defending felon give birth to rosa you should be no question in this case that there was procedural error below and so far as judge johnson stated no reason for why i was imposing this particular sentence the operative question obviously before the court is whether or not we've shown of reasons and that's what i'm focusing on typically and what i'm arguing and asking the court is that there comes a point at which a statement of reasons is so disconnected from what happened at sentencing that it shouldn't be used as a proxy for what happened at sentencing and shouldn't be used to go in and clear plan or cure plan or sorry and so when we look at the statement of reasons as a nick in the brief it's filled out two months later after sentencing sentencing was in april is filled out in june it starts out with it says it's adopting the that it actually happened to land within seven hundred and eighty seven months and then finally we have the disconnect with the restitution where it indicated that the restitution was six hundred and ninety one dollars in fact in sentencing and in going to be seven hundred and disconnect between the sentencing guidelines as calculated at the actual sentencing in open court and the statement in the in the as the p s r was being adopted without change to the two places where it differs from what happened at sen two fundamental places are the guideline calculation enhancement aspect of it and the restitution aspect of it but then you have to ask yourself ok so we've checked the box called the word opt in the p s are there are no not just for the defendant to understand why the sentence is what it is and for the court understand why sentence is what it is but for the public to have some level of faith in the transparency of what's going on which is contravene w here i will not and obviously i'm not here to contradict and contravene nor do i have the authority to do that the nd circuit precedents it's interesting to cure a plain error and an open court omission through a statement of reasons which isn't probably reasons it did not and this court should affirm the district court sentence st even if the district court did not adequately explain its sentence on the record it cured any such error by adopting the factual findings in  in its written statement of reasons nd in any event the district court did add it would explain on the record the reasons for it sentence in light of the link the sentencing proceeding here and finally even if there was an error it does not meet the plain error standard which is this court's most deferential standard of review so let me st turn to my my st point here which i think will squarely address most of the argument that opposing counsel made during his fails to satisfy the open court requirement of three thousand five hundred and fifty three c such failure is not tantamount to establishing plain error if the district court relies on the p s r and this is the key language here and the factual findings in the p are adequate to support the sentence so below in this case there was no dispute as to posing counsel just acknowledged about the factual findings in the p s r to bitching that the guidelines range makes some difference here i  if the written statement is telling us the different guidelines range applied than was employed at sentencing during the sentencing proceeding below there was some discussion about the appropriate guidelines range and the p s r had originally calculated a three point hansen for the defendants post plea misconduct but during the course of the sentencing proceeding the district court adjusted the guidelines range once the parties agreed that that three point has been did not apply and importantly as everyone agrees here the guidelines range was accurately calculated on the record at sentencing so i don't think when you're then looking at the written statement of reasons the fact that the court in for in the listed the previous guidelines range in any way calls into question the underlying to that here today and espinosa instructs that if those factual findings are sufficient to support the district court sentence then there is no plane error in an engine sense is the way that we know that the district court actually relied on the p r factual findings from the statement reasons yes your honor i believe we are to believe that part of the a statement of reasons and where to disbelieve the other parts of the guidelines range your honor i don't think that there can be any question that the district court was of it when he said that whole thing he said i know without any changes that's the position of the government for the reason that nobody was disputing any of the factual determinations if we were to suggest that he was not adopting the p s r findings in the proceeding below we would have to assume that he was sued was disagreeing with certain factual findings in the p s r despite the fact that the district court did not raise any such concerns at the sentencing proceeding despite the fact that the parties did not raise any such concerns and therefore discounting those facts in the p s r without telling anybody about it then that becomes sort of circular in that we're saying that because there's all the circumstantial evidence to suggest what the court must have been doing with the p s r we have to believe that part of the statement reasons but because there's other circumstantial evidence to believe that he was not relying on the guidelines calculation listed and statement of reasons that we shouldn't believe that part of the statement reasons and doesn't that basically mean the statement of reasons goes out the window and i don't think that any of the errors that were listed in the statement of reasons dealt with the court's factual findings i think those dealt with certain other aspects of the sentencing but nothing raises any questions about the factual findings in this proceeding nobody had called those into question and i think the guidelines  easier explained in the statement of reasons because there was this dispute about the p s r at the sentencing proceeding it was corrected on the record and it's a clerical error that whoever filled out the statement of reasons below whether it's a judge or a clerk simply entered in criminal schemes at least thirty five dollars fraudulent transactions involving twenty one dollars victims for a loss of eight hundred and fifty thousand dollars and those factual findings plus his post misconduct where he breached his cooperation agreement those findings amply support this guidelines range sentence of eighty seven months and again none of those factual findings are in dispute and the government's position as is that in light of the fact that these are in dispute the written statement of reasons here is sufficient for this core under planes plane  court statement on the record was very brief but i think that the core also needs to look at that in the context of what was submitted to the core the length of the sentencing proceeding and all the information that the court had before it in particular he had detailed sentencing memorandum memoranda that the parties submitted and there were three victims who spoke at sentencing detail of the conduct of this defendant and the effect that that had on their lives including the emotional statement of ashman described the loss of her son's college fund and her marriage being placed in jeopardy because of the defendant's conduct there was also the link to p s r again which we kid was not disputed all of this was presented to the judge when he  imposing sentence that given the district court's excuse me that he had reviewed all the submissions before it he'd read those submissions consider the three thousand five hundred and fifty three factors heard the arguments and then he imposed that  sentence so i think it's important that the court newts that context when it's looking at that statement and not just viewing it in isolation here as in previous cases under the plain error standard and i'll point the court to the the wilson opinion which we say a sentence thank your honour's just briefly i mean terms of espinosa exist re my contentions it's not controlling because there's no discussion about a potential disconnect between the statement of reasons and what happened at sentencing which is what's a typical here what i affectively here the government arguing in response to your questions your honor is because the facts weren't contested therefore there is no plainer but the task of this circuit isn't the facts were contested i mean that there are many sentencings where the facts aren't contested and the court doesn't get rid of open court allocution requirements because the facts weren't contested and so that's not a valid substitute this court holdings are either the court has to adopt or the p s are in open court or the court house to adopt it in the statement of reasons and so therefore sentence that the remedy properly wouldn't be simply remain and for the district court to announce those reasons as opposed to rescind saying why is that when there's no actual challenge to the substance of the sentence so i've seen it i've seen this court do both and unless the court remaindered for resentencing so i mean i went and checked they remember resentencing so they do is that well from the defendant's perspective it's like well maybe i've done something wonderful mean i get that and i'm saying why is it that the law should provide that when the error is not i got the wrong sentence give me a new sentence the error is you didn't tell me why you did what you did i think because at this point the sentencing happened what in two thousand and seventeen of two thousand and seventeen it is actually a more coherent philosophy to have a recent ensnare with current thought of judge then what was i thinking back in april of two thousand and seventeen and i asked one other question you referred to the magnitude of the disconnect in this case between the statement of reasons and the senate's increasing and so you're not arguing that any clearer any mistake in the statement of reasons what makes this this when it be enough i think the true standard has to be whether the court has sufficient confidence that the statement of reason of reflects what happened at sentencing and so i'm not asking for ministerial error standard i think there comes a point where there's a sufficient disconnect that the court can't have confidence because we know we have the error and the question is whether it's affected substantial rights and if you can rely on the s l r there should be enough there