zero st the district court made clearly erroneous factual determinations relating to the cause onset and form of mr lopez's mental illness and interpreting the statements of an evaluating psychologist regarding mr lopez quote unquote dangerous  nd the lower court categorically rejected mr lopez childhood trauma as a mitigating factor the true driver of his mental illness and drug use rd the district court failed to adequately consider the need for mental health treatment and the most effective manner implement side treatment forth the district court failed to recently justify the extent of the fifteen month variance from the properly calculated guideline range finally the district court also committed substantive they're failing to properly consider m quote has a mental health record stemming from his substance abuse history that is simply incorrect mr lopez mental illness began when he was eight years old he was referred by a suit a school counselor for mental health treatment he was diagnosed with that phrasing is not ideal but it seems to me if you look fairly if some of the colloquy is between the judge and doctor mendez the the judge seems to be aware that childhood trauma can contribute to some of the psychological disorders that the doctor is no testifying to so for you to say that  understand why you rely on that phrasing but if you look at the totality of the sentencing look it's pretty hard to argue that the judge did not understand the horrible childhood of the defendant did not play a narrow view of the sentencing record your i think the district court statements indicate his belief regarding the narrative the case which was simply in a day that this was a bad apple somebody whose problems were of his own making because of his drug use that lets him mental illness and the mental illness and combined with the drug abuse led to his problems and his mental conviction but i think that's clear from the statements made over and over again that's not a procedural error i'm sorry judge that ultimate conclusion are you saying is clearly erroneous i'm saying that the drug did the one version of your argument which is a coherent argument and i'm just trying to understand whether it's supportable is there was a procedural error because the judge mistakenly concluded that there was no mental health record stemming from anything other than his drug abuse correct that i think is just the president suggesting is somewhat hard to square with the record because even the phrase he has a mental health record stemming from drug abuse needn't be read to say and he has no other mental health r he certainly does have a mental health record stemming from drug abuse because he was treated for and there are records coming from that and that if you look at the colloquy it is it's evident that the district was aware of his other psychological the evidence and say he made a wrong judgment but you seem to making a different point which is that he mischaracterized the record in reaching that judgment by saying that any unless i'm misunderstanding your argument but when you focus on the phrase stemming from you seem to be saying that the problem with the district court procedurally error by mischaracterizing the record i think that in his mind mr lopez w not suffering from severe mental illness before he started using drugs that was my understanding of his arguments during the sentencing hearing and that's incorrect because we have the two thousand and ten documents from four wins which which is a mental health institution in new york what is the basis for concluding that the district court didn't believe that there were mental health problems prior to the drug use but that ultimately the behavior for which he was being sentenced stemmed from mental health problems relating to the clearly erred yes judge i'm saying he clearly erred and made it really is factual determination relating to the cause onset and form of the mental illness so for him the mental illness didn't particularly exist before the drug use started that's a different characterization of the error then whether he concludes that the ultimate behavior for which he was being sentenced was attributable to mental health problems relating to drug use from stating that the district court was of the view that he had never had any other mental health problems prior to the drug use briefly both judge i mean i think on the st one what is the basis for concluding that the district court took the view that the only mental health problems that he had related to drug use again his statements during the hearing and the fact what state what is the state him if the statement you rely on is he had a mental health record stemming from drug abuse i don't see how that is a statement that he had no mental health problems unrelated to drug use and my response would be and not once during the hearing judge did he ever mention a mental health record before that but that was all put before him that he considered i don't know if  considered frankly i don't believe he did because i don't think that was consistent with the narrative that he wanted to advance during the sentencing what you're for him correct absolutely and that's part of the problem as part of the p s r and the sentencing memorandum the defense aware that there were mental health problems prior to the drug use he concluded that the mental health problems that led to the conduct for which he's being sentence stem from the drug use and you say that's clearly erroneous on this record think so because then you wouldn't be appreciating the severity and the involvement of the mental health issues in the commission of the offense you would simply be including at this was somebody who you know was a rational on and behaving in that manner  psychological deficits and that's obviously something that mr lopez was suffering from not something that the the expert did testify to during the sentencing hearing that it was apparent from his testing that mr  because more than a suggestion that the district court it emphasizing that he wants your client to be in a prison hospital throughout the duration of the sentence that he seems to take the view that the longer he is in prison the longer that he is