without engaging in the requisite balancing test and without expressly finding could cause under over twenty years of this court's precedent that constitutes reverse of reversible constitutional violation unless the government can demonstrate that the error was harmless by demonstrating that good cause existed that is basis was found in the record and the district court in quietly found it that just the government has not and cannot do that in this case good cause does not exist for the admission of what would otherwise pilot missed serious confrontation right first misdirect had a strong interest in the confrontation of these witnesses this court has found where the rich witnesses are you talking about all three all of the hearsay evidence came from least three police reports like included two different law enforcement officers those are the ones that are named on peaches one thirty six and one thirty i'm sorry one thirty seven one thirty feet of the records and the witnesses that they spoke with as well as the witness that signed the second exhibit a page one forty three that evidence actually presented at the government which had been presented at the detention hearing was the three arrest warrants as well as for one of the arrest warrants the end of something police or you did object contemporaneously ye sixth violation failed to not commit another federal state or local crime so the district court certainly found that and it was one of its reasons for revoking the sea rights supervised release to be not be the exclusive reason revoking her supervised release in order for misty right to have an interest in it and in fact her interest was stronger in this case because that violation failure to not commit another crime was the only man violations of a grade and grade b are criminal conduct and i don't have it in front of me well let me ask you one other thing it's a practical question as i read the record  sentenced to a longer period she could be sentenced to a longer period certainly your honor at missee right would prefer to go back and have a new revocation hearing at which even if she were to get that the time served sentence of twelve months that even if she would serve longer than twelve months would certainly be shorter than the statutory maximum twenty four months so even were released not to be complete for missy right it would certainly be preferable for her otherwise she gets up this october and i'm just wondering again as a practical matter approximately how long would it take let's say we issued a decision tomorrow i'm not promising but suppose we did how long would it take in the district court of new could yes on the sentencing give her up to twenty four months that the question before this court on the harmlessness however is not whether or not the judge had the statutory authority to give a twenty four month sentence but whether or not the violations and contested only of the grade b and in the case of justice grade a violations which were new criminal conduct and in both of those cases this court found the error not har that isn't what happened in the district court despite that one exchange between the disk or the court and the prosecutor which occurred after the revocation had already been ruled upon that just recorded already revoked misty right when that side not precedential says failure to comply with drug testing mandated litigation you look at yes certainly failure to comply with the court ordered drug testing  of supervised release would mandate revocation although again there would be there are certain statutory exceptions to that the judge must consider certain things like the availability of treatment before but again that is not what happened here there was no notice provided that there was mandatory revocation the drug testing was being administered as part of the drug treatment condition and again i mean i'm not concerns your  discussions with your client but didn't you advise her that even if you get a revocation hearing the charges against her in those arrest warrants are fairly serious felony theft and basically theft of a vehicle and felony theft if she got she got the key to the company safe and she stole money from it my goodness unless she's going to forthrightly declare i didn't do those are very serious and it seems to me one would have circumstances the right however to confront the hearsay witnesses and focused specifically on this supervised release revocation hearing it's what's before the court and there are ways that misty right without herself testifying appearance or at her detention and the cases and administered regulations cited are in our belief demonstrate that there is in fact a distinction between mandatory revocation for failure to comply with court ordered drug testing and the drug treatment condition which is in fact what missy wright was found dead in judgment failure to participate in drug alcohol treatment  what was relied on what wasn't and what we're relying on here today as you've probably noticed from our brief we do not rely on her commission of any crime while on supervised release we don't make an argument about it there's a reason we didn't prove it but also the court in rely on it as judge davis pointed out and you can see that it's a very short supervise then the court just did anyone want to put on any evidence no evidence then judge film and immediately list what he says is the record on revocation in this case and this is pages two twenty three to because she's one of her conditions which she was supposed to report speaking to law enforcement and she after she was told to go into intensive outpatient treatment she didn't talk to anybody she didn't talk to but in does either side wish to correct anything that i understand is the state of the record and her counsel says no