would as if we were in person and so we will stick to the time limit unless of course any of us have questions and we want you to answer them then please go ahead and answer the question even if it's after the time li of the the time will be noted to you about two minutes before your time and we ask again that you please try to stick to the time when we will start today with  case may it please the court the district court and pro impose a procedurally and substantively unreasonable sentence when it failed to acknowledge and address mr tucker's mitigation argument that his history of mental health issues the court failed to adequately explain its chosen sentence because it failed to address mr tucker's main mitigation argument raising his sentencing memorandum and in a report prepared by a licensed social worker rendering his sentence procedurally and reasonable moreover the court's failure to provide any weight to relevant factor mr tucker's mitigating personal characteristics rendered his sentence substantively unreasonable counsel this is judge will go on my ask your question  in the mitigating report that was filed by defense counsel can you address how we should deal with the fact that defense counsel when the district court asked if there's anything you'd want to tell me in litigation or otherwise before i pronounce a sentence tucker's attorney only focused mention specifically the sentencing memorandum but spoke to and only focused on three lines of inquiry which was his lack of  yes so counsel certainly referred back to the sentencing memorandum when asked about when asked about if there was anything that he would like to say in mitigation he certainly referred back to that and these arguments were set forth in detail in not sensing memoranda and additionally in the a report prepared by the social worker  on the fact that it a district court must set forth enough to satisfy the appellate court that it is consider the parties arguments and has a reason the basis for imposing the sentence and here in failing to acknowledge on the error seems to me like it could be plainer because even though he mentions that he filed a memo he never says pacifically the mitigation argument that he relies on on a memorandum the court or excuse me mr tucker put the court on notice that this was an argument that it needed to address and again while in not so many words counsel did refer back to the sentencing memorandum at the sentencing hearing  addressed this issue and we would argue that they take the correct approach and that is that by alerting the court to non frivolous mitigation argument the court is put on notice of an action that it needs to take that is consistent with directly on point on the supreme court or from this circuit that shows that what happened here was violated violated the procedure and that's what i think we're missing i understand your position about  the th circuit and they may have the better way of doing this but they don't we can't rely on a th circuit case to find plant error here you understand i don't think i do your honor and i did just mentioned the mitigation argument you've just got but i'm not sure that really gets you there because of the normally language you want to address that yes your honor and i think it's clear from read it and from you know this court cases that what is going to be enough of an explanation is going to vary significantly on a case by case basis however when you have that when you have an on frivolous argument that is presented a court must go further and address that and here it was that it was the entirety of mr tucker sentencing memorandum was focusing on this argument and the complete absence of the district court addressing it is the key issue here and i think even i think under read about is plain because it's difficult for an appellate court to say that a court has the court has in its questions to mr tucker's counsel outlined many of the points that the united states was going to make this morning so i will pick up if it's a if it's ok with the last point that judge anderson and then move move on to any questions that the court has and i have a few other points i can fill in with the district court in this case did in fact would presume that the district court then considered everything that was within it but one of the unusual things i think about this is that in other cases when there's this type of see that the sentence includes mental health treatment or drug treatment or something to that effect and here there's nothing like that in the prison sentence there is in the supervised release sentence but there's nothing like that in the prison sentence and i wonder if he might address them yes your honor i was in fact going to point to the supervisor lee's portion of the sentence and say that the district sentence in the in the custodial portion typically defense counsel will will ask for those types of special recommendations and that was not done in this case that was there was no there was flatly no mention during the hearing other than the reference to the existence of a sentencing memor um to mr tucker's background has no health history his personal history so the court and as this court is aware the district court cannot direct he in where to hauser what treatments to provide and so but but i mean that frequently been done and i did it myself when i was district court where you recommend  your honor the record does not reflect client's not in the custodial portion of the sentence the court the district court in this particular district usually do allow the opportunity for defense counsel to raise that those requests and then will put those in if they are requested and your honor i think it's really part symptomatic of well it would have probably been better for that to have been a recommendation  think believe it's symptomatic of the overall unusual what's unusual about this case which is the defense is arguing on appeal something that was in fact in a two page sentencing memorandum supported by a two and a half page mitigation report that was submitted ahead of time there's no doubt about that counsel at sentencing and mr tucker because he was given the opportunity to allocute and he did make a couple of statements never said anything about the you know your honor i wasn't on my medication or your honor please consider as a matter of fact the reference back to the sentencing memorandum is made by defense counsel is very interesting what's interesting about it is the sentencing memorandum did not request and within guidelines and the sentencing memorandum guideline sentence and why that small nuanced shift is interesting is because that's the only reference made to the senate taking them out and it's not even precisely what was asked for make a recommendation to treatment or anything like that i apologize ron or no that's ok that's allowed