getting mental health treatment that will be good for him and good for society if and to some extent that seems to proc that arguably might drive hospital was simply lip service that the court was paying to this supposed need for treatment because at the end of the service what you i don't think that he was focused might mire it was that the district was not focused on mental health treatment for mr lopez and the most medical facility there's four psychologists for i think slightly under two thousand inmates so the notion that he's receiving mental health treatment in an effective manner is high fantasy and i was something that the defense wanted to get out during the sentencing hearing why can we not of hearts has to do with the district court suppose an error in accounting for the evidence in the record of his pre drug abuse mental health problems yes or anything else mr lopez's mental health history including the documents submitted as part of this is the treating physician argument that is the treating physician are you and correct obviously somebody who's been treating mr lopez for months and months and months including an inpatient facility where you receiving treatment of all kinds of recreational therapy occupational just of course reason for not concluding that the treating physicians analysis was correct there was none on the record what he said was that bipolar diagnosis is simply something that  and then there was also a number of other records submitted from other facilities that also reach bipolar diagnosis conclusions or mood disorder diagnosis conclusions and i would note also that the  i'm trying to think of the exact words is psychiatric future it was in all likelihood he had a favorable future in front of him on the psychiatric front it was something that he could be treated for successfully with medication therapy and things of that nature that was in the b o p about wishing that occurred in this case as well so i think the district court didn't consider any of that the fact that he the fact that he suffered potentially from mood disorder or bipolar disorder and the fact that it was something that was potentially treatable as well i think the district court also used these prior errors and isolated portions of dr mendez's testimony to conclude that mr lopez was quote unquote a menace to society that's not what yesterday to just record setting twelve years he had never heard an expert testify so explicitly that this individual's would is a danger to society and that was not a throwaway line for the expert i mean he went into great detail he he very much particularize why he used that characterization here so i think to suggest that somehow the district court got it wrong given the way that the testimony came in strikes me is administered there's no dangerous meter that exists in a psychiatric test that mr dr lopez administered what he can do is you can look at some of the statements made by mr lopez regarding some of the behavior that engaged in the past and then say well you know he thinks that he was behaving normally but was also included in not questioning was a statement that mr lopez understand what he did was wrong and knows that now is the time where he essentially needs to pay for his mistakes that he made understanding that his behavior is unacceptable so i think that undercuts the notion that mr lopez believed that he was doing things right and wanted to engage in this type of behavior in the future and that was really the basis for a document as conclusion i mean there  other test that he administered other than one relating to risk of pursuit of his own that applied specifically to the dangerousness conclusion it was just his overall understanding of some of the things that mr lopez like to engage in in the past but again that  never was a objection to fact finding as to whether he had entered personality whether he had the into social personality disorder or to whether getting into the explanation of the sentence the district court made a clearly erroneous finding relating to the onset form of his mental illness now this is important because the fill your of that objection would have procedural and substantive and the specific procedure all objection that was made was the balancing of the three thousand five hundred and fifty three dollars a factors and the consideration of what it considered irrelevant testimony regarding the admission of the defendant after he was arrested when he said i shot and killed saeco which was an individual at the housing project so those two claims were clearly preserved and it's the government's position that that would have triggered of discretion of review for those two claimants however the general procedural objection especially when dealing with fact finding was not made and as a result that was forfeited triggering plain error and review the problem is that can amount to a waiver so the government's st line of attack is that these arguments have been waived by failure to per properly brief them under the plain error standard in any event there is no pla district court recognizing his mental health problems or except in the ultimate diagnosis of dr mendez that he had anti social personality disorder and that he was a danger to society when we look here the fact that his father rate the sister all of that is in there and then it says he has a mental health history stemming from drug use is including hospital hospitalizations what's important is at that point nobody objected which shows that it's in artful phrasing as opposed to thinking there was no type of mental how to explain the variance the variance has to be based on the conduct yes your honor and the conduct here does and the history and characteristics of the defendant so we have an individual who is possessing a machine that this individual stated and the district court only used for the fact that he stated that i've gotten gun fights before i c he thought he killed them he did it but i shot see so and he not only did he say that but he also said that to talk to mendez and other health providers that he's engaged in gun fights in the past so you have an individual who not only has a machine gun in puerto rico which this court is well aware