please the court at the outset i would like to open my remarks by conceding that an error by the government can be reviewed in government or possibly by the defendant can be reviewed in a thirty five a procedure now that being said thirty five a procedure discusses technical arithmetic and clear error clear error is an obvious technical in the state what we have in this case is not in my opinion clear what we have still so i don't understand why any of this matters that district judge wrote an opinion saying it just didn't matter your point get the same sentence whether or not he had tested positive for drugs the day before shabbos and given that finding i don't see how there's any harm without harm nothing happens well the harm i would judge is this the procedure that i think should have been utilized by this court although the court utilized at thirty five a procedure in disposing of this but the procedure i submit should have been utilized is the court should have called the parties together wiped the slate clean and had a recess and hearing now i know that's what you want but the question is given that the judge has said this issue had no effect on the sentence how you can show any whether it's clear  judge will and that's why that's why we're requesting that if the court should side with the appellant that you send this back to the district don't get the new sentencing without showing that the old one was bad in some way and the district judge just said there was no problem are we supposed to find that that's clear or let me explain the declaration by the sentencing judge saying a particular thing didn't matter to me are we to say he's lying to us that's what he said well what the government indicates is that this court the district court that is didn't rely upon the erroneous information provided by the government that's what the government indicates the government jetted say anything he wants i care about what the judge said he did not require that seems to be what your argument boils down to what it would be quite an extraordinary thing for a court of appeals to say we think the district judge is lying thank you very much the case law indicates this procedure should be utilized if a court disclaims reliance upon an erroneous fact what that the courts have indicated is that well there's two schools of thought  analysis that have to be made depending on the pastor the case for example if the case comes before the court of appeals and the district court did not realize to review the sentence there is one standard that's supposed to be utilized that's not this case in this case the court it with your was brought to the court's attention and the court looked at it again and said i didn't rely on that erroneous fact in imposing a sentence the procedure this post be utilized by this court then is to resort to the record and make a determination as to whether or not the district court  specifically considered the erroneous information and the erroneous information this case was as you know that this defendant while in jail the night before sentencing had taken some drugs that was later determined a week later to be erroneous if you go back to this record the sentencing of this defendant you will see on three separate occasions where the judge counts about this particular defendant using drugs while in jail now is somewhat complicated in that when he was first brought to jail the first month or so he had used drugs he was  mohnish and then they started testing him for drugs and for five months after that there were no drugs in his system except for this purportedly erroneous test the day before a sentencing hearing if you go back and you look at the transcript you will see that this district judge said this guy is still using drugs still meaning that it's an ongoing problem not that he'd been straight for five months when he was told not to do it anymore but it's ongoing and therefore everything that he presented to the court the district court was sort of a mockery in the eyes of the court so yeah i think when the judge says i didn't rely on this in a developing a sentence you have to go back and see what he actually said in the record and it's the record that demonstrates that you know that's not accurate he didn't rely on it in posing a sense so he sent it back and what is a judge  then well and that's why we're asking that when you send it back you send it back a different judge because all the court we're not going to do that well here's what here's what my client guess if you send it back my client gets the re know well he's got plenty of time to do that that's that's true but what it gives my client is the chance to present the argument that he could have presented a missionary at the sentencing hearing and tell this court or tell that court that i've been free of drug usage for five months and he was he was prevented from doing that and that's what he would get the opportunity to do if this is sent back and for this judge he could make a different argument than he was compelled to court has already a trust the questions raised by mr sheen and here twice within two weeks of the sentencing in this case the district court explained that not only had it not relied on the false positive drug tests but th the court would have given him the very same sentence without any consideration of that erroneous information and the record here supports that conclusion the district court followed the government's sentencing recommendation a recommendation that was have this is the case where the federal rules and the court's precedents worked exactly as they were supposed to the government got bad information it came up at sentencing the parties immediately brought that error to the district court's attention  there is not much for me to rebut i do have a nice trip from milwaukee though thank you very much the case is taking