that you would be hard pressed to find any explanation of it within guidelines revocation sentence procedurally and reasonable but in that same breath this court's indicated that the district court must provide any explanation and in my view this is a relatively simple case there's a very low bar for what the district court had to do and in this case the district court did not provide any indication for the sentence that it imposed it did address mr town's arguments and it did not provide any individual eyes to sesame whatsoever on the record accordingly as this court did in thompson as it did involve him ill if he did it didn't sham away it this case should be remanded back to the district court so that may put its reasoning on the record and address mr towns non frivolous arguments most significantly i would say mr towns mental illness which again many defendants come to a district court with antisocial personality disorder substance abuse that's unfortunately very common mr towns had diagnosed schizophrenia he had diagnosed bipolar disorder serious mental illnesses and one of the thirty five fifty three factors that the district court had a statutory obligation to consider was a way to provide him treatment in the most cost effective manner possible and this guy that argument was made to the judge during this hearing see mental health treatment isn't that consideration of that issue i think if you read thompson laid out some of this is nonsense that you can look at the whole what was part of your honor first just one quick clarification you mentioned he called it a most serious violation i believe in a supervisor various great most serious grade in a supervised release revocation if you look at all the grades a violation and the most serious is the one that drives the sentence so i do not believe he was saying it you know this is the most serious conduct i've seen i think he was really just  respectfully disagree in thompson the district judge actually did more than the judge did here the district judge in the context of deciding where the defendant should be released or detained said you know i actually find a danger to the community so we're going to detain him and certainly in thompson the government relied heavily on that using your honour's context argument and this court held that you know outside that we cannot impute that reasoning that still wasn't what he made in terms of the reasoning of the sentence the district judge here did order mr towns into drug treatment but that was again just a recommendation to the bureau of prisons that was not part of his sentencing determination i would also look as if he did use a drug treatment did you mean mental health mental treatment i'm sorry your honor i misspoke it's i would think the part where he ordered him into drug treatment after there had been a lot of discussion about how he didn't have a drug problem actually part of your  your honor and i'm very much apologize and so used to again unfortunately in the business we do drug treatment is almost always necessary as your honor pointed out for mr talent it's not and i don't want to get away from your question judge niemeyer i would say you know again i'm published but a very similar context the court noted that the district judge there engaged the defendant in a back and forth discussion about the defendant's arguments that was not considered enough in context because the district judge did not indicate the way it affected the sentencing imposed in chamma witts again the government brief you know this court notes gives a lot of post hoc you know puts flesh on the bones of the district court's barebones announcement again that wasn't enough the proper remedy was to remain and we would say the same thing applies here these were non frivolous arguments as judge harris points out you know the defendant had stayed clean  so much of this is driven by his mental illness one of the violations was his missed appointments but as his counsel as you pointed out judge anybody or one of the longer arguments went on explaining you know this is someone with schizophrenia this is someone w and this is an indication again a defendant with a drug problem or you may say well you know he can't get any help he just needs to be away certainly considering the serious nature it was a great a violation it was criminal conduct we're not arguing and we did not argue below that no term of incarceration would be necessary but needing to put that sentence in context of giving this court something to review because as i was over the past week reading my brief  reading the government's brief it struck me at some point we're just having the sentencing argument again in this court because that's all we can do is look at the record that the parties made and almost argue to this court w sort of sentence should be imposed and as you well know that's not the role of this court this court needs to review what the district court did and in a case like this where the district court does not either in context or expressly on the record provide something some hook for the court to say that was an unreasonable assessment or that was a reasonable assessment again it's not a high bar but this court is held over and over and in thompson held in a publish case there must be something in this case there was nothing so you know i would only admit again address briefly the government's argument that this error was  harmless and again i think in thompson they did not raise a harmless error analysis but you know harmlessness is something the government needs to prove it's not an arbor and this is not planar for harmlessness the government needs to prove that the sentence would have been the same had the district judge provided reasons and proper perhaps more appropriately fully engaged mr towns arguments and the government cannot make that showing on this record if the district co discussed perhaps other options had considered other options on the record