of the rampant firearm violence who is living in the housing project and said that he he knows that the underbelly of the housing projects he knows where to get it and how to change a regular glock into a machine gun this is an individual who it's not just ok i have a gun and i have a gun and i use it when i feel bullied when i feel that my integrity of the estate the statement that he killed sheikha there was testimony that the defendant was very very high when he was arrested is that true that he had he had ingested a large amount of marijuana at the time that he was arrested there is evidence that effect in the records there not your honor the evidence is that he admitted to smoking thirty joints a day i'm not sure that he admitted that i smoked thirty joints today but the statement that he killed is that the judge did focus killed secret what what is there any was any attempt made to me that's us serious thing i killed somebody was any attempt to made to find out if there's any factual basis for that yes your honor there was and i we do not agree that the district court used that in the sentence it was more he referred to it did he not interesting and when he referred to it when the st the objection to the testimony coming in of the law enforcement officer the district court said it's us housing project was was where he lived and it was considered by by council that's where he lived and where he was arrested at the time of this current offense that there was an individual who was named sica who was shot and who was injured and she had told this individual that saeco was part of the drug trade and that he would she would hurt him that he was a bully that he would pistol with him and that she had a some sort of a beef with him and that he killed him when the law enforcement individual then told him see cuz not that he was injured and there was someone who testified to the fact that he visited see in central medical the hospital he started to cry presumably maybe he was fearing retribution for for that type of of of behavior but it's important to the extent it's relevant under and just like section three thousand six hundred and sixty one it's relevant in the sentencing calculus because it shows the type of person who will readily use a fire him and mr lopez is ileus is getting go that was sustained as hearsay the government argued that a sentencing hearing hearsay is permissible but nonetheless the same court sustained it and at that point he even said all we have here that's important for sentencing purposes is that he said so not that he did it the court said that sentencing so long on that so not that he did it but that he said it so that is in the record and it's what is the significance in your mind of the fact that he said it as a justification for a variance of this light well you're something that may not have been a true statement well i'm be hard pressed to think that this was the tail that was wagging the dog when we look at the district ok so then what does justify the very just report justifies the explanation by looking at the facts and it specifies the seriousness of the offense in the terms of this if one of whom who does x conduct and you have another who does x conduct but the nd one has a psychiatrist testify that he has a personality disorder the nd one gets a longer sentence just for that reason no your hon stands we have dr mendez state that even if he didn't have anti personality disorder he would have found him to be a danger to society that's on the record because based on what i asked that is what it wasn't further asked by the defense at that point why that why what the purpose was but it's on the record and this is there anything that could support that statement well we know that part of it could be the  of a dangerous individual who was in possession of a machine gun who knew a way around a dangerous area who knew how to get guns made into machine guns who admitted that the gun that he had not that he used it but the gun that he had had been previously used in murders this is a dangerous situation by dr mendus himself and the fact that evidence was on the record unobjective the district who rely on it because when there is there couldn't be any clear error when there is a possible interpretation of the record and that's exactly what there was here you had dr mendez specifically state and the district court noted it that that the most that in his opinion lopez has minimal understanding of social mores and his convictions of the outside world following society's rules laws and community challenges of living is a challenge for him and his views are tied to violence drugs loyalty to the subculture of drug and criminal behavior and that he uses that feel protected for himself taking that noting that we need to provide just deterrence protect the public call into consideration the seriousness of the offense the way that and determined that an upwardly history of the defendant and the judge says you're going to serve you're going to serve this time in a prison hospital he says that over and over again as if to say i'm not being insensitive to your mental health problems they are going to be addressed in a prison hospital isn't defense counsel correct that there is no way in which a judge can dictate that some of that that he sentences far as to say that while it is true that the bureau of prisons makes the ultimate determination and a district court can recommend the reason why the issue of a prison hospital was on the forefront was the resulting of counsel's own questioning to  mendez saying that isn't jail not good for international personalities and at that point dr amanda said it may cause the condition that might cause it to worsen and so then clearly responding to that issue which i think shows his need or shows at least the district court's concern with the rehabilitation of the individual asked whether a prison hospital would be the better option granted he has he cannot force bureau of prisons hand in doing that but he makes the recommendation we know currently that he may be unjust we don't know if he's been there we don't know what type of treatment he's been made he has had but it also goes what's important to highlight is when