[00:00:01] Speaker 03:
Yes, of course.

[00:00:04] Speaker 03:
Thank you.

[00:00:34] Speaker 03:
Next case this morning is 24-3078, United States versus Gulley.

[00:00:46] Speaker 03:
When counsel is ready, you can make your appearance and proceed.

[00:00:54] Speaker 02:
Chief Judge Holmes, may it please the court.

[00:00:57] Speaker 02:
My name is Dan Hansmeier.

[00:00:59] Speaker 02:
I'm with the Federal Offender's Office, and I represent Teagan Gulley.

[00:01:04] Speaker 02:
The issue in this case is whether the district court had jurisdiction to revoke Mr. Goley's expired supervisor release term under 18 USC section 3583i.

[00:01:13] Speaker 02:
We've presented two interrelated and symbiotic reasons why that's true.

[00:01:21] Speaker 02:
I do, I think for purposes of today, I'd really like to make four points.

[00:01:26] Speaker 02:
And briefly, so those four points are first,

[00:01:31] Speaker 02:
The seven-month delay was not, quote, reasonably necessary for the adjudication of matters arising before the terms of expiration, as the statute requires.

[00:01:40] Speaker 02:
Because the reason for the delayed revocation, the pending municipal court charges were resolved by the time of the November 2023 hearing, and Mr. Gulley admitted the violations at that hearing.

[00:01:53] Speaker 02:
The second point is that this conclusion still follows, even though we alternatively asked the district court to delay disposition for six months.

[00:02:01] Speaker 02:
at that hearing because that alternative request had nothing to do with resolving the revocation of the expired supervisor lease term and because a party cannot waive a court's jurisdiction.

[00:02:12] Speaker 02:
The third point is whether the six-month continuance was an unlawful extended supervisor lease term under Section 3582E2 is at this point I think maybe more of a distraction than anything else.

[00:02:26] Speaker 02:
The briefing

[00:02:27] Speaker 02:
in rereading the briefs, this becomes a huge deal, and I'm not sure that it's that important.

[00:02:33] Speaker 00:
I'm about to ask you about it.

[00:02:35] Speaker 02:
And I think it's not as important as it comes across in the briefs for two reasons.

[00:02:40] Speaker 02:
That's because the government agrees, well, I guess it's just one reason, but the government agrees that the term expired in October 2023 and further agrees that the Dish Court could only revoke under Section 3583 I,

[00:02:53] Speaker 02:
And that means that there is no dispute that the term was expired in May 2024, which would be the result if the extended term was lawful, if that makes sense.

[00:03:06] Speaker 02:
So that sort of point, I think, becomes less important with the government's agreement that we are in 3583-I territory, which was not clear that to me they were going to say that when we wrote the opening brief.

[00:03:19] Speaker 04:
And you don't challenge the extension of the terms of supervised release.

[00:03:24] Speaker 02:
Yeah, no, there's no remedy for that.

[00:03:26] Speaker 02:
I can't even get a remedy for that.

[00:03:28] Speaker 00:
So I wanted you to get to your fourth point.

[00:03:31] Speaker 00:
Do you want to get to your fourth point?

[00:03:32] Speaker 02:
I can say it real fast, and it's just putting all that aside, the district court also delayed the hearing not, again, for the adjudication of matters arising before the term's expiration, but instead to supervise Goley for an additional six months and to revoke his supervision or not

[00:03:47] Speaker 02:
based on his post expiration conduct and that too violates the statute's plain language.

[00:03:54] Speaker 04:
I'm sorry, will you say that your last point one more time?

[00:03:56] Speaker 02:
Yes.

[00:03:57] Speaker 02:
So putting everything else aside, the district court also delayed the hearing not for the adjudication of matters arising before the term's expiration.

[00:04:06] Speaker 02:
but instead to supervise Goley for an additional six months and to revoke his supervision, or not, based on his post-expiration conduct, which also violates the plain language of the statute.

[00:04:19] Speaker 02:
So those are my four points.

[00:04:20] Speaker 00:
Okay.

[00:04:22] Speaker 00:
Here's where I'm stuck.

[00:04:23] Speaker 02:
Yeah.

[00:04:24] Speaker 00:
In order for you to prevail on a jurisdictional challenge under 3583i,

[00:04:32] Speaker 00:
We have to get there and and the first question that I have is we're reading the district court's order continuing supervised release and government seems to take the position that the term was

[00:04:44] Speaker 00:
unlawfully extended.

[00:04:46] Speaker 00:
It plainly was.

[00:04:47] Speaker 00:
I mean, that's what it says.

[00:04:49] Speaker 00:
But you didn't object to that.

[00:04:52] Speaker 00:
And I don't know what to do with that, to get through the E2 gate into I. So I don't think there is an E2 gate.

[00:05:04] Speaker 02:
I think that argument, so the reason why that argument was important to me in the opening brief was because if you think about it, if the

[00:05:14] Speaker 02:
Extended term was somehow lawful.

[00:05:17] Speaker 02:
In May 2024, the government could argue that 3583i does not apply because what was the term is no longer expired.

[00:05:29] Speaker 02:
We're in E3.

[00:05:30] Speaker 00:
But that's not the universe.

[00:05:32] Speaker 02:
Right.

[00:05:32] Speaker 02:
So we're not there.

[00:05:33] Speaker 02:
So I think whether it was on that E2 argument

[00:05:37] Speaker 02:
I mean, I think it's absolutely correct.

[00:05:40] Speaker 00:
But don't you need that argument to get an availing issue for the jurisdictional challenge?

[00:05:47] Speaker 00:
In other words, don't you have to say that by the time the delayed revocation hearing occurred, the delay wasn't reasonably necessary because it was to adjudicate an unlawfully extended term?

[00:06:05] Speaker 02:
I mean, that's one way to say it.

[00:06:07] Speaker 02:
I think the other way to say it is simply that it wasn't reasonably necessary because the pending charges had been resolved and he admitted the violations.

[00:06:17] Speaker 02:
I mean, I think that's another way to get there that is just as simple and correct.

