a flexible remedy of twenty to fifty five to solve the constitutional problem that remained in place by a prosecution under statute that required mandatory life  solution that was offered was that the court provide for periodic review not unlike paul recognizing the parole had been abolished by in the federal system and fifty five dollars remedies still provided an opportunity for the district court to give mccain the opportunity to earn really plays a certain why wasn't the appropriate i don't believe that a hearing is the remedy i believe that and to be clear i think that the district court discharged its responsibility with great care so i'm not challenging that the court did not provide mr mckay a reasonable opportunity to be heard with regard to sentencing but following this court's precedents as recently restated and peterson but blue a s well mccain sought a sentencing result that he expressed in great detail the request was please do not recent me to life without parole please if the court is unwilling to sentence me to a term of years which would have been appropriate in the alternative please sentence me please use the two thousand two hundred and fifty five remedy and its flexibility to provide me with the opportunity to earn release as is indorsed implicitly and miller and explicitly in montgomery why can't we consider i mean the court gave a very lengthy explanation for why it determined that mr mccain was one of the very few individuals who qualified for life without parole why doesn't that explanation address your request for these procedures or at the court you asked for give us a term of years or something like parole and the court explained at length why i thought life without parole was appropriate that seems to be sufficient explanation for why the court rejected your proposal so while i agree with your honor that the court carefully reviewed the arguments that it made in the pruett the previous day in his sentencing colloquy if you review the transcript the judge ticked through the arguments of counsel on both sides for link the period of time and then rather  in a rather short portion of the actual sentencing colloquy did he address what what was his actual reasoning and i think so yes the court went through a detailed colloquy but it was not a detailed colloquy as to his rationale it was a detailed summary of the arguments that it been made instead in arriving at his judgment  the court did not make an explicit finding of permanent incorrigibility which i believe is required under that mcgovern re says miller requires and instead the court made terrible choices and he continues to make terrible choices in essence the court placed the judgment in miller with his own judgment th factors juvenile behavior in juvenile development that miller laid out that kind of what miller asks the court to do though i take your point that miller said you know all children have this developmental brain issue and there was testimony about that in this case baylor acknowledged responding to the dissent knowledge we're not saying there's not a difference between a seventeen year old and a fourteen year old right and then miller went on to say we're not saying there's not any juvenile who could ever be sentenced to life without parole but you have to find i think they said this will find out after malveaux if this is what they said you have to find them and corrigible right you have to find that this is the unusual juvenile who can't be reformed and that seems that goes beyond just assuming as the court had the premise for miller which was that all juveniles are affected by this this lack of development you have to and the district here seem to be trying to do with that and acknowledge the testimony but then said i don't think his conduct here was the product of that i think it was the product of this he's proven h proven that he's one of the few in corrigible defendants with regard to incorrigibility i would respond to your question in a couple of ways one the court did not  expressly find make a finding of permanent court i think there is certainly evidence in the transcript to suggest that was his conclusion but he did not express we find it i'm not going to suggest that it didn't appear to cross his mind but he did sentencing judges to decide soon and see whether that judges are juries to determine whether thought crime the particular crime of the individual at the time of the crime was committed evidence of permanent incorrigibility instead in this case mccain's post conviction was what was used as evidence of his permanent incorrigibility indeed if we look back at the crime itself the crime itself you think that's completely irrelevant no i don't think it's completely irrelevant and i think i'm aware of the th circuit's recent on bumps edition and brian these that suggest that post conviction  conduct is relevant but what i think is important about bernie's is that brian uses looking at evidence that can be derived from a juvenile post conviction about his capacity for rehabilitation and support for the possibility of impermanent incorrigibility and i don't think it is proper welfare under the th amendment to look at the circumstances under which a person's post conviction conduct is imperfect or unsatisfying of a desire to have him be released within the media so no it's evidence of whether or not he exhibits the potential for real potential and to change it certainly can be but as was presented to the district court and as the district court acknowledged there was some for and look at and it's that it is that the presence of that albeit small glimmer of rehabilitation that ought to have caused pause and prevented and in fact the court says i think he uses the term reluctantly fifty three or four times just before he opposes the life sentence how reluctantly he does so and i think that is because the evidence of rehabilitation  imperfect albeit within the st ten years of incarceration of a of a child who was sent to terre haute and to eighty x was not wildly encouraging and i would not suggest otherwise to this court is  think i have approached it from the perspective that this is an abuse of discretion standard but if incorrigibility is a fact then yes i think it is a clear error standard and because the court did not expressly make a finding with regard to in either an explanation for why the twenty to fifty five remedy or some term of years remedy is improper where here there there's a lot of discussion of what of the parties arguments but when the court actually imposes sentence there's not a great deal of fealty to the language of miller and montgomery to understand what motivated the court other than the defendant post conviction conduct and where it is clear that there's a simple way to solve this problem the statute under which mccain is prosecuted for mandatory life remains on the books and when it's cabined together with the waiver statute it remains an illegal it remains an illegal application as to mccain and that's covered by the old yes or yes or and i think that this court can adopt the premise of men and direct the court to fashion a sentence whether that is a term of years or another an opportunity for periodic judicial review to have the opportunity for release that is what i asked the court to do and i don't think that there has to be a specific directive to the district court about how to accomplish that but that should be the goal that in order to give life to miller and mongomery in this case where yes there is a murder and it is unpleasant as any murder is it is not the kind of murder like for not provide evidence of irreparable encourage billet and permanent incorrigibility nor do the district court find it and for that reason mccain should be entitled to an opportunity for release in any manner that is consonant with miller and just a follow up on yes this issue of the periodic review if if you don't get relief on this issue here today is there any vehicle by which you could come back articulated a retroactive new principle of law applicable to mccain such that he would be entitled to further review i believe that's the case thank you very much you reserve some time yes sir paroled from mr mccain you or i would noted else that that proposal was completely frivolous and illegal for two reasons i thought you didn't in your brief you didn't suggest that the proposal was frivolous and almost a can to sort of an equitable remedy of sorts that allows courts the fashion remedies that might otherwise not be explicitly authorized by the by the by the by the federal code to respond to that i wish well that she doesn't  the explanation went on for about twenty some odd pages but she says that most of that was just a summary of the party's arguments and then that when it came to the actual explanation judge duffy didn't express lane gauge with this issue  incorrigibility and the other relevant miller and montgomery factors what do you say about that i would respond on  rehabilitative potential for this defendant i think she quoted some language in the record is that inconsistent with that finding your if there was any rehabilitative financial it was very slight and i after being incarcerated is a critical factor and a miller recent is the defendant's conduct after being incarcerated a critical factor under mel if you look at mr mccain's conduct after being incarcerated and that was in the context constitution in that way is no more than a term of years a sentence would be under this sentencing scheme because technically if the court had imposed for example a thirty year sentence on mccain which would have been common and with remedy under how to be elite it's not any more legal than the than the sentence of a term of years which has been imposed in similar recent incent cases around the country and i think it is an equitable remedy that is appropriate under the circumstances the returning to the thoroughness of judge duffy's notwithstanding its length and breadth at no time in judge duffy's colloquy does he acknowledge that specific requests the specific requests that he consider that mccain be eligible for a periodic review so this court has no information to determine not judge duffy did abuses discretion because this court has no information to determine whether or not judge duffy had a legal reason to reject that argument or an illegal reason we don't know what his reason was for rejecting that argument i guess i mean and i alluded to this before about if a defendant asks for a sentence of ten years and then a judge gives a lengthy explanation of why he defendant deserves twenty years we understand that to have addressed why he doesn't get ten years and why doesn't that apply here when you gave an argument for de facto parole the judge gave a lengthy explanation for why he thinks this defendant deserves a life without parole and why doesn't that answer the question because the periodic opportunity to review does not preclude life in prison mr mccain could come back every five years for the next fifty years and not be released if he could not show that he had been substantially and appropriately referred doesn't that i mean i guess there's if there's a finding or maybe it's not finding neverland i call it that he's not someone who can be rehabilitated that addresses the question of what do we need at a hearing every ten years to find out if he's been rehabilitated i think had made a formal finding on the record of permanent  address under blue peterson the non frivolous very non frivolous request made by mccain and judge he has to address your question to my colleague with regard to brian these and after and post conviction conduct i think that on remand brian needs will certainly inform any district court hearing a case like this in the future and and i don't deny it's logical impact but i think for the purposes of presenting the case every man and to a district court the circumstances of brian incarceration and post conviction conduct has to be against the context of mr mccain's we're a set and by the time he reached terre haute i believe he was nineteen terre haute the place where death row exists and later eighty x the place where we terrorists that's where he sent a child to with the directive that he would never see the light of day where the st meaningful opportunity at self improvement he had was to take a typing class so to see a child i may have thought it turned as the parent of a teen at the teenager i'm not sure at nineteen he wasn't a child for the purposes of the law he was not he was no longer a child that's correct your honor but he was a youth for the purposes of all of the evidence we have with regard to and i see that my time has expired this player we really appreciate your work and we know your court appointed here and we thank you very much