the district court in this case but a mentally ill twenty five year old man on his first trip to prison that he was never going to get better the district court in sentencing my client close made a prediction about his dangerousness and that prediction wasn't based on criminal history because it could've been but based on mental health history and what the district court said here look i've seen the voluminous mental health history you have here and what it says is that there's no realistic expectation that any kind of treatment is going to have a lasting impact on you that won't just allow you to comply with the law but even just keep yourself safe and other safe and the problem is that's not true that's not  all throughout the p s r which is all the facts the judge had on this issue said no mental health professional ever said that there wasn't a realistic hope the treatment would help no mental health professional ever said that the most pessimistic it got is that one during his teens maybe when he was twelve said yes he's going to be a sho provider the provider comes up with a plan that involves counseling and drugs and has a way to go forward and doesn't say look this is the sort of person that is going to be a persistent danger and that the real treatment plan here should really be something like civil commitment indeed mr global just after his arrest in this case was sent out to be looked at by the state psychiatrists about a danger to the public ingeniousness and for the judge to say look i need to keep you safe in the community see if there's not even the judge couldn't rely on criminal history here because there wasn't really much of one there were some acts in his past based on some of his mental health challenges that's where the action was that's where the concern was and here the judge is reading all this information  his take you just misreads it as well the mental health professionals here have said that you're just going to be a danger and i need to give you the statutory maximum  in prison and then after that i need to give you twenty years of supervised release now why this is another reason this is clearly erroneous for this sort of conclusion which is you're not going to get better mr clue will or we've tried this we've tried that we've tried all this we don't have any more tools in the tool box you're finished not why did the district judge need a mental health professional to say that when the district judge had mr clue balls history in front of him history of misdeeds in misconduct and also history of treatment that i'm fortunately wasn't having any of the any kind of a lasting impact for him i think there are two points there first of all if the judge  said simply you've had a past of a lot of misconduct dangerous to yourself dangerous to others and i was the judge have to make a judgment call about your dangerousness in the future that's just going to be part of the here protecting the public i'm going to say past performance pretty indicative of future results that would have been fine but the judge didn't do that here what the judge said is i'm left only with the conclusion based on this mental health record that you're not going to get better that there's no treatment that's going to have a lasting impact and i think the difference is there is that the judge is trying not trying to get couch it in the terms of as if the judge the judge said look i'm left only as if the medical evidence says look you know other kinds of incentives or structures are going to be helpful to him here  and the mental health evidence doesn't say that at all and if of before the court does that he goes takes great goes in great detail as to the whole history and goes through some of the treatment he's received and or and know he speaks about his military history and other opportunities that he had to clean up his act which didn't have a life lasting impact so it's not like he just did this you know just that's the only statement standing alone and i think it was both planned and i think to say enough if the judge again had said  you have you haven't succeeded and a lot of different environments are structures it wasn't just your parents or foster care or living with your dad in florida  that would be fine because judges make those calls every day all the time they've got to make predictions about the future that's a public protection asked about but for the judge here also to go into  oo for the judge to rely on that also is to say look mental health history is what i'm going to look at here or that i'm going to say look they've got nothing for you in the  in the mental health toolkit i think not i think is it goes too far and i the problem with that is that what it does is it makes you know it's as if the judge's decision is protected or if it's underscored by mental health professionals as if saying look the doctor say this or the mental health your mental health has untreatable that's that i'm sorry my hands are tied and look there's no we have no argument with the fact or with the idea that the judge has to make judgment calls about this stuff that they do but to rely on mental health history and mental health language to say look my hands are bound here because what the mental health professionals say is error and we can't get the sentences broke then it's invalid if it's based on a factual explanation or factual premises that simply aren't true and just because there is a record there that the judge could have relied upon please the court my name is julie flynn i am representing the act the government and science a little bit ill today so i'm trying to speak out in this case there is no contention that the facts that the and in fact that's not what he did what he did is exactly what he was supposed to do and mr morris just said he would be fine if the judge was saying past performance is indicative of future results that's what he did what he said was i've looked at your history i've gone through it i in dat and i'm finding that you might be difficult to treat in the future and i need to protect the public in protection of the public is speculation that's what the defense is saying it's unsupported speculation and that's not correct this is clearly supported throughout the record the judge is required to look at section thirty five fifty three factors and that's exactly what he did now does he have to make some kind of predictions and speculation yes that's his job and  defense said they don't disagree with that so instead of that he did not make a factual finding there's nothing that's going to help you in fact if you look at the record as a whole you'll see the judge said look here's your problems you're defined you're aggressive and maybe there's some kind of more i think my friend just in a sliver gets to the heart of it which is you either read the record and see it from mr flu or mr clue point of view or you see it from the government