to focus on the actual issue over which it has jurisdiction in this case and that is whether section thirty five eighty three g actually triggers the double jeopardy clause that's precluding a subsequent indictment based on the same offense conduct at the supreme court and this court have repeatedly answered that question in the negative first because when a defendant is on supervised release and that supervisor release is revoked he is not being  prosecuted because he is not being prosecuted the double jeopardy clause does not attach the united states supreme court in johnson confirmed that that is the case whether the triggering offense is criminal or non criminal it does not revocation the supreme court has again answered that question in fact it said when the defendant violates supervised release the sentence imposed upon revocation is the execution of the original  and supervised release that supervised release in turn in closer variety of components general conditions standard conditions mandatory conditions in each one of those carries with it a potential punishment so when you look at a at the supreme court has said when a defendant is really wrote in the original it is the original sentence that is being executed and part of that original sentence includes the special excuse me the standard the supervisor release conditions and the punishment attendant and so it the this is a sentence of the defendant was initially received and was exposed to the entire time i would argue however that that does no your honor i would argue again that that is part of the original sentence that that was part of the final judgment package in the defendant was exposed to that from the very beginning in fact provide a notice of it and that was part of the original sentence that was being  executed i think the second circuit in meeks points out because if you look at subsection g simply because the defendant can possess a firearm that does not necessarily mean that that was a criminal offense it could still be non criminal for instance in a the court or if a defendant can be sent back to jail for a violation that is not a crime then it must be that the punishment imposed as part of the sanction for the original crime in other words back to my original argument that is the final judgment as a package and that is part of the package to which the defendant was sentenced based upon the original conviction i would argue in this case that the defendant is in fact not being punished twice for the same offense and i think that again the defendant has failed to offer any compelling support for the argument that because subsection g requires mandatory revocation of the sentence to impose upon revocation refers to the original conviction i think logically obviously the court is looking at the triggering offense to determine revocation or the nature of the sanction imposed like the case with respect to every violation no matter what section subsection it's under nothing in the case law or in the constitution requires that every violation for supervised release must be the revocation must be discretionary there's there's absolutely no support for that just as there's no support for the fact that every violation of supervisory lease must carry the same range of punishment and that's good so i stand with the breach of trust theory behind revocation congress has deemed it is their prerogative to deem that certain violations that it feels are more serious for whatever reason necessitate mandatory revocation and subsection g it felt that those violations my guess is because they directly affect the safety of a probation officer accumulatively or the defendant him or herself in the sec to take mandatory revocation just as congress found that other breaches of trust do not and that that revocation based on those violations could be discretionary are you familiar with any other provisions that have mandatory revocation i'm sorry ana are you familiar with any other provisions that have lot of respects you know you look at g and you can be mandatory revoked because you decline to participate in drug testing which is not criminal anywhere that i know of and you can be  revoked because you have three positive tests while you're on supervision and once again as a drug test in most places are is not criminal conduct right and so it seems like it's all and first i point out that the issue in hayman was whether subsection k was unconstitutional or not and that's not what we're dealing with here that's not an issue over which this court has jurisdiction in this case the issue here which was not the issue in hayman was whether double jeopardy attached secondly i would point out that the holding in him and was not that mandatory revocation without a jury finding beyond a reasonable doubt w unconstitutional the holding and payment was that the mandatory range of punishment which exceeded both actually the statutory floor and ceiling of the original offense of conviction was unconstitutional without a jury finding beyond a reasonable doubt well  k and that was what was at issue because the defendant in that case was being revoked under k and it was the united states position and still obviously remains the united states position that the haman court in fact missed the mark on that one and it was it it is the position that because revocation is the execution of the original sentence and not a new criminal prosecution or not the imposition of e again that was executed upon the revocation it was simply not a new punishment it was part of that as i keep saying part of that original package but again assuming for the sake of the argument that the hamming decision was is not part of subsection g and fact subsection g simply refers to subsection the and that's where the sentence comes from it does not increase the statutory floor or the ceiling for the original sense of connection in fact it is within the statutory range for that original sense and that all of it also keeps the discretion with the district court to determine that it is not taken away and  on that nothing about the mandatory nature of the revocation in subsection g changes that in fact i would go so far as to say that based on the rationale that was used by the hayman court to find subsection came constitutional that it would not in fact if presented with subsection g make the same kind i don't waive that it would find it unconstitutional it could apply the same rationale that it  johnson did say that we could have mandatory or we could have supervised release revocation hearings and separate those if we are if we are our punishment on the original offense and modification but johnson warned this is not true if we are punishing based on what the new crime is and that's exactly what the court said in the operate and the judge you hit the nail on the head there were two reasons there were two reasons that haman said this doesn't work one had to do with the sentencing issue what they specifically said second subsection k is unconstitutional because it circumvents the protections of the fifth and sixth amendment by expressly imposing an increased punishment for the fic subsequent conduct johnson in the supreme court made clear in johnson that to avoid serious constitutional concerns revocation of supervised release must be viewed as punishment for the original crime of conviction and that's where congress went off the rail here in this particular subsection the government in its brief and haman reaffirms that there were these two rationales for the constitutionality of subsection k and that the second was that the court took the view this is page sixteen of their opening brief the court took the view that subsection three eight five three k impermissibly requires a term of imprisonment criminal justice act rob portman and wish to express your or gratitude for your willingness to serve thank you judge for allowing you to do that and for grant