the first to air is a purely legal one and it was it's an error that was not plain at the time of sentencing it is now plain however that the district court applied the wrong criminal history category and thus the wrong guidelines range in s applies in this case is seventy one point four and it directs the district court in the text of the guideline itself to use the criminal history category a little at the time to defend it originally was sentenced to a term of supervised release in light of this year it might on that what what difference does it make in terms of the the guideline range of the guideline range changes from addict in a criminal history had a very five at seven to thirteen months and in a criminal history category six it's eight to fourteen months of one month there's and you have a district court judge this is the third revocation hearing right yes and who seems to be saying i'm done with category because it clearly harmless or a clear harmless or if they counted them attempt to distribute cocaine as a predicate offense career offender status right correct that was wrong right but waiting in the wings waiting to be counted or all these other offenses is dependent committed including a murder at louisburg that wasn't killing and including the  over the one nine hundred eighty four conviction suggesting that it wouldn't have town today and i will say that we do have a residual clause issue it would only have potentially qualified under that we we can assume because it it's good that the court skipped over  that conviction that he actually did reject the application petitioner i pointed you fifty five petitioner had to show a constitutional level injury in order to in order to receive some sort of remedy in that case here we still have to calculate under thirty five fifty three a the correct guidelines three they're under we don't have to show a constitutional level vagueness error there would still beccles doesn't say that you could actually properly apply the residual parts that would be completely inconsistent with the void for vagueness constitutional doctrine does not apply to to the guidelines it did not say it did not say that johnson or that that the residual clause has a meaning outside of the criticised meaning that that johnson went through if johnson recognized that that the residual clause is like i said unworkable and  which was wrong did not account for the the conduct in this case i think especially in light of this criminal history issue where the court there there are guidelines provisions that would allow the court to vary and instruct not in fact in all of those cases it's not that the court didn't say didn't give any explanation there was an explanation given in ground and in fact the court said i don't believe that the in several of the cases the court said i don't believe that the guidelines are sufficient but they didn't explain why they weren't sufficient and in brown the court said in addition to explaining why the case falls out of the min challenging yes we should read it in light of the pursuit the prior proceedings and what the judge said during those proceedings i think that that what cannot be transferred is the judge us as to as to her reliance to what she was saying but she was saying i think that it is clear as to what she was saying and i think that that this plane there are review on this with no with respect to this this is the clear depart how is this case mike brown in brown well i don't think that the court in this case did it they didn't acknowledge or didn't discuss why the guidelines themselves references to the guidelines in the district court sentencing at the very beginning she says i'm beginning that my analysis with the guidelines it's at the very beginning and i'm sure i'm paraphrasing and then at the very end she says i'm basing my decision on the as i was saying earlier she does not say i'm just going to give you the statutory maximum which which speaks to whether or not she was just she just decided to vary ten months above the high end of the guidelines range she  the treatment because if the district court thought i have done everything i could for you i've done everything for you and you are still back in front of me then obviously it's a much more wasn't even the second time this isn't from brad guzan brown the district court judge at least talked about giving some explanation for an upward departure it's completely absent here and there we found his explanation insufficient here we have no explanation problem in brown was that the court didn't relate any of the thirty five fifty three factors to the defendant in that case to his conduct here we have the district court explaining it relying on is extensive lengthy horrible criminal history the actual violations he committed the fact that he continued continue to commit criminal offenses the fact that he had failed to abide by the court's orders over this two year period through which the court presided over his case and the fact that his violation simply put the community it risk of danger so the court did specifically link appellants conduct to the three thirty five fifty three factors in a way that the court in brown simply did not again it's important to remember the context here that this is coming after two separate revocation previous replications two separate sentencings this is now the third time that the court is seeing appellant and all of that history is what is supporting the court's sentence in this case the court refers to that refers to the fact that she's given him multiple opportunities and he simply hasn't been able to comply with her orders  findings during the sentencing about treatment or training that appellant had received she asked the probation officer about drug treatment certainly but she didn't indicate anything to suggest that she misunderstood whether he had in fact received treatment or not and in fact she referred to the probation offices reports which indicated that he had received treatment in training and that you know for