revocation hearing and there are two reasons why this court should reverse and remain first a defendant has a right to retained counsel of choice at revocation and second given the circumstances the district court should have granted mr smith's motion for continuance in this case your honour's the timeline in this case is of particular importance to our argument so i want to lay out a few of the significant dates that we're dealing with here today mr smith was arrested received his initial appearance on november tenth and november tenth two thousand and fifteen three days later he was notified of his revocation hearing and that was the same day as his detention hearing which was a friday and then he had his actual revocation hearing the following thursday at one thirty pm there he asked for a continuance to retain paid counsel and from the federal rules of criminal procedure thirty two point one which gives a defendant a right to counsel at a revocation hearing and here's the exact language that the federal rules use it says the person has a right of ahead the person receives a notice of the person's right to retain counsel or to request that calico be appointed if the person cannot obtain counsel now the competing principle that we have to in this case is that this supreme court and this court have both recognized as the government were surely point out that the rights the defendant possesses ad a revocation hearing are not the right and even the soon trial right eve of trial in the trial a request for continuance based on attorney breakdown those are assessed according to multiple factors yes your honor and i guess it's pretty established citing you know especially silver that we would be reviewing the just warts non continuous here for abuse of discretion that's correct am i right that then we do have to just look at whether there was a clear error in the waning of the factors and the conclusion that it was eleven tactic when you have to establish that or your honor he wouldn't be a formal establishment of clear error we can establish the abuse of discretion by showing that the district court weighed the factors in an arbitrary or unreasonable way and that language actually comes from a case out of this court in neal versus state of texas from one nine hundred eighty nine so your honor assuming that we see any implied or a right how much time allowed for them at that at the national hearing you scheduling the hearing the future hearing correct your honor not exactly the initial hearing that the detention hearing was then scheduled and then on that date the revocation i understand but but that includes two weekend days and i think that's an important point when we're talking about an individual who was in which they all went when did they give notice they want to change lawyers they gave notice at the morning opposed the continuance in the reasons given by the district court because i think it's important that we're very precise on those three things or those two things the government gave three reasons for opposing the continuance when it was when it was sought the  is that they had three witnesses as you mentioned judge higginbotham the second reason is they said that he had had a look around a week of notice of the hearing to figure this out now we think that that factor actually goes to our faith in the third reason it was a mention that the victim of the alleged assault in this case that led to the revocation had been contacted in some way it's not clear by whom or in what way but that was mentioned is the third reason by the government now the district court gave two reasons for denying the motion for continuance the first being that the court had quote  discretion when it's a late request that was reason number one and then reason number two the district court simply said i don't believe you when you when the defendant said i've been in contact with an attorney my family is are making arrangements to pay attorney but this is even in light of the fact that the federal public defender said that the private counsel had contacted me late this morning and said that his family defendant's family had contacted private counsel but were deciding the question don't we considered to tally the circumstances in addition to the judge's reasons absolutely and so we could consider the three witnesses waiting even if she the judge didn't specifically mention at the very time that she made the ruling yes and i didn't want to imply otherwise of fact the judge should consider the three reasons in the factors put forth in the huey case that's one of the things that's consider is the burden on the government i'm having having trouble with your case because even if you assume that it's a full fledged six amendment right what cases would say this was an abuse you know of spot to the right i said i still think the case i would say this was in the ballpark perhaps and so where what kate says it's not under six the minute your honor i don't i'm not going to be able to provide you with a case that says that there's no question that the district court abused its discretion here but what i can do is provide the case huey that's been mentioned that lists five factors for courts to consider and we can look at the facts and apply them to the factors in this case and then reach the conclusion that the district court had in fact abuses discretion so the first factor that's considered is when was the continuance requested now the government is course is going to weigh heavily on this and i think the dish recorded as well referring to this as an eleventh hour request but i think it's very important to recognize here that notice of this hearing was given six calendar days prior which includes to weekend the defendant was in jail this whole time so you have a person from jail that's working with their family to come up with money over a short period of time approximately four business days to find an attorney so i think it's a reasonable time to request especially in light of the fact that he had already spoken with counsel his family had already spoken with retained counsel and retained coun had also spoken with the federal public defender now this is very different in the two cases cited by the district court on pages forty one and forty two of the record there the district court said that there was precedent for denying this motion for asked for a new attorney at the quote unquote eleventh hour but the person the person had counsel for nine months and had notice of that trial for nine months up to that time here we only had six calendar days for business days you may mention that is a factor the amount of time requested and if so was the time was it over mr pennington will be here this afternoon or tomorrow or is that just not was that never clarified in the record so first your hon that is absolutely a factor second it's not clear in the record and i think that the i want to make a point out of that actually when i make two points he says i need a continuance i've got this attorney i'm trying to get him involved in th retaining he's been in contact with an attorney that's that's the characterization so he didn't have him so that's true i would think that if the district judge were taking the request seriously the follow up question would be how long do you need to know that question was never asked and the answer was never offered without being asked is there any stretching from facts to law is there any circuit gets reversed a continu supreme court which is united states versus gonzalez lopez now the circumstances that case were admitted lee much more extreme than this case that's where a person had retained counsel it was not a counsel of choice in the district court was preventing their counsel of choice who was present sitting in the gallery from having any contact with the person in that case was reversed that was a day off but did it leave the defendant with no counsel it didn't sound odd so i'm asking you can you think of any cause here to i know i know but but neither was your client here in other words i would see that you would have to grant a continuance even in a last minute request context if it left the defendant without any counsel in i don't know that answer your question it's a little esoteric that there's probably a case in a district court