good morning your honor katherine young from the court of public defenders office for the appellant or a to hush or and i'd like to reserve some few minutes of my time for a battle if i may in this case your honors ms hush or challenges the finding that she had violated the conditions of her supervise release an allegation for on the ground that allegation for did not allege a violation of conditions of her supervised release the government's proof does not dispute that allegation for did not allege of mileage never supervised release and the government not dispute that but action officer violated the conditions of supervision instead the government argues that ms howe sure waived her rights but the government's authority requires a knowing and voluntary waiver the government's authority foul cites two cases addressed in our brief in which a defendant's admission to violations of supervised release were overturned because of a lack of knowing and voluntary waiver and first off you didn't challenge count four in the district court that's correct your case in both of those cases the defendant admitted the violation it was overturned on appeal because they found a lack of knowing and voluntary waiver and in this case no one told ms howe sure this was not a violation of the conditions of supervision that in fact th sentence is unreasonable well i think you're on your corner for mess hasher you know had you know not a terrible person but a terribly addicted person that really struggled no you're right your honor there are three allegations that in this section of the brief are not challenging we're just saying that the fourth is legally invalid and needs to be stricken and then our argument would be that because it was part of a sensing package that became unbundled the sentence there is ample basis to support it isn't that the end of the inquiry well i think there's a case cited in our brief in which the court has held that if there's a sentencing package that includes numerous counts and one of those counts is invalidated the package becomes  bundled and therefore the sentencing needs to be revisited and we sort of all know what happened here that when she went to this you know she she agreed to go to a program as opposed to going to jail when she knew she was messing up and i think she had a probation officer that was bending over backwards to try to make it work and she and her lawyer you know i mean that's human nature if when you say what you want to go to jail do you want to go to a program well everyone says they want to go to a program and that even you know but you're saying that the probation officer didn't have the authority but she and her counsel agreed to it because that seemed like it was a good idea at the time and then things just continued to oh if that's that's not what happened though in this case your honor what happened was in two thousand and thirteen she had a dirty test and at that point she was in the southern district of california and her attorney in that case agreed to a modification which required attorneys agreement anytime she was sent to inpatient treatment a year like a year and a half later she's in the central district just fiction has been transferred and the probation she has another dirty test the probation officer sends her or says go get into in patient treatment without involving her attorney and so our problem here is that the probation officer did not involve the attorney as she was required to do under the terms of supervision didn't see court approval issues required to under this court's authority and as far as a and has she done that mrs hushabye that had the assistance of the attorney or the court in getting into a program because the problem here was that she refused to go it was that she tried over and over again she didn't have her insurance wouldn't be approved by a program at her medication and they knew she couldn't get to months of medication and she needed to go to another one and she tried but she herself was unable to do it and the probation officer didn't help her when miss usher said i can't there's a program that will admit me but i need sixty days of medication in my insurance company won't provide me with it the probation officer didn't intervene she just called the  program nine days later the robot the program said well we really only require thirty days and the probation officer didn't see if anybody could provide thirty as a medication just violated massager one of us and her mother i mean this was your client's in her fifty's and i guess her mother just said hey what am i supposed to do you know at what point do i get to not be a mom anymore but all of us that are mothers know that that the answer is you never get to step away from being a mother or however old your children are but i mean it's a sad case but it's it's hard to see that there's really there would now she has the right now she is in custody when she's got to get out january third ok soon yes  well i think that my request is that allegation four should be stricken because i think it's not a violation of supervised release and she shouldn't have a violation on a record that's not a violation and then i think that there needs to be sensing because in the package becomes  so the probation officer doesn't have the ability or the authority to say to someone go unilaterally go to inpatient care or i'm going to send you to prison and that's what happened in this case had the attorney been involved had the court been involved it would have been handled for them all their lives and so i think she got into a period of her life where she fell into drug addiction but for a long time in her life according to the p s r she was a very hard working and contributing member of society and so she did good morning your owners and employees to court steven rayle for the united states runners the district court did not air let alone plainly air and accepting the defendant's admission to four violations of supervised release where the court appointed counsel to the defendant and i think it's important to know this isn't just any council this is the same counsel the represented defendant less than a year prior and a supervised release violation where the court fashion an order that she would do in tented outpatient care and enter into the r r c also where the court advices defended of the nature of the allegations against her advice the defendant of the consequences of her admission and advised the defendant of her right to a full evidentiary hearing as to the allegations against her and where the defendant waives those rights along with counsel and agreed and admitted that there was a factual basis along with her counsel  for the allegations and what there are cases that supports the notion that a waiver is not knowing if it turns out you know the charges and no right so but as far as this particular issue contesting this issue all the cases well there's only one case nesta spars a case that was cited by defense where the court held that a condition where a judge allows a probation officer in that case it was a mental health treatment facility and that case cited government statutes allow for mental health commitment in this case those facts don't exist the judge fashion an order that  required the consultation with the fan and her agreement and the agreement of defense counsel before probation could order that treatment for the probation or and so if the court does want to address that issue we just believe that it doesn't apply in this case that that there's no evidence because there was no evidentiary hearing at the district court level there's no discussion as to whether or not that condition was complied with the government further argues at the district court here we have an admission and it's important as you read through