wait just a second more people clear out and peter anderson here on behalf of michael fetter if there were a couple procedural errors and in this case in closing this condition the most obvious one i think is that the district  maybe provides more support for the conclusion that he's a drug addict that he needs help marijuana on the other hand is a much different substance and in today's age so we think that that's a big procedural  other procedural error was that i think the district court didn't adequately explain why drug treatment as opposed to drug testing was necessary for mr federal so i was let me ask you a question about that part of your argument that the cocaine mistake seems like a serious one but you know we always have this problem with supervised release you know here's the judge sitting there looking at the person they're not going to emerge from from prison for another ten years or fifteen years or twenty years while you sit in a sensible system for us to insist that the district judge go beyond just saying you know upon release you have to  participate in drug treatment if the probation officer reviewing the drug tests thinks that that's appropriate it seems to me that's flexible as opposed to saying you know i you know i'm the all knowing person and i know that in fifteen years you're going to be drug treatments going need to be inpatient and skinny to be this but she doesn't know all of that so why should we have a rule that requires the judge let's say to put in the maximum possible you're going to have to do a year of inpatient drug treatment unless the probation office decides that less than that is all right i mean it seems like a very bad system to me no i absolutely agree with that and our position is that when you're imposing conditions for future events that are going to be contingent on what your status is at that time you should build in flexibility now the way that you can build in flexibility by delegating that authority to the probation office to say if the probation office it's appropriate in the future they can then order drug trade why isn't that sensible in that it's the probation office at the point in time we're talking about that's going to know the most about this individual the person will have completed prison with whatever kind of record they completed prison with they'll either be cooperating with their probation officer or they won't you know it's just seems like that's where the expertise is right i  think we agree on that i think maybe the mechanism is what we disagree ok so how do you what what i'm going to want anything to be in there and you want the probation office have to go back to the district court to impose a new condition that is what i want is at the time of sentencing i don't want the district court to impose conditions that will involve a greater deprivation of liberty than the three isn't necessary that's what the statute says but i want the flexibility which is built into the statute to allow if conditions are right in the future that the district courts can impose second edition so for example what the district court might have done here is say i'm you know given your history you need drug testing that's a mandatory condition i'm not going to suspend it for you and maybe put in a conditional so that the probation office doesn't have unfettered discretion would say if mr frederick misses a drug test if mr feder produces a positive drug test then i order the probation office shell you know choose the appropriate treatment subject to my review so they have to say in pate just a judge have to say in patient or out patient because obviously inpatient is a greater deprivation of one's liberty if you're told you know is a condition of supervised release you've got to go to the drug rehab center and live there for two months right and that's the deprivation of liberty i think it should i'm not the cases thus far have have split that fine a difference between substance abuse treatment that's outpatient and an impatient but that's actually think that's very and that would be very hard for the judge to do unless we had this authorized the max and let it get relieved by the probation office which which we do with number of drug test they'll say up to one hundred four years anything like that but if the probation officer thinks once a month it's all right it could be as low as twelve and you're right and i think that's exactly why this court for the last three or so years has said let's take a look at these conditions and realize they're flexible let's realize that the probation officer can always go to the judge can always talk with the release see who's under supervision and say it looks like you're having a problem with this i think that we need to address that problem so if if there's a drug problem if there's mental health issues things like that here's what i propose and here's what i'm going to ask the judge to do but i guess what what is driving the government maybe i'm wrong we'll ask them is how many times has the probation officer have to go back to the court you know to get a court date and how much can the probation office just do in the exercise of its own responsibilities so i think that  e programs themselves to keep it centered on this case are things that involve a significant enough deprivation of liberty that even an outpatient one i think so because what a lot of people who are coming out on supervised release are encountering is maybe for the first time in their lives they're they're working they're trying to have a schedule they're trying to fit in family and with these conditions even just a requirement that you appear at this time for this many hours every week much later reposition of deprivation of liberty oh absolutely yeah so if we keep pushing the question of supervised release and it's and it's as you might suggest burdens on   you may be entering the prospect for the grammys superficial yeah i think that judges too often i guess i have two responses i think that judges and i may be wrong about this really look at the prison term a little bit differently than supervised release they obviously are required to consider them together but for example after the sentencing reform act one thousand eighty four was passed and we have this new thing called supervised release you don't see the sentences go down you don't say well all right i know now that i'll have some post incarceration supervision the census when up the prison sentences so i don't i don't think that judges are are thinking i'm going to reduce the prison sentence for supervis what at least what i see from my perspective is judges are saying here's the prison sentence and now how much supervised release to me but you're right and we may be we may be playing with fire a little bit again my experience would suggest the court my name is joseph peterson i represent the