i please the court i'm elliott abrams on behalf of the appellate anthony high routers this court has confirmed time and again in the context of pre sentencing motions that a district court must explain why here the district court provided only one paragraph of case specific reasoning in response to the parties more than one hundred dollars pages of argument and exhibits which provided fully developed non frivolous arguments why new post sentencing circumstances warranted re sentences and its order the district court did not make clear that it considered mr hise post sentencing mitigation arguments nor to provide any explanation of how the three thousand five hundred and fifty three any analysis was affected by mr highs but our ability to serious illness or death from kobe nineteen indeed the district court never mentioned the pandemic code nineteen or mr hise significant medical conditions and risk factors such as serious heart issues history of smoking hypertension and obesity nor did the district court mention mr hyde's educational and vocational rehabilitation or his substantial infraction free period post sensing in the b o p and the court did not explain why it rejected mr hise argument that home detention which was now available for the st time on recent saying would adequately deter future violations by him ultimately because the district court failed to give individualized attention to each of mr hise post sentencing mitigation arguments the district court abused its discretion in denying mr eyes motion and the order must be vacated and remained it for reconsideration although this court has never specifically held by a published opinion that the individualized explanation requirement of martin which dealt with thirty five a t c to similar similarly applies to the statute as you an issue here th applying martin to thirty five a to see one a indeed a oral argument in that donald the government conceded that the martin individualize explanation requirement should apply to section th c one b and there is no logically consistent basis for failing to similarly concede that martin applies to section thirty five a to see one essay the surprise arguments also trigger the martin individualize explanation requirements because he presented post sentencing mitigation arguments that were not available at the time of mr hise original sentence it mister i presented not only post sentencing mitigation in the foremost a substantial infraction free period and the completion of numerous educational and vocational courses in b o p he also presented a dramatic new circumstance that is that he presents a high risk of serious illness or death from co the nineteen due to his serious health problems and he presented b o p has been unable to adequately adequately control the spread of the virus thus leaving him exposed to catching a disease that may well kill him that was a new circumstance that was not before the court of the original sentencing hearing mr hyde presented that they fully developed argument to the district court and the district not done so but here our position is that by failing to mention and address mister is it his argument that he's a high risk for catching code it the court could not conduct eighty three which talks about the kinds of sentences available i think each of those three thousand five hundred and fifty three a factor are factors that are implicated by someone who is a high risk of death or serious illness from code nineteen so our position here is even if you take the government's reading of the order and say that the court assumed without deciding that mr high presented extraordinary and compelling reasons for rel guidelines whereas here there is no intuitive basis for us to say what you have the core declined to why the court didn't find mr hines argument that doesn't address the the  circumstance in mesa which as maser which seems to provide some guidance for here there the defendant challenge this sentence and said the court didn't address his ga his courses his education is rehabilitation type of thing and the court merely checked the box on the form saying that he had considered the and so really the dispute was did the court provide enough to tell us why it didn't go down from one hundred and fourteen to the want to eight that the defendant asked for and so the court said we can look at this record and see that the quarter originally sentenced this person to one hundred and thirty five months and thought that that was an appropriate sentence and so we've intuited that from this record that the court thought somewhere above the bottom of the guidelines which is what the defendant asked for and ch of was appropriate and so i think that's the st reason to distinguish i was amazed that the nd is what i've already mentioned and that is that the judge actually did grant some relief in chavis mesa so the court clearly consider sorry i don't understand would difference did what it did and i don't know that that applies here and in the nd it basis is that the record shows of the court actually didn't consider arguments of the definit about post sentencing conduct proposed sentencing issues because the court granted some relief whereas here the court didn't grant any relief and didn't make any reference to the fact that mr hottest situations are magically changed he was synesthetic time when it was safe for him to be in prison now he's in a place that may well kill him and the court made no reference to that change circumstance and then chavis mays it was of course factors into this corpse preexisting and post shadows maser case law that says that if a for example in martin macdonald if a defendant it raises post sentencing mitigation arguments the court must give those arguments individualized attention and so well chris we can't reverse the supreme court we might like to sometimes but that's not within our profits so do you not think maybe those decisions are in conflict with the supreme court case he does feel like there was  basis so it looked in the record and said i could see why you rejected the argument to go all the way down to what a way where i didn't have to i'm trying to reconcile with ours are precedent and we say that there must be an individual ised tension in you're saying that standard the court says we've looked at the record and from this record it's clear to us that individualized attention was then used the words individualized