in in that district yes your honor and as a matter of fact in the sentencing transcript near the end the district court asked after having the defendant signed a special conditions of supervised release which this particular judge does in pretty much every case after having that done at the very end of the sentencing hearing he at the district court asked whether or not counsel wanted the defendant a recommendation that the defendant be houses close to tuscaloosa which was his hometown as possible and the court said that it would make that request and then turned to whether or not there were any findings that fat any objection to the findings of fact the calculation of senate or the manner in which sentence was pronounced or imposed and at that point the only objection defense counsel made was to the length of the sentence and that would have been the appropriate time even if the district court or should have would have had a better practice so to speak if it had addressed the specific arguments in the medication report during the bulk of the announcement of it sentencing which took about five or six pages in this case the district court specifically asked are there objections to the findings of fact the calculations of sentence or the manner in which then that's less pronounced or imposed that would have been the time for our counsel to have said nor was any recommendation for the r that program requested nor was any mental health treatment while in custody requested none of that i don't want to sound flippant but the district court gave as much discussion at the sentencing hearing to the mitigation factors as defense counsel to the court they moved on to impose a substantively reasonable sentence the court has not asked any questions regarding that point although we would be happy to address them if the court has no questions on that point we will  honor it's kind of following a bit on judge anderson's question and the government's response and the government is insistent that the fact that the court adopted the p you mean the district court's analysis of the three thousand five hundred and fifty three a factor as it wasn't it wasn't reference and this is not a case of you know the district the district court did not provide any reason for that rejection of this argument for this court to review and that is that's an inadequate explanation because it just it does not set forth and not to show that the court has considered the parties arguments and has a reason the basis for exercising its judgment and recognizing that that there was quite a bit said here none of it specifically addressed this argument that mr tucker  the conditions of supervised release in this case don't indicate that the district court adequately considered mr tucker's mental health and his argument that his mental health and his specific personal characteristics warranted a sentence that was within the guidelines range and it's not simply the and it's not simply the fact that the district court ignored a three thousand five hundred and fifty three dollars a fact or anything such as that is that it ignored the particular argument that mr tucker's counsel presented and it passed over that argument in complete silence you know whether it whether there was michael khomeini thank you and whether there was a mental health condition in the supervisor released still does not make it clear that in fashioning this custody all sentence that the district court considered considered mr tucker's mitigating personal characteristics and that's important for a couple of reasons one for a and i'm sorry your honor i did just want to note that i believe the practice in this district is that probation droste supervised release conditions so no that doesn't nessa's that doesn't indicate that it was clearly on the district courts mind on that kind of to go back to the point of public perception in this case you have a statutory maximum sentence is the highest sentence that this court was legally allowed to impose and certainly noted the facts of this case but when you have a sentence that is  high that is the highest sense that a court can pose i think it's relevant to the public perception of fair sentencing that they understand why mr tucker's mitigating arguments warranted you no consideration or were completely rejected and simply not clear from this record and it's problematic because additionally because the mitigation raised in mr tucker's memorandum speaks to a lot of the concerns that the district court had so for example to protect the public to prevent  isn't mr tucker's mental health and substance abuse issues provided a non incarcerated way for the district court to go about this so rather than imposing such a punitive one hundred and twenty month sentence the court could have impose a lesser sentence than that and simply required treatment of these issues and out under the sentence counsel has the judge will go i guess my my concern with that with that argument is that if if defense counsel really felt that that was a particular issue that's leads in that mr tucker committed the actions that he did on the day in question or as a result of his mental issues or mental illness that that was something that the the defense counsel should have addressed and raised as to hear him when he had the opportunity but he didn't do that and so my my concern is that then it doesn't give how do we if we look to subpoena in the way you would like us to write it how would how is it fair or how does that comport with our other take law that says that we have you have to have a contemporaneous objection for a trial question of course i think you certainly are and one thing that we would know is that you referred to a contemporaneous objection that party is not required to take an exception to a district court's ruling under fifty one dollars b it is enough to alert the court to the action that you would like for it to take and so we would argue that court hold a district court accountable for not considering something that's another one hundred page memoir not articulating you know each and every single factor in a let's say one hundred page sentencing memorandum memorandum was based on this one argument that his mitigating personal characteristics his background warranted a within guideline sentence and where you have a key argument this is the key focus of that where you have a key argument in mitigation that is non frivolous course we're not saying that the court has to address every frivolous argument that is raised and isn't seen memorandum but where it is non frivolous and it goes to the heart of the case the court should on the record address that and in this case the court didn't even acknowledge it and for that reason if there are no further questions we would just ask that the mr tucker sentence be vacated and remanded thank you counsel thank you