procedurally unreasonable and two that it was substantively unreasonable the first issue that mr lopez would like to address on appeal is that it was procedurally unreasonable and sentencing mr lopez the court sentenced him under a guideline range for a grade b violation for violation of supervision or support supervised release however mr lopez actually pled guilty to a violation of a grade c violation of supervised release which would be violation number one of his petition mr lopez agreed and admitted to illegally using substances that were illegal however he did not agree or admits any other violations that were that were noted in his violation petition because the court sentenced mr lopez under an erroneous guideline range sure your letter contained the same error in the sentencing letter it did not judge  range of ten months of imprisonment followed by four months at a halfway house or community confinement as part of one year as part of a one year term of supervision in this case  lopez's mr lopez was sentenced in this way because he does have a history of mental health and substance abuse problems however and in sentencing him the district court judge said that he was not going to give mr lopez a guideline scientists even if the court were to say that a ten month sentence follows within the guideline range here and not take into consideration the four months at the halfway house this would be a guideline scientists  and the district court judge said that he was not going to sentence mr lopez to a guideline sentence and this case the district court did not impose a sentence the way it did because it was worried about mr lopez's mental health issues but there is no guarantee that mr lopez will actually spend the first four months after he is completes his bureau of prisons sign tents at a halfway house  in my experience halfway houses are often run out of bed space there is no space for inmates coming out of prison more more than likely mr lopez will leave the bureau of prisons there will be a period of time he will not be in  halfway house and then he will be placed in the halfway house it's our belief and it's mr lopez assertion that being in a halfway house is tantamount to confinement as a substitute for confinement and the guidelines a lopez this was mr lopez's first violation of supervision i will note that there were previous modifications based on mr lopez's mental health issues his mental health issues however he was never violated i did address that with him last week it appears that he is off his medication he has schizophrenia he does suffer from p t s d and he is not taking his medication at the bureau of prisons because he said that he did not want to take  medication at the bureau of prisons he was worried that if he missed a dose he would go back into segregation and that caused some concern so when he does get out there will be an issue that there is just a procedural error that warrants remain and because district court was operating under an improper guidelines range judge and so for that argument does it make a difference that the district court began by saying i'm not going to give  well enough to cure that year but i think in doing that the judge the district court had to determine what the guidelines actually were and then you know determine that you know these are the guidelines which he did and then determine that he was not going to give a guideline sentance it's not as if the district court said that i'm not going to consider the guidelines on and i think that the case makes it clear that the court has to consider the guidelines in this case the district court considered that there were  good morning your honor may please the court tiffany only on behalf of the united states attorney's office for the western district of new york we are here your honor the government does not and does not quibble with the fact that there was an believe i would refer to the supreme court's decision and molina martinez the government concedes that yes under molina martinez defendant does not have to show more and say you know i in addition to the fact that there is this error my substantial rights were affected but the government and this under these particular circumstances on this record believe that there is as there is evidence to show and order for this court to exercise its discretion i guess under the fourth prong of oman no and that's what the supreme court kind of recognized because in its discussion of the fact that sometimes you know these calculations may be off but that doesn't mean a district court judge can't say this rick judge makes its calculation early in the sentencing right beginning the sentencing and it's not until after all the discussion that the judge has i will not impose a guideline sometimes but it does given the sequence it does sound like he's starting from eighteen to twenty four months as a starting point and what what would be the harm in something in the back and saying would you what would you do bios you're saying we should be we should be sure based on this record that that if indeed he knew that it was seven to thirteen he would be imposed he would impose the same sentence how can we be so sure  that your honor i think judge when we're starting with the guidelines because that's what he is obligated to do as a sentencing judge that's where he's going to start but ultimately when he says that i'm going to depart from the guidelines i'm not going to impose a gu guideline sentence it's not even as if he's saying you know what i'm going to give him a reduction of two levels that bring him down to a grade c violation he makes no mention in the record i'm going to impose a sentence as if he's he violated a great ca as opposed to a grade b he basically looked at the factors looked at that the fact that mr lopez had all these modifications looked at the fact that despite mr sloan's he's efforts to categorize this as just a single months that could very well be what he meant war he could be saying the guidelines are irrelevant as far as i'm concerned by the broader statement the court will not impose guidelines and i don't think it's latter i think with respect to this particular district court this court has never found itself mord by the guidelines so i think this is this  was and mr this was basically judge clamors effort to craft a sentence that he felt appropriate taking out take the guidelines out of the equation he considered he saw where they work but ultimately in looking at all the factors because he could have easily given mr lopez a sentence of six months mr lopez a sentence of twelve months and a day but he landed on ten months on his own i mean this was contrary to the positions of probation and the government as you said at the beginning of your argument molina's martina's it's pretty clear that in most cases that era at the beginning is going to be enough to create a reasonable probability and not to send it back and says to ask the district court would you done anything differently and and this and it's our position that melina martinez though also says that the appellate court has a discretion in its framework to think about this is this an error it's such that it really affects integrity you know confidence and it's possible the probation and the government would have made a different recommendation if they were working from the correct guideline range i do not know i do not know why i probably would have recommended imposing a guideline sentence how does anybody know what he was talking about if we don't know what we don't have correct on i think he's he's saying that respect to irrespective of what the guidelines are he's going to impose a non quite fine sentence so he's imposing a sentence based on the factors that were before him with respect to the violations based on what mr lopez presented as being a persistent and as being an individual who had persistent issues with drug use mental health failure to comply with probation failure to report to probation and while he only pled guilty to the fact that he used  know on multiple occasions cocaine marijuana and various other drugs the fact remains that even a mistress lewinsky's sentencing letter mistress lewinsky says that his client emits to not reporting to probation as you know based on what you're saying is going to be a day in jail right and and you know i have a hunch what would would george larmer is likely to do but no one knows he might say you know anyone does on a personal level but in my position here my argument is to you that basically the framework here is mainly on that last problem and so it's up to this court to exercise its discretion with respect to the last problem and then finally we would have you know i mr sloan's he raised in the reply brief the failure on the statement of reasons to that and the government wouldn't have no objection to a limited and just so that the court could 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