[00:06:23] Speaker 02:
And the point there is simply that in November 2023, there is zero reason why the term shouldn't have been revoked then.

[00:06:33] Speaker 02:
And the continuance was nothing more than to determine what he was going to do post expiration.

[00:06:45] Speaker 00:
Well, it seems that you asked for the continuance, right?

[00:06:48] Speaker 00:
And instead of getting a continuance, you got an unlawfully extended supervised release term that you didn't object to.

[00:06:57] Speaker 02:
Yes.

[00:06:57] Speaker 02:
I mean, I think all of that is true.

[00:06:59] Speaker 02:
I do think the continuance

[00:07:02] Speaker 02:
It's kind of frustrating, because I'm not entirely sure the attorney meant to... I don't think she was asking to continue the revocation part of the hearing.

[00:07:09] Speaker 02:
I think she meant continue the sentencing, which is a little different.

[00:07:14] Speaker 02:
I mean, the district court clearly did not interpret her request that way, and he continued everything.

[00:07:19] Speaker 04:
Well, he granted a continuance on the disposition of the eight violations.

[00:07:25] Speaker 02:
I think that's true.

[00:07:26] Speaker 02:
Yes, he did not revoke in November 2023, correct?

[00:07:29] Speaker 00:
Well, he said in his order that the violations were stipulated to.

[00:07:32] Speaker 00:
He accepted the stipulation, and then he says sentencing is deferred.

[00:07:36] Speaker 00:
If that was where the period ended and the order ended, I think we'd be talking about something different.

[00:07:42] Speaker 00:
But then he goes on to say the term of supervised release will be continued for six months.

[00:07:48] Speaker 00:
I don't think there's any dispute that that's an unlawful extension of supervision that you didn't object to.

[00:07:53] Speaker 00:
And I still don't know what to do with that and thinking about how to address your jurisdictional challenge.

[00:08:00] Speaker 02:
Well, if you think that's important, I mean, the government hasn't cited a case where the factual basis for a jurisdictional challenge wasn't raised below and that therefore means the jurisdictional issue can't be raised.

[00:08:14] Speaker 02:
And I think when you look at this court's press, I mean, we've lost

[00:08:18] Speaker 02:
multiple cases where we cite CD, United States against CD, which is our case where the government agreed in the district court in this court that there was jurisdiction.

[00:08:30] Speaker 02:
And this court said, we don't care.

[00:08:32] Speaker 02:
There's not.

[00:08:34] Speaker 02:
And I don't see how that's any different here.

[00:08:36] Speaker 02:
I mean, any time a party concedes jurisdiction, they're also conceding the factual premise of it.

[00:08:43] Speaker 02:
And I think going back to sort of the conversation I had with Judge Carson, I think this is important.

[00:08:49] Speaker 02:
We did not appeal the 3582E2 violation.

[00:08:56] Speaker 02:
That's not why we're here.

[00:08:58] Speaker 02:
So we're not seeking a remedy for that order.

[00:09:01] Speaker 02:
And so whether we raised it or not, I look at it as a historical fact.

[00:09:07] Speaker 02:
I mean, it is simply a historical fact that on November

[00:09:10] Speaker 02:
23rd, 2023, the district court imposed an unlawful extended supervisor release term.

[00:09:18] Speaker 02:
That is a fact.

[00:09:19] Speaker 02:
And I don't think the fact that we didn't raise our hands and say that means that this court can just ignore a jurisdictional issue.

[00:09:27] Speaker 00:
So the fact that is what we would import into understanding if it's reasonably necessary is awaiting the end of an unlawfully extended term of supervision?

[00:09:41] Speaker 02:
I mean, that's one way of looking at it.

[00:09:43] Speaker 02:
I think, again, the other way of looking at it is that everything that needed to happen to revoke had happened, and that the reason for the delay was to see what he was going to do post expiration.

[00:09:58] Speaker 00:
Well, what if he had been placed, instead of this last sentence in the district court's order, what if the court said, I accept your stipulation, and I'm going to defer sentencing.

[00:10:10] Speaker 00:
I'm going to put you on bond.

[00:10:11] Speaker 00:
For six months and just see how you do different if you're if in your if it did he revoke Well, I don't know if he revoked he stipulated except the stipulation right it's hard to know what he did but Let's assume that there it is bifurcated in that way.

[00:10:29] Speaker 02:
Yes revoked and then yes Yes, yes, if he revoked.

[00:10:33] Speaker 02:
I don't think I'm here today

[00:10:34] Speaker 02:
I think that's dispositive.

[00:10:36] Speaker 02:
In November 2023, if he would have revoked the term, then I'm not here today.

[00:10:42] Speaker 02:
I think maybe there's an argument.

[00:10:44] Speaker 02:
Somebody else might make the argument that you can't continue sentencing, but I mean, there's an 11th Circuit case that says that's fine, so I'm not making that argument.

[00:10:51] Speaker 03:
All right.

[00:10:52] Speaker 03:
I thought I fully understood this case.

[00:10:55] Speaker 03:
I have some questions now based on this argument.

[00:10:58] Speaker 03:
And so let me say this.

[00:11:02] Speaker 03:
Your first point was that the court essentially knew everything it needed to know to make a decision.

[00:11:09] Speaker 03:
Yes.

[00:11:10] Speaker 03:
The operative term then becomes reasonably necessary.

[00:11:15] Speaker 03:
And it seems to me that if that is your position, we're in a situation of determining whether we think the court is the error at issue here, a de novo issue?

[00:11:27] Speaker 03:
Is this an issue of law then?

[00:11:29] Speaker 03:
Right?

[00:11:30] Speaker 03:
Yes.

[00:11:31] Speaker 03:
OK.

[00:11:31] Speaker 03:
We're in the position of determining whether it was beyond the bounds for the court to try to determine how he would operate during this extended period of time.

[00:11:44] Speaker 03:
What sort of conduct did he exhibit during this extended period of time so that it could evaluate how it should deal with these factually stipulated violations, right?

[00:11:56] Speaker 03:
Yes.