mandating inpatient mental health treatment since one of the problems here seem to be again some with bipolar and schizophrenia having trouble meeting his appointments if the district court has more fully considered you know unlike everyone else i've seen here with mental illness you're not self medicating you seem to be trying to do the right thing you're trying to get a job you're getting your ged you know you're working hard you're trying to do these things you know i want to encourage that i want to put you on the right road so we're going to give you a lesser term of incarceration we are going to give you that lower you know below guideline the government can not on this record in this context demonstrate that that we had the district court fully considered that on the record it wouldn't have reached that result therefore the district court erred the error was not harmless the proper remedy is to please the court christine fred on behalf of the united states asking that this court affirm the judgment of the district court there is a difference between making an argument and offering information for the court to consider at this revocation defense counsel did the latter she provided information about the defendant that might be relevant to the court's determination and in this context what the court said was adequate if you look at what the defense counsel said she simply offering information she isn't tying that information directly to the thirty five fifty three factors or explaining why the fact that she's twenty two engaged and has young children warrants a lesser sentence and to the extent that there was discussion of the mental health first of all that information was not argued as a basis for excusing or mitigating the defendant's criminal conduct it was our essentially the discussion about the middle mental health was to acknowledge that this defendant had mental health issues and then to attempt to explain why the appointments were missed whether from miscommunication scheduling confusion or something else and then you have the the fact that the defendant was employed over the summer and he had some job possibilities slightly different approach than what you took in your brief right where your argument was that it and it made arguments but that's fine because the court was into them and consider them but now you're saying the defendant didn't make any arguments but i think that what we are trying to say you waived and i'm just trying to make sure i understand why i think that in our brief we did know that essentially a lot of what defense counsel said were just fact bound contentions and now on appeal he is crafting those into arguments and that actually what it  consistent with what i'm saying here and i think that as sensually for the court to for the obligation for the court to respond to something very needs to be actual arguments and as opposed to just giving information that now you're saying i really am not trying to but so this is a slightly different argument that there was no well but the district court was not in fact a blockage two weeks sort of explain the sentence here because no arguments were made for lawyers and i think that what i'm saying is that when you look at what defense counsel didn't say much of it didn't necessarily warrant ever spawn's in the situation where that there's just background information being provided and used twenty two he is engaged he has young children as a practical matter what is the court to say to that defense counsel didn't link that to well he is young this was foolishness foolhardy mistakes and i do think that what the court said in response to defense counsels to months was appropriate the court addressed the mental health issue through the courts recommendation that he received mental health treatment the court heard from the officers noted that this was the most serious great violation noted again at the end that this was a great a violation that he committed this criminal conduct the court stated that it had looked at the that and had considered the policy statements that had considered the thirty five fifty three factors and i think that was also very interesting here is that the court after governing council made arguments pointing out that there were threats there was escalating conduct and all of this played to the concerns of deterrence incapacitation danger to the public what the court did immediately after that is to turn to defense counsel and say do you have do you want to reply to that and when there was from defense counsel the court again asked do you want to reply to that and defense counsel didn't and i think that shows that this district court was engaged and was considering what was being placed before it and the court also stated that it considered all of the factors considered i believe that i have after weighing all the factors can i just ask you and i know it's sort of a little thing but if i did it did give me a just a little bit of pause and i'd be interested in how you address it so i mean it seems like the whole thrust of the defendant's statements arguments whatever you want to call them was you know this is this is a case about mental illness what's happening here is driven by mental illness not by drug abuse this guy is getting clean drug test he's not using drugs this is all about the mental illness and then the disregards recommends in the sentence that he participate in a drug treatment program and to me at least that gives rise to some concern about sort of what exactly is going on here and how much consideration is really being given to what is the main thrust of the argument that the defendant or answered as it's called statements i just want to be neutral but the main thrust of the statements being made by defense counsel does see if you included that in the judge's intensive drug treatment for offender who the record could not be more clear did not have a drug problem if the bureau of prison were to carry