slappy your honor is unlike this first case that we heard this is a very simple straightforward case and it is if everybody well it has some pull and straight forward i contend in that this court and the supreme court have said over and over and over again that there are two things that the court at sentencing absolutely must do and these are the two things that judge fox in this case failed to do first when  party presents non frivolous arguments in favor of a lower sentence the senate sink or must address those arguments and explain why those arguments then reject such fox could not do that in this case and second when a judge decides to awkward leads apart from the guidelines and impose none of mine sentence the judge must then carefully explain why he has decided to make that decision and the greater the departure from the guidelines or mandatory when the guidelines were mandatory the policies that much or basically you just said the knowledge that you looked at it in carry any more weight than that you had to say i have looked  your honor either as it may this court has said over and over again and specifically to judge fox that if you're going to up or leaves a part and impose such a drastic depart it is reserved for the very worst of best what the dirge as the authority to go there to shift the statute says you can give someone a death sentence but only if you think it's the worst violator what your honor what is that come from i think when the chapter seven policy statements are trying the value too much that they can make they limit the course description i know you would like for him to not give at the that story maximum but i'll just favor debate the policy it's up really departs must do two things should do two things where the party presents a non frivolous argument in support of a lower sense the judge should explain why he has rejected those aren't we never said you have to do that syria  appellate review before this or the judge has to say something in response to the party's argument to ensure that the judge has in fact heard and contemplated the arguments made by the parties  just simply made absolutely no statements to indicate that he had heard in a slap these arguments and the government of course is offering all sorts of post hoc rationalisations of what judge  box's arguments may have been and what he may have been thinking that the government is saying things like well he absolutely considered her argument but he didn't find it then so you that want to send this back to say we're not saying what you oh says in a way it would just be over so long gurl explanation if so you know what you do i think that is i certainly think that this court could find procedural error on this record absolutely and send it talks about all five he also never actually says what the sentencing range is he never actually acknowledges that these are great see elations  that elevated policies to at least the level of guidelines based on this record your honor ness lappie could have been out commending armed robberies she could have done absolutely the worst type of conduct and she would have still gotten t but she didn't and a judge fox's failure to recognize that a failure your for you or your standard in that way you would have a bias if you don't do the worst type of violation you can't get them or if you did a that this case in a slap is case was placed in advance for that was a judge fox case in that case and i'm citing to the macarthur j a page twenty in the macarthur case in that case mr mcarthur had judge fox found that he had committed criminal conduct that he failed to notify the officer within seventy two hours of being arrested that he used a controlled substance he absconded from supervision the  found that the district court failed to address macarthur's arguments for a lower santa us and did not adequately explain its variance using permissible something factors this in or lost as an unpublished opinion and so it's plainly unreasonable if the trial or fail to abide by this court's published decisions instructing out what it must do and thompson and carter crowd up the entire line of cases this court  or that you have been trying i commend your efforts in the scared straight program but you know given your drug use and i see just hives not threat so just just something something to assure this co in that position because you know they had rights and they wanted to rachel weisz and we should lose the benefit we got for just because we raised enough you know i would agree on th now she's the defendant has cited a couple of unpublished cases matic she cited hounds i would point out that in all those cases these are facts specific cases and when you look at the facts of those cases for example maddox you had  defendant there whose first violation was four years in a supervised release this defendant had a strong employment history had strong families court and towns you had a defendant who had some evidence of mental illness but that nonetheless had you know been taking care of his family and had been working a good job you don't have those facts here here you have a defendant who less than three months out of prison spend the first truck to two months after that she fills two more drug tests and both of those cases court shows mercy but when you release prison with pneumonia you still be coughing if there was ever yes to answer your question yes now if there are if i had seen something in this record that indicates this is a defendant who's had a long history of who has a drug problem then that to me that would be a little different there's actually i haven't seen anything in this record indicates this is the pin with the drug problem that she has a stealing problem but this is not a defendant with a drug problem and so and further and both of those cases when she felt her first drug test and when she felt her second to drug test the court you know was very merciful in the first case the court held it in the bands and they were drug treatment second case the court you know since there are a couple weekends in jail gave her behavior to steal like a pair of shoes still would be an indication i don't think so ok i don't think so because people who don't do drugs steal and people who don't have drug problems sometimes one thing if she came in the district court said look court and frankly this is what i probably would have advised to do look i'm sick and out of jail i've been doing my best you know got a problem you know i don't know that it's on me you said something else but what she did say is the indications of using logic again there's no indication if she had said more that would have been in there even