attention but that the district court considered those things and so i think th found that it had in that particular case of course in that case we were dealing with a pandemic and you were dealing with more regular sentencing factors well that's what i was about to ask you do you think that there is possibly a requirement that there must be in these covert cases which are going to go on forever but which are certainly in front of us right now as a basis for getting this early release so that there has to be some acknowledgement answer is yes i think the code cases necessarily trigger the individual as explanation or requirement and require the judge to just grapple with it and say because if you are at an initial sentencing  it and the defendant says just i'm terrified of going to prison because i think i might die look at how high risk i am you know this is a new circumstance if we have a situation where you know a high percentage of people are going and getting really sick that affects the three thousand five hundred and fifty three a factors in every case and so and fortunately it's not going to go on forever so that this isn't this is just an application of martin and mcdonald and the cases that say if you present new circumstances to reset it saying the district court has to give them individualized attention and of course the amount of what the district court has to say very real dispute before it which was whether he's high risk and how significant the risk was that he would actually catch it we submitted that he was a high risk and it was not being absolutely control the government said he's not a c one a one after just two years in prison citing his pleading disciplinary record attending some classes and the desire to escape the risk of contracting now thirty five a to c one a one is different extremely different as this court recently held and mccoy mccoy compared the statute to other sentencing reduction statutes and found that the extraordinary and compelling reason standard quote captures the truly exceptional cases that fall within no other statutory category and the reason why that matters is that this statute in being in a league of its own i expansive language means that there's an expansive amount of discretion and the court employed that discretion and it made a finding that it hinged on three thousand five hundred and fifty three dollars but ultimately it was an extraordinary and compelling finding because that's essentially what the statute asked the court stated the defendant was very recently sentenced so important finding because defendants must over time show that they're worthy of compassionate release mitigating evidence minus time is insufficient evidence to assess extraordinary so the court noted that in saying you were very recently sentenced the court is noting i had these facts in front of me and just now you've been recently sentenced and i don't have enough information to make this determination which is supported by the court statement that the defendant committed the offense in this action which involved a gun crime soon after completing twenty years in state custody for a violent crime and he is talking about murder and attempted murder with a gun and now the defendant has been found with a gun doing drug deals so the court is saying you have a very serious crime there's been two years that you've been in prison and then the court says something else that it's assessment of the relevant sentencing actors has not changed the court is against and i had an opinion before i actually did have a  and now i've seen everything you put in front of me you haven't streamlined violent crime on your record you've got another gun crime this was very recent and that's why the court says at the end the sentence imposed remains sufficient but not greater than necessary to advance the goals of three thousand five hundred and fifty three so what the court has in front of it is not your typical sentencing reduction statute this is one that throws the door wide open for district courts which is why mccourty has made that abundantly clear that the policy statement does not actually constrain the district courts and him the district courts have the ability to review what they want they can look at the defendant's desire to avoid  contracting or his disciplinary record or anything else he wants to put there but especially in a circumstance like this it's particularly easy for this court to look at what the district court did make a review of what the district court did and then ask ask itself is this extraordinary and compelling the answer is no it is not decided below that is whether there are extraordinary or compelling reasons indeed in its briefings of court t v the government suggested that the courts soon without deciding that there were extraordinary compelling reasons to grant relief so what we have here i think just from these arguments is a lot of different ways to interpret what the court did and a lot of guess work to be done about what the court did and that's precisely the point what we're saying is not that th likely to get seriously ill or die during custody there was no attention paid and no explanation for how the court result that issue the issue about being recently senates may explain why the court rejected the it the post sentencing mitigation presentation about taking courses and staying out of trouble but it provides no explanation for how the court grapple with mr highs higher risk of death or serious  code nineteen and so what we have here is a lot of guesswork to be done if we're trying to figure out what the court did the government's presented multiple different interpretations of the order some saying that it found extraordinary compelling reasons and now it's saying actually you can look at this and see that there are no extraordinary and compelling reasons this is precisely the type of situation where we need to hear from the district court about why it made its ruling and so and this is consistent with what this court has been doing in these cases over the last many months and sit in cases back where the court has not addressed are these arguments and of course what we're building off of just longstanding holdings has to give those individualized attention and the district court did not do that here and for that reason we would ask your office to vacate the order and to remained this matter for reconsideration and