i mean the court clearly dismissed those other allegation that's correct the motion of the government and said so and then had sort of as i read it a vague reference to her history so how can you say it's an ambiguous in the moments before she announced her sentence the district court said for all of the reasons contained in the just report i adopt the recommendation and pose a sentence of twenty four months the adjustment port is a written document it spells out in number of alleged deficiencies in misconduct on the part of ms ritchey the district court did not say for some of the reasons or for part of the reasons there outlined in the just report the district court says for all of the reasons contained in the written adjustment report i adopt the recommendation and impose a sentence of twenty four months and i don't think that there is ambiguity there i think when the district court says for all of the reasons we have to assume that it is for not some of the reasons war one of the reasons but for all of the reasons and it and it makes sense that the it just report contains a number of allegations of misconduct and then arrives at its recommendation maybe it could have been more precise demands that we prove this materially false and in this case to the extent that any criminal defendant can prove material falsity in this case i think christina ricci does it that some of the chief allegations that are made the more serious allegations pertain to the of the gun charge against her to the extent that any human being she certainly admits be there with her family and brother right that is i don't think she denies that there was a gun there she said i didn't know i didn't know that there was a gun there which would be that is a necessary fact to find a violation of the terms of her supervised release i understand but if you if you buy that car test she has to show that it's materially false the other allegations that is correct i mean thousand and eight case it came last car is the first house that's from one thousand nine hundred five and on your major we'd have to go with the oldest case right that is that is true but i would say that you said if you subject this case to the same analysis that  malloy were subjected to then christina which even if though you subject this case to the car analysis i think we come as close to proving that materially false as possible the dismissal by an objective assistant city prosecutor  steadfastly denying knowledge of the gun i mean if the tenney have dismissed it because the matter was going federal i mean there's a ton of reasons why absolutely it's mr absolute sense and that's why i think maybe the moves away from the car test because in situations like ms richie's i mean we proved it is materially false as we could there's no there's no way to to disprove a negative in that case all we could say is that she didn't know that the gun was there she wasn't criminally prosecuted for it we denied it and put that and put the government on notice that if they want to rely upon that then they should prove that up i mean that's that's as materially false as we could that's the best we can prove we can't prove disprove a negative which is why i think that in the in the wessels case having seen the change in the shift in on supervised release has been divestments she's had to endure repeated consistent violations constantly getting into trouble is that was there anything else other than the objected ticket she did not tell her probation officer about that ticket and there was she failed to submit i think a monthly report those were the the existing violations walking into the hearing  start she had a prior involving kicking in a neighbor's door that was an allegation that was that was dismissed at the first at the first hearing but in terms of admitted to misconduct we have the seat belt does provide some legitimate reasons for imposing a sentence and we don't dispute what i want to make clear to the court is that this is not a substantive reasonableness case this is not an in adequacy of explanation case  court does have some legitimate basis for imposing some some sort of punishment the question is how does the district court arrive at twenty four months and when the district court is is prompted to explain a sentence of twenty four months the district court says for these legitimate reasons and for all of the reasons in the adjustment report which are illegitimate which are unproven which are denied to reasons those contribute to the sentence that she says  i find at the recommendation is a reasonable one and for all of the reasons set out in the adjustment board recommendation i accept their recommendation so i guess i quarrelling with you going broader than her comment about for all  reasons and just for a board think she says you know she just says i'm adopting the recommendation is reasonable pull the recommendation in the just report is for twenty four months of imprisonment and no supervised release the follow immediately after she says that she's adopting the recommendation she imposes the sentence of twenty four months with no supervisor there's the fall i think that that paragraph is clear that she is adopting the reasoning of the rationale of and the sentencing recommendation of and then the your client an opportunity to question any adverse witness unless the court determines that the interests of justice does not require the witness to appear and here i don't see in reading the record that the district court ever made a no winters or an interest of justice finding and i don't see you arguing that particularly but what what's your position but the reason we don't raise that is because that rule pertains to the issue violation of that particular part of the rule or that the judge failed to make interest of justice finding one other thing in due process argument under the old morse or as you versus brewer based on parole are you arguing that i do versus does establish the due process right at supervised release violations hearings again i don't i don't portend that we are arguing that that the due process rights were violated in the issue of revoke or not procedural issue procedural sentencing issue that the district court didn't rely on the facts for gold called clearly wrongly as facts without records support exactly yes or so that's the that's the sole basis it is procedural error due process rights case yes thank you thank  is arguing subsidy of due process or no subsidy reasonable so i should say i don't think that's what they're arguing here that the sentence was not substantive saying the sentence wasn't wasn't supported by facts in the record i think it clearly was should minute for violations that were not i don't think they're saying or twenty four months is too much i don't hear him saying that they're saying twenty four months there record it's clearly erroneous because there wasn't evidence in the record to support it i think you do have evidence in the record despite support of time i mean i'm just talking about whether the pigeon hole we put this in is this you're arguing subsidy reasonable sentence and i think they're arguing it was a procedural failure well and i don't see the procedural failure counts was argued that the court relied on dispute it i'm sorry disputed unproven