thank you may i please the court my name is alan picher i'm an attorney with the federal defender's office here in portland and i have represent norman brown who is the appellant in this case we are here because the district court did not properly consider the appropriate factors trial in this matter he initially went to trial on a two count indictment he was acquitted of the first count and it was a hung jury on the second count the government chose to retry him on the second count and prior to that second trial filed an information under twenty one u s c eight fifty one alleging that because he had a prior conviction for possession of controlled substance that he would now be eligible for increased mr brown pointed out to the judge and in quite poignant terms that he felt he simply could not complete a lengthy term of supervision that he and his probation officer had the relationship had deteriorated that for reason that things that happened in the community that he felt he was a target of the police that he was paranoid that he wanted to leave portland and for a number of reasons he wanted no supervision i think the hurt case disposes of that argument though well i think it might you and that's why we when we filed our motion for reconsideration what we asked the court to do with simply to impose a lesser term i think hurt isn't entirely dispositive certainly doesn't help us much but in hurt the probationer there was and i would like to distinguish him from mr brown he was an abysmal failure on supervision there was nothing to indicate that he took supervision at all seriously cared about his rehabilitation or wanted to have anything to do with his probation officer simply wanted to do th time to be left alone mr brown had engaged for a lengthy period of time with his probation officer had viewed him as someone who could help him in fact had gone to him after he'd been assaulted in the community and asked for his help so i think that the facts are very different but i understand the point the court is making i don't think mr brown had any right to ask simply to do his time in lieu of supervision but but what we asked in our motion for reconsideration and the judge consider a lesser term imposition simply because five years was such a lengthy term that mr brown would have a very difficult time viewing that kind of construction given his feelings about the probation officer and probation but the reality is basis counsel can you expect to receive a different result but my main concern your honor has to do with the length of the term of supervision that was driven entirely by prosecutorial discretion one of the factors parity argument right yes it is your honor and i think that that it is our strongest argument the government indicates that it doesn't really apply in this case because what the court should be doing is comparing mr brown with other similarly situated defendants those who are charged with the same offense and who have the same primeau history back to your argument also relies on amendment five zero six which has been overturned now is not right so we don't rely on that we simply indicated that in  where we just make that point that in this case the reason that mr brown was even mucking at this lengthy term of supervision was because the prosecutor basically to punish mr brown for continuing to go to trial filed an your assumption that was there something in the record you can point to that where the judge was aware of that took that into account when he made his determination i don't know if well i don't know your honor i actually was not trial counsel that was a long time ago but i don't even think that matters i think the point is that the reason mr brown is not similarly situated to other people with his same sense and same criminal history because of a prosecutorial decision because they're not they think crime but defendant charged under title eighteen with much more serious offenses face a far shorter term of supervised release so we believe the judge did not take into consideration adequately the argument that we court was mindful of mr brown's need for rehabilitation and concerned with deterrence of future criminal conduct and concerned with his sister in characteristics and fashioning this term of supervised release for him on revocation the judge marsh has had mr brown in his courtroom for over thirteen years at the time he appeared for this hearing and he recounts on the record that he's done quite well in the first year and a half and he was on supervised release when the first violation came out which was a serious felony attempt to a blue which the defendant did was convicted of and state court and ultimately found to be a violation of a supervised re one of the factors of course to consider is unwarranted disparity but the statu disparity and secondly disparity with similarly situated defendants who are convicted of similar crimes and so that set of issues the still properly before about the district court and this court but i think labonte throws out all together similarly situated defendants are that the court should have considered or looked at and anything that would show that any disparity with those people was somehow unwarranted simply not in the record i do also  himself should made the determination whether he should be on or off supervised release in both cases the defendants kind of threw up their hands they didn't mike they didn't want it any more and wanted to do more time and present and then be free of supervision and that was our argument that it was disparate it was unfair it was only authorized because it was authorized under the enhancement that mr brown received because he went to trial twice and for that reason we think that the court should