presents a different question what is the appropriate remedy for a defendant when the district judge fails to exercise or articulate any discretion at all and instead relies on the probation office to both make finding intervention at the very end i think you might have had a real point but the district court ultimately said i'm not blindly following the probation office i disagree with them some of the time but they are experts and i want to follow them now in effect so isn't that good enough no your honor that while the district court did say that the that it was agreeing with the probation office in this particular case that there was no evidence that it had any of its own independent analysis of either the thirty five fifty three  not a one hundred percent discount but some discount for the time in custody for the twenty eight months for the underlying offensives district judge misunderstands her first  that's roughly what he said he thinks she should you think she should be back in custody that that's true your honor but that the whole point what is troubling is that the never expresses why twenty eight months is an appropriate sentence never expresses why it's more appropriate than the twelve months requested by the defendant or even the twenty four months requested by the government  aside from saying that probation feels that twenty months is the appropriate sentence the court really refuses to engage in this analysis and particularly in that section court simply recognize that he had discretion and and then said and tellingly that the probation officers don't feel that mr allen should be anything but put back into custody and no more supervised re challenge the idea that supervised really should not be revoked she admitted to her conduct she admitted that it should be revoked and the real issue here is the crafting of this and it's and the problem what about the government's think three a which requires a court to impose a sentence so that is sufficient but not greater than necessary the court in this case never engaged in any type of analysis that with allow this court to conduct any type of review of the end of the court's reasoning about the comments of the court makes earlier in this same transcript which are pretty much all to the effect that miss holland's is a hopeless case you know that she's had lots of opportunities to turn her life around he's just not convinced that this true year period most of which represents time that she was incarcerated is is enough and couldn't you infer from that that he he just thinks let's just make it the twenty eight months and be done with it i think one might be able to extrapolate something from that although given the dearth of actual reasoning that the court presents us with all we're about to do is make assumption about his i know that the original revocation proceeding happened in december but i believe is this hearing is every twenty five twenty sixteen some it's twenty eight months i don't know how long each story been serving a by just said that you could infer you could extrapolate that that was the judge's reasoning but that there is a dearth of explanation one of the things that i think in this case helps is the judge's order that he enters the day after sentencing and he can't add anything new in that order i think the case those are pretty clear but he can clarify and he essentially says in that order she's completely failed at the goals of supervised rel and you know the goals of supervised release the primary goal is to reduce recidivism and i think then you can connect the dots pretty easily but she has repeatedly really offended there isn't much hope in the judge's mind i think it's to twenty seven months guideline range close to thirty one days i understand that but i guess it's sort of a guideline sentence but sort of not the i think it's at the high end and i think this court's been clear that further away from the guidelines the district court g sentencing the more explanation needs to be given that he doesn't even say i'm following the guidelines if you really never confronts her argument for at least a partial discount from the twenty eight month i got it i don't disagree that it wasn't as clear and all don't say it's you know i that's what i'm saying but i think if you read the context it's i think it's on page eighteen where she's asking for the discount his immediate responses look i'm dealing here with supervised release not punishment and but then he says she hasn't demonstrated that she should be continued on supervised release or put it liberty  more attention would have health care but the truth is after this section we're just talking about where counsel is trying to clarify that she said some of her rejection a period there's a partial sentence and then you have thi that twenty eight months is be only appropriate sentence we actually asked for less than that but the question is whether this is a substance a reasonable sentence is whether this is a reasonable sentence and whether the judge sufficiently articulated it and i think if you consider there were graduated sanctions in this case she had counsel what do you think about the district or do statement at age fifty in the transcript but he's hoping that the defendant will take advantage of programs that are available to continue to work against the addiction that you really have to help the opening brief here relies on the top be a case in which the supreme court says that is a forbidden from situation choosing a i'm giving you more time to get this program i think that's a possible reading your honor my experience with judge baker is that that is not one of the early we're not trying to adjudicate your experience but i understand i think there's two reasons we have in this transcript and what we have that strike i but i think it's just as reasonable the explanation that he is personally hoping that the woman in front of him can it well then we've got a problem if you say it's just reasonable to suppose that he did a legal thing and an absolutely forbidden thing what's the court of appeal supposed to do i'm sorry i should have said i think it's a more reasonable that's what you meant to say we're sure  yeah i don't believe i think because easterbrook there's one other thing in this regard that makes that important is that she has said i have been sober and really i think about sobriety was driven by her being incarcerated thief when she's been out she almost immediately relapses this isn't to say that going into prison obvious says should be the way of remedying that but i think it is a consideration for the court that she's unable to stay sober and that's why it period towards the top end  concludes the tree is orderly hopeless i don't understand why she doesn't get the statutory max and i don't understand why the judge says i hope you'll get your act in gear after he's just concluded that it's hopeless that you'll never get her act in here i think he's responding to the notion that she is getting her acting here and he says well i hope that's true but i don't think it's true at this point i wish i could wave my magic wand and you would be better but i don't think that's going to happen in this case there is question as to whether or not that was even legal consideration under time and aside from that you're not arguing a toughie a violation are you i did not make any significant unclear i agree with counsel that it's it's unclear what the district court intended by that phrase to the extent it was intended and he relied on it in deciding on the appropriate sentence it was  i don't think it is clear from the record that he relied on it so so i agree with that however so there's not a tapia violation not a clear one no it's so you're not arguing that as an independent basis for reversal correct it would not be a sole basis a woman argument would be that whatever be it the argument here is that there is no way of knowing what the district court relied upon other than  view that she was proving difficult to rehabilitate and needed additional time in prison at the high end of the guidelines range and indeed a month above the guidelines range to account for the time that she didn't serve generalities that why that he said nothing to justify the decision and that's just not true but the court did reference multiple reasons to revoke or supervised release when he was reading probations recommendation did not there is nothing in the record to show that he conducted his own independent analysis under thirty five fifty three a or addressed her arguments in mitigation the probation probations report could not have addressed her arguments  he cursed orally addressed her are there argument which was that she was basically getting her acts together and she had been sober by but that was a significant argument that she made that she had already spent a significant period of time incarcerated on the underlying offense and that he refused to engage in it and that his or the district court's refusal to engage in that in a discussion of that argument is telling in that it shows that he relied on probation to make the decision for him