imposing a sentence that was procedurally erroneous the district court in this case sentenced my client mr garrett to twenty months in prison i believe to assure that he would be there long enough to complete the said quote the court has sentenced defendant to that term that term twenty months of prison to allow the defendant correctional treatment in particular the r d a p program and there some context for that particular statement that statement followed a rather long discussion about what was going on with mr he and his life the fact that drugs and alcohol were essentially preventing him from succeeding and the judge threw out that conversation seem singularly focused on how crucial drug and alcohol rehab would be discussion about rehabilitation there's nothing wrong with the discussion your honor so i'm happy as if you take out the statement you just quoted would you agree that the sentencing would have been proper well you still have to wonder why he sentenced him to twenty months with with the guidelines range there following the discussion that was preceded that sentence in so that i think the sentence would still be suspect because there was a long discussion about the r d p program before hand and then the judge issues a twenty month sentence recommendation was twenty four dollars is that right well that was the recommendation so it's less than the recommendation he didn't fall the recommendation in total that's that's true but it was also almost twice the policy statement range through twelve months and the judge did make that statement and i think we have to we have to assume that the judge meant what he said he said it for a reason and that was his reason for imposing the sentence and the judge having said that this this case is very similar to the grant case i don't know one circuit is as best i can tell from reading the case carefully used plane air standard and found clean air under those circumstances there isn't very much daylight between that case and this case  any even the government at sentencing suggested a longer sentence would allow mr garrett to complete the r d p program quote as we've been discussing this morning it's it's a severe drug issue it appears to be that's causing the violations and so the government believes that additional time is in custody is warranted it will help him to receive treatment the residential treatment that we've been discussing  now later the judge the judge did say based on the information presented the court finds a violation conduct warrants the sentence above the chapter seven policy state and i'm sure that the government's going to use that as an argument that the judge was thinking about lots of things and including but not exclusively alcohol and drug issues i'll get to that i would say anticipating that argument i would say that we still have to we have to reconcile that statement with the earlier statement which is about as clear as can be that he picked that term of incarceration to ensure the r g p program and that  when the judge was talking about violation conduct in the latter statement he was talking about the drug and alcohol conduct that was charged and admitted not other things but the remedy for the top months at this point in time maybe a little bit more and there is a risk on re sentencing that he could get a longer period of time there there is a risk your honor he asked me to proceed in any event so i realize that  are are i think are pretty settled here the issue is an issue of law in my opinion and tapio is the law in this case so i think that the court could entertain that standard of review and as i said even if it's plain air under united states in the united states v grant case the court found plain error on facts that are very very similar to this case now i'd like to go back to the st issue it's an interesting issue it raises the issue as district court heard in not sue a spontaneous setting aside defendant submission once it became apparent the admission was not knowing intelligent and voluntary this this issue i think raises a very interesting legal question that is kind of a rule thirty two point one waiver be voluntary knowing intelligent based upon a material misunderstanding of the the record i think makes clear that he wasn't processing that information correctly and he said things along the way that made that pretty clear i thought well he thought the policy statements over the right would be followed but that's you know it  beyond that i think i think he truly believed and he articulated that belief that he couldn't get more than twelve months and i'll quote a statement he made at the end of the sentencing proceeding  i think that sheds light on his earlier statements and what he was trying to convey this is the defendant at sentencing yeah so basically i'm getting over the mandatory sentence and getting over the mandatory sentence that i'm supposed to be in to be imposed to these are his words because you guys can only give me more no more than twelve months because i already served twelve months on a violation that's statutory minimum is twenty four months now that's a little bit convoluted but i think it's a pretty clear statement on his part that that he felt aggrieved at that point in time he felt that what it was the magistrate judge to do and what the judge had clearly told him that he could get up to court supposed to do in that circumstance and pound him over the head it's twenty five i mean it even if he's exhibiting confusion i mean it's it's a sad thing in our justice system that some people are just confused in the courts and everything right and you can't fault the district court for present and the magistrate judge here having presented the information to someone maybe was confused the best answer i can give to that in you're absolutely right your honor you never know what they really with the defendants really understand but you do i think there's an obligation on the part of the magistrate judge and was in this case to read the signals understand the term of imprisonment and he says well category four i says yeah or cat and a cat in a category four so you know so and then he says and and yes and they says yes you're in category four and he said yes right and i guess i'm out of time here but again he's continues to allude to the policy statement range that's what he's saying when he says in category four in response to the question do you understand the sentencing range he's clearly thinking six to twelve months that should have prompted some kind of response from the magistrate judge certain you understand it's not really six to twelve months it's it's up to what i said it might i just said twenty four months all right thank you good morning ma'am please the court my name is bridgit mendler on behalf of the united states the defendant's repeated violations on supervised release were a serious breach of the court's trust that posed a danger to the public and warranted a sentence above the policy range given defendant's continued drug use and has direct his long history of drug abuse the opportunities for rehabilitation more brightly the focus of the final disposition hearing and tapir makes clear that that kind of discussion isn't just allowed it's encouraged so the question is not whether the district court focused on the opportunities for rehabilitation the question before this panel  much narrower it's whether the district court impermissibly you lengthened the defendant sentence gave him a longer sentence than it was otherwise inclined to give solely for the purpose of allowing for treatment and that didn't happen here as the appellant's counsel acknowledged the court clearly said that the violation conduct warranted the above range sentence now the court did say that it was sentencing  defendant to allow for treatment so as appellants counsel said you have to reconcile those two statements and when you look at the rest of the record the rest of the record is consistent with the statement that the violation conduct warranted the above range sentence now this was tapio says in terms that describes all the things you can do and then says what you can't do and it says these statements suggest that the court may have calculated the light the