imposed on the parties agree that a remained as required to strike the improper supervision condition in fact the entire judgment should be reversed because the district court did not follow due process in considering revocation as a distinct exercise of discretion also the above guideline sanctions imposed were based on legally impermissible factors and lacked adequate basis or explanation the supreme court when they when you explanation for either one of us the supreme court in morenci indicated that a violation hearing has to be conducted strictly into three discrete steps by finding a violation conduct then the determination whether that warrants revocation and finally if there is a revocation what kind of sanction if any are modifications now i quit reading the entire transcript it seems to me that all of those issues were covered i mean i have i was actually very impressed with this transcript they think that the judge and gage in a very meaningful dialog and ultimately they came up to the right decisions as far as minim is violated therefore supervised release will be revoked and i am prepared to move forward to sensi in that space of three sentences the court runs through all three steps but the step that's in the middle even though there was quite a bit of discussion even though this was an admission the court of course read the allegation and made sure that mr asian understood what he was a he was admitting and then there's a very lengthy discussion of the sanction but the only mention of the revocation is right here in that one sentence or he says therefore supervised release will be revoked but under morsi that is a co equal in fact i would say even under diaz burgos it's not this court's case which is a case of the government cited it's a it's streaming important decision that's separate from the other two and deals burgos the court said the judge must still decide the more difficult issue whether the violation warrants revocation because violations i'm like guilty pleas do not automatically trigger sentencing well that's exactly the error that the judge committed here ok but but our review is only for playing there right and it it's true the strikes me as the i'd like to be heard on the issue of whether revocation should even occur surely the judge would have paused for a while you know you know and i thought about that and i think there's plenty of places in the law we recognize that that can't that doesn't always happen for instance with the  where there's a general rule that you are required to object but we also recognize an exception when the judge doesn't give you an opportunity to do that we say well then we're going to recognize that and that's not really the case here sometimes judges on the say i'll give you an opportunity to persuade me otherwise persuade you but it was a only about the sanction minutes he had given his tentative sentence and he wasn't open at all to the idea i mean he had already made up his mind i would claim that it was so it was so streamlined that you could say that in a way this is a violation of the guy having seventy one point three that he was treating it as if it was automatic grade c violation automatic revocation that's what it looks like from this record and that's not all that's that's a violation of the guidelines to begin with but it's certainly not living up to what morsi pictured as the winner of the middle step that  burgo says is the more important the more difficult question whether there should be a revocation yes some of this specially with a grade c violation grazie one admission one admitted grazie violation is a question like well is the defendant is the system best served by a revocation at this point and i say that up on the basis the facts here show this is a very good case for continuing on supervision with modifications everybody was recommending modification it's to make the treatment more effective and that is a statutory consideration the court was supposed to look at it can i let me just make a statement and you tell me if i'm not getting the facts right i guess i assumed the reason there was no interjection of you know by defense counsel here is because everyone knew coming in that this was likely going to result in revocation because wasn't the case that sometime before this hearing occurred your client had done something wrong and they had continued him and so he had already kind of slipped up and they said now well we don't want to read revoke you now then he slipped up again and it's like ok well once we got to this point everybody knew what was going to happen that would point to that fact that earlier when after he got off probation and he did he served a custodial sentence one plus one probation was revoked and then he was reset and still given some just total time put on supervised release after he was released from custody didn't report in right away and the probation officer dip considered filing petition had a point but we can stop consultation with the court they decided well no on the whole because he has this very good employment which is really important to keeping him on track they just say we're going to let him go i think that's important because it shows as far as the reasonable probability that this error affected the case this shows that the judge was not completely and utterly closed off to the idea of continuing revocation because he actually did it earlier when the probation officer said when someone had the chance to advocate for that that's my point when someone like the probation officer could actually advocate given the opportunity but when we come into this hearing here the judge didn't give any daylight for that and we you know i know as an advocate in the court i'm not going to a challenge i'm not going to sometimes push back against the judge who's already decided is i'm sure you that's what i'm saying that yeah i think defense counsel didn't hear because it was so odd yes that revocation was going to be the response from the court and and i don't buy your notion that somehow the defense lawyer was cowed into just saying oh boy it was a i have