i'd like that with the court's permission i'd like to focus my argument primarily on the thirty five eighty two c argument but before i do i just want to make one observation with respect to the forfeiture each issue and that is essentially the government wants it both ways when it comes to mr broom they demand strict compliance and assume they say we should assume he received notice and his failure to timely challenge that results in the loss of his ability to ever challenge those for the forfeiture forever if you win even if we had less strict view of compliance well first of all the first question is whether the notice was valid at all and our position is it was not it was invalid because it had the wrong day and that ok the question here is is any error in that you willing to say that a typo even vote it is not misleading is enough to make the notice in it so the first thing i would say is i don't think we're dealing with a typo here and it's interesting because if september twelfth and they put october seventh because that was the day the da da adopted a copyright that was a mistake but that your client still got notice that it was about the property and the exact amounts of the even assuming it's from the notice we're talking about someone who did not graduate from high school who received a no who has money was taken by one by a state agency by the lions county sheriff's office he receives assuming he receives a he was in any way these led assuming that he got it that he would have been in any way led as to what monies were being talked about i  until after the case suggests that you know he had a defense when the soon as when they took the money from him he said this money is nothing to do answer to that is you say he didn't get it so you know we're in a situation where we're talking about a so i think i think it could be confusing and the question is should we're not talking about whether the money was properly whether he had a defense to the forfeiture or not the question is should he have his day in court and  about forfeiture strict compliance is necessary and that's what i think should happen here turning to the thirty five eighty to see the government this is centrally raises three are it's one of them was rejected by this court previously that is whether he was eligible for a thirty five c motion in the first place this court remanded implicitly rejecting that argument the government conceded in the district court so then the question is did the district court abuse its discretion now this question is not unbridled and what the court said is mr broom as has demonstrated and the inability to reform his behavior and what it looked to was conduct six years prior to when it was making it determination and what happened in that six years from the time the conduct that it was looking for until the time to make it made its germination was we saw a model prisoner who had an exemplary record and the question is it's not a question of whether at some time in the past he democrat he demonstrated or showed an ability to be reformed the question is now when the court is looking for it it's this someone who could be reformed yes well that's the way could the court that's the way the court framed in well is the court relied on the fact that he is he cannot be reformed you're now not focusing so much the things that you said in your brief about it valiantly to due process know to have a new p s r or not to have a hearing you're saying and you have trouble with that because we have too many cases with respect of that due process but we might want to say something about the you know our supervisory capacity we think that in such situations hearing should be should be given or more should be head that basic y you're saying the court did not look to what we told you to look at the just obviously i think it actually would be both things because yes there are cases this court has said that maybe there's no due process right to here and the problem is over here the judge set down when this motion was first made the judge set down the procedure he said the government should respond they'll get thirty days to respond and then the defendant will have thirty days to respond to what happened the government made a submission six or seven days later the court denied the motion so it didn't even it's one thing to say we're not going to give you a right at all but it's another thing to say we're going to i'm going to give you the right and then take it away from you so that's the first and then it goes good morning your honors may please the court my name is shawn eldridge i'm an assistant united states attorney in the western district of new york and i represent the government on the spiel the district court acted well within its considerable discretion in denying the appellant's motion for adoption under section thirty five eighty two and the district court also properly determined that the government took reasonable steps to notify the appellant of the administrative forfeiture proceeding and as such this court should a firm both of the district court's orders to talk first about the thirty five eighty two application brissie pointed out what happened below that's correct the the original range under the guidelines in the plea agreement was one hundred eighty eight to two hundred thirty five months probation found to be higher to thirty five to ninety three which the district court adopted but nonetheless the district court imposed the agreed upon eleven c one c sentence of two hundred four months variance it is judge in the sense that yes could well be right he only had one option he could either impose the c one c agreement or reject it and he imposed the c one c agreement which then also falls comfortably within the new range post the thirty five eighty two reduction or excuse me what's the basis for the thirty five eighty two reduction the two step change from the guidelines case judge who's said here's what i did and i'm not going to listen to and if you kills you know and you should go back and take a look at this that's exactly what happened judge the case came back down the district court had a penality of things in front of