tapir sentence to ensure that she receives certain rehabilitative services and that a sentencing court may not do now if that's the standard weather may have calculated the length in order to ensure that she received certain rehabilitative services if that was a problem and happy why is it not a problem when the only explanation on the record is the court has sentenced defendant to that term of imprisonment to allow defendant correctional treatment in particular  program it's in this topic it's not your honor because there's no indication that the district court considered a shorter sentence the defendant and his counsel never even asked for a particular sentence in this case and as the court pointed out earlier the government and the probation officer both are recommending a higher sentence the twenty four month sentence and so there's no indication anywhere in the record that the court was ever considering a lower sentence but lengthened it for the purpose of allowing for treatment and the sentence that the court imposed the twenty month sentence doesn't even correlate to a particular length of time that's required for treatment there was confusion at me let me tell you what i have but i'm concerned about having actually sentenced people sensing hearing you spend a lot of time in the discussion part discussion discussing all the various factors that may or may not go into the sentence and i can see how some of the discussion maybe we could leave you with the thought that maybe this wasn't the rationale for the district court but then you come to the serious part of the sentence which you know when the judge actually pronounce a sentence and gives says the court has sentenced defendant to that term of prison to allow defendant correctional treatment in particular the r d a p program and i don't see how that differs at all from what the district court judge said and tap so the government's position is that we need to keep reading if the court had stocks there i think the sentence would have run afoul of tapio but if we keep reading three or four lines down the court goes on to explain that the violation factors but i think here we look to the record your honor and we look to the serious nature of the violations that support the court statement that the violation conduct warranted the above range sentence this was the defendant nd time on supervised release in this case and both times within the st few days and the st few weeks of going on release he starts using drugs again and he starts committing additional crimes so that we are justified to district court without regard to the our d a p program or anywhere billeted of goals to have sent him to twenty minutes but that doesn't seem to be what happened here i mean i tend to agree with you in the absence of that stated rationale the sentence was not unreasonable well if we focus on one sentence that the district court issued in isolation and and we find that one sentence is enough to violate happier then i can see that if we focus on that one sentence you know that it's not just a technical thing you know i think that you know we're not just looking at something that is a rule of law because it's a technical violation there's a real reason for having that rule and that is that the district court actually has no power and and just like in in tapioca the court reasoned you know he can recommend that he has no power and in fact happy i did not get the rehabilitation he needed just like in this case so to extend the sentence for that reason it's just not what congress had in mind well i think i have two responses to that  st the court pointed out the remedy if the court finds that there's a toppy a violation is remand for reason and there's a danger that focused on the violation conduct alone the sentence may be longer i think that even if this court finds that the district court plainly eared in imposing the sentence by violating tapi this court can nonetheless and firm affirm the sentence because the defendant hasn't shown that he's likely to get a shorter sentence and this court as we pointed out in our twenty eight day letter has done that in multiple cases in the past so if this panel finds that that the district court plainly erred the sentence can still be affirmed under the plain error standard which we believe appl it was applied and grant it was applied in dozens of cases where is here the defendant does not object at sentencing to his recently as three weeks ago in the weight and case that we cited mascot an unrelated question there was some discussion about whether further charges were going to be brought in state or federal court do you know if that ever occurred your honor i am unaware of any further charges that have been brought as of yet in federal court i'm not aware of any state court charges either but i haven't scoured their system that the defendant was found with more than eleven thousand dollars worth of stolen money orders and checks that were stolen from the downtown phoenix post office at the time he was arrested on this supervised release violation which is the exact same conduct that gave rise to the initial indictment in this case the statute of limitations period hasn't run for those charges to be brought and so they may still be brought i want to touch on the issue of the defendant's admission and in the last couple of minutes the defendant makes two concessions in his reply brief that are fatal to his claim on this issue st the defendant concedes in his reply that the the it was not required to advise the defendant of the statutory maximum before accepting his admission the court this court in segal held that rule of levin's requirements don't apply to rule thirty two point one admissions and the defendant concedes that there is no case law in the circuit requiring that and indeed there are several unpublished cases holding that's not required so that's one one point the nd point that the defendant concedes in his reply and that was discussed earlier this morning is that the magistrate judge did confirm three different ways that the defendant understood the statutory maximum sentence and so essentially in trying to say that the district court or the magistrate judge should've read the signals the defense is really arguing that the magistrate judge needed to be a mind reader that despite a very clear record and confirming three different times that the defendant was advised of the statutory maximum that somehow the district magistrate judge should have intuited that he was that he was confused and rule eleven and rule thirty two point one don't require judges to be mind readers and that's an unworkable standard that the defendant is urging and the defendant's best point for saying that he was confused was the statement at the very end of sentencing where he says but wait you can only give me twelve months and that was at the final disposition hearing in the final few minutes as the defendant is literally being ushered towards the exit by the marshals and you seem to be surprised how well he you know the defendant and i think this comes through in the transcript the defendant was fairly confrontational and belligerent at the final disposition hearing and so he's making these statements as he's being ushered towards the door by the marshals but if the defendant is allowed to invalidate his admission or his by saying at the end of a sentencing after he has received a sense that he was somehow confused about the amount of time he would get that would jeopardize a lot of admissions and a lot of pleas defendants could wait until the very last minute after they received a sentence if they were unhappy about it and explain that they were confused and seek to withdraw it and this court doesn't allow that we focus at the time of the plea or at the time of the admission is the admission knowing intelligent and voluntary in the record here from the admit deny hearing it's clear i was at the hearing the record confirms what we knew in the courtroom it was clear that he was advised in multiple ways so we asked the court to affirm the revocation of defendant's supervised release and the twenty month sentence that the district court imposed thank you case just are going to be better for decision