an independent ruling is later sanctioned by by gun indeed it's even a little bit unclear as to whether or not the judge was deciding this as the court was placing great emphasis on the policy statement of the centers for disease control you know factors that are risk factors factors that might be risk factors and  cases that had said that other cases that had said otherwise but inquest they were all pretty done when almost everybody was looking at this in terms of what's allowable under the guidelines  the judge seemed to mark out the distinction between things that are risk factors and things that might be respected based on her belief that the c d c had  discretion in terms of finding eligibility the judge is still bound by the normal limits of a discretionary ruling the judge cannot rely you know appropriate considerations the judge can  factual premises that are clearly erroneous and in this case that's what she did she be lying i'm white why is this why is that another reasonable line for her to draw and i have to say i don't i read i don't binding but but i in dealing with the kinds of uncertainties that every individual in every institution is dealing with now why isn't unreasonable to draw a line between known risk factors and possible risk factors because when she considered this problem she based that on her believed that the c the possibility that the combination of chris cracked might indicate a different result i i don't know how much she considered it but i don't think she made as prime statement that combination affected her decision although i merely want to draw the court's attention to her statement that's what people in prison are like the nurse when she made that remark that he'd be safer in prison than out of prison did she focus at all on the  and beyond that he would being out of prison unlike many of the cases we see your client did present a specific player as to where he would be out of prison the judge district judge also alluded to the fact that he had had the disease and you know did she remark about his prognosis in terms of recovery from that i understand there was some evidence that he was still suffering from some of the some of the effects of disease no in her opinion it's very brief and it doesn't go into that now it's three pages most it was reasonable to to depend on that both because the c d c is a recognized expert in the area and also because the evidence said had shown that the defendant's medical records had described defendants as intermittent seasonal well control and having no effect on his family or activities and also the medical records demonstrated that his his other heart related medical condition that is the use of you know compromising drugs was not to any and the physicians at that had specifically noted in the medical records that they had concluded that the defendant was not immunocompromise level of immunity that that provided by a previous infection and of course it still is scientists at that time and a scientist at the c d c at the time it expressed the expectation in view that persons who contract it recovered from th was undermined by that fact or produced by that fact it was also reasonable for the court to rely on the fact that this that the substantial outbreak of coke in one thousand and had heard at the facility where the defendant was  that he said he was at increased risk because they showed that the risk of infection in a place where the infection was not spread widely was reduced and they also showed that we'd be a you sort of some procedural questions here you may recall a few years ago we had the hot debate in our court about judges doing their medical research online their own medical research online and it's a little hard to see that there's an alternative to that here given how quickly medical information is changing  both for an individual and in the advice that we're getting from the c d c and other government institutions for example we're seeing i guess a significant number of these cases on the court of appeals  well your honor i think that there have been an extraordinary number of russians before the district court and in many cases the individual defendants have brought multiple motions syria so even the number of defendants have brought motions doesn't show the clear picture of what's actually going my own observation is that the courts have been relying strongly on the c d c s items and have been keeping an eye on that guidance which does change over time as more evidence comes in and generally have have focused on at the time of their decision the c d c s current and best information at that time and that seems very appropriate there have been some cases where defendants have presented the court with additional medical information which would not necessarily require the court to try to do its own research we would not but we don't think that it's inappropriate for it to consider chairman there was insufficient evidence to support that determination but they noted that there was enough evidence out there to to mention it as a might in the case in the case like this one where the medical records not reflect th