thank you your honor may please according to hold in council i also am fighting off a cold as you can hear even worse than the other counsel we're getting to the season i have two small children so as we all know under eighteen u s c thirty five fifty three a this records are to impose a sentence of fission but not greater than necessary to comply with the purposes laid out later in the statute to ensure that this mandate is followed this court requires district course to say enough on the record to make certain that it considered and applied all the thirty five fifty three eight factors that's relevant to the particular facts of the case and to the particular characteristics of the defendant this case was remanded once before because the district court did not say enough to hearing i'm sorry the first sentencing hearing the court just merely restated three factors to hold him accountable for his violations to protect the community and to provide for specific and general deterrence again this court held previously that those just citing those factors without applying them weren't enough in remained here the court does basically no more than it did the first time it only recites for these violations were it doesn't explain how or why they called for the maximum of two years it says that it's concerned about mr rayney falling back into habits that are a great danger to the community but again doesn't say what these habits are mr donovan the thing that concerns me about the surgery is that the critical passage seems to come at pages thirty six and thirty seven of the sentencing transcript or the district judge sums up that thinking what concerns me is that that comes after some pretty detailed discussions about the defendant's record of noncompliance with earlier supervised release as well as the judge's expression that he'd be willing to shorten this if the sufficient i think in this case it's not sufficient because the prior discussion were really just about tailoring certain conditions which we don't quarrel with most of the conditions you know but that i mean that well that's true but in the discussion about why those conditions were being imposed and why they were being tailored the way they were we've done a lot of inside from a district judges thinking that's true but i don't think we get a lot of insight into again why it's imposing the maximum of two years and in fact there's other comments that the court makes it really under cuts why the maximum would be necessary for example the court mentions in passing mr ynys past substance abuse history but at the same time no two now is a stable job the stable residence and has tested negative for all illegal drugs every time it's been tested so i understand what your honor is saying that there was a lot of discussion about different particular conditions which are an addition for appeal but none of that from our perspective really went towards again why we had to him why he had imposed the maximum of two years so what we're ultimately asking this court to do is to just reiterate that while the thirty five fifty three factors don't have to be addressed in a checklist fashion they also can't just be mentioned as catch words meaning that the court says what a couple of the factors are but without actually applying the considering the different factors i just want to talk briefly about the standard condition of of supervision eleven that was imposed i think it's clear under potentially subject him to future education the future imprisonment and we also don't think that this argument is waived because as i mentioned bigger was decided after is recent and seen and so i think it counts as intervening authority and also  thompson criticize that condition but times they do not actually feel that if they can tell bickered and regardless of whether or not this court believes that he waived by failing to object the due process clause can still allow this court to review it when the condition  defendant has notice of the conditions and objects to song will treat his silences to others as acceptance i think those cases can be distinguished because and i went back i was just looking at this just now  mr rayney and his counsel got notice of the proposed conditions the day of sentencing this is at pages three and four of the transcript of it is now asked her continuance and they were used plenty of objections that's true that's true i think that it is a little bit more it's a little different in the cases that you just cited where there was no them enough notice they had enough time i guess to talk about things i do think you know it's questionable if the attorney had enough time to go through that with them so i do think that that condition should be corrected good morning your honor may it please the court my name is meredith through sherman and i represent the appellee the united states at this case as the court is noted the defendant has again appealed for an order revoking a supervised release this time the appeal does focus  the first claim is a claim of procedural error and the second relates to the notification of risk condition i'd like to just briefly address each in turn before i do that though i just want to answer the question that the court and it was prepared a couple weeks before sentencing so in terms of notice the court certainly provided notice that e c f what happened was at the sentencing is that defense counsel said he just hadn't gotten it off of the pacer and so the court  you are you prepared to go forward and the defendant said in the defense attorney both said yes so i don't think that there's any notice issue here with regard to the allegation of procedural asked the court to read this this record too narrowly focusing on a very short is small portion of what is an otherwise lengthy transcript i do think it's really unfair here to the district court to trying to consider this in a vacuum the just record it already conducted two full revocation hearings with mr rayney and now he was before him again at a recent thing and each time he was before the court the court had expressed the same concerns about his continued noncomplian and the need to protect the community and that the reset and saying as the court already alluded to the district court really went through some in painstaking detail every one of mr rainey's objections to the proposed conditions and the terms of surprise release and respond with tailored reasons for exercising discretion the court made an individual lines to susman based on the unique circumstances of mr ramos case and determine that twenty four months was appropriate you've got a judge who has extensive experience with mr rayney and tailor the conditions to take into consideration the circumstances that were in existence at the time including his point in obligations its treatment needs the goals of supervised release i just don't think you get any tailored than that under the instructions the courts will survive in thomson and as the court already alluded to the district court actually gave him an opportunity inviting several times to please petition the court if he felt like his compliance had improved and he was willing to shorten the time and even actually gave him credit for the time he'd already served since on cigarettes release since the court reversed i just don't think under the total record of the court committed procedural error here with regard to the notification risk population that is our position that the defendant waived the argument however the defendant still has the ability to get this condition corrected even if the court finds waiver because one court rules and the district court retains jurisdiction the defendant can move the district court to have the condition corrected consistent with baker and miller under eighteen united states code section thirty five eighty three eighty two so even if the court finds waiver he has a remedy in the district court and as the united states set forth in its brief we have to concede that if you don't find you waived it it is plain air under becker so the bottom line here is that the defendant has a remedy as to the notification of gross provision either way