office of the federal public defender district of new jersey if i could ask permission for three minutes of rebuttal time no no problem in this case raises the question whether early termination of supervised release requires a showing of extraordinary circumstances the answer is no i have two main points to make in support of that answer one is the most basic one fundamental the plain language released november th which and i would be remiss not to mention that it is also his birthday he will be forty six dollars for the plain language of the statute requires only that a person subject to supervision must have statute that we don't have there's nothing that requires extraordinary or exceptional circumstances and there's nothing that requires a new or an unforeseen circumstances in order to grant a motion by either a defendant or the government relating to supervised release but that does not mean does it so the court cannot take those into account in making its decision is that correct that's correct your honor if i could cite one example where that would play in the powell case which is cited in i believe it's due to ash the defendant there was in the final stages of this life that is certainly an extraordinary circumstance and right for consideration i think it's a compelling circumstance but it shouldn't be a requirement it should not be a bar that a defendant has to meet where or exceed in order to get early termination the statute doesn't require it and i think it also my nd main point is also that making that a requirement sort of distort or shift the focus of what should be a very which is which is which should be tied to the purpose of supervised release to justin cases talk about the purpose of supervised release the st royally in case and that congress intended supervised release to as individuals so to affirmatively assist individuals in their transition to community life the other johnson case cornell johnson says but has the purpose of super mission been fulfilled has had it is a condition where a supervisor is in general assisting mr mills and so the injury here i think how it manifested here is a perfect example for example the reporting requirement the district court here says it's so on burdensome as to be nothing more than a nuisance but the inquiry if you say he needs that nominal then the answer's no if the answer is is it a burden and the answer is a different inquiry totally different inquiry the other example of how i think that is test requirement affected quiet and they're compliant somebody can be in compliance with supervised release with all of the condition and their answer to the inquiries does he still need supervised release to further the goals of supervisors somebody may have mental assistance similarly somebody can be in compliance like mr melvin and i would say you have done extraordinary well but not me that assistance any more than drinking beer if you if you're the government it's easy to understand when you say ok he's complied with the terms of the supervised release and sometimes you can see in our government attorney saying that's what he's supposed to do how can that be in any way put us into a situation where you ought to revisit your order unless you should have revisited it at the outset and now you're having nd thoughts judge but it seems like it's a wide open area as to the wide open thing might be considered the interest of justice i mean the conduct of the defendant like this that there's compliance and there's compliance mr melvin is you know a model example of compliance plus but if you look at it in the context i think if you pose that inquiry the goal of the supervised release in the film and art is continued supervision assisting him in any way or is it improving his  successful transition the answer here would have been no he doesn't need it anymore but i think you're and i go back to the example some people may be in compliance but still need the assistance of the interest of justice i think largely to whether somebody continues to need to provision but also judicial resource resources efficient use of probations resources the policy guideline which the types of things that big can be considered in connection with a matter relating to changing supervised release conditions is pretty broad it is broad but it's no broader than you know a judge discretionary and i think we trust district court to weigh all of the circumstances they have the they have the guidelines of the sentencing factors they have the statutory factors they have the but the st you would think the blink response of a judge who gets a motion for a change of supervised release conditions having previously been put in place by the judge but responses what's changed termination supervised release the change circumstances are inherent in the notion that somebody has proved this judge that three years in the in this case is not is not necessary that whereas the judge  how many years ago i'm better than eleven years ago but three years would be would be necessary the circumstances have changed to the point where a judge looking at mr mehlman eleven years later says you know what the purpose of revised at least that's been fulfilled that i think that's inherent in that inquiry i don't think it's that it needs to be an exacting standards i think it's inherent in that in the required of a judge considering a supervised release motion for change to consider exception or extraordinary circumstances or new or unforseen circumstances is that required i do not believe it is required under the terms of the actu to or this court's case law however i do believe that those are very sensible considerations and this court has said so in several opinion that those are sensible means noble considerations and i believe judge mcnulty understood that and understood the state of the law when he conducted his discretionary reasoning in this case and i say that for a couple of the i was on the panel lated i think if i was if we had to do it all over again a decade later we would certainly been a little more precise with our use of language i didn't write it  required him to consider that factors but he also in the way he's framed his opinion i believe he did not think that he must find extraordinary circumstances and the reason is st of all his use of the words empowered and warranted in discretion and the very prosperous page he explains the court is empowered by the text of the statute meaning it would be legally authorized to herminie to supervise released term early based on the conduct of the defendant in an interest of just that of the top of page two he discusses those other considerations and said early termination is warranted which means to me shown before he could rule in favor of a supervised release modification here really smart but that's that's not necessarily how i interpret it your honor i interpreted his use of the word warranted as ascertain a viable legal basis for the denial of the motion and i think there is certainly a viable basis for the denial of this motion for one thing when you look at everything the court considered what i believe tipped the balance here was meldon's criminal history and the seriousness of his offense both are things that meldon cannot now change so nothing new or unforeseen or extraordinary today can change those factors and that was i think one of the most important things that that judgment will be found tipped the balance in favor of not terminating the supervised release early so i think because he considered all of milton's arguments credited many of them but if we determine that he believed he was straitjacket if you will with certain requirements and he may end up doing the very same thing he may even say i do need to see some type of new perceived circumstances but don't we need to at least correct the misperception that there is a requirement that you consider these things i mean our case and murray judge when his opinion  clear there is no hard and fast published or precedent of our court d what a trial judge must take into account in connection with supervised release i really don't like discussion of non presidential cases or writing on a clean slate and let's ignore the not precedential cases they're they're not they're not precedent for us to consider judges on what they may consider even if they're not legally required to consider those factors the in in this circumstance let me pose this example to go back before the judge and the judge as you know if i had to do sentencing all over again i would have done a much different supervised release  standard or conditions and i've been thinking about this and looking at the record here it convinces me that i should have done it another way at the outset i'm going to correct that er society that a term a supervised release provides him i only want to point out that that is not the only purpose is to provides relief but another purpose is to the court can keep a watchful eye over him until the end of that term on november t knowing that the court could keep its eye on him and kill the natural end of the three year term if that's something that would seem to be within the realm of discretion just want to emphasize that judge amber pointed out that the st sentence of the nd paragraph of the opinion is is warranted only when only one makes that clear and explicit the judge applied that enhanced extraordinary circumstances requirement and and my nd point is that i think it would be extraordinarily helpful to overuse the word extraordinary extraordinarily helpful for this court to clarify that that is not the requirement it is not in the statute is not consistent with the purposes of supervised release and though it may be relevant or consideration in some cases it is simply not a requirement another way of asking the question that i asked your adversary which is if we agree with you that he applied the wrong legal standard and that alone of course can be an abuse of discretion but if you put that to the side for a minute is there any other way in which he abused you think he abused his discretion don't know i think the application of the high standard was the abuse of discretion because if it rained every consideration in relation to that higher hurdle i think everything was both counsel for being with us today and for being patient because we took a fair amount of time on the other cases and will take the matter under advisement