[00:11:57] Speaker 03:
Well, where's your authorities show that's not reasonable?

[00:12:05] Speaker 03:
Why is that unreasonable?

[00:12:07] Speaker 02:
OK, so a few points.

[00:12:09] Speaker 02:
One, the language is reasonably necessary, not reasonable.

[00:12:13] Speaker 02:
But it's also more than that.

[00:12:14] Speaker 03:
Well, help me with this.

[00:12:15] Speaker 03:
Reasonably necessary.

[00:12:17] Speaker 03:
If I want to get a better sense of what this guy is about before I decide what I want to do for pre-expiration conduct,

[00:12:25] Speaker 03:
Why can I not make an argument that that is reasonably necessary for me to exercise my sentencing judgment?

[00:12:32] Speaker 03:
So I need to know what authority says I can't do that.

[00:12:36] Speaker 02:
OK, so two reasons.

[00:12:38] Speaker 02:
So if I can explain this.

[00:12:40] Speaker 02:
The language of the statute is not just reasonably necessary.

[00:12:44] Speaker 02:
It's reasonably necessary for the adjudication of matters arising prior to the term's expiration.

[00:12:51] Speaker 03:
And I said that's exactly what I'm doing.

[00:12:53] Speaker 02:
But here's what you're doing, though.

[00:12:55] Speaker 02:
But you're making that determination based on post-expiration conduct.

[00:13:00] Speaker 03:
You're not making... Yes, you are.

[00:13:02] Speaker 03:
And that's the problem.

[00:13:04] Speaker 03:
Well, if adjudication includes, how do I revoke?

[00:13:09] Speaker 03:
What is the sentence that I give him upon revocation?

[00:13:12] Speaker 03:
If I get a better sense of how the individual is during that six months, which his defense lawyer asked for, well then, so it can't be entirely unreasonable since the defense lawyer was asking for exactly that.

[00:13:25] Speaker 02:
So we're talking passage.

[00:13:26] Speaker 02:
So my second point is that I don't disagree that if we're talking about sentencing, that if he had revoked,

[00:13:34] Speaker 02:
and continued the sentencing, as I just told Judge Rosman, I wouldn't be here.

[00:13:38] Speaker 02:
So yes, I agree with you that if there is a revocation and then a continued sentencing hearing, that is a different situation than what we have here.

[00:13:48] Speaker 03:
Does the statute use the word adjudication?

[00:13:50] Speaker 03:
Yes, adjudication.

[00:13:51] Speaker 03:
And it seems to me you're caviting the word adjudication to mean revoke or not revoke.

[00:13:56] Speaker 03:
Why can't adjudication mean revoke?

[00:13:59] Speaker 03:
And what sentence I'm going to give him when I revoke?

[00:14:03] Speaker 02:
Well, I think it's to both those things.

[00:14:05] Speaker 02:
That's what this court said in Ruby, that there's a distinction between those two things.

[00:14:10] Speaker 02:
So I think you have to take them on their own terms.

[00:14:14] Speaker 02:
And if the revocation can be done by the time of the hearing, then that in and of itself is a violation putting aside the sentencing.

[00:14:24] Speaker 04:
So is your position that that brooms had to use the magic words.

[00:14:28] Speaker 04:
I revoke.

[00:14:29] Speaker 02:
I mean, basically, yes.

[00:14:30] Speaker 02:
Okay.

[00:14:31] Speaker 04:
I mean, so I couldn't sit as a trial judge and have someone come to me and say, your honor, the defendant has admitted the violations.

[00:14:39] Speaker 04:
And I say, okay, I accept his admission and I'm going to proceed to sentencing at that point.

[00:14:45] Speaker 04:
He's not revoked.

[00:14:48] Speaker 02:
Well, I mean, that's a different situation.

[00:14:51] Speaker 02:
I mean, it's clear from the record that he didn't revoke.

[00:14:56] Speaker 02:
I mean, I think if there's an implication that he did revoke, this is a different case.

[00:15:00] Speaker 02:
But it's clear from the record that he didn't revoke.

[00:15:02] Speaker 02:
I do want to reserve time.

[00:15:04] Speaker 02:
And I will give you time.

[00:15:06] Speaker 03:
I want to understand, what's your authority for the position that adjudication equals revoke?

[00:15:12] Speaker 03:
What's the case that says that?

[00:15:14] Speaker 02:
Well, that's a good question.

[00:15:15] Speaker 02:
I mean, we didn't really get into the term adjudication.

[00:15:19] Speaker 03:
You're telling me, the thrust of your argument is adjudication equals revocation.

[00:15:26] Speaker 03:
And if he didn't revoke, then it could be reasonably necessary for the adjudication of this proceeding.

[00:15:31] Speaker 03:
If my determination is

[00:15:33] Speaker 03:
adjudication includes whether I revoke and what sort of sentence I want to give that individual.

[00:15:39] Speaker 03:
I thought I heard you tell me that, no, those are two distinct things.

[00:15:42] Speaker 03:
And if those are two distinct things, then I also understood from your argument that adjudication equals revocation.

[00:15:50] Speaker 03:
And what's your authority for that?

[00:15:53] Speaker 02:
Well, I mean, I think to adjudicate is to judge.

[00:15:57] Speaker 03:
Well, a judge includes what I'm going to do with the guy.

[00:16:01] Speaker 02:
I mean, I think even if you take the word adjudication and say that includes the sentencing, the problem is still that there is this distinction in this court's precedent between the revocation stage and the sentencing stage.

[00:16:18] Speaker 02:
And the statute requires that the adjudication be reasonably.

[00:16:24] Speaker 02:
I mean, there is still a, I guess what I'm saying is that the reasonably necessary requirement

[00:16:30] Speaker 02:
applies to both of those things.

[00:16:32] Speaker 02:
So you can't just say, well, the delay in revocation was not reasonably necessary, but we're going to ignore that because it was reasonably necessary for sentencing.

[00:16:44] Speaker 02:
I don't think that's the proper way to read the statute.

[00:16:47] Speaker 03:
Well, did he have to revoke upon the stipulation?