this passionate defense you should be continued but i know i really are because it is counsel pointed out that then defense counsel did later on while discussing the sanctions try to slip in the idea like oh maybe we should just modify put him in red red put him in a residential so that he continued to work i mean he did try to work around the way the judge had structured the hearing but yes that makes it plain air but that still doesn't change the fact that the judge did not follow the procedure th morsi and the case law of the circuit require that you give serious consideration you give an opportunity to advocate and more importantly you make a reasoned discreet exercise of discretion that yes revocation is the proper course in this case that didn't happen here and i have met at this is happens frequently in the district courts maybe just an hour just for it that's a good reason for this court to speak to that and say this is a real legitimate important step what should take the time to put their reasons why the revoking on the record and not simply blow past it right into  engaged in a thorough and exhaustive and corey before revoking supervised release and then imposing it sentence and as your honors have all acknowledged and recognized the district court gave mr h and and his attorney both ample opportunity to argue in favor of extension or modification of supervised release as opposed to a custodial sanction which of ultimately imposed and i do think this judge wofford you observed that revocation was the likely result here in light of mr a maybe i don't know i'm just one and i can't remember what you said in your brief to do you can see that well maybe technically the reserve but it wasn't plain or you don't think there was any or no i don't think there was an error in this case at all there's no wooden requirement that morsi imposes in fact mor itself says there's a flexible approach given the sort of lower due process standards that in here in these revocation type seedings there's a flexible approach that simply requires the rev a key to have an opportunity to allocate and to  position and urge the district court to extend or modify supervised release as opposed to revoke and that the district court did hear so e r eleven's following that that revocation statement on here are ten the district court specifically stated  so that's my tentative you can obviously try to talk me out of it but i will tell you that i am well go ahead and then as mr feith observed what mr garrison the trial attorney below did was in effect argue for an extension or that i mean it's that sort of together right and you know that and i think that that's really what mr garrison and mr aiken also took it to mean because both advocated not for revocation and a sentence but for continuation of the conditions of supervised release mr aiken who you know are sixteen for example says i just want to be a taxpaying member of society i will do outpatient treatment six months a year give me another shot the district court ultimately didn't do that and we know that  mr aiken's poor performance and what had happened previously and as your honor observed in this case after probation had first been revoked the court already did want allow mr aiken to continue on supervision with modifications to his conditions without revoking and that's clear from twenty five in the petition where that probation officer says as you recall your honor i brought these prior mile ations to your attention but we elected to continue no with supervised release that happened and record forty as well during the probationary period where there was actually a written modification that was in imposed so in this case i think the district court did everything it had to in order to provide mr aiken whatever process was due in order to determine whether replication should be that revocation was appropriate or extension or modification of the supervised release and the justification for five years was there any  eighteen months he defied the orders of the court to report to probation and instead went off to go have what he said was a fat t bone steak that sort of cavalier attitude for the court was not something that he would entertain in order to deter the defendant from future misconduct as well as to and this is appropriate for supervised release rehabilitate him from his sort of crushing alcoholic and substance abuse problem this is to court viewed it appropriate to have a longer period of supervised release which was five years but with a carrot or an incentive which was look mr aiken if you can perform i will contemplate terminating supervised release early and we seen this happen in district court where they sort of offer carrot which is i'm going to put you on a longer period of revised release in light of your repeated history of in certain violating conditions but if you behave and if you comply with the court's orders i will terminate supervised release early and that's what the district co did here at a minimum it was not so plainly erroneous or an explanation from what the district court said as well as what's apparent from the record that reversal graham the only thing we would concede is that condition for should be stricken from the judgment certainty and even less than a likelihood of a positive outcome and here the judge not only was convinced when there was advocacy convinced to just continue on supervision but he also said here at this hearing i will consider early terminations here attorney plain errors that error of the judge and here the judge just didn't do what he was supposed to do there you have to go there was so much more discussion as i said about the sanctions and about the allegation it was an admission but even so the judge took time to go over the admission with him now as part of a general brain all about the supervised release all the judge two instances of impermissible factors being used in the court's decision to impose supervised release rehabilitation and punitive factors those are clear on the record that sentence should be vacated thank you very much case just argue to submit