fact s i don't see that in the record the court referred to this a just a report and just a report doesn't say anything about miss ritchie knowingly possessing a firearm it's simply adds to the facts of the allegations which counsel himself did not dispute during his allocution at the sentencing on page eight of the transcript he describes what transpired on the day in question when mr rich was driving around with her brother who's a convicted felon they're chasing after her boyfriend also a convicted felon and there's a gun in the back of the car there just a report states the same thing as additional facts in there that she was in fact charged with carrying a concealed weapon that is all true that wasn't disputed by defense counsel the only thing he disputes is that she knew she was set fire on the judge never concluded that she knew she or that she actually possess a spy on why he wasn't one of the dismissed allegations that she had committed a crime by possessing a firearm the allegation was that she was charged with the crime for possession of the firearm correct and she was charge is being charged  know being with a convicted felon is chasing after a convicted felon is ok but to commit the crime she would have to knowingly possesses a firearm that is correct ok but within that was dismissed within that allegation there are other alep violations that's undisputed the court can consider all that the court can consider unproven conduct during the sentencing of a defendant again the court never concluded miss richie actually counsel's argument on which is there are insufficient facts to support the sense that the court relied on facts that weren't proven what is your understanding in the district c room when she said her history of adjustment of supervised release has been abysmal she has continued repeated consistent by she's had continue reading to consist of violations constantly get him into trouble now what does record where in the side the dismissal dismissed charges what's in the record that supports she had three previously admitted to violations suicide it she didn't tell her probation officer she was fined there's three violations on the first petition a minute three others five she admitted to three of them the court gave her a second chance there's other allegations in there she did not admit to however the court gave her a second chance put her on c h for one hundred twenty days she gets off of that she gets a new petition against her alleging four new allegations the one that she did admit to is that she had a relationship with a convicted felon she was not supposed to do and she didn't never report that to a probation officer so you think that the statement by the district court goes back to the original charges well it certainly includes yes  a history of repeated violations so again she was given a second chance and she got more trouble she got in trouble with a convicted felon brother those facts are not disputed she was dating a convicted felon she got arrested there is a gun in the car that's getting into trouble that's putting herself in danger by hanging around parties that possess firearms if she's denying it then it must be our brothers she got herself into further trouble the judge was going to give her another chance the judge sentenced her within the statutory terms allowable right in the middle a judge could have gave her thirty six months the judge could have addressed other allegations or conduct that was not disputed arguably there's two or three more violations in that one incident but again those facts were not disputed by defense counsel he admitted that the defendant no i was with her brother chasing after a boyfriend both convicted felons and she was not supposed to have contact with such parties there's two violations right there those facts are not disputed the judge can look at all that look at the facts surrounding all circumstances expression when those facts are not disputed and can hold that against a she did expressly deny knowing about the got the defendant correct and the judge never found that she was in fact in possession  think the argument is by saying everything that's in the report is part of the reasons why i'm giving the sentence and the report includes committing a crime which requires knowing possession that's the argument well i guess i disagree with that argument because the adjuster report simply mentions the facts surrounding the defendant's arrest it does not say she was convicted of possessing that gun and it certainly doesn't say the defendant knowingly possessed that gun it's outlines of facts of why she was arrested which is true she was arrested she wasn't convicted no one ever there was no finding that she ever leave that she ever knowingly possessed this file that wasn't the judge really reasoning for putting the sentence and the judge clearly define the reasons for the s and one of those reasons was not that the defendant knowingly possessed a file and i asked mr mcwilliams and apparently he's not relying on it but i'd like your view on the rule thirty two by one b to b which calling the witness you say that does not apply here not to the facts that the that was admitted to at the at the hearing now if the if he was disputing that who your witnesses and your charges may be where the charge is but not the facts so i don't i just wondered whether you think that applies in this case not based on the facts that were under speed or if she wanted to dispute the fact that she was arrested that day and the facts outline what transpired during the arrest and certainly she would have been entitled to a hearing and she would ask but she never disputed that i think she dispute it was that she didn't knowingly possess that there was no finding that she did in fact know and i possess that she got herself in trouble she was doing things she wasn't supposed to be doing on that day she was previously in trouble she was given a second chance the judge quite frankly found that she was not amenable to supervision and that putting it on further terms would be a waste of time and she s someone raises objections then the government has to prove it up however i submit that the rules only make the government prove that the undisputed facts for more that there is a sufficient condition of reliability before a judge relies on the disputed facts i don't think it rises to the level of proving that beyond a reasonable i appreciate that your honor clearly to have committed a crime to have violated the law ms ritchey would have had to know that there was a gun in the car when ms ritchey says i didn't know there was a gun in the car the government as at that point two options they can either accept that or they can call witnesses in an attempt to prove it up that's what the the thirty two point one b hearing is designed to do it is i would think if the way that supervised release hearings were going to be conducted is to charge to defend it with very serious allegations and then one nominal allegation and then once they admit the to open up like it's the wild west and impose whatever sentence the district court wants to i think that runs afoul of due process particularly when the defendant is waving both arms saying i did not do these very serious things that i'm accused to have done and when the