[00:16:51] Speaker 03:
I think he did, yeah.

[00:16:54] Speaker 02:
Because this was an expired, and this is only because we're in the expired supervised release term world.

[00:17:00] Speaker 02:
But yes, once that happens, then he needed to revoke, yes.

[00:17:06] Speaker 03:
Okay.

[00:17:07] Speaker 03:
Can I ask one question?

[00:17:08] Speaker 03:
Yes, and I actually have follow-ups, but go ahead.

[00:17:10] Speaker 04:
Please go.

[00:17:15] Speaker 04:
your jurisdictional argument on 3583i, the statute has two components.

[00:17:21] Speaker 04:
One of them is you have to have a warrant or summons issued before expiration.

[00:17:27] Speaker 04:
And it's easy for me to buy the idea that that's jurisdictional.

[00:17:32] Speaker 04:
You don't get a warrant, you don't get a summons by the date of expiration, you lose.

[00:17:39] Speaker 04:
But I was racking my brain trying to come up with another statute where you have a term like reasonably necessary, where there's something that seems like a discretionary decision on the part of the district court that also must be made, and that something reasonably necessary has to happen in order for there to be jurisdiction or no jurisdiction.

[00:18:04] Speaker 04:
Can you think of any analogous statute, anything similar to this?

[00:18:12] Speaker 02:
I don't know, I haven't given that any thought.

[00:18:15] Speaker 00:
How should we be thinking about the words power of the court in the statute, statutory text?

[00:18:21] Speaker 02:
Yeah, no, I mean that, I think the simple, if your concern is that the only portion of the statute that is jurisdictional is the warrant part.

[00:18:32] Speaker 02:
I mean, there's just no cases that say that.

[00:18:36] Speaker 02:
We've cited... I agree.

[00:18:37] Speaker 02:
I mean, I think every single court of appeals has recognized that the language I'm talking about is jurisdictional.

[00:18:44] Speaker 03:
So on the reasonably necessary front, does it matter to you at all whether the extension was unlawful and that this period of sort of testing that took place took place during an unlawfully extended term?

[00:18:59] Speaker 03:
I mean, does that matter?

[00:19:02] Speaker 02:
I mean, I think it's helpful.

[00:19:03] Speaker 02:
I think we still win if it's not.

[00:19:04] Speaker 00:
How is it not dispositive?

[00:19:06] Speaker 00:
I mean, or at least much more than helpful.

[00:19:09] Speaker 00:
Don't you need that to be so?

[00:19:10] Speaker 00:
I mean, it seems that without that unlawful extension of time that

[00:19:18] Speaker 00:
You certainly didn't object to, but it occurred.

[00:19:21] Speaker 00:
Once we get to understanding whether the court has the power under eye, well, we've been awaiting the results of an unlawful act, the unlawful extension of supervision.

[00:19:32] Speaker 00:
But it seems you're not pressing that argument, or you don't want us to think about the case in that way.

[00:19:37] Speaker 03:
No, I'm fine if you want that.

[00:19:39] Speaker 02:
You're fine with that?

[00:19:39] Speaker 02:
I'm fine if that's the way I want it.

[00:19:40] Speaker 03:
We're not making an argument for you.

[00:19:42] Speaker 02:
If that's not the argument that you want.

[00:19:43] Speaker 02:
But that is my argument.

[00:19:44] Speaker 02:
I mean, we made that argument extensively in the brief.

[00:19:46] Speaker 00:
I thought that's what you were arguing in your briefs, and I'm surprised now that you're sort of either walking it back a little bit or saying it's of diminished importance.

[00:19:57] Speaker 02:
Right.

[00:19:57] Speaker 02:
I don't want to do that.

[00:19:59] Speaker 02:
I feel like the briefs got confusing, and I was just trying to hope to clarify a little bit by explaining that whatever else happened, the things that were pre-expiration

[00:20:11] Speaker 02:
He admitted on November 23, 2023, there's no reason to extend even.

[00:20:16] Speaker 02:
There's just no reason.

[00:20:17] Speaker 02:
I don't find that argument compelling.

[00:20:18] Speaker 02:
OK, then I'll go with this one.

[00:20:20] Speaker 03:
OK, so we'll give you some time.

[00:20:22] Speaker 02:
OK, thanks.

[00:20:23] Speaker 03:
Thank you.

[00:20:26] Speaker 01:
Thank you.

[00:20:28] Speaker 01:
Good morning, Your Honors.

[00:20:29] Speaker 01:
Brian Clark for the United States.

[00:20:32] Speaker 01:
May it please the court?

[00:20:33] Speaker 01:
I feel the ground shifting beneath me a little bit.

[00:20:36] Speaker 01:
I thought I understood the case as well, Chief Judge Holmes, and if I understood correctly, Mr. Hansmeyer sort of walked away from the primary argument in his brief and suggested that the E2 issue

[00:20:50] Speaker 01:
essentially has dropped out or is it not?

[00:20:52] Speaker 03:
Well, I didn't understand him to this claim.

[00:20:54] Speaker 03:
It's certainly not at the end.

[00:20:55] Speaker 03:
And so that being the case, let's focus on what our mutual understanding of the case was.

[00:21:01] Speaker 03:
And as it relates to that, my concern would be, on the jurisdictional front and focusing on the reasonably necessary component of that, how would it be reasonably necessary

[00:21:14] Speaker 03:
to essentially evaluate conduct during an unlawfully extended term.

[00:21:21] Speaker 03:
Your term is ending now.

[00:21:31] Speaker 03:
And I'll tell you what I'm gonna do, Mr. Gulley.

[00:21:35] Speaker 03:
What I'm gonna do is I'm going to extend your supervised release, keeping you under all the conditions associated with supervised release, which we talked about as being deprivation of freedom.

[00:21:46] Speaker 03:
I'm gonna extend you for six months unlawfully, but that's gonna help me evaluate your conduct during that unlawfully extended six months will help me to determine what I'm gonna do,

[00:21:58] Speaker 03:
for the pre-expiration period.