that out noticed and there is somewhat of a disconnect i would agree with that but at the same time i would note that this was a defendant who he had a mental health issues he was at one point taking medication and he stopped taking medication and that was noted and pre sentence report and the issue and as defense counsel here noted that very often times there defendants do present with both mental health issues and substance abuse issues and i think that it's possible that the court was attempting to guard against that and to the extent that there was the extent that defense counsel or the defendant had a problem with this recommendation for additional it i would agree your honor so to that to the extent that is in the record that would absolutely be a reasonable response that at the time of his sentencing he was seeking this treatment and this recommendation would be consistent with that there are times where there is a history of abuse where there is a a problem that is latent and again we believe that what the court said here was adequate noting the seriousness of the violation offering the mental health treatment making america mentation think about the seriousness of the violation and i mean assu that that was offered as an explanation of offense that violated the supervised release was a serious felony have we said that the sentence for violating supervised release can't be based on the seriousness of that offense  it has to be about sort of violation of trust on supervised release itself i mean isn't that a problem and that's what the district court was relying on my being clear you are absolutely being clear and no i don't think that's a problem because this is a this court has also explained that very often assessing the seriousness of a violation goes hand in hand with addressing the severity of the breach of trust here this defendant broke into a home woke up a young girl was rubbing on her arm asking for her older sister fled as soon as she woke up and shouted for the rest of her family immediately thereafter tried to break into another female's home that's serious conduct it is but we've said that the primary goal of the sentence for the violation of the mean are we to sort is there no way to thread this needle because we do have cases where we say that and yes there are cases that say that but those cases also say and even the policy statements in the beginning of chapter seven explain that to a sas something like the severity of a breach of trust but implicitly requires one to look at the seriousness of the conduct if this defendant who was had and failed to report as directed to buying the monthly reports i think that that would be a last serious violation and i think that that plays into the court's a sassaman of how significantly did this defendant breach my trust make can i ask this do we think it could be the the entirety of the explanation would that be consistent with our case is saying that the primary goal can't be to punish the new criminal conduct would it still be ok if that were the entire explanation for supervised release sentence well the new offense was pretty serious i'm not saying that's what happened here i'm just trying to get a handle on what we make of this line of cases and how we think that that would depend on again the context of that and whether there was the suggestion that the sentence was meted out to punish the new conduct as opposed to to vindicate the breach of trust and i do i  think that that is a very case specific inquiry and that's sort of why our cases are clear that we respect district judges to exploding the sentence but because of the nuance that you correctly point out the seriousness of the underlying conduct whether or not it's criminal and here it was criminal doesn't the dovetail with some of the thirty five fifty three five that are relevant and that's why we need the district judges to tell us you know spread fact i don't think that the court's comment that it was a serious violation was necessarily an indication that the punishment was to punish a new crime and i am a understand you think that was what can i look at in the record to confirm what you think that's what our procedural rules require even for within guidelines and absolutely i  again i would point to the totality of the context here the court found the violation reference chapter seven the thirty five fifty three factors noted the seriousness of the violation set forth the  defense counsel to reply to government counsel's argument about first about deterrence incapacitation escalating misconduct reiterative the finding of the criminal conduct it consider the factors and then tailor it sentence to this defendant by making appropriate recommendations and i think that when you look at this in its entirety in this context a supervised release or context that sufficient now i would agree that if this were an appeal of an original sentence i would not be making the same argument really yes actually i was going to ask you're office recommended twenty four months yes in this case that i was going to ask you would you be making the same argument on this record if the judge had given twenty four months anything but if this were an original certainty everything else the same i think you just said this argument you're making this argument you're making to us wouldn't carry that you wouldn't make that you did expect us if this were an original supervised release posture it is a very deferential posture you have to show that it's plainly unreasonable that's more than what is required in in an original sentencing context and here i would submit to the court that even if this court were to find that there was an insufficient explanation or an insufficient response to the information provided by defense counsel that it would not have made a difference because when you look at the quality of those statements and the persuasiveness they're lacking that this defendant was had some employment over the