well he would've considered let me backtrack ok go ahead backtrack because when i say there's no indication i do think there's indication the court on several instances asked her what she had to say and she said what she had said now no the court didn't say i don't think that's a good i know the court didn't say that support but frankly you know when you so security benefits nonetheless he left a district out telling anybody you disappear no i mean mom knew where she was well you're going you're stealing all this and you're telling us that you have a job you've got some structure but she was away from wilmington which she committed and so wilmington's not the problem here is you know her tone with her counterarguments it kind of almost made me think of when i was a child and you know you spill a pitcher tea on the kitchen floor and your mom comes in there's nothing on the floor but you and the public see an overturned pitch and say mom i know this looks bad but you have no idea how slippery that picture when i mean this is not wilmington's fault wilmington didn't make her commit the crime she committed in fact when she left went into is when she committed really what the criminal conduct here and so you know she says she participated in scared straight program and let me let me just ask you this part of this is how many states away she went and if she left this they fail and drug test those who did those are just absolute violations of conditions those conditions are unique be a question for congress or something but those are conditions that was set on just seems to me the other argument is and you were headed that way with she was given an opportunity to say watch say it seems to me that maybe where we need to focus on this was the judge and his response to the judge take that into account and if he did how do we for the question now is in looking at what did how how do you say we should be comfortable in believing that he did take what she said into a gallery and at least at that  then i'm glad you asked then i would let me just start before i get to that answer by saying she actually didn't dispute any of the violations even though you know i was only found i just trying to remember all right right and so let me start here and then let me go a little further by saying that the judge in this case sinister according to what the government argued for the government asked for thirty six months because i don't see it tell me where i think that one word i think that by adoption of the government's argument is and i think it's a rejection of her but let me let you know is whether it's a rejection of her argument haven't seen directly where the government says this is her counterargument and this is why it's a weak are you have at it because the government could say that it had no impact in terms of her dealing with scared straight helping people kids and i recognize that there's value that that's one thing but that value is significantly diminished when the very thing you're going to steer them away from is the exact lifestyle that you're currently living and so you know to say that you know i deserve to to i deserve leniency because i'm taking time to to basically go tell kids not to do what i'm currently doing again and i think the value of that is diminished a bit and i think that's sparks look at here now doug sparks could have gone he could have torn into her and said look you ought to be ashamed you're a hypocrite you're talking to these kids and then you're out here doing the opposite he chose not to do that i'm not necessarily sure that's a bad thing it would make my job  do that you can't just say the government did it you know and i'm quoting cooperate everything that the government in this argument because those are good reasons well it would be helpful if you did state but in space you can say that so let me let me respond to that first by saying and i'm going to hedge a bit because there's a possibility that maybe i didn't read the chapter seven policies they miss close enough but i haven't seen anything in there that says he has to respond further that comes from unpublished cases and i did put up and again in my twenty's a response below where which i again i recognize it's a harmless error case but the court in a case dealt with a similar situation where the defendant there and frankly actually raised as a mitigating factor that she worked with young people and the court didn't address it and this court said i don't know that anything more need to i'm paraphrasing but nothing more needed to be said when satisfied that you consider it again i recognize  but that is a published case and the reasoning aligns very closely with my argument here it's not so much that that you know she raised arguments and you know judge fox didn't respond to them as much as what the significance of him considering those i love i don't think i don't think it given that she didn't dispute him given that the evidence that is now again i would also note that with respect to the best evidence was proffered on that now he didn't he didn't hear the witnesses on those other two but now the united states did offer up evidence on the fifth and mail the theft of mail so i would i would note that i don't think given that she didn't dispute him i don't think it makes this point we don't respond think you've got a different situation if she disputes having done those things and he didn't hear any evidence on it then at the end says and you did you know this this and this but if but if they may think to be honest i lost the question and i was play with the you can use the other occasions and the other three violation work yes i did it with that go to the question of substantive finding a reasonable or henri's again i'm drawn to the language that that you used in quote that says plainly means up and the question here is based on that is this an obvious and reasonable sentence and i don't think you can say that particular when you consider the fact that we've already i think any of us are disagreeing that the court could consider those things now we may disagree as to how much the court should consider but we don't disagree that's the fact that that was within the law that was within the procedure where the court has raised that as me it's again i would think that at the district court if that were the issue i would think that would have been a counteroffer and i would frankly i think that would probably warrant some discussion if a person comes up says look i'm sick i've got a drug problem i've been trying to kick it for ten years she didn't say that she said it's a moment she blamed roaming and so she represented she was represented she