it the p s r the amended abbreviated p s r which cites mr bromance conduct in terms of his good time at explanation because the so two things one factual one legal the factual part he further discussed the fact that mr braun had had three instances on parole where he had gone back out on parole had been violated was revoked and came back until he ultimately his parole term just expired in a legal manner you know the supreme court has subsequently decided chvez mason which says in a fact that in the thirty five eighty two context district courts don't need to provide very much explanation if at all in terms of you know chavez mace is a case where the district judge essentially kind of check the box that says i've considered the factors and consider the thirty five fifty three a factors after opportunity to weigh in on the matter so to to think that judge number one mr braun the matters that counsel cites now in terms of his rehabilitative efforts in prison those are all in the record that was all before judge sir number two as i think the panel already referred to there are a number of cases that say that that's not even required the district court doesn't have to even appoint counsel in a thirty five eighty two proceeding and here mr i understand better procedure that is the very best procedure we i understand your honour's point if i could address the timeline a little bit because that only applies to the initial denial what happened in the initial thirty five to application is both the government and mr brown made their submissions judge denied it it came up on appeal this court reversed sent it back down that decision was  the time that passed between the date of this court's decision and judge the subsequent decision december eighth of two thousand and sixteen is when this court decided the matter sending it down the mandate issue january eighteenth of twenty seventeen and and then ruled on it another two months later march eighth of two thousand and seventeen so that this you know i was given an opportunity to respond doesn't apply to the second situation there was a three month period from this court's decision where prong in terms of if a claimant wants to raise some version of the process beyond that was inadequate one of the arguments mr brome raises is a combination of the da didn't prove that they knew at that time they sent the notice what the jails procedures are which there is no law that supports that proposition but in any matter the cases from other circuits that have addressed challenges based on a prison systems internal process is to say they're invalid say suggests that we would at least in this circuit seven split be with the third circuit i'm not saying that isn't better in this case but is a matter of what are all in his with respect to who has to do what i do think that there's a strong argument for saying that our law requires the government command not to say that the new because there's nothing anywhere it says anything about that but that  this was a way that a reasonable person wanted to give notice would have given notice of it that's up to the government to show just say i agree with that as a general proposition and that's what the government showed in this case it took several that you can't the you have trouble raising just i haven't thought enough about the third circuit standard to give a full answer is more focused on you know what the supreme court standard from dusenberry is and how that applies to what happened in this case in terms of first giving notice to mr brown at the address he gave on the receipt form giving it again to mister romit the jail through certified mail where it was signed for by an official giving the mail in addition to the same address by first class mail so that it receives twice you don't have kind of the i didn't sign the card so it gets bounced back notice that gets logged into the prison jail system that log is attached as an affidavit or excuse me as an attachment to the jail deputies affidavit who lays out the processes in the jail which are almost identical to what the supreme court in dusenberry acts and it is judge hundred percent agree i've got eight seconds left so unless the panel has further questions ask the court to affirm thank you very much just in regard to the original if the district court felt that a downward vera as just says the first time around he gave a downward variance it only gets better for mr braun when the sentencing commission then lowers t discretion i would never say that but the point is you have to give consideration to it so the mere fact that he in the past downwardly very doesn't mean that he could just say ok like the bases that i don't have to consider this i don't want to deal with it and know you can do that given the nandy certainly given the mandate and now no it's not just i don't want to consider it i don't want to hear from the parties for all we know the government because the first time around the court the record adopted the government's position it came straight out of the government's brief now that this court called a lot of that into question the question is you know give the government an opportunity to hear from them and you know the government says oh mr brown said nothing we're talking about a first time i've been up to the point is that burma's never given an opportunity to respond to the government he made on his own a motion for reconsideration which the district court gave the back of its hand but the point is after this what should have have come back and notice had been given to the parties we don't even know he's a pro se litigant i know the only way i would see this court's decisions is i got an email with the broom certainly was not receiving an e mail and what he received at the time the court made the  i pointed out when the judge set up a procedure from the beginning and didn't get here that procedure that's a problem yes there was there were it went up to this court and came back down but the point is he didn't follow the inconsistent with the reality to say that he can't really rehabilitate himself when for the past six years before that he has been and just ignore it thank you thank you