summer his violation conduct was in march and that he had job possibilities this isn't a situation where this defendant was getting his ged there's nothing in the record was taking concrete steps to affirmatively get his ged attend wake tech secure his commercial driver's license these were aspirations these were what at some point he hopes he might obtain this common to some degree in some ways that's a stock argument to come and say you know my client he would like to obtain these things the there was no request for training there was no indication that in the twenty one months that this defendant was on supervised release that he took these concrete steps that he is now saying to the court please consider the fact that i would like to to obtain these things that i hope to be a better person the court was looking at the person before him right then and to the most important argument as this court has noted this mental health issue there are there was a response to that there was a recommendation and there is no reason to believe that how the court further discussed his summer employment that he did not commit any other crimes during the twenty one months he was on supervised rel or his marital status or his status as a father that that would have resulted in a lesser sentence and this wasn't a case where defense counsel bill though argued that he was recommitting his life for his children that his children provided an incentive to avoid criminal conduct at the time defense counsel committed this violation conduct he already was a father that seriously undercuts an argument that now  might my fatherhood is going to change things but it does seem i'm just looking at it now it really does seem like the thrust of the argument was the sort of the documented and early diagnosis of serious mental illness and then the fact that he's not using drugs so this is what's driving it is the mental illness there is no drug abuse at least now i mean when he was twelve but at least now he's not using drugs i mean i so i guess i'm saying is i take your point about the fatherhood  but that seems to be the gist of it and so i guess part of your response is that we can be confident here that the judge at least when it comes to the mental illness that he responded by insisting on the mental that he  the mental health treatment during imprisonment but one of my questions and again i feel like this is where explanation would have been so useful just me in trying to review this is whether we're sure that's what the district court had in mind or whether he was referring back to the fact that part of the violation of supervised release was that he had not been attending the mandated mental health program i wasn't sure how to read that part of the sentence it looked to me like it might well have been well you violated your supervisory least by not attending your required mental health program attend your required mental health program there was nothing that wink did to what the defendant had been saying in stating that he wanted a lower sentence you know what i'm saying i do and i don't think that there was any dispute here at all that this defendant had mental health problems and i think that that was before the court and the court was familiar with and you have the p s r you do you have the violation conduct in you have the failure to attend mental health treatment if i think that the court ordered to the mental health treatment because of these the mental health problems there's there was no connecting that argument necessarily to that this should be a lesser sentence and the fact that the court response to the argument not by a lessening the sentence but by imposing appropriate treatment responsive to the concern before it again i thank you your honor miss fritz says that we simply laid out facts without connecting them to thirty five fifty three you know that if we laid out facts and asked for a particular sentence directly after laying out the facts which is exactly what the government did the government in the district court laid out the seriousness of the criminal conduct and then asked for an above guideline sentence even though originals so we don't  that here it you know to me that the record demonstrate does not demonstrate enough a couple of other quick points you know there's a few things that the district court said that the district court that judge fox says all the time you know when when the government when one party makes an argument and then you look to the other party and says do you want to reply to that that really is pro forma that that's just believe me those of us who've been here for a while know that that was we see the records right exactly that you know that that's him allowing the party to respond to the other party that that's not some extra do you know it's indication that this argument was so weighty that it requires a response by the same token again as i said when he says this is the most serious grade violation you get that's what you do you stack the violations a b c b is the most serious c is the most serious a as the most serious so it drives a sentence no indication that you know the word serious there is a term of art in terms of stacking the violations and to get to the point about the substance abuse you know i'm looking at the p s r joint appendix thirty seven paragraph twenty three and i apologize judge niemeyer was unable to find the drug sort of indication you were talking about you know the p s r indicates you know experimentation with with marijuana alcohol use that ended in two thousand and eleven and more importantly on this record the clean tests which would certainly indicate that the district judge needed to grapple with that on the record suit so exactly these questions you were giving to us that's what needed to be clear on the record so i see my time is up i would ask that you remain on this case thank you very much will come down and greet and then proceed on to the next phase