the government and the u s probation officer for us probation office emphasize repeatedly their belief that mr donovan had been in fault in a series of uncharged tag agency or burglaries and that was a significant part of the government's presentation at sentencing for the unrelated supervised release file which and while the district court said that it was improper to consider those allegations in crafting his sentence the court still set there might be something there there was quote some substance and looking at the record he was concerned that mr donovan's conduct was quote considerably more so serious then what had been alleged by the government and then the court issued a sentence that was above the got five range six months beyond the guidelines an it was because of the un charged tax agency erkki with how do you say that is he the court not only said what he didn't do record said what he did do he said i did not take into account the take  because that would be improper and then he said what he didn't do i did give you an up tick because of your job with babbage boyd and your non disclosure and deceptiveness about continue your  remarks and i i think when we look at the whole and we look at the sentencing transcript it's tells a very troubling story in the sense that the government appeared at sentencing and presented an extensive presentation about this entire course of conduct this entire idea that mr donovan was involved in these tag agency burglaries that he had downloaded software he'd acquired all sorts of new  committed new offenses that somehow related to the tag agency burglaries you know there was extensive commentary at that at the sentencing hearing about the surveillance video that showed a very tall individual they could make out and and that was a reference mr donovan who is very tall and and then at the end of that the judge said you know there are these are conservative the courts six words or that there were some substances there might be a new burglary and the court specifically said quote the evidence here i think is sufficient to persuade me that he might be involved in this other burglary the court also said there was no reason there was no you could think of no of he could not think of any other reason or mr got of of the downloading that kind of stuff the software that the government had left but then only mediately the court immediately sad but i don't think it's appropriate for meat proceed on the assumption he's been out being off tag agency and he goes on his jegede law already pointed out to explain that he's the reason that we have an upward variance is because of the concern with the dishonesty to the probation officer i've that's right your honor and i think what we have a situation where the record is very ambiguous certainly the judge said these things he said it is improper to do this it is improper to take this into consideration when you look at the sentencing transcript in this was the primary argument this was the primary argument of the government and this is certainly what the sentencing court discussed extensively  here here yours where the that says something that is the core your problem you say here we have a decision that was very ambiguous and yet you never object improper to consider the on charge burglaries as a sentencing enhanced and then at lease it is very every big us from that point whether the district court then did consider that and i think i will i don't see any ambiguity at all the district court as it would be yeah you've just argued all the stuff to me and you know you meant there may be subscribe since there but it would be improper for me to consider that and i'm not going to the breach of the duty of truthfulness and candor to the probation officer is serious enough matter that there needs to be a needing full sentence imposed here and so that's what i'm going to do i mean i i i mean with all due respect my colleague i don't see any ambiguity i think is the court understood what was proper and what wasn't and what you're asking us to do is to try to read the court mind and say despite your announcement that you wouldn't consider it and this is what you're ruling on we're going to impute to you some bad intent here and i guess i don't think there's any  precedent that would let us do that well your honor aside from just the court's comments i think it is worth looking at this in context and if you look at the report from the probation the tag agency burglaries were driving the report and i think that was also clear from the presentation by the government and it's very difficult to look at the record and suggest that regardless of those allegations and how much those allegations factored into the government's request for assistance and also probations request that it had no bearing on it i think what would have been appropriate for the district court to do trying to do was drive the sentence based on those unproven facts and without giving mr donovan any opportunity to challenge us and i think this is something that the government especially recognize that the sentencing and they said we can't prove the new burglary now but we're still going to mention it and we're still going to talk about how we think it is mr donovan and make a presentation i don't know how you say that you didn't have an opportunity you were in the hearing you were in the even the essence the hearing and you certainly had the opportunity to say wait wait wait that's improper or we would get evidence or you don't know what you would have said and  i thought i was clear before saying that i'm not agreeing that there was anything improper here i was just saying that if there was and you argue that it was ambiguous doesn't that just make it more serious that appearing in front of the court and the court is recognizing the appropriate limits but then the court is is making statements that suggest that the judge is not respecting those limits and the question that has to be what is the purpose of the further objection because traffic counsel is not going into this shearing thinking that this is going to be a trial on the tag agency burglaries i mean that wasn't an allegation that wasn't a sentence that was an allegation an alleged violation and then what happened is they went to sentencing and that's what the government argued and that's what the government relied on the court arguably had driven the sentence based on that on charts and the th circuit reversed saying that that kind of commentary is enough to create the ambiguity and enough to create a doubt about what was driving the sentence that it was necessary to remain for re sentencing and there was no mention of of lack of preservation there and i think that's because of the same situations because the court had acknowledged the impropriety of driving the sentence based on those those kind of comics and your honors if there are no other questions i would just like to reserve my time for a bottle thank you good morning may it please the court charles brown