procedural errors led to a ultimately substantively and reasonable sentence and i think it makes sense to begin by acknowledging this was a six month sentence and the scope of cases that come before this court a six month sentence in terms of time is not particularly substantial i think that what is important here is this was a case in which there was a choice not just of degree of as is often the case how much time will someone get but a question of kind of whether was essential that a person actually have their life disrupted by being placed in a custodial setting by being sent to prison so turning to the st procedural error we've argued that the judge here did not consider and did not seriously consider at sentencing near vail ability of a home confinement sentence and this was a case in which both the government and the defense agreed that a six month period of home confinement was and so what's significant here and i think that there are sort of and both the government as you said both the government and the defense find that possibility so why how could we say that the forward as an available sentence the concern was that as set forth in our written submission the judge at the st of two sentencing hearing has indicated that she was not inclined to consider home confinement because of perceived costs assertion that would suggest that a post hoc rationalization does not actually explain what occurred at the time of sentencing but i also think that you're saying that you're saying that the that we should say that the district judge was mistaken about  rationales and so i think that while i think that what we are are left with is and i again i think this is the two sides of the consideration of an impermissible purpose namely the cost of home cost probation x number of dollars there is a concern again about let's save time and effort and also does as a factual matter cost probation money to operate these electronic monitors so then there was a consideration specifically of the resources that it would require and the question is whether at the final sentencing the court having previously indicated that she was not inclined to impose home incarceration or home confinement for this client was some sort of serious criminal mischief very into the you know conviction he had twenty years or so before and you know the isn't that what discretion is all about and i agree that the judge in sentencing judge absolutely did weigh these factors far more heavily than either party suggested i mean are we just i would never would have occurred to me to send this man to jail might occur to me but i would doubt it but that's neither here nor there or not i can't speak for my colleagues but you know district judges have discretion in these matters and  know you've got a well i don't have to tell you richard burton is certainly and i think that in terms of that that is our other procedural argument that there's an excessive reliance particularly on mr  explanation after the re men she indicated that she believed that this history of dishonesty issue determined it was relevant and implicated for the need for protection of the public and specific  think that although i see that my time is up that i think what's important here is that these instances of let's call them that most white lies are not connected to the concerns of protection of the public or specific deterrents they it's a very sympathetic face except that i've never seen one in which not only did the person take the money which seems like a kind of human if criminals but actually not once but twice on two different occasions when his sister's death is discovered by the affirmatively calls up the veterans administration impersonates is the sister and says i'm alive and kicking and you should keep sending the money and he persuades them and then they do it again and they find out again and they come back and say we you know sorry  market you're dead and he goes back again and once again impersonate to cease fire and maybe he thinks he's not being good enough at impersonating her voice or something because then he asks not to have to talk to them anymore will do it by  email or in writing from here on and then when an agent to talk to him about what what's going on here he says my actually dead sister is locked up in the loony bin somewhere and that's why you can't fuck her and she's not here to talk about a pattern of dishonesty this struck me as are removed from the typical disease they you think he's in which i would think it would be rather automatic to say well done and done it they back the money don't do it again this is this is much closer to affirmative fraud than  isn't that what the problem is not why he goes jail at the end of the day so to begin and i think there's the question of what does a typical case look like in cases like this i'm aware that in terms of proof cases where you simply have someone taking money without any sort of affirmative misrepresentation there can be a lack of sufficient evidence even to prove they offense because there's a need to show a person was aware that they were taking money they weren't entitle to and so in  least in my experience cases of the sort do involve misrepresentation of an affirmative sort i agree that there are multiple misrepresentations here the district judges expressed concerns though relate to what she claims to be a part of or a pattern pointing to as the other points in that pattern instances that were either incredibly old or end up we would submit don't show a pattern of similar conduct and particularly don't show a pattern of conduct suggestive of i need to protect the public or a need to provide specific deterrence at the end of the day this offense is one created by the opportunity of the federal government and advertently continuing to send money to someone who then receives it and i think it can often be the case that someone becomes dependent upon that money and and as is the case here made months in prison meant was both substantively and procedurally reasonable the issues on appeal really boil down to two big questions the st being whether the district court relied upon an impermissible but what but what i believe that the district court was was focused on was when she asked mr decker why she had not told him he has been quite sure his response was that because he was focused upon making initially under penalty of perjury on a form that was submitted to the state of massachusetts that he impersonated his deceased sister on numerous occasions and then when federal agents came to question him he lie after after that he was arrested he lied to probation about the reasons in which he left or he was he left his employer he told probation that he resigned when in fact he was fired for misconduct so the judge the district court had this entire pattern of dishonest conda when when mr  not i think on the issue of restitution that mr depor gave the reason for not telling his employer during the st sentence of harry was because he wanted to focus on paying restitution at that time which the court pointed out he only paid a one hundred and fifty dollars of restitution and then the issue of the property and taxes came up and the court adjourned to provide him with an opportunity to figure out what the status was with that property that's correct and i think for this court's consideration really focusing on judge bryant's notice where she explains all the factors that she considered imposing the senate and that notice which the docket on circuit that that docket number fifty six she explicitly disclaims any reliance on the burden of home confinement and really lays out all of the factors that she really saw as being and core and those were the pattern court imposition of a six month sentence i'm incarceration was well within the range of permissible sentences and for that reason the government respectfully request that discord affirm the decision of the lower makes sense to briefly touch on this is true issue of restitution at the sentencing mr deford expressed his desire and stated intent to make that the make full restitution is how he put it the court took that  another sign of dishonesty i think that is better and much more accurately taken as a sign of intent and for that as i think demonstrates the reality behind that intent he went from the one hundred and fifty dollars paying dollars payment at the st hearing to four hundred and fifty dollars at the following hearing i will no it's obviously not part of the record mr deford has continued to make restitution payments where in a case that obviously was sentenced back in two thousand and nineteen before  demick began mr deford although he's had covert is sixty six years old and i think some of the realities of prison have changed and certainly the court if the court were to revisit the sentence the district court would have now a significant four remanding even absent a formal finding of error and so i will know that this is a case where you know the district court expressed concerns about a pattern and if the court were just recalled were provided with an opportunity to revisit this case would have imposed was both procedurally and substantively unreasonable if the court or unwilling to do that if it determined that that was not appropriate then we would suggest that the court especially because a recent unsing is a relatively why i think because of the concerns that you've expressed precisely concerning this being a case in which reasonable judges including i think as you've articulated judge parker may have said i would not have sent this person to prison that it's something that is i might stand back who knows and i have colleagues who would be at the other end of that spectrum would say and prejudiced view backed but that's the regime we live in and and i agree i think that what is unusual here is that this is a situation where the judge was very focused on what it described what the court described as a pattern including a pattern surrounding the time of sentencing you know but you know i think in this move where you know of the reasons why the end of the sentence in the st place and the remedy is we're going to send it back again and say at least if we don't say it substantively on reasonable which is the one thing that i don't think it is a close t this state and if we say you made some procedural errors think about this again what are we just doing the same thing we did the last month don't give so much weight to this factor or that factor you've said this and probably shouldn't  so now consider it without we did that and we got the same sentence i think that's correct and i think that caution is certainly the correct term and a recognition that inten extraordinarily rare remedy and so it's it's something that i think because of the rareness and it is not something that we have requested but i think that the point i have i would say i appreciate your quote in that regard reasons and i will say now now that that issue has been raised and written raised by the court certainly we would as the appellant would be happy for this case to return to a different different district judge for the exact reasons stated that it does appear that the sentencing judge may well have made up her mind and may be unwilling to reconsider we remain always hopeful the judges will will visit and as i said there are some new facts