your honor so the facts are just you were in mid by misty right and mediately after her counsel says no your honor the court finds that the defendant has clearly and patent violated the conditions of her supervisor released and her supervised release is revote and at that point she allocute there's some question about her veracity that the court goes through four months her counsel says yes and he says that's what i'm giving and that's at page two thirty three of the record the mention of the arrest warrant is the extent of the government's discussion there's no point did the government say she committed these crimes now this is there is there is a problem with the judgment and no party noted it but there needs to be either a rule thirty five motion or a limited free man to fix this because part of it needs to be stricken and in the judgment of page one fifty eight of the record it says that the defendant add knitted the edited boxes checked off that she failed to not commit another federal state or local crime it's clear from the transcript in the record that is wrong she never admitted that she committed a crime in fact judge filmon warned her against self incrimination at the hearing he said i know you have pending charges i don't want you to say anything that will incriminate yourself in them and that is that's a that's somewhere in the middle of a very short hearing getting for it but i don't have that side but it's somewhere between two twenty three and two thirty three he even advise her don't incriminate yourself in those proceedings but there is an error that no party noticed and  that it says that misty right admitted that she committed crimes and she didn't and that needs to be fixed the oval pronouncement controls do you can see she doesn't in committing any crimes and part six of the judgment just needs to be stricken needs to be crossed out but there's no hearsay his shoe here may i just say i thought i was going nuts because i had read your brief i had read her brief and the future of it was standing warrant i argue i gather now you're arguing harmless error or are you arguing no was mandatory without regard to her three i'm sorry without regard but still folder honored i'm so sorry i interrupted you judge jones i'm sorry i may be rather well i'm very bad about that please forgive me hurt your honor i haven't found the case there's not a lot of law on supervised release the best resource i found was from the sentencing commission itself it's called federal offenders hasn't been there's no clear definition as to the parameters but to the extent the court finds there wasn't sufficient notice and judge jones our argument was that it was statutorily mandated under thirty five eighty three g story not that the crimes made it a class b violation we did not take that position because we did not prove that and to judge did not rely on it and we do say in our brief that the gravity of her other crimes supported supported revocation and she didn't just at the very beginning she says where they are there are three warrants there are signed with probable cause but we don't rely on them at all we don't rely on those warrants in our brief we don't rely on in here today because we did not prove them and so there's no hearsay question about calling law enforcement our officers we didn't prove them and when you look at what the court says the state of the record is judge film and did not list them he lists the violations he finds after her counsel admitted every one of them he finds that she clearly and patently violated the terms of her supervisor least and again that's at pages two twenty three to twenty four is followed by her mission admission to those and it's fall about the court saying she clearly mandatory is forest policy statements regarding supervisor lease and the sentencing commission points out that although it's written in mandatory terms the court is free to do what it wants so the difference between class b and class c really amounts to two six to twelve months or twelve to eighteen months but as in henry the court noted in him very we might have a different case if the judge said i'm go i'm going to impose a sentence regardless of the assault that was in question in hearing here let me go back for a second because your oral argument quote from what the district co vehicle and then finally failure to pay restitution so it's definitely in there as one of his stated reasons for revocation but your honor he asked her counsel if she think you're honoring the brief is what it is it relies a bit to have only on thirty five eighty three g three and not on those findings and her admission of those findings the pages to twenty three to twenty four the record i apologize for assisted her and i'm the one who added the over emphasis of the drug testing mandatory it that is the only truly mandatory thing and that has a statutory and it the judge giving the yes your honor her in her heart she did exhibit complete disrespect for understand that but i'm saying we would have been up here soley we wouldn't have been here at all because the only question would have been abuse abuse of discretion  grade c your grade b what's the statutory maximum do you agree is twenty four months her counsel said yes he said i'm giving you the sack to toy maximum so he she presented both scenarios just as far as six to twelve or twelve to eighteen and he said it doesn't matter i'm giving twenty four months he was a judge intimately familiar with this defendant from the very beginning i mean he knew that she was a category four and that she was on parole at the time she committed the crime for which she was on supervised release for me he's been familiar with her all along and she kind of she gets up and makes some excuses at allocution that don't drive you can see his