from the united states i would like to start by addressing defense counsel argument which already has been i think addressed by the panel and that is that there was no ambiguity whatsoever in the district court's selection of the senate in the information that the district court considered in determining the senate and then ultimately and what he wrote the district court these most recent ag or why on earth was there a bunch of evidence and on about that at the sentencing hearing judge i would disagree with that characterization i do not think it was improper i don't think it would have been improper for the court to consider the facts that mr donovan was purportedly involved in the tagging to see burglaries what i would note is that the facts showed that his vehicle had been picked up on surveillance  little restriction on what information the court the different court is allowed to consider in imposing the senate's so long as there is a minimal and issue of reliability your honor and i think when you look at at the violation report it contain ition from a must think the test of the lead investigator in the tag agency burglaries contact the probation officer provided all the evidence and explain the investigation and explain how they were able to meet mr donovan to those illegally downloading software mr donovan had a u s b drive on his person that had pain substantial number a person victims information including all the personal identifying information your honor so i think all that information was appropriately could have been appropriately considered by the district court have the district court wanted to consider it however the district court expressly stated that it would not consider any information related to the tags to mercury i would point out that in my advocacy at the district court i did bring up all the information and try to contrasted against mr donovan criminal history which is you know what he had done previously and then why we were at that revocation hearing your honor last october and at that point time the district court interrupted me and asked are required for the status of the haggerty to see burglary investigation i explained what the district court did just the district court was emphatic when quote for present purposes i am not going to assume that the defendant committed that earlier office that is not why i am that not why i am sensing here today i think it's premature for me to assume that the defendant had you know come back on the same course of conduct yes your honor well i'm just going to ask does the pre sentence report the violation report that was filed on the eve of the revocation hearing if say a six page or a poor end of the sixty years there is one paragraph that discusses the the the interview or the communications that the probation officer had with mustang the tact of regarding the tags the burglaries the remaining information and there outlines mr donovan's extensive use of methamphetamine at least nine positive there's also a very detailed discussion about the vantage point employment and that and that is ultimately what was dispositive when it came to why the district judge chose t sentence mr donovan to eighteen months and in the violation report by him to page three the probation officer explains the details especially in that she had had with mr donovan early in the and nineteen when he approached her and he explained he wanted to secure employment at vantage point i see a need judge and manage point i t v as an information technology asset disposition firm they essentially they go into business is they take their old computer hardware they wipe the hard drives of all the information and then they essentially resell them on the market and give a portion of those proceeds to the firm from which they bought them when when donovan explained that to the probation officer as reflected on page three a volume two she was extremely concerned given his background with defrauding previous employers so she had managed him that he could not start that employment and still she had had a very detailed discussion with that employer about his criminal history mr donovan agreed that he would not pursue that employment until he made subsequent advancement in his rehabilitation and his supervision however we know that is not what happened your honor because during the same search in october th seen several months after this discussion in addition to finding all the other legal contraband to include the u s b drive that had all the victims of permission on it the probation officer found a check from vantage point i see a d from august two thousand and twenty one she then confronted mr donovan with that and he admitted he had indeed been working for that firm and that is your honor again going back to ambiguity that vantage point i p a d which is outlined at least in the by a later report is what the district judge spent the majority of that time discussing when announcing the senate i would point out that in the district judge's comments there's a couple paragraphs that referenced the tag agency burglaries and then explain why the judge is not going to consider the tag the burglary and then the district just spend the rest of this time and the rest of the comments outlining the egregiousness of the lies to the eighteen months was because of the lie to the probation officer with respect i p a d and i think there were any question know when this judge you look at the very last page of mine three which is the revocation transcript and that's page twenty two after the court announced this and after the court asked the parties whether or not there was anything else that needed to be taken and beach party affirmatively represented there was not the district judge then addressed mr donovan in open court and the quote was mr donovan i suggest you work very hard to get pointed a different direction you have got to work with the probation officer you have got to play straight with them and that was the end of the hearing and that was the judge again just reiterating to mr dogman his his that his decision that he had just received an eighteen month sentence because he was not playing straight with the probation officer had nothing to do with the packages the burglar and nothing to do with all the victims information that was all mr donovan's person at the time of the search the senate had everything to do with mr donovan playing straight with the probation office and line to the probation office about working for vantage point i could see i would just point out your honors that and mr crocker birds brief there is absolutely no reference whatsoever there's no citation no reference in the discussion about the judge's comments regarding mr donovan's life to the probation officer and when you read the record as a whole it's certainly clear that that is the reason and also if this court has no other questions i will yield the rest of my time and we respectfully request reversal or remit for recess thank you we will take this case i'm