[00:22:01] Speaker 03:
How can that be reasonably, and that's the operative word, necessary?

[00:22:09] Speaker 01:
Right, so I think it's helpful to look back at the November 2023

[00:22:14] Speaker 01:
revocation hearing where the district court was grappling with Mr. Gulley's history and with his long list of violations and argument by defense counsel saying that Mr. Gulley had entirely turned his life around and shouldn't be sent back to prison.

[00:22:32] Speaker 01:
As I read that transcript, the district court judge was sitting there on the cusp of and ready to send Mr. Gulley back to prison and probably for a year, but was persuaded by defense counsel to give Mr. Gulley the additional time that he thought he needed to prove to the district court that he had gotten his life in order and shouldn't be sent back to prison.

[00:22:56] Speaker 01:
Was that additional time necessary to determine revocation?

[00:23:01] Speaker 01:
I'm sorry.

[00:23:02] Speaker 00:
By doing that very thing that you just described in an unlawful way, the court then was deprived of jurisdiction under I. I think that's, how is that wrong to think about it that way?

[00:23:15] Speaker 01:
I think that's not the right way to think about it because the jurisdictional inquiry under I is different than the separate inquiry under E2.

[00:23:25] Speaker 01:
And I took Mr. Hansmeier to be acknowledging that, that they didn't object regarding E2.

[00:23:30] Speaker 01:
The only question here is whether the delay was reasonably necessary.

[00:23:34] Speaker 01:
Now, maybe the lawfulness of the extension or of the delay could go into that, could be one of the factors in the mix.

[00:23:43] Speaker 01:
But I also think it would be entirely unreasonable not to also consider the fact that Mr. Gulley asked for that additional time so that maybe he wouldn't have to go back.

[00:23:53] Speaker 00:
Well, he didn't ask for an unlawful extension of his terms of supervision.

[00:23:58] Speaker 00:
He asked for six months to sort of prove himself to the court and the court indulged that request.

[00:24:03] Speaker 00:
So he certainly, I don't read this record as suggesting that he invited an error that the court committed.

[00:24:10] Speaker 00:
He didn't object once the court extended the term unlawfully.

[00:24:15] Speaker 00:
Do you agree with that?

[00:24:17] Speaker 01:
No, I would disagree with that.

[00:24:19] Speaker 01:
And I think what you're putting your finger on is the difficulty reading the record through a new lens that is now adopted on appeal because obviously Mr. Gulley was asking for additional time, the district court was trying to give it.

[00:24:31] Speaker 01:
There's some language obviously in the written order that you pointed to earlier that says that the term of supervisor release is continued.

[00:24:39] Speaker 01:
But then there are other statements in the record where that point to the district court giving Mr. Gulley what he wanted.

[00:24:46] Speaker 00:
Well, let me ask you actually to clarify because I wasn't sure from the government's brief.

[00:24:49] Speaker 01:
Yes.

[00:24:50] Speaker 00:
Do you agree that the term of supervision, Mr. Gulley's term of supervision, was unlawfully extended by six months?

[00:25:00] Speaker 01:
I think what the district court did was continue the revocation hearing and delay disposition of the violation.

[00:25:08] Speaker 01:
That doesn't answer my question.

[00:25:10] Speaker 01:
Right.

[00:25:10] Speaker 01:
And I think there's a disagreement.

[00:25:12] Speaker 01:
I don't think that the term of supervised release was extended under Section 3583 to E2.

[00:25:18] Speaker 01:
No.

[00:25:19] Speaker 00:
And I understand that reasonable... The term of supervised release will be continued for six months with the previously ordered conditions to remain in effect.

[00:25:25] Speaker 01:
Right.

[00:25:26] Speaker 01:
And I readily acknowledge that there are parts of the record, and you just listed, I think, the primary one that Mr. Gulley points to, where the district court does indicate that maybe that is what he's doing.

[00:25:37] Speaker 01:
And I understand that reasonable minds could differ.

[00:25:39] Speaker 01:
But I do think when you read the record as a whole, all the district court judge was doing was trying to give Mr. Gulley what he wanted.

[00:25:46] Speaker 03:
But that's a different issue from whether the court extended his supervised release.

[00:25:52] Speaker 03:
Let's assume.

[00:25:53] Speaker 03:
that Mr. Gulley said, look, give me those six months.

[00:25:58] Speaker 03:
And if that means give me additional six supervised release, I want that too.

[00:26:03] Speaker 03:
That doesn't impact.

[00:26:05] Speaker 03:
What happens at the end of the six months?

[00:26:08] Speaker 03:
Because we're talking about jurisdiction.

[00:26:10] Speaker 03:
That's blameless.

[00:26:11] Speaker 03:
It doesn't involve culpability.

[00:26:14] Speaker 03:
The question is whether the court has the power to act.

[00:26:17] Speaker 03:
We could talk about in terms of whether Mr. Gulley asked for the continuance, but not the extension of supervisory lease.

[00:26:26] Speaker 03:
That's one argument.

[00:26:27] Speaker 03:
The other argument would be, OK, well, he asked for them both.

[00:26:31] Speaker 03:
Even if you assume he asked for them both,

[00:26:35] Speaker 03:
That doesn't change the fact that at the end of that six months, we have to evaluate, did the court have the power to act?

[00:26:44] Speaker 03:
And that turns on whether it was reasonably necessary to do that, right?

[00:26:49] Speaker 03:
And so the question in terms of whether those two things are connected, I find it hard to understand why it cannot be connected.

[00:26:58] Speaker 03:
that the court extended this period, which on the face of the record, whether it was focusing on it or not, on the face of the record, his term was expired.

[00:27:10] Speaker 03:
And so the court extends it for six months to allow him to do whatever he does so the court can evaluate him.

[00:27:17] Speaker 03:
What about, note, I'm not talking about necessary, maybe necessary, what about that as a almost categorical matter anyway, what about that can be reasonable?

[00:27:29] Speaker 01:
Well, it can be reasonable because there was still sentencing to be done.