exasperate with her making excuses that are completely contrary to a letter that he had received from her mother that isn't in the record but he refers to it quite a bit and also she said that she expected her probation officer to give her a summons before she had to go for drug testing and so he called the probation officer up and  said i gave her a simple instruction and she failed to follow it she just wants to do what she wants to do and what she wanted to do was ignore everything that she was required to do and in fact her own witness got up and said she said i think she didn't turn herself in because she was afraid her supervisor lease was going to be revoked and then it after the warrant was issued in this case it took the marshals a month and a half to locate her that's she disconnected her phone she changed her address certainly there were more than enough reasons for the court to understand the timing of the you quoted from the record to twenty three to twenty four judge richard that allowed as well when the orange were mentioned when did the defendant's  that statement corresponds to the argument made in district court apparently objection by sea rights council that you cannot consider the war your honor at the very beginning the government said i would just make  note that the arrest ones represent the rule have been emitted into evidence during her revocation hearing immediately her counsel objects and the court then says well everybody can put on evidence here you have a right to a hearing but let me tell you the state of the record is on understand it now and he does not mention the arrest warrants proving in equine on her behalf he only mentions them and on the same page is where he mentions this word you like so much patently violated the conditions of supervised release so he had just mentioned the warrant as part of his office for saying she clearly and patently violated probation says the warrants as part of his recitation of the record do you have anything to correct genesee rights council no your honor i find she clearly in patently violated the existence of the one wasn't in question it's an undisputed and we don't argue that they proved that we proved the underlying crimes we argued that we didn't rely on a judge film and didn't rely on it and he had plenty of other ammunition to sentence her to twenty four months because she was this connected her cell phone wouldn't call them wouldn't get in touch wouldn't do or drug treatment mistakes sessions  terminated as unsuccessful she she was in contempt of all of the supervised release conditions here and that demonstrates that there was plenty more for the court to to do and then she gets up and apparently says some things that the court didn't think were true and they're so there's if you just read to twenty three to twenty four again he says this is the record and he doesn't say she committed the crimes and we didn't prove she committed the crime so the issue is was there enough else and and finally  honour's do you think it's critical that the judgment be corrected to show that she did not admit that she committed any any con because it says she admitted she did and that's it one fift a she didn't but there's no hearsay question here because i am not before you arguing that we proved it and there are no further questions your honor i will just on the briefs such as they revoke supervised release filed by the government states additionally c wright has violated the terms of her supervised release by engaging in criminal conduct also the dispositional report which probation filed in advance of the issued after supervised after revoking supervised release and page one fifty eight of the record violation number six failed to not commit another federal state or local crime also the pages of the revocation transcript which the government has relied upon and stated that the the district court made just a perfunctory lyster passing mention of the fact that arrest warrants were listed i would ask this court to review those two pages in their entirety and note that that was in fact the judge first citing the violations of supervised release perhaps his language was not as per size as it should have been but those were the violations that the district court found based on the request of the not objection so i but you know nothing to correct that record there there is nothing to correct that record in the a c is on page two twenty four of the record does either side wish to correct anything that i understand is the state of the record no your honor from the cigarette that comes immediately after mr wright had attempted to object to that particular evidence had been cut off by the judge by then summarizing that evidence the record it has been preserved and there hasn't been an argument that it was and a second question is when the judge says i don't care for grade b or grade c here's what i'm giving you what is the main my my reading of the  s i don't it is not i was trying to flip through right now and try to find that particular quotation i can't find it but also i would ask that this court remember what is its stated test under these circumstances it's stated test under these the truth of the matter and the government was introducing them as stated in their world in order to demonstrate the missi right had committed new criminal conduct and that was he summarized it it was introduced by the government i think it defies credibility to say that the government was not introducing not in order to find a great view violation instead just wanted to float the idea that there were arrest warrants particularly when that was in their will to revoke they requested revocation on the ground of new criminal conduct and that is in fact what the judge found both orally and in his written judgment ok thank you