court here with heatedly referenced the michael vicks case and specifically the sentence that mr vick received the district court noted that it had thoroughly reviewed the filings and the sentence in that matter defense counsel although presumably of the case in the general public sense of the word was not prepared to address the ways in which michael vicks his prosecution difference differed from mr davis's supervisor at least violation and with regard to that argument i think and we're not talking about factual material it's not unusual for sentencing judges to try to connect with the defendant or with an audience by referring to some higher profile conclusions about the appropriateness of a sentence in the case before it that there are factual determinations that are being made and i think in those cases the district court is obligated to give notice to the under the due process clause to give not as any other court comparison to rely on facts that it has not the party know that the parties know that sort of the parties would be prepared to counter those arguments in united states versus very district court in a subject matter related to this case that they're the district court was conducting a sentencing for a dogfighting case not a supervised release hearing but an actual document in case the district court prepared a memorandum in an opinion that was quite lengthy outlining the history of dogfighting other related docket and cases and i believe including the michael vicks case in order to give notice to the parties of the things that it was considering in crafting its argument now certainly the district was under no obligation to outline its reasoning or its  the possibility that was going to go outside of the guidelines but the fact that the district court was considering the facts of other cases the comparison to specific other cases and to the extent that it was relying on the history of doctoring itself it was appropriate in that case for the district court to give  notice to the parties so that they could appropriately prepare arguments you can't counter the district court's conclusion sounds like you're using there's a due process really to rebut the explanation  judge offers for the sentence not sure about the explanation but i do believe there's a due process right to be informed of the facts upon which the district court intends to rely and here the district court did not say i did a survey of dogfighting cases or you know in my experience dogfighting cases are creatures what the district court said was i specifically went back and carefully reviewed this specific case had counsel known that the district court intended to do was different from that prosecution specifically the district court the trial attorney the defense counsel in this case would have been able to point out that the michael vicks case involved multi year multi state conspiracies the district the defense attorney would have been able to point out to the district court that michael vick's had personally strangled or drowned at least six to eight dogs that mr vick said had been crucial in that case in the promotion and facilitation of numerous instances venture an animal related venture which was a misdemeanor out of ohio that's what he's on supervised release for before i go any further i'd like to meet take a brief moment to address what do you think would be an appropriate sentence child hands on this ca talks about the way the district court can't just assume that a client is like or that a defendant is likely to re offend based on the nature of their offenses without any other evidence and record this court noted that a defendant did not complain about it about a traditional choice after it has been made so this wasn't an instance where the district court said i'm going to make these findings i'm going to land this case and here is my sentence rather with the district court judge it was make it sentence and then go on to sort of discuss its findings and for that reason trial co air were to apply i believe mr davis meets that standard and here the air both sets of there are plain this court has repeatedly how the district courts cannot make findings that aren't supported in the record here the district courts conclusion that mr davis had enjoyment than to do these same because you can't help it because you have mental illness and the reason why a man can see that distinction i understand the courts does not think you do i do i don't agree with the import in this case because the district court concluded that mr davis had an addiction and that without treatment he would react and and that ties us right back into england and bradley and miller which are cases in which the district court made conclusions about the of course hillary of what's to keep him from doing so hala thank you good afternoon your honour's and may i please the court at the district court committed no it hurts in sentencing davis i did not plainly rely on any erroneous facts or given sufficient notice kept an open mind throughout the proceedings and it's ten months sentence should stand  with all due respect to my palm and i do believe that there are some over reading of the transcript that's going on here but district court was not using i don't i don't think you can read this transcript and think that the district court was attempting to medically diagnose mr davis in any way shape or form and the district court says several times that could if fenton has a problem those are his words mostly it's he has a problem with dog fighting i think everyone in this room should agree with that statement he's he's fought attended dog fighting bench there's or been around accused animals and done nothing about it multiple times he has a problem whatever the source of that is we can get a medical doctor to diagnose that we did it and as you pointed out judge posner i don't think anything that the medical diagnosis said helps the defendant what he says is he's narcissistic he sensation seeking he has impulse control problems so when the dish reports sitting there saying you know maybe counseling will help maybe there's some kind of mental issue going on no no he just he's just a narcissist so that's unhelpful