[00:27:32] Speaker 01:
And the reason for the delay was so that Mr. Gulley would have additional opportunity to show the district court that the sentence shouldn't be additional prison time.

[00:27:45] Speaker 03:
Let's try it this way.

[00:27:46] Speaker 03:
Do you know of any case where a court can engage in an unlawful act and we will deem it to be reasonable?

[00:27:59] Speaker 01:
Not that I'm aware of.

[00:28:03] Speaker 03:
Well, I'm struggling to know of one.

[00:28:06] Speaker 03:
If the question is reasonable, not reasonable, and the court, for the best of intentions, pure heart, says, well, you know, the only way I'm going to get there is I'm going to have to do something illegal, and I'm going to have to do something unlawful.

[00:28:21] Speaker 03:
And we sit here as a court of appeals, and we have to decide whether that's reasonable.

[00:28:27] Speaker 03:
The law is what the law is.

[00:28:28] Speaker 03:
It categorically can't be reasonable for you to do that.

[00:28:32] Speaker 01:
Well, so I have a couple of responses.

[00:28:34] Speaker 01:
One, I think one of the premises of your question is that there was no lawful way for the district court to do what it had done.

[00:28:42] Speaker 01:
And I don't think that's accurate, right?

[00:28:44] Speaker 01:
So for example, if the district court had simply said, I am continuing this hearing and said nothing else, said nothing about continuing a term of supervised release or any of those other things, then I think what would happen is the terms of Mr. Gulley's bond that was issued by the magistrate judge under the Bail Reform Act would continue.

[00:29:06] Speaker 01:
Those conditions were the same as the conditions of his term of supervised release.

[00:29:10] Speaker 01:
That's a totally different case.

[00:29:11] Speaker 01:
I think where it gets messy is some of the language and the fact that no one sort of had any of this in mind at the time.

[00:29:20] Speaker 01:
And I take your point, Chief Judge Holmes, that maybe none of that matters.

[00:29:24] Speaker 01:
But I think that looking at just sort of the strict sort of lawfulness of the delay, continuance, extension, whatever you want to call it, is only one side of the coin.

[00:29:37] Speaker 03:
And I think- And let me pause for a quick second.

[00:29:40] Speaker 03:
Sure.

[00:29:41] Speaker 03:
Yes, if the issue is, is there a way the court could have done this lawfully?

[00:29:45] Speaker 03:
The answer may well be yes.

[00:29:48] Speaker 03:
I mean, it could have just continued them.

[00:29:50] Speaker 03:
And I guess what I'm focusing on, that's why at the most extreme level, Mr. Gulley said, bring it, give me all this stuff, I'll take it.

[00:29:59] Speaker 03:
Even if that's true, he supervised release as a matter of law involves a deprivation of liberty.

[00:30:08] Speaker 03:
And so it is a distinction with the difference between continuing for six months and continuing the supervised release terms for six months.

[00:30:16] Speaker 03:
And on the face of that transcript, okay, I'll assume reasonable lines can differ, but on the face of that transcript, it says that he's going to extend it for six months.

[00:30:27] Speaker 03:
So his liberty has been taken away for an additional six months, which made it unlawful, right?

[00:30:37] Speaker 01:
That's certainly mr.. Gulley's argument, and you know it is own now.

[00:30:41] Speaker 01:
You don't think that's unlawful and right so under under e2 We're not arguing that that the that this was a lawful extension under e2 We have never taken that position all we've said is that it wasn't an extension under e2 that it was a Deferred disposition or a continuance that it was something else, but even if even even for the sake of argument granting is

[00:31:04] Speaker 01:
that whatever label we want to put on it, that it was unlawful.

[00:31:08] Speaker 01:
I think what we need to do is get back to I and the language of the statute and what it asks the court to look at.

[00:31:16] Speaker 01:
And the question is, OK, was it reasonably necessary?

[00:31:20] Speaker 01:
Was that additional six months reasonably necessary in the languages for the adjudication of matters that arose prior to the term's expiration?

[00:31:30] Speaker 01:
And the key dispute or rub or issue at that November 2023 hearing

[00:31:37] Speaker 01:
was sentencing.

[00:31:38] Speaker 01:
It wasn't really revocation.

[00:31:39] Speaker 01:
I think by the time that Mr. Gulley had admitted the violations and by the time the district court judge had accepted that, really the only question was sentencing.

[00:31:50] Speaker 01:
And with respect to sentencing, the district court really seemed to struggle with, what should I do with Mr. Gulley?

[00:31:59] Speaker 01:
I see all these violations, but he's telling me he turned his life around.

[00:32:03] Speaker 01:
I think it's fair to say that it was reasonably necessary to have the additional six months to see how Mr. Gulley would do to assess what's the appropriate sentence.

[00:32:12] Speaker 00:
In order to agree with your position, it seems we would have to overlook the unlawful extension, which is what the delay was.

[00:32:20] Speaker 00:
We're saying, using the word delay, what delay means here is this individual was on supervised release unlawfully for six months.

[00:32:31] Speaker 00:
And so we would have to overlook that in order to then be back within the scope of what is reasonably necessary in the normal case.

[00:32:39] Speaker 00:
This is an unusual case because of that.

[00:32:43] Speaker 00:
But we would have to ignore that in order to agree with your argument.

[00:32:47] Speaker 00:
How do we account for the unreasonable or unlawful extension of supervision and still endorse your position under I?

[00:32:56] Speaker 01:
Yeah, I agree with you that this is an unusual case.

[00:32:59] Speaker 01:
It's sui generis.

[00:33:00] Speaker 01:
I have not seen another case like this.

[00:33:03] Speaker 01:
I think I disagree, though, that you have to ignore the legality of the delay.

[00:33:10] Speaker 01:
I think you can look at it.

[00:33:12] Speaker 01:
But again, as I was saying to Chief Judge Holmes, I think that's only one side of the coin.

[00:33:16] Speaker 01:
The other side is that Mr. Gulley asked for it, right?

[00:33:19] Speaker 01:
And he wanted it.

[00:33:20] Speaker 01:
And why did he want it?

