of burdens is agreed or it alters the lens through which the district or evaluates all the evidence and any resulting factual findings are necessarily court includes and this is the operative language in the statute that the defendant refused to submit to drug testing which begs the question that was that issue in this case which is whethe preliminary decision of whether to revoke or continue in the first place i would deem the decision to continue to be perhaps perhaps that is fairly considered mitigating and so as long as we're on the same page with that the fact that the government has to establish is that the defendant had really feel used and the argument that was made below and is renewed here is that he in fact did not not supposed to use drugs and he would get off if yes you know i think it's fine if this court wants to call that mitigation the example that i sort of used in my had it imagine he was unable to appear because he was in a car accident and he was hospitalized if that's a mitigating then that's fine but at the end of the day it goes towards the fundamental question that was before the court which is whether to revoke or continue it was sa impose so this is going towards you or your argument that seems to be shaping up here that that's what you meant by the government having to demonstrate refusal in refusal was ti to volunteer in this in that regard this really was the definitive raised the question as to whether or not his conduct was the result of his willful disobedience or as a result of his mental illness think limitations then the court had evidence to weigh to consider what the next step should be our argument is that because the court misunderstood the burden is that necessarily impacted the district court's decision making in terms of whether so the judge also takes care of that and makes his strong recommendation so in many ways what the judge did here was exactly why your client  and that he agreed that you should go forward nonetheless and make these are guns i will confess to the court that i've had a great deal of difficulty getting in touch with my courage but i feel confident in saying i'm sorry the answer  no you have not had a discussion with your client or out yes i have not i believe that our position is consistent which is there is i'm sorry you vansittart my question  specific question of whether he would prefer to be in butner or be back in puerto rico because they soon that his position has remained unchanged it's very clear that he feels his life is threatened to his puerto nation of yes he's very aware that fact and more to the point of the question that was asked about the experts testimony and isn't he getting what he wants there is a material difference between outpatient treatment and mental health treatment that is available to varying degrees in an institutional setting and his position all wanting is that he preferred outpatient treatment that he could construct and thank you with your client about this point and that you will report back to us within two weeks and joint report and you will let us know whether if you could you could start by telling me why the government did not correct the court or at least bring to the court's attention that it was not the defendant's burden to go forward with this here is your honor i can't speak for exactly what was in the prosecutor's mind at that time but i do think on the record given the way the case it shaped up as a horrible that a reasonable prosecutor could have understood that the judge was viewing the evidence that was about to be presented as mitigation evidence and then that burden does rely on the defendant however at the appellate level when we were reviewing the record it seemed that the discussion of what that burden was or the admission that the acts were committed was not clear on the record which is why we decided to concede the error and not argue that it should purely be interpreted as that the judge was harmlessness arises from simply the evidence that came out as a result of that burden shifting the defense then rather than the government called the probation officer and i do want to no that they were directed to call the probation officer they could have chosen not to it became clear through the testimony that there were some facts that they wanted to draw out from the probation officer which were positive for the defendant ok so you're saying right and what's your argument on that so the argument is that the court clearly took account of the mitigation evidence and listened very carefully to what the expert had to say he stated that he was very impressed with that question her about whether the woman's could be served in a prison setting if the defendant could get the care that he needed and i think it's important to point out that she said he  impeachment treatment under restrictive conditions so regardless of what that if and then might have in other instances that he wanted his expert recommended inpatient treatment i would also like to know that when we discussing that there is a difference between information treatment and the people institution and information treat their hospital yes your honor but the judge specific we ask the expert if that kind of care could be received in prison and she said as then what can you say about the notion that we should meet into ruffian lose some element of voluntariness to whatever extent there is an element of voluntariness it was met in this case for a couple of reasons first the probation officer testified that he spoke to the defendant and the defendant understood what he had to do as your honour's noted previously at least two of the violations took place before the  decision to consume synthetic marijuana but is it negated by his cognitive disability with his mental disability that's possible but it's telling that that's not what the defense expert said she said these things you have two minutes thank you for this exchange i think clarifies at least for me where we got hung up on the term mitigation if we accept that the statutory language of grief used embodies some degree of voluntary and then what we are left with is a record that is replete with evidence that the defendants failure to comply was due to things that were largely beyond his control is connoted problem is that his mental health issues because the bird was in this allocated our position is that the court didn't properly consider how that evidence works in the  account of him and he did i would go one step further he commented that he's impressed i guess and he could he seems to credit the notion that in fact the defendant suffers from mental illness because that's reflected in the way that he structured shit that he ultimately impose our position is that how did it the court understood that those facts and you were to the defendant's benefit because he did not have the burden to prove a negative then the result may well have been different i'm sorry he didn't have the burden to prove a negative with you if i may it was not his burden to prove that he did not violate but it was yes when we get to this ancient question but when we're focused on the question of whether he used thank you thank you