out there somewhere where something like that happened i do it has it in something else there is no no you're right if i ask something off the brief you're right to tell me go look at me i should come up with myself it's not in the well i'm not saying not quite so you said it politely one other thing that didn't happen here one of the cases cited by the district court is mccoy versus cabana as a basis for denying this continuous it's vaccine that's the factually most similar case to the one we have here on the outcome is the same as what the government's asking for here but what's important is the defendant had said hey i've been in contact with this attorney i want to get him down here we have retained  yet but we're trying to get him here and here's what the judge did in that case the judge said i'm going to take five minutes let's go into chambers and called that alleged private attorney at his office and at his home here what we have is the judge saying i simply don't believe without asking followup questions without making a phone call and i'm not saying that that in itself is clear error per se but i'm saying there was never even a recognition here of a person who is facing a significant sentence in this case it it being fifty months who has had four business days to find counsel who saying i have somebody here is their name their name is austin pennington is it establishing the record the witnesses that were there were the victims the alleged victims themselves your honor one of the witnesses was the victim who was not there voluntarily she was subpoenaed the other two witnesses one was the detective from the state  law enforcement office and the second was u s probation and i do want to comment that that's not an excessive burden in this case at least when you compare it to the facing a more than four year prison sentence the u s probation officer his job is to be in that building most of the time a police officers part of their job is to testify in court in fact before i became an attorney i worked at a prosecutor's office as a victim witness portrayer my job was to get officers testify they love to testify because they get paid time and a half and they were always happy when there was a continuance because they get paid either way the victim who had to be subpoenaed and who may have been facing some sort of improper was there to testify but the burden on the victim is to be subpoenaed again and come back perhaps a week later and that burden is not nearly as high as a person facing a long term of imprisonment and i'll reserve the rest of my time for including mention the victim who was there only under subpoena the district court had the opportunity to observe those witnesses including the victim at that hearing we also have a situation where the victim had been receiving was not six days he made his initial appearance it was nine days he made his initial appearance on november tenth with camille my his attorney who he later sought to replace and on that day he was given notice of the represent him in court at the reputation hearing and before that only at the initial appearance again that's page eleven we don't have a transcript of that that wasn't placed in the record but you can see from not that he didn't like it that ms knight was present more heavily than others in all instances it's just something that we have to look at the fact that each particular case graduate is just one of several factors one of one of several factors to be considered one of the factors as you noticed the defendants really and in particular whether there's reason to even if he had the moves were bussed right to counsel as possible even if the court wanted to import all the entire segment principles into this case on even under that most robust articulation this court has said that that and is a limited right the human cases now that case involved a number of different requests to continuances and that was a trial is complicated set of issues but one of the issues one of the junctures at which the defendant complained that he was not his right to counsel this court side and his chosen counsel the lodge withdrawn he was given five days to a place and in this court said five days not circumstance was reasonable so depending on the circumstances again it's a case by case but in the circumstances just a handful six them in their rights that revocation hearing a revocation hearing is very similar to or connected to the sixth amendment trial context because quote the loss of liberty involved in a revocation hearing is a serious deprivation and in fact we saw that here if you're a criminal defendant it feels exactly the same because you're told you have to go back to prison so for this reason i think that the right to retain counsel has to include even under rule thirty two point one the right to counsel of choosing a second the question was brought up by judge higgins said about harmless error review and i think the response was that there was a overwhelming evidence in this case in the court to consider that well there wasn't overwhelming evidence before the court at the time the motion for continuance was denied but even so the united states supreme court said and gives all as low as very clearly that the right to a fair trial is separate and apart from the right to counsel they went on to say quote harmless error analysis in such a context would be a speculative inquiry into what might have occurred in an alternative universe so when it comes to the right to counsel we need to get it right the first time at the beginning and if not we can't imagine what would have happened third they said that we had a fake quote fair in reasonable opportunity to get counsel saying that nine days including two weekend days is a fair and reasonable and amount of time in our point is very strong in that when you're in jail that is not a reasonable amount of time perhaps to retain counsel of choice we know that he tried we know that he was in the process perhaps he was on the eve of retaining counsel and but we would certainly  concede that five more days would have been enough time that would have been reasonable to the record refer the what was the happenstance remark to that reflect that he for tried the first for the first time the day before is it not subject to that well the happenstance remark was not made by de t first of all i want to be very clear on that that's the district court saying your so you're saying this just happened by happenstance in the defendant says well yes that's correct your honor so that the happens he was dissatisfied with his court appointed attorney he was in jail he was another in my pocket another inmate inmates had hey i've got this guy he's really good named austin pennington i'll send him your way he did the ball started rolling the family members contacted austin hinton who then contacted the federal public defender and notified her that hey i might be retained in this case we know that he wasn't retained it  point but it certainly seems like something was happening here and i think the district court perhaps i should have made a couple phone calls i'm not saying again that it was clear or not but i think that that would have given the defendant more dignity in this process that led to this type of a sentence than simply sang i don't believe you you don't have evidence that you even have the money to pay you don't have the evidence that you've even talked to anyone and who is he in a position to do anything but tell the court well i did talk to somebody and my family does have money to pay so i think that he was being held to an unreasonable burden in terms of an evidentiary burden in this case and there was a simply an attitude in the court that this person is here to play games they waited to the last minute but he's already in jail your honour's it's not like it's someone that's album bond what about trials about to occur and they want to be free a little bit longer this is a person who's already in custody and they're simply saying i want to have this other guy come in and represent me because i think he can do a better job in for these reasons we think your honor is that the district court clearly abused his discretion in denying the motion for continuance we ask this court to recognize our right to counsel of choice we ask