at the next cases united states the court this is it we're disaster for raymond crumb this appeal is governed by the supreme court's decision in tapia against the united states top it held that the sentencing reform precludes district courts from increasing a defendant's present in order to promote his or her rehabilitation which includes medical treatment the court here violated  it imposed the maximum prison term on each count of conviction and one of the reasons it explicitly gave for doing so was that the defendants quote very serious need dot dot dot for medical and psychiatric treatment that will take a considerable amount of time that's in the appendix of page two hundred and fifteen this let's assume we we agree with that proposition how do what is where the sentencing court relies on an impermissible factor the issue typically arises with reliance on race or national origin or indigency but this is no different there's a factor that the congress has specifically prohibited courts from considering and if a court relies on that factor the appeal waiver is not to be enforced it's different as a categorical matter from the kinds of errors a statutory one and i'm having difficulty seeing why if we accepted your argument the a pill waiver would also not be given any and in any effect whenever a mistake you know was he a minor participant or a major participant well they said major that was him permissible given the way the the guidelines are written so so what makes this different from from other statutory mistakes that we  routinely ignore well there's a categorical difference in that the party is who are waiving the right to appeal a defender who is waiving the right to appeal understands that there are errors in calculation there are guidelines mistakes there's even sentences that they understand they may get a sense that they think is much too long all of those things are different in kind a reliance on a factor that the congress has specifically prohibited so it's really a two part argument one looks at what it what is the reasonable understanding of the parties at the time that they entered into the agreement and the nd part is assuming that the parties contemplated this kind of waiver for this issue will the court enforce that in light of the public policy concerns that are raised by so looking at each of those two we think this does not survive the court waivers narrowly and strictly against the government and here there is nothing in the agreement at all to suggest that the defendant was was was open to being sentenced to a longer period of time because he was so sick but when it is other transcript like that jest that he was actually sentenced to a longer period of time because of the need for treatment it's true that the court mentioned that he would benefit from treatment and i gather that there is submissions by his family and by even his counsel potentially on need for treatment but that the court referred to factors that are well within that you know are among those there are standard factors and permissible factors and i think there  this consideration yes decree if i may there are several parts i think your question is what i want to make sure i hit all of the most important part is that the court is not merely doing what tapia expressly allows the court to do which is to say look i'm sensing you to a very long period of time i hope you take advantage of the rehabilitation programs that the prison may offer or that you get the medical help you need or that i want you to report to me every six months and tell me how you're doing or anything like that what the court did and this is at the crucial part of the transcript where the court is actually explaining why it's imposing the maximum so this is not a passing reference this is this is right in the heart of the court reasons for the sentence the court says that one of the reasons now to be sure it's not the sole reason we've never contended it's the only reason but the court explicitly mentions both a very serious need for treatment the considerable amount of time treatment would take and then says for all these reasons i'm imposing the maximum term so put it in the language of plain error analysis which applies here the question is is there a reasonable probability that the reliance on this impermissible factor resulted in a longer sentence than the court would otherwise impose and the court this court has said that reasonable probability is not a preponderance test that is we do not have to show that it's more likely than not that but for the error the sentence would be lower there only has to be a sufficient probability that the court can't be confident that the same sentence would be imposed and so there are several mr mr sas let me ask you if the judge simply said you know it's clear to me that you have a very serious need for medical and psychiatric treatment and given the nature of your crime in the seriousness of the seriousness of it and the need to promote respect for law fair punishment and the fact that i really think you're going to need a lot of counseling i'm going to sentence use the following three hundred and sixty months or four hundred months whatever it is that a suspect sentence also yes your honor i think everything was fine up until the very last phrase which was i think you're going to need a lot of counseling you know that could be end big us that could be a judge just recognizing one thing we know and that we know in top you know the it was tied to a specific program it was a drug rehabilitation program and the judge specifically sentenced him so that he would complete the program i was kind of like you know lucky you you get that you get to spend extra time cheryl to be rehabilitated with regard to your drug or your drug problem thank you very much your honor i suppose is the answer there but but this doesn't just seems more more generic to you that that judge the lardo is just pretty much kind of assessing no i wouldn't go that far judge it's what what what pushes this case on the the tapia side or the era side of things is that you have to look at the context this is this is the judge x resolutely explaining in the judges you know they did judge himself says this is why i'm imposing the maximum term on each count and he cites both the the very serious need and the considerable amount of time treatment would take so he's tying th trip it would take to the length of the sentence oh but there's an and before that spray yes so he does what he says i think the nature circumstances the offense the need for the sentence to reflect the seriousness of the sentence from respect for the law and to provide a fair punishment the need for general deterrence and to protect the public from your crime sticky out of circulation for a while aunt the very serious need that you have a medical or psychiatric treatment that will require considerable amount of time they are lead need to impose the maximum sentence and i would close on each count and i did that yes that we don't we don't disagree but remember if you go back to top was not to the exclusion of considerations which one of the six or seven i completely agree with you it is one of six or seven and that's what renders the sentence procedurally unreasonable is that all it is not permitted to consider one of the six or seven but i would just to go back to both your and j qualify for the program you're only needed twenty four dollars or thirty six months and so there was less of a direct line between the length of the sentence and the timing and the sentence was imposed now i should say it is possible because the other factor that the court could remain for re sentencing and the judge may say i've looked at it again you know i've looked at mr crumb currently i've looked at the crimes i mean they want to hear from the victims again all of that can happen and the court could impose the same sentence i'm not saying you know that there's necessarily result but what the court the court's normal practice when when when that sentencing court explicitly relies on a factor that it's not allowed to consider and we just is that a lesser reference there i mean we didn't send it back in that context yes both both lifshitz and a case called gilli are to julliard it was a