united states in this matter the first reading of the record in this case shows just your court i do prefer accurately describe the defendants prior substance abuse yes i i was very surprised to see the government saying that because when you look ever what the judge actually said there's no possible way that i can read it as anything that the judge thinks that he's used cocaine after his mother's death and he had the cocaine use was long before that and that's a pretty big mistake cocaine is a very mother's death he's recreationally used cocaine period close quote that seems clear isabel to me and it's a mistake well your honor when it's read that mistake well but look at your own appendix pages seventy three and seventy four is where the actual transcript is i'm not paraphrasing the bottom of seventy three begins but he's abusing prescription drugs in the past period now at the top of seventy four i know that he kept his girlfriend's drugs and paraphernalia in his hotel room he's used marijuana occasionally from one nine hundred ninety seven to two thousand and four comma and after his mother's death he's recreationally used cocaine period this kind of history is enough for me to require him to undergo testing so i'm reading the transcript it's he made a mistake it's not a crime to make a mistake if you're judged to have a lot of stuff that maybe we need to redo it and that would be fine your honor but if you yes if you take that statement and again what i was trying to explain was that when it was said i don't know that there was a comma after two thousand and four and maybe there should have been a period after his mother's death because in the whole of the record there's a little two page discussion from that in the transcript page thirty eight through forty four the defense specifically objected to the statement in the pre sentence report regarding the term of his marijuana use because the pre sentence report initially stated that he started using marijuana in his early twenty's until two thousand and fourteen his defense counsel objected and the district court then corrected the pre sentence report indicate that he only used it through two thousand and four and then started up using marijuana again in two thousand no i understand that makes sure that this has nothing to do with comments it's you know after his mother's death he's recreational use cocaine i cannot for the life of me make those words say twenty years ago before his mother's death he used cocaine  just doesn't work but i mean it's could also have been read he's used marijuana occasionally from one thousand nine hundred seventy two thousand and fourteen and after his mother's death which is the judge understood previously in the hearing because of the objection that the defense made to the pre sentence report in the correction the judge stated ok so he only used it through two thousand for the earlier in the sentencing hearing the judge understood that he would use marijuana from ninety seven to two thousand and four but you know you  cases honestly you know with the number of cases this judge sees you know it's like are you the guy who did the cocaine deal in a wal mart parking lot or you the you know person who was at starbucks and made it there the details can get to me a little bit about the testing point actually not the testing testing everybody seems to understand is fine but the drug treatment condition of supervised release explain why we think it was a warrant to the right well and why it shouldn't be handled in a way that would provide the right guidance from the district well i think the way the district court imposed the condition at the discretion of the probation officer is appropriate and will result in the leave it is that is that ok in the you know we've gone through this long thing several years back about not delegating to the district court the number of drug tests i just report that the statute imposes that responsibility on the judge tried so why is that the same thing because it provides flexibility  or the relation of same thing could have been said of drug tests in fact maybe the statute should be written differently but you know it's worked we have to deal with the statute as it's written well on the district court imposed a condition to require him to submit to a substance abuse treatment if the probation officer deemed it was necessary and we can presume that the probation officer is going to act reasonably request seem substance abuse treatment at the time of that the defendant was sentenced he had a history of drug abuse and the district court imposed the condition of substance abuse treatment based on that but at the time the defendants released he may have which vacated something very much like this condition saying the defense the defendant shall participate in an outpatient and or inpatient drug treatment or detoxification program approved by the u s probation department threw it out so that was too much discretion for the probation people something similar in the ninth circuit something not too different in the tent imposes the testing requirement and then if the probation office starts to see too many positive tests obviously they can go back to the district court and say this guy needs you know i'm an uptick you know please order a treatment program look that's as the court pointed out earlier that is some some with the difficulty with imposing supervised release conditions that are going to be imposed from the defendants released some years later but  think the condition as written giving the probation officer discretion would if the defendant no longer needs drug abuse treatment at the time they've completed their prison term then at that time the probation officer does not need to recommend it and if it is recommended then the in the defendant doesn't think it's necessary he can move the conditions at that point and in this case we believe that the judge acted within his discretion when you impose just briefly i think it's clear the remedy that we've requested is to vacate that condition and not the entire sentence i know that's something that's been in dispute over the past few years but we just want this condition vacated and those sentences for robbing banks is pretty like we're not we're not   at the end of next year in terms of judicial efficiency i think it makes sense to just strike the condition rather than have a hearing you know a year before he's going to be released anyway just tell the district court when he gets out if you think this condition is appropriate justify it at that point but otherwise strike the condition from a so you leave it to the probation officer at the under the custody to come before the judge make that request yes i would and i think the probation officer would have to justify why not twenty eighteen it's appropriate thank you all right thank you thanks to both coun