erroneous factual findings at sentencing the district court stated its rationale for sentencing missed ask a post at the very top of the guideline according to the court  quote defendants disregard for the law and unwillingness to reform his behavior as evidenced by his noncompliance with his bail conditions and on authorize axis of the internet indicates substantial sentence is required to protect the public from further the crimes of the defendant close quote with respect to the portion that deals with the noncompliance with the bail conditions those conditions st appear it in pretrial services confidential memorandum to the court dated february nd two thousand and seventeen and the two violations at issue here are one that during a group therapy session about creating a website that allowed people to access child pornographer pornography for free and that he could circumvent the pretrial services monitoring software on his computer the problem with those two alleged violations is that they were both incorrect they were not true there was no condition of appellant bell that required him to disclose to the magistrate judge or pretrial services that his stepfather was a sex offender and in fact that issue really is moot because when when the appellant was not he had an obligation to our you know he didn't have an obligation he didn't know we had an obligation but the government knew through the f b i agent that he disclosed that his stepfather was a sex offender reading district court the transcript of sentencing and the government says that the district court didn't rely on a finding about this proposition and and i'm having difficulty seeing where there's anything is made of it other than just repeating the that it's part of the pretrial services report said the judge saying something sure that's why i started off with the district court's quote as to why he sentenced at the top end of the guidelines it was based on two things palance unwillingness to reform is behavior as evidenced by his noncompliance with his bail conditions so when they had the bell violation proceeding those two conditions were found to be justified i guess is the word proven and those two conditions were used by the district judge during the sentencing that's what he  referring to when he says the violations of the bell conditions the district court judge also into two separate instances at sentencing he adopts the findings the factual findings in the pre sentence report which include those areas and then later the district court issues its own memorandum in order regarding the reasons for its sentencing and that once again the district court adopts the so i'd like to jump to move forward quickly to the ineffective counsel claim if i may because i understand that this court is always reluctant to hear ineffective counsel claims mostly because they're not fully developed on the wreckage i submit to you that this case is an exception and that resolution of the claim would be beyond all doubt the case with respect to ineffective counsel is fully developed in the existing directed and we submit that it would be in the interest of justice for the court to hear and decide the claim because it really is intertwined with that st issue with respect to counsel not bringing up the factual inaccuracy is in the pre sentence report that the court relied on the issue we submit is also preserved for appellate review reading the defendant's statement to the district court at sentencing mr escott bosa stated that he felt that his attorney was missing proof of points and then he knew his case better than his attorney as composer also said that he wished his attorney and himself had communicated better he also alerted the court to arguments that counsel had missed for instance he said that he could not have possibly violated the terms of his pretrial release by manipulating the pretrial services installed software because at the time he was in the group that was the plea there was no other proceedings no suppression no trial counsel failed to submit findings of fact and conclusions of law with respect to the violation proceeding those findings of fact which were incorrect with then used against him at the sentencing then with respect to the sentencing she didn't submit a sentencing memorandum so all she submitted on the day of sentencing was a letter to the court that included a letter of support and then in court she read a statement from a therapist that treated mr aska both years before she didn't submit sentencing memorandum which i would submit to this code what is the fundamental piece of representation if you are going to be effective in a plea case that's what the court has to focus on that's where you have to get your arguments across and i'm assuming if she did that that she would have raised the issue we raised that there were errors that the court was relying upon in those two factual findings and i don't think those two factual findings are up for debate the court may not have found them in the st instance the district court but the district court clearly adopted them as his own findings please the court kevin trial for the united states your honors mistress of enter i think simply misunderstands the record in some important respects he spends a lot of time speaking about the violation reports which of course were allegations from pretrial but really played very little to no role in the subsequent proceedings including two days of testimony there were of course allegations in those reports that generated the need to have that hearing but during the hearing the testimony active in even questioning the witnesses at various times certainly aware that the government was not proceeding on those theories now the seriousness of the allegation about what mr escott posa had said in therapy certainly warranted examination by both the investigating agents and that's noted in the p s r that it was referred to them and by the court he was of course at the time of the court supervision and it was the seriousness of that allegation that led eventually to the court deciding that we needed to have the i review the mr escott post as computers and that in turn led to several violations that actually did form the basis