reasons first in the film we believe that the court violated thirty five fifty three seats to the failed state for the record two things one the reasons why it imposed twenty one month sentence why that was reasonable required and two why the guideline range of three to nine months would have done for example the job of the turns as the court claims was one of the reasons for the imposition s know i i'm looking at the whole thing across the way and you know tell me you know from from a judge's perspective the way that you know i have to say the way that i look at this is that this judge essentially really wanted your client to be successful and really you know i mean your client was mess and mess that brings his mother in you know we pull out the children card you know and all of that and the judges you know that the comments of i'm talking to you man the man i want you know i you you know this is what you've got to do i'll give you another chance you know and is really trying to work with your client and that says you know if you don't do it at this point you know i will give you another chance your clients are ready violet i will give you another chance but if you don't do it you know i'm going to lower the hammer on you but i don't know how much the court really wanted him to succeed and i thought well why would you send someone back out if their mother comes and you know think about your children you know do all of the things it's not you know why you know i mean i've been in this position and you do want someone to be successful there but you also know that it's really important when they're in that situation that they do everything that  that when people don't show up for tests that probably means that they're using drugs because that's the reason that you don't shop think you have a test if you want them to stay in an area you don't want to go into mexico you want to where you can watch over and they can you know have the supervision that they and you know your client won't do it you know then you're left without a point where you know i try to work with you i want you to be with your children i want you to be law abiding but you won't you know i can really get take it a water but i can't make you drink well now i need to deter you now we need to protect society now we need to you know all i can do is lock you up at this point to keep you from using drugs  know i guess i you know i really see here and judge that wanted your client to be successful really wanted to work with your client but you know sometimes a two by four doesn't work but i have a couple of responses and i think first i don't know how much judge burns we wanted him to succeed and i think this goes to the reason when this part of the sentence the court never discussed options other than imprisonment term such is a halfway house maybe an inpatient rehabilitation program the judge assuming there were drug problems at the last sentencing which i and i think thirty five fifty three says look you can use all these alternative options other than a prison term to help somebody get a judge wants someone to go out and connect crimes not be with their family but when you send them back out and give them another chance after the mother comes  under thirty five fifty three day the court certainly has to consider these alternatives in the court didn't do that in this case so i don't know if judge barnes really wanted him to succeed i think what the issue boils down to for judge burns with impose a twenty one month sentence was a matter of his word and that's what he said first thing out of the gate in this case was look i'm a person of my word of a person my word i have to give you twenty one months that's what i said i was going to give you he ever came back and that was without any analysis of the thirty five fifty three a factors which we think is a problem here assuming the court actually reviewed the thirty five fifty three  factors as a claim that the time of sentencing the judge did so in an erroneous matter the judge says and i'm considering these factors as if it were the first instance of sentencing which would mean he considered punishment and that's exactly what he said towards the end of the proceeding when he said look you need twenty one it's the equivalent of punishment and that's in permissible in a supervised release context and that's exactly what occurred here so not only did the court i don't think wanted to succeed it considered bases it shouldn't have when it imposed a sense and failed to really consider i think the factors that were required here simming your honour's correct that there is a big drug problem the best way to deal with it according to the guidelines and some of the commentaries is to talk to the individual about potentially getting rehabilitation and there are i case is in there plenty of  clients to do it cases like this isn't available to somebody who come to my not using tracks that i know that that sort of i have read the story through that people using drugs and incarceration so i don't know whether you know i mean i don't think he's i hope he's not using in custody aspect of the one of the things that you have bother me as i read the transcript for this evolution through what the judge was really conflicting into account the hidden fact all timidly say because of the says i reject that i adopt the presumption that it callen mention which is that if you don't take a drug test you presume a thief in the street presumption is you can test positive but considered it is if it were the first instance such as a sentencing on an underlying offense not for a violation of supervised release which means he was considering in our opinion thirty five fifty three as a whole rather than thirty five fifty three a through the lens of thirty five eighty three which precludes him from considering things such as punishment which is exactly what he said one of his reasons was for the imposition of since it wasn't just to deter mr steve stevens and in the record i believe it's a page eighty six of my excerpt he said as to deter and to promote respect for the office and this is exactly what this court and nick bill said was in permissible so while the court may have relied on the turns the trouble is there are additional factors that the court relied on impermissibly one being punishment the second is his governor's pointed out explained assuming he said that's why twenty one months was needed he never explained why the three to nine months ranch which he never even discussed never even mention chapter seven the policy statements which i think goes to undermine his claim that he considered thirty five fifty three when we know morning to the court carla start whale assistant united states attorney on behalf of the united states to defend