served which was the equivalent of four and a half years in both commentary to the guidelines and in our case where a defendant original sentence  i mean there were a number of aggravating factors so to the extent you want to say that thirty six months was not within the range that was a vailable to the reasonable sentence i am not sure i understand your argument well my argument is that a sentence of two and a half times the top the guideline range almost two years above the guideline range even in light of these factories was not sufficiently compelling especially with the concern that judge irizarry considered other inappropriate factors in her sentence and her sentencing as is clear from the record the court mentioned not once but that right well she mentioned that he that he had made substantial efforts to lead a law abiding life she mentioned this fact twice a first time was in her general remarks about sentencing where she said you were with an underage girl i'm not buying this nonsense of well you know she looked older she said she was older that's garbage those were the explanations that were given by law enforcement for why they did not pursue any charges against mr without the district court's written while she didn't mention those factors in the written explanations they were abundantly emphasized in the oral in the oral explanation of sentence and of course that had been an original violation and that was not a challenge to the hearing the court made no finding as to those facts and not something she should have considered and when is to fail to dispute those facts and sentencing and in fact admi not deny that there he was with his attorney it meant that he was staying in a place where there was access device equipment that the second that secondary issue he stayed in an apartment as an overnight guest where there was device making equipment  that he was never charged with that and it was not his device being equipment he didn't admit that it was his and he was and that was never do dictated by juries are and she considered that as well as as additional criminal conduct in addition to the cr that he was actually thank you and to which he was sentenced again well above the guideline range by the georgia federal district court my concern here is that the court considered inappropriate facts in determining the sentence and at least bringing it up to the high level that it was and also that the the explanations that she did provide were not  sufficiently compelling to warrant that kind of high sentence i'm not suggesting that she couldn't have considered the fact that he absconded even though that was a violation that was dismissed but that's an undeniable fact of its course and she could have considered  months recommended of course the judge is entitle to consider for instance the fact that it's and who of scott did was someone whom she had given a considerable break to and therefore one mr wins thirty six month sentence here and i think in the words of judge chin and case may not have shock the conscience but i think it did stir the conscience and to the degree that it can be avoided a person shouldn't have to fear a two there had been previous violations of supervised release over those violations were quite minor he had but that that's you know this is this you or your description of this being so harsh well there were minor in the with the reality of this case where his original sentence was on the lenient sign he violated terms of supervised release  was not sanctioned in any way for the reasons that you suggest that perhaps they were minor but your story of this case is not a story of a judge who is being excessively harsh thro recognizes that he was engaged in gang activity involving drugs and weapons for his him to be making contact again with people in that milieu is something that many otection correct and it's only scotland's further criminal conduct that he's being incarcerated again and you're here you started out your opening statement to this harsh sentences and violations of supervised release which whether they are unwarranted or not is left to somebody else but but i think in this particular case her sentence was unreasonable all right thank you may please the court good morning my name is david pitt look i'm an assistant u s attorney in the eastern district of new york and i would just like to focus on a couple of things related to the breach of trust that the court has touched on what i'd really like to emphasize one is that the the repeated violations of supervised release began three months after the defendant was released from this very very very lenient sentence from judge irizarry and they started with as the courts recognized gang association serious gang association with people he committed this crime with and the judge gave him break she put him on home confinement which he violated he violated the conditions of home confinement that was part of one of the violations of supervisor released report but then he absconded never heard from until he's arrested  and is his reasoning when he comes back is i had to abscond because i feared for my safety for people that testified against me or that i testified against or cooperated against apologize he didn't testify and the judge addressed that in her sentencing saying that's ridiculous you associate it with fall and now you come back here and blame the f b i and probation for doing that when they when they specifically tried to help you so the breach of trust is big become compound and not only does the defendant take advantage of this lenient sentence not only does he repeatedly take advantage of of his her lenient conduct related to the violations of supervised release but when he absconds commits a new crimes he comes back and says it's not my fault and the judge addressed that and said that's nuts just that's just not true you're taking advantage of us and i don't know how many more times judges are needed to say this is a sentence for the breach of conduct she was very careful to say that and two separate occasions the beginning ever sentence and at the end and everything in the sentencing was viewed through  so i don't believe that this is this is a sentence that is manifestly unjust as the second circuit standard is for for a above guideline sentence in this nature this is a sentence is the court's alluded to that is is related to a agree just breach of conduct in the view of your adversary there was no hearing there is no specific findings is that is that a problem i don't believe it is your honor because it was as we pointed out in our papers it wasn't  basis for the sentence i think the case law makes clear the judge is allowed to consider the defendant's conduct in assessing the breach of trust that's made perfectly clear the judge made as we said two references to it one of which was in response to defense counsel and the other which i believe was a response to the defendant who spoke at sentencing and addressed this this violation i think she did or this this conduct i think the judges is more than allowed to reference it but i think as we pointed out this is not the case where the something should relied on in making her sentence abundantly clear from both the oral pronouncement and the written pronouncement that this is based on the breach of trust and that all of those factors is what you can consider in the breach of trust she didn't come out and sam sentencing you to thirty six months in part because you were caught with an underage girl in new