[00:33:21] Speaker 01:
He wanted it because he wanted the additional time to be able to show the district court judge that he shouldn't be sent back to prison.

[00:33:29] Speaker 01:
That's why Mr. Gulley thought that the delay was necessary.

[00:33:33] Speaker 01:
He urged vociferously the district court to give him the six months.

[00:33:39] Speaker 03:
I am trying very hard to come up with a hypothetical situation that might address this.

[00:33:47] Speaker 03:
And this is the rough one that I can come up with.

[00:33:51] Speaker 03:
OK, I murder somebody.

[00:33:57] Speaker 03:
And there are extenuating circumstances.

[00:33:59] Speaker 03:
Let's say it's a domestic abuse case.

[00:34:03] Speaker 03:
I was a battered spouse or something.

[00:34:06] Speaker 03:
As a result of that, I am situated to get a lower sentence.

[00:34:11] Speaker 03:
And everybody agrees I'm situated to get a lower sentence under the sentencing scheme.

[00:34:18] Speaker 03:
Well, I come into court, and that is what's provided for as a matter of law, that if you check these boxes, I'm entitled to this, a sentence that has a ceiling here, let's say 10 years.

[00:34:29] Speaker 03:
OK, I come into court.

[00:34:31] Speaker 03:
And I've been thinking about it and I say, your honor, I am so filled with remorse.

[00:34:37] Speaker 03:
I am so wracked with agony about what I did that I want the max.

[00:34:43] Speaker 03:
I want you to make me pay for what I did.

[00:34:48] Speaker 03:
So blow off that domestic abuse reduction and give me the max.

[00:34:54] Speaker 03:
So give me 25 years.

[00:34:56] Speaker 03:
OK, I'm asking for it.

[00:34:58] Speaker 03:
Give it to me.

[00:34:58] Speaker 03:
I need it for rehabilitation.

[00:35:00] Speaker 03:
The court says, well, you know, I need to do justice.

[00:35:04] Speaker 03:
So I'm going to give you 25 years.

[00:35:07] Speaker 03:
That comes up on appeal.

[00:35:08] Speaker 03:
What do you think is going to happen?

[00:35:10] Speaker 01:
Reverse, probably.

[00:35:11] Speaker 01:
Thank you.

[00:35:13] Speaker 01:
And I've thought about that scenario.

[00:35:14] Speaker 01:
And I think one potential difference, although granted, I haven't seen cases on this.

[00:35:20] Speaker 01:
I can't say for sure, but just sort of

[00:35:23] Speaker 01:
In conversation, I think one potential difference is that is an illegal sentence, right?

[00:35:26] Speaker 01:
Under your hypothetical, that's illegal.

[00:35:33] Speaker 03:
Under my hypothetical, yes, it is an illegal sentence.

[00:35:36] Speaker 03:
And what I was trying to roughly anyway do was say that when you extend unlawfully a person's supervised release term,

[00:35:46] Speaker 03:
I don't question at all Judge Broom was trying to do the right thing and do justice by this defendant.

[00:35:53] Speaker 03:
Don't question it for a moment.

[00:35:55] Speaker 03:
But by virtue of extending

[00:35:58] Speaker 03:
the unlawfully, his term, he has done something lawful that the defendant may have wanted to effectuate a good.

[00:36:08] Speaker 03:
And just like my hypothetical, the defendant wants it, asks for it, the judge to effectuate a good, gives it to him, but it's still unlawful.

[00:36:19] Speaker 01:
Right.

[00:36:20] Speaker 01:
And I think a difference potentially is that an unlawful extension of supervised release, I don't know that that is necessarily the same as an illegal sentence.

[00:36:32] Speaker 00:
Well, the way that this is the same is you can't confer jurisdiction on the court, right?

[00:36:37] Speaker 00:
So I think what you're saying is that by failing to object to the unlawful extension of supervision,

[00:36:45] Speaker 00:
and the court indulged this defendant, by the time we get to the delayed revocation, everything is good to go because the defendant never objected, so we can overlook the delay.

[00:36:59] Speaker 00:
But in doing so, we're sort of saying that the parties can just confer jurisdiction on the court.

[00:37:06] Speaker 00:
And the court doesn't have jurisdiction under I. You agree that I is jurisdictional, right?

[00:37:11] Speaker 01:
Right.

[00:37:11] Speaker 01:
For purposes of this case, we've assumed that it is.

[00:37:14] Speaker 00:
You've assumed that, right.

[00:37:15] Speaker 01:
For the reasons that Judge Carson was discussing.

[00:37:17] Speaker 00:
Right.

[00:37:17] Speaker 00:
And so then once we're there, we have to discern whether this delay is reasonably necessary to confer jurisdiction on the court.

[00:37:25] Speaker 00:
But if it's an unlawful delay, no jurisdiction.

[00:37:28] Speaker 01:
Well, I think an important point to make is I disagree that you need to overlook the lawfulness of the extension.

[00:37:34] Speaker 01:
What I'm saying is that the lawfulness or not of the delay is not a jurisdictional element.

[00:37:43] Speaker 01:
In that way, it's not like CD, which Mr. Hansmeier cited, because there, the question was whether a jurisdictional element had been conceded.

[00:37:56] Speaker 01:
even if it had been, whether it had been satisfied, this court gets to say, because no one can confer, as you say, no one can confer jurisdiction on the court.

[00:38:03] Speaker 01:
The difference here is that the legality of the delay is not a jurisdictional element.

[00:38:09] Speaker 01:
The question here is whether the delay was reasonably necessary.

[00:38:12] Speaker 04:
Let me ask you something.

[00:38:14] Speaker 04:
Isn't one problem with this is that nobody challenged the illegal?

[00:38:20] Speaker 04:
I tend to agree with my colleagues.

[00:38:22] Speaker 04:
I think we're all in agreement

[00:38:24] Speaker 04:
the extension of supervised release in and of itself was unlawful.

[00:38:30] Speaker 04:
Isn't the problem here that it wasn't challenged?