in this case mr stevens was before the court for his second violation of supervised release and it was clear from the record it at the original guard once well that's that's why you look at the record he did basically give the defendant give the opponent a warning saying you got to do what i say you know it that's quite clear i mean the transcript is absolutely clear i'm a man of my word you violated it i don't believe first of all and i give the mentioned health and like you to address is this issue of how those prior tests played in and they were in and then they were extensively out so and i'm going to infer that you were dirty and therefore were not only were you not violating wasn't just a question of you're not making the call which the judge on the record says that would first the court did state on the record at page eighty five of the excerpt of records actually it was in response to mr server's objection to the court considering that two allegations that were dismissed per the stevens case but the court did say that if it page eighty five that the court was not going to rely on the dismissed positive tests and he said they clearly at eighty five he says it then looks let's assume happen i'm going to infer from that because right but the inference wasn't just in a vacuum your honor in this case in considering the thirty five fifty three factors that he considered considered through thirty five a three c the court was entitled to look at the history in the characteristics of the defendant of mr stevens and what he did see was even though he wasn't punishing him for for the basis for the first violation the court was able to consider as part of his history in characteristics that in the  previous violation he had admitted that he had missed twelve tests think that can support one of the facts that he can consider and in making his conclusion he can also consider that he tested positive for marijuana in the past that in this case his explanation that he failed the test simply because he knew he was coming and was was simply not credible but just trying to sort through thought i was i mean i i'm sorry i do understand what went on here but there is an objection the your honor you are making the find in a fact finding of fact without having any kind of evidentiary hearing on it and you haven't established with you know what the standard proof you're kind of you're just saying you can do it record well the court was certainly entitled to make this inference because it heard directly from the defendant from mr stevens in court and had an opportunity to observe his demeanor to evaluate his credibility and also to consider his track record in this case on also consider the fact that after the first violation after the defendant was released from custody after getting the three months on the supervised release violation on august twenty fourth of two thousand  on september thirtieth the next month of two thousand and five the probation office filed its first petition and then a month later october thirty first approach provision of harmony filed its amended petition so within one to two months of defending this back here and it was brought up whether or not  the court really cared about the defendant mr stephen succeeding but it was apparent to the court that mr stevens certainly wasn't working hard enough to try to succeed on supervised release because he came back so quickly  and there was a council mentions i think in his well the record is clear that there were some equities consider but there wasn't anything left to consider that there weren't many great equities because piano really second supervised release violation of how important to the defendant to mr stevens that his family was that the fact that he was a single father with custody of his children that his mother was working was going to go to great lengths to support you don't take a test why it's not mine or if your past history as opposed to when you decide whether something is serious whether it's a minor violation of probation whether it's a serious violation of probation that you take into consideration what someone's done previously not once a druggie always a druggie but not taking your test not call you know going to mexico when you're not supposed to go to mexico why that's not a minor violation it's because of the chance to speak up previously and everything is done that's what i would argue you got th violation of supervisor least this is it don't fail me i'm giving another opportunity gave him the low end of the guideline range and said i'm impressed by the fact that your mother's here and the fact that he's explained what i would say to you if you step three to nine was fine for the government back then but now you're saying the twenty one fine now self pick up his vision and stick with it well the position is that the court was entitled to that it was within the bounds of reason and certainly the court looked at it a different way and the question is was that the manner in which the court looked at it was it reasonable under the circumstances an issue is did he specify specific reasons for going outside at about thirty five eighty three  say punishment and others may characterize this as the government is supporting that it was a sanction for for preponderant tomato well he's able under the policy statements or the policy guidelines to the policy statements to to consider that and all right thank you very much  this that he would have tested thirty which is why he didn't call the government says he relied on the nature of history characteristics of the individual but if that's not exactly what the record indicates it says it's reasonable for reasonable for me to conclude irrespective of any other evidence that's out there that's on page eighty three of the record that seems to indicate when he says that he doesn't consider the remainder of the history or characteristics of mr stevens in drawing his his inference or his conclusion it's based soley on the mere fact that he didn't call install the cording to his admission so i while i think it might have been possible it's clear here that judge burns didn't consider the history characteristics  finally i would just note that the government says he sanctioned him for breach of trust the trouble is judge burns you're never referenced the words breach of trust never said that never referenced chapter seven never talked about policy considerations in chapter seven which obviously indicate considered much of thirty five fifty three eight and with regard to the history characteristics while he did say there were sympathetic equities judge burns did say towards the end that i'm not going to fall for them again i've already fallen for them twice which seems to indicate to me that he's not considering he