he was in miami for his competency evaluation at that point the miami evaluation noted that he was not having any treatment and even after coming back from miami he all of the evaluators even the defense evaluator said that he was in the best position that he had that he had been and while they know that this is that the miami warrant that his prognosis was mixed because he can benefit from it he has to watch to do it that was the negative aspect of it and here you have an individual who told the doctor dr mendez that he likes being a bad boy he doesn't want to change his life and that's the diff part here but to say that he needed this treatment when he was in miami the doctors didn't say that he needed the treatment they said that he could benefit from substance abuse treatment they said that he could benefit from anger management and then mental health treatment those were the three steps that dr mendez explained at the sentencing hearing and no those are all programs that bureau of prisons when evaluating him because it was the district court who said that i recommend you go to a prison facility be evaluated in get the treatment he needed he wasn't trying to supplant  so why the why does the judge and justify this very it's one of the reasons he cites is loyalty to a subculture of grog and criminal behavior he has no prior criminal  prior criminal record but his admissions to his various doctors and he had an outstanding warrant and he knew about it for selling drugs when he was in new york this is an individual who admitted to having a criminal past even though his criminal history may not reflect we've made mention of mr that mr lopez wanted to be a bad boy if we're using dr mendez's report and the statements made and there i think it's important to know what he actually said was he believes that his criminal record is on his favor and will not interfere with his goals because he knows what it is to be in jail he states that quote my criminal record can help me because i went through this and i know how this is and i don't want to come back here and i'm going to do things right one question about this he stated  tranquil and look for a job and don't come back here so the notion that he doesn't want to buy into treatment is frankly hogwash he didn't want to buy into treatment he stated specifically during our cuban that he was willing to accept and receive whatever sort of treatment the district wou offer unfortunately it didn't offer anything but i wanted to close by touching on substantive unreasonableness at the end of the day this was an individual whose father beat his mother on the days leading up to his birth it was a an individual whose father rates his sister during his formative years repeatedly that led to a broken home he then spent years homeless in new york literally guarding the family belongings while his mother stood in line at homeless shelters so that they could spend a single night off the streets and this this repeated itself over and over and over again day after day you know and that's the true driver of the mental illness and the mental the drug abuse here but if that doesn't move the needle one inch for the there should be a downward variance but all you're challenging if i understand it is the operative area that's correct so with respect to the upward variance what i'm still not fully understanding is maybe you have on what is the basis for the upward variance and it sounds like the basis for the upward variance you were suggesting was in assessment of his mental health yes considering it he needs to consider the entire picture and not selected portions he needs to make accurate factual determination and he needs to weigh that with with the other mitigation presented by the defense but that's not what happened here you focus only on the nature of the firearm some selected portions of document as its testimony because what if he concludes that this individual based on dr mendoza's testimony is but usually perhaps uniquely dangerous i mean that seems to be the thrust of dr mendoza's testimony and that seems to have had a great impact on the judge would when that judgment that this defended this is not just a or b very ordinary recidivist potential we're dealing with here this is somebody who is particularly dangerous with that but that justify it a very well to answer your question i think the district court would need to consider that statements in conjunction with the other mental health history that was presented before it have a risk of recidivism and we know that from the sentencing guidelines so to say that this defendant was outside the mainstream as a result but i don't know if you're making this point exactly but if the basis for concluding that a person is unusually dangerous is a mental health assessment of their personality disorder not rooted in actual conduct by the person is that a permissible basis for making a dangerous just judgment that leads to a longer some you are then used to be some sort of rational basis to conclude he is a danger and especially when the defendant's making statements like i want to receive treatment i want to receive whatever sort of help is available to me that's the type of stuff that indicates somebody who will not present a danger in the future somebody who will police officers he has mental illness of some kind and he's he's saying things that have no basis in fact and that's consistent and it wasn't that was there and  regarding how mr lopez responds to threatening situations and he he says things to make himself appear strong when in actuality that's and to avoid showing that he's  weak and that's consistent with the trauma that he sustained in the past so things of that nature he also said that he thirty he smokes thirty joints a day i don't think that's physically possible he also referenced the firearm being related to murders i don't know how he would know that when actually he was in new york at the time supposedly these murders transpired so there's all kinds of factual inconsistency with that statement and it's not entitled to very much weight i think at the end of the day it's unreliable it's the product of that situation his drug use and his mental illness and it should be given