[00:38:35] Speaker 04:
I mean, it's being used collaterally in this case regarding eight violations that may have been, you know, were related but not the same.

[00:38:49] Speaker 01:
Yes, I think that's absolutely right.

[00:38:50] Speaker 01:
And if the E2 issue had come up to this court directly, then I think what this court would say is, invited heir, it's waived.

[00:38:57] Speaker 01:
And I don't see why the outcome should be any different in this situation, because the two inquiries are separate.

[00:39:02] Speaker 01:
You don't have to overlook

[00:39:04] Speaker 01:
the lawfulness of the delay, but you also shouldn't overlook the fact that any error was invited by Mr. Gulley and that there were good fact-based reasons in the record for the district court doing what he did.

[00:39:16] Speaker 00:
But then it seems that we would have to say that if he invited the error, the consequence of that invited error is jurisdiction where there otherwise wouldn't be any.

[00:39:26] Speaker 00:
And I don't think that we can say that, can we?

[00:39:30] Speaker 01:
I guess I disagree with the premise.

[00:39:32] Speaker 01:
I don't see those two issues as so intertwined that necessarily the jurisdictional question turns on the legality of the delay.

[00:39:43] Speaker 01:
I mean, I don't think you need to overlook it, but I don't think it's dispositive of the jurisdictional inquiry.

[00:39:47] Speaker 01:
You still have to ask whether the delay is reasonable.

[00:39:50] Speaker 01:
And you asked me earlier, Chief Judge Holmes, if I could think of any other situation where there was unlawful delay that nevertheless was reasonable.

[00:39:59] Speaker 01:
As I stand here, I think of speedy trial, right?

[00:40:01] Speaker 01:
We have a speedy trial act, which is statutory, and then there's a speedy trial

[00:40:05] Speaker 01:
under the Constitution.

[00:40:07] Speaker 01:
And I think it's well established that just because the Speedy Trial Act is violated, that doesn't mean that the Speedy Trial Clause of the Constitution is necessarily violated as well.

[00:40:16] Speaker 01:
So there is potentially one situation where you have a statutory violation, but not a constitutional one.

[00:40:23] Speaker 01:
And by analogy, you could have an unlawful delay, as you're saying, but it not necessarily be unreasonable under the totality of the circumstances.

[00:40:35] Speaker 01:
And I see that I'm out of time.

[00:40:37] Speaker 01:
Something came up in the top side of the argument that I wanted to just close the loop on just so we're clear.

[00:40:42] Speaker 01:
And it has to do with the statutory text.

[00:40:44] Speaker 01:
And Chief Judge Holmes, you were asking Mr. Hansmeier about this distinction between revocation and sentencing and what the statute means by adjudication of matters arising before the expiration of the term.

[00:40:57] Speaker 01:
And I would just point the court back to the statute.

[00:41:00] Speaker 01:
So the full phrase that was being discussed

[00:41:04] Speaker 01:
is the adjudication of matters arising before its expiration.

[00:41:08] Speaker 01:
That begs the question, what does adjudication mean and what are the matters?

[00:41:14] Speaker 01:
I think the best reading of the statute then is to look back up to the first clause of the statute where it says the power of the court to revoke the term of supervised release for a violation of a condition of supervised release and to order

[00:41:28] Speaker 01:
the defendant to serve a term of imprisonment.

[00:41:31] Speaker 01:
So it talks about both revocation and sentencing.

[00:41:34] Speaker 01:
So I think to sum all of that up, I think section 3583 I and adjudication of matters refers not only to revocation, but also to sentencing to both of them.

[00:41:46] Speaker 01:
And I don't quite honestly, I don't understand why

[00:41:51] Speaker 01:
sort of separating revocation and sentencing or bundling them at the May 2024 hearing should matter at all.

[00:41:59] Speaker 03:
I have to wrap this up.

[00:42:00] Speaker 03:
I will let you know that I'm enjoying this argument a lot.

[00:42:03] Speaker 03:
But the reality is, we've got to move on.

[00:42:09] Speaker 03:
So I promised Mr. Hansmeier some time.

[00:42:12] Speaker 03:
And somewhat reluctantly, I'm going to do that.

[00:42:17] Speaker 03:
And so I think your argument has to come to an end.

[00:42:21] Speaker 02:
Thank you.

[00:42:21] Speaker 03:
All right.

[00:42:23] Speaker 03:
Let's go with three and a half minutes, and we'll see where we are.

[00:42:32] Speaker 03:
You don't have to use it.

[00:42:34] Speaker 02:
Well, I'm not sure.

[00:42:36] Speaker 02:
So this distinction in the statute

[00:42:40] Speaker 02:
revocation and sentencing.

[00:42:41] Speaker 02:
I would just note this isn't briefed.

[00:42:43] Speaker 02:
I mean, this is not something that the government argued.

[00:42:46] Speaker 02:
But I mean, look, the statute is delayed revocation.

[00:42:52] Speaker 02:
And it says the power of the court to revoke.

[00:42:55] Speaker 02:
And the language the government just cited is parentheses off and to order.

[00:43:00] Speaker 02:
So I think my reading of the statute is correct.

[00:43:04] Speaker 02:
There is a power to revoke and a power to impose sentence.

[00:43:08] Speaker 02:
And the period of delay has to be reasonably necessary for those things.

[00:43:14] Speaker 02:
And this case is about, this is a revocation case.

[00:43:18] Speaker 02:
I'm not here challenging the jurisdiction to sentence.

[00:43:22] Speaker 02:
So I just think that is

[00:43:24] Speaker 02:
And I think that's why the briefing doesn't talk about this, because this is a question about whether the court had jurisdiction to revoke, not a question about whether the district court had jurisdiction to sentence.

[00:43:37] Speaker 02:
And I don't really have anything else to say.

[00:43:41] Speaker 02:
I think I've probably said too much.

[00:43:46] Speaker 02:
Thank you, counsel.

[00:43:47] Speaker 02:
Thanks.

[00:43:49] Speaker 03:
As I said, enjoy the arguments.

[00:43:51] Speaker 03:
Thank you very much.