the record when it came to allegation number four there was a pause in the proceedings where the defendant raised the question and the judge asked do you want to consult with your attorney you want some time and time was given for her to consult with their attorney she came back she was revised and she said i want i'm ready to admit that allegation number four and again this is the same attorney that represented her back in two thousand and fourteen less than a year prior when she was ordered into intensive outpatient treatment into the r r c and this this attorney in her comments to the court said i believe the court i believe her probation officer have done everything that they can they've done all the right things in this case so there's no evidence in the record that that specific requirement was in compliance or wasn't that where was her mother's state exactly which is listen mother at the hearing where how did that  or helping to pay for a treatment program procedural errors as far as imposing the sentence and that this court is only ever once found a guideline sentence was unreasonable and so the sentence here was reasonable and the sentence should stand and the government would ask the court the district court but that was a violation of course order by the honor that again it's not clear there was never a hearing at the district or there was never a hearing at the district or there was never testimony offered by the probation officer from the violation report record i agree there is no record in there where the probation that would be she she admitted she gave a full voluntary knowledgeable and mission to that allegation and now she essentially want to do over and we just don't think that there is precedent for a do over in this case  honor in situations of supervisor lisa i think from the record in this case there's a number of programs from the in marty program to the r r c program to the intensive outpatient care program to the  in house drug treatment programs a probation officer gave it in this case a long list as she describes potential treatment options including the gibson house which was right down the street from the probation office which was free and she said that there i apologize your honor the probation officer indicated in her violation reports they had when she contacted the gibson house  in the violation report on page two on december second two thousand and fourteen the probation officer i contacted the defendant the defendant in any case she was working the salvation army which is a free program out in riverside county  believe it's in riverside county i believe it's in paris california but the probation officer also provided her with an extensive list of residential drug treatment programs as well as a free residential drug treatment program with available beds named the gifts and house and this was on december second two thousand and fourteen according to the probation officers report well over the years all she's trying to number program or you know a number of programs is trying to assist or yes and that's highlighted in the probation officers report where the probation officer again dissent lee says look we've done everything we can to help this defendant where she available work the violation report in this case is relatively thorough and in and lengthy it's one of the more detailed ones i've seen where it appears this probation officer again would go to her house to meet with their had gone to the community to meet with their had  spent roughly two months just working with they're working with they're working with her giving her different options she even when the defendant had problems with the particular lab that was testing her or complained about the lab the probation officer said ok well i'll get you i mean she's basically almost done with their sentence but could the court then order her to residential treatment is her any authority still hanging overhead my recollection understanding was that supervised release was terminated upon completion of her sentence not to my knowledge there's discussion in the violation report as to having insurance and her mother being willing to help and always voluntarily but here again as a part of what the court has left she couldn't correct the government has no more thorough over she know exactly but i would guess a number of years you inpatient drug treatment and she thought that might be the panacea that might be the program that would work for i think everyone has to find something that will work for them which hopefully she will be able to do but she'd have to do it on her out she would have to do it on her own now so i want to address a few things one is the issue of whether or not the record shows that the probation officer complied with their obligations to notify defense counsel and mr merrill just characterized the probation office violation report as relatively thorough and lengthy so if she had talked with miss usher's lawyer you know it would be in there and it's not she did not contact the lawyer she was required to do mr merrill also talked about all the rights of which ms how she was advised but she was not advised of her right not to be violated for something that's not a violation of the terms of her supervision when she had a lawyer we don't know what he said well in the two cases cited in the brief anyway i only said to her lawyer you know i don't want to go to a program just send me to jail and let's just get to suffer with i want to get off supervised release but she said that to him well i think i could shows she really wanted to get into a program she really tried hard she thought it would help her but she just couldn't do it on her own and i just want to point out that in the  cases they looked at the record to see whether or not the defendant had knowing and voluntarily waved her rights and here if you look at it when she's asked to admit to the violation she says first such as i have a question but i admit it and then the court says say it again and she says i have arguments with that but can deny it so the the allegation itself was having been directed to participate in a residential drug treatment program approved by the u s p o you failed to enter a program on its face she admitted it because it's true she was directed by the p l o and she failed to do it our argument is that's not a violation of supervision because the p o can't unilaterally order her to go to drug treatment and have the people complied with the p o s obligations she would have had the assistance she needed to get into a program which is what she really needed to required to you don't represent her anymore right now but i think we have resources in our office to try to find support systems for people when they need them for our clients but i there's just one thing i want to touch on that the prosecutor was quoted and i think we have i'm not familiar with programs but i think we have people in our office that are familiar with programs so that they can assist clients in finding the appropriate program the probation officer talked about the i mean the prosecutor i'm sorry talk about the probation officers violation report page two where it said that the probation officer gave ms hush or the name of gibson house that miss hester in fact went to get some house and that was the program that required either sixty or thirty days of medication which she couldn't afford so that's why she couldn't get into gibson house and unless there any for the those over a wonderful job or only i appreciate your compassion your honor and i hope my client can get the help she needs because the p s r shows that at one point she was a very hard working mother very you know contributing member of society and i hope she can get the help she needs i appreciate your compassion thank you very much