various reasons over time either he didn't qualify for treatment or he had sky ended and and wasn't able to receive treatment for those reasons or had committed new criminal offenses so the court was well aware of this history was well aware of what the probation office had done helen and even if she had some misunderstanding even if there were something in the record to support that the court simply didn't rely on that in reaching a sentence the  factors other factors that outweighed any consideration of whether he had received treatment in training i don't know any star there are any studies about whether this  works i suppose it doesn't does it really doesn't matter one way or the other and there's no evidence to indicate otherwise than what's the what's the point so we didn't get there are people it wouldn't change anything anyway here i would hope that there are studies that indicate it does work because we continue to continue to i don't know whether it worked in this case i think obviously continued to commit crimes despite the fact gap perhaps is that he was assessed for mental health treatment but was deemed you know not to require such treatment and so he wasn't he didn't receive mental health treatment other beyond spinner management counseling  but again this was all before the district court that the court was well aware of this history and didn't think jass today there was you know that she didn't understand what had happened the question about the criminal resuscitating criminal history to get us back to the same place if that's what we're focused on how does the government think it works in light of johnson to take into account armed robbery when the  his criminal history category we have to look at the guidelines that were in effect at that time the residual cost nothing there's no with already for the assertion that the residual clause was invalid at that time and  so we do so i take your point that under vocals the residual clauses still an operative thing under the guidelines and we go back and look at it as if it were and so then we need to decide how the robbery conviction fits into that great i mean i think you know if the question is would he you know if we recalculated his criminal history category today clearly you know we wouldn't be relying on the residual cause because it's no longer there so his armed robbery conviction wouldn't count in that respect so perhaps today he would not be considered a career offender but you know we look at whether is it just sort of colorado aired which is the crux of his of a college claim we have to look at the guidelines that were in effect at the time now of course you know our position is that we don't look to that and in fact the guidelines make clear that the criminal history category is not to be recalculated so it certainly couldn't be plain error i race so i'm assuming that issue ok so i'm just saying that the way that you get home on the criminal history is by use of the armed robbery conviction and you get to do that because at that time the ritual of residual cosmic items was there yes yes without them what do we do so we have an armed robbery conviction we have to decide how it fits under the residual clause time and then you must be urging the conclusion that we think that on robbery is a crime of violence for purposes of the residual cause back then yes we think that armed robbery is a crime  that presents a serious potential risk of physical injury and we just look at it just like just generally when armed robbery is yes your honor i mean we could we could go through the whole analysis you know i don't think that the court needs to reach that issue because here we can't meet his burden on crimes three and four playing error in demonstrating that you know his substantial rights were prejudice so i think that's a thornier issue and we were not you know we don't think the court needs to go there because you know we think it is so clear on this record that that one month difference in the guidelines range wouldn't have made any difference at all to the court's ultimate conclusion i hope that i am able to make three points starting with your honor's questions about whether or not the residual class would qualify i will note that before johnson was decided the government itself did not defend the d case which is five forty eight five three ten eighty five they used only the elements clause in order to to argue that the seed robbery was a crime of violence they did not resort to the residual clause and that was before and the court order itself that is not the type of treatment that was ordered by this court the court made several references to probation having to her by the services and that the very first  fense she actually gave the defendant more time because she wanted probation to set up outside programs outside of hope village those do not count those in house programs are not supervised in any way by probation they voluntary programs he did not have to participate in them they're not there they are they are not of the same quality and they are again not supervised finally i just want to say that the reasoning the district court  out the proceedings in certain sentencing mr duckett is completely inconsistent with its twenty four month sentence unless we assume that she didn't understand that he was not receiving the treatment to every every prior time that she saw mr duckett she made clear that it was in the in the public's best interest not even just mr duckett's but the public's pension best interest that he received treatment and that in fact jail was not going to do anything to either help the public or help him and find this treatment that she made at sentencing was essentially that she said i have been persuaded to give you chances in the past to make better choices to make something of your life and to do better since seeing him just to a lenient sentence does not help him to make better choices it doesn't help him to do better or absent treatment training things that she thought she had provided him and