there's no reason to think even if the court thought this was it or which it is not that this would is the kind of player that that it would be helpful to go back and renew on the  michael vick issue your honor i think the my opponent which of the morale is case and since you ask such hamilton the morale is cases a case where the defendant was given an organizer and leader and handsome and under mandatory guidelines in hundred ninety s and the district court judge said i'm not going to base this organizer leader against anything here i'm going to base it on the trial that i was that of a different defendant that this defendant i believe was an ad because he was in a different trial or pled or something like that so it wasn't really on the record in his case and what this court said was you know if if the dish first of all the district it's going to rely on those kinds of things you know they probably should give notice in the mandatory guidelines error era but any argument on certain this is a quote any argument of unfair surprise is forfeited by morales's failure to have raised that argument in the district court soon as the judge said he was going to rely on part of the evidence a trial rouses counsel should have objected or asked for a continuance so even thought that that rule still carried over out of the guideline enhancement context out of the mandatory guidelines context the answer of what's supposed to happen is if trial counsel really didn't know who michael vick was or really thought that there was something important about the michael vick case that needed to be disk just to stand up an object or to ask for a continuance or to do any of the things that did not happen here and the court did the cordons of discussing michael vick sort of later on in the proceedings after it's already announced the mean defense counsel was given three opportunities after that to comment on the sentence and the first time she doesn't say i don't know who michael vick is she says judge i just want you to understand you know the defendant didn't just just get rid of the dog here he got rid of the seven dog houses in his backyard he got rid of all the dog food in his backyard got rid of all the dog chains in his backyard much away he had all those things to begin with but that that was where she went and then later she has given a second chance and she said by the way he's going to lose his c b l so she didn't say i don't know who michael vick is i can't believe we're talking about michael vick so for her to come back after the sentencing and say no i want to point out these differences i mean he took the district court when the district court talks about michael vick what the district court is saying is essentially you know any says as you pointed out church hamilton you can never lay cases on top of each other but there was a football player a few years back who had a very promising career of made some of the same arguments in the score and he went to jail for a considerable period of time the reason being this isn't a non victim crime and then this is on page twenty one of the appendix and then he goes on for you know eleven ten eleven lines talking about the reason i'm talking about the vick case because dogfighting is not a victimless crime right but so it is a bernie made off comparison or a michael milken comparison it is a this is why this crime is important right we don't we don't get a lot of dogfighting case in federal court but it still is important case and this level of cruelty to animals is something that needs to be punished and here for all the reasons i think the court itself has already expressed the defendant's request that he be given an additional six months of supervised release  months anyway so i don't think the court felt there was any reason to put a sixty day term supervised release on the campus which is all that would have been allowed and so yes he did start the term i did look at v o p he does get out i believe november ninth somewhere in that range  specifically with the comparison to the michael vick case the district court did suggest some general comparisons but he went on to say and this is on page nineteen of the transcript again i go back to that case and i went back and looked at that actually before i came in here some of the factors statutorily have been able to give him a comparable sentence no here what's the harm of referring to the owner during the rule thirty five hearing district court said over and over again that some of the factors that we release its conclusion specifically it's conclusion about mr davis mental health and its comparison to the michael vick case influence the sentence that it and it had imposed that those were factors that you just have this confusion about mental health you seem to think that if he a he if he has a psychiatric problem that that may that would make him more culpable whereas obviously would make him less culpable well your honor and there's an argument that it sentence than someone who's saying no not at all your honor no that's what you say what i'm saying is that there's if you're saying that when a perp person commits crimes because of insanity  difference between people who commit crimes who are perfectly say and people who commit the same crimes who are madly you know i do understand the difference turner and i and i will say from my own experience courts treat those people differently but not in a consistent way some courts see defendants who are mentally ill as more of a problem deserving more of a punishment because they don't believe that they will be rehabilitated and so there's a specific and general deterrence argument that gets invoked to put people to mental illness in prison for longer because the theory is nothing that we do will help so let's just generally theme that person on the flip side one could see someone without a mental illness is more culpable because they're more in charge of their actions i'm saying there's arguments  getting punished and there is no getting very light punch he was on for engaging in this barbaric activity year after year he was on supervised release for misdemeanor his violation was the possession of two dogs anderson and the court's