our briefing was written before the court had really issued guidance about what booker might mean or what a sentencing judge his responsibilities and obligations are it was written before even sentence that it imposes that it looked at the thirty five fifty three a factor is that it began with the guidelines without according them any primacy at but not in any kind of mechanistic way  that the that it really thought about who this person is and what is the proper sentence given who this person is and why this person is now standing up next to counsel for sentenc to do so it has to evolve its analysis on a case by case basis which i suppose is why we're we're here this morning with mr serve on tests here you have a district court that did engage in you know fairly extensive commentary about the thirty five fifty three eight factors and how it viewed mr serve on to this is offense conduct and to some degree his past life the number of his prior commitments for example  but what it didn't do is explain how those concerns that he expressed translated into this number that it chose i would also point the court  to section thirty five fifty three c which says that if you're going to impose a guideline sentence about twenty four months you have to say why you chose a sentence that's here on the guidelines in other words that th out needs to be irreconcilable with the information that came in and here you have the information certainly and you have a sentence clearly but for all of the district court discussion there is no real way that this court has the reviewing court can assure itself that the district court really did what vala says it was supposed to do she used from a well of course of all wasn't available to it at the time but at any rate choose from the vast territory of reasonableness look at all of the material in front of it use the guidelines as only one of any number of equally world how would this three judge do this i recognize that it's very problematic to to say with any precision how a district judge does this but i can give some examples of their complaint i'm sorry your honor this is their complaint or there are certainly sentencing transcripts that i've seen where a district judge says why this number for example this defendant has never served a sentence of more than two years i think a six year sen to show the you know that's two year sentences haven't worked let's give him six and hope that sends a message that would be something that i mean that's something that certainly i've seen in transcripts that are reviewed no doubt the court has also seen or possibly imposed sentences was say why ninety six instead of ninety two or something even lower which gets me to the second so here's a question i have for you on that though is it realistic for us to expect a trial court to explain why they didn't do everything they didn't do the words of the trial court affirmatively reviews the factors and thirty five fifty three and express there's a difference between discretion and zavala on one hand and presumptions on the other and for example your honor here the district court did express concerns and pretty forcefully t but one of the things that the defense had pointed out was that mr survive had spent the most formative years perhaps of his life from the ages of fourteen to twenty one his entire adolescence his early adulthood in the custody of the california youth authority he'd gone in with a drug addiction he came out with a drug addiction he'd gone in according to the p s r were functioning academically at a fifth grade level he came out without a high school diploma despite their duty of care to him and for the district court that was just nothing i mean the district court said i'm not here to assess blame as to the city why yea i'm here to talk about drugs and guns in a high speed chase and i think to answer the court's question about whether a district court has to go through absolutely everything or say why it's not doing something it could otherwise do i agree that since the territory of reasonable is just so great it doesn't make sense to require a district court to say why it's not going to do why it's not going to impose  at every point except one along that great reasonableness line but i do think it makes sense to require a district court to look at the information before it because that's what savalas says it has to do and say how that information factors into its sentencing decision but why don't you think the district judge did that in this case and he goes through this like the statement that he says i also must take into consideration sentence that we provide the defendant with needs education say well i chose this instead as why is that legal or because he did something more than not say i chose this instead of this was he did was to express his concerns but not link sentence but he doesn't discuss the information that was in front of him and say why that's not affecting or is affecting for all we know the sentence that he is imposing why doesn't mr vantine abandonment exactly what the district court did in this case the district court first and explicitly stated that it was starting with the guideline sentence the district court then explicitly stated after going through the relevant calculations that did indicate as part of its reasoning why it did not choose any other sentence as the court acknowledged the district court did say that it had discretion to go anywhere up to the statutory maximum the court recognizes discretion in that range the court specifically indicated that the district court did consider this particular defendant took everything into consideration gave an exhaustive list of reasons and responded to that to require a district court to then go above and beyond that and state a list of reasons why it did not choose ninety five months ninety four months ninety three months and anything after that would not number one it would be burdensome to a district court to do that and number two booker does not in requiring the court to consider all the relevant factors i don't believe that there is anything in the balls opinion that this judge has has done that's contrary to that i mean this judge went over and above what is required by saval or by booker there isn't defendant's arguments the court did states specifically here's why in this case number one a sixteen month sentence would not be appropriate the judge took the relevant factors specifically the judge indicated that it considered to be a very a potentially very error in this case or possibly a stevens there and the question of whether we should give relief on it in light of that there was no objection in other words do we health that the first the former condition just a blanket condition of ordering drug test wasn't improper delegation of authority this court also held that the latter condition of ordering the defendant  submit to drug treatment and as part of the drug treatment submit to drug test was not in proper delegation of authority ok well i understand that if if the person is doing the treatment or designating testing so the government submits that as part of that it was a proper a proper condition within stevens as your argument is that the words as directed by the probation officer referred to the selection of the treatment program the termination army as referred to the administration of the drug treatment program yes your honor that that was part of the administration of what would be within the drug treatment program yes that is government's argument in the government's the way the judge worded it certainly it's apparent that it is part of the drug treatment program and that then would fall within the condition that this court approved let me put it this way i probably didn't phrase my question clearly let's assume that the defendant completes a drug treatment program then the officer in this case goes out and says i'm going to submit you to to random drug testing pursuant to the order that would be an improper interpretation of the sentencing order in your view right in my view yes right it would be an improper interpretation of the sentencing order and that's not what the judge ordered in this case but certainly in this case and and the defendant's challenge to the sentence in this case is not what the probation officer would do but what the judge ordered as part conditions and there were under that scenario there would be stephen's problem would you give me the government's position on whether or not it would be plain error in this case or not no your honor it would not be plain arest certainly first obviously the government's position is that there's no guarantee but that even if there's error here if there is no had even even if there if the court finds that there were error this certainly would not suggest that the entire does not appear that there is a violation of the statute certainly as the way that the court has ordered the condition i mean i believe we can speculate as to what would happen if the probation officer were to carry out actions that were different from what the court ordered but testing outside a drug treatment program an outpatient program in this case would be improper that's certainly fine with us i it's not very clear that that is what the district court order but if we construe that says it the way the government wants  argue that it's plainer and in preparing for argument i thought of an alternative way to argue about plain error and that's by reference to the gunning case which is cited in our briefs gunning was a hoping that this court issued in connection with an appeal of a supervised release condition that delegated to the probation officer is the authority to set up a restitution schedule under the mandatory victim's restitution act this court found that it was a an improper delegation because the statute clearly our gates to the district court the obligation to drop that payment schedule now i  knowledge that the gunning case doesn't actually talk about what standard of review it decided the case on but if you look at the briefing which is linked to that decision at the bottom of the west version of the old pinion you really that very persuasive and it certainly isn't direct authority in this case it i would argue that it it's fairly persuasive you are only for this reason that they are there one of the government's arguments here is that this is basically to probably an error for the court to really do anything about i think it relies on some first circuit authority for that general principle and rather specific heard in the first circuit on this judicial system is that it lets it exposes mr starr beyond his or anyone else to subject to this condition to additional charges the possibility of a just additional charges based only on what a probation officer has done or authorized when really the probation officer is not supposed to be involved in that basic decision at all and so it's it in some ways that it's per hershon what the judicial system is supposed to be  it was one hundred thirty months your honor so you'll find that in the government's two sentencing papers so the government recommended one thirty you recommended sixty yes the board imposed ninety six yes in in each case the recommendation was based in part or in whole on and handsome issues the government wanted the district court to impose a four level enhancement and if the court had done that one thirty months would have been the low end of the guidelines and our recommendation was to not