both distinguishable for the same reason englis the court ruled that the record provided no indication that the that the length of the sentence was based on the rehabilitation concerns so that's what takes it out here you have to judge explicitly basing it did this carry with the judge if the judge did the judge had the people once took a sentence or five years to the sentence or longer we don't know because the judge never said that each factor would independently warrant the well here from the government thank you your honors good morning may it please the court my name is tiffany alley and i represent the united states your honour's the appellate lever here clearly forecloses consideration of what mr pierce through but none of those circumstances are before this court right now specifically mr crumb knowingly voluntarily and competently waived his right to appeal any sentence that fell within two hundred and ninety two thousand three hundred and sixty five months and the way the waiver was written it specifically stated that notwithstanding the manner in which the court imposes the the sentence in terms of the other  exceptions that this court has recognized and which would permit going beyond or piercing the appellate waiver have been instances in which the sentence was not was imposed account constitutionally permissible factor that's not the case here the tapia error that's being alleged is one of statutory interpretation and it's one of which in terms of you know and other sorts of guidelines mistakes or other sorts of errors and senate sing and that the line is not between constitutionally impermissible factors it's between category categories of mistake that's a but that's that's not what this court has held this court in specifically set know what it constitutionally in permissible factors such as you know consideration of race or if there's any  anything along those lines but in fact in united states versus morgan another another one of these cases this court's cases this court's basically said that we cannot breach the waiver simply because there's an alleged perception of illegality of the sentence imposed because the whole idea is to effectuate a policy where the plea bargain in so long as it's knowingly and voluntarily incompetently entered into i know i'm going to add five years to your sentence because this is going to qualify you for every dilatation program and this is an important thing for you to do i want to get reports when you're up out participating in the program and i'm adding five years to your sentence so that you can do this and to enable that thomas says that's absolutely contrary to congressional intent in the sense of reform act that it's unlawful and it's a very  be recognized on player review after on appeal waiver after an appeal waiver that specifically states that so long as that person is being sentenced within the range that agreed upon by the five extra years even though it's within the range that was contemplated but otherwise i would give you five years less you would be incarcerated for january as opposed to fifteen and that comes up after b p a waiver after the  limited exceptions and which you can look beyond the appellate waiver when it comes to the sentence certainly there are sentencing errors in which this court can definitely look beyond the  waiver and you know this court carve those out not not just when the district court relies on him permissible constitutionally impermissible factors but also where the record has been rest of any rationale and one it was full of information concerning not only his physical ailments but all his mental health history so all those things came into who is this man judge florida is going to be sentencing and for the same reasons that he was using all those materials in order in the hopes of getting a sentence of at the low end five years on at least one count of receipt of child pornography  included all that information in and judge florida rightly consider well who is this person that i'm sentencing and this is the person who presents as someone who has a variety of both mental health and physical ailments and that's why he agreed with the recommendation from mr crumb's to be hopefully housed in a medical facility as opposed to a regular abio p correctional facility and so the  taqiyya to the extent if there is a tappy a error it's not clear it's not clear under a plain error review if you look at the record there was you know just lardo firmly spend a lot of time talking about the nature and circumstances of the offense talked a lot about the victims and the impact on those victims and then and then he's to consider his who is this person what are your nature and characteristics while you're someone who's really physically ill and you do suffer from some mental health issues and you know in order to protect the public i'm going to be considering this as well and but i agree that you should probably go to a medical facility where they could probably provide you with appropriate treatment but i'm like chappy and i'm like this court summary order in neal it's not as if the promotion of rehabilitation was evident in any if not as if he did not understand the benefit of this bargain when he entered into this plea agreement and he knew he was told explicitly listen if i give you a sentence anywhere three hundred and sixty five months or  less you lose out on your right to appeal do you understand this and mr crump said yes so under both the framework of the appellate waiver which is presumptively enforceable the government does does not believe that mr crumb has met his burden to overcome that presumption and nd that there are really if you're to look at claim error analysis it's not clear or obvious from the sentencing transcript that there is a type ia error but then notwithstanding that the question is does this is this an error that seriously affects the integrity of the judicial proceedings especially in front of the public you know not when you have an appellate waiver where m totally understand what the consequences were or what his benefits were when he entered into the your honest thank you frankly i'm offended i hope some of you were offended that the government would argue that a waiver like this when there is reliance on a statutory it permissible factor it's nice let me ask you a what we don't know by how much ok only the district court knows that but it's by something otherwise the court wouldn't mentioned it's by some amount the government's  necessarily so you cited several different reasons anyway one of which could have been sufficient to protect the public you know retribution for the harm done to the the victims there's i don't see that there's any reason to conclude that the district court was accumulating you know two years for this purpose three years for that purpose and three years for any one of the factors was sufficient so the question is not is it possible the judge would have imposed the same sentence the question is is there a reasonable probability that he would have imposed a lower since since the judge himself is in sizing the considerable amount of time treatment would take it's a reasonable inference to me that the judge is saying it's factoring into how much time i'm giving this guy i don't see how you could read it and the other way i just want to  to the government's emphasis on the broad language of the waiver and how knowing it was well that waiver is always brought in these cases it would cover a race it would cover poverty it says any sense no matter how the court determines it so that doesn't get you very far think i didn't mean to step on your total failure to find you i'm sorry i just i just hope you agree it's just it's just what i do hope my fear frankly book in closing is that is that since we don't know how much weight the district court placed on this factor mr crumb could be doing more time than he would do if the improper factor was taken out of the equation and i think in terms of the reputation of judicial proceedings and  a sort of a balance of hardship stance would be a terrible price to pay that he's doing more years in jail perhaps many more years based on a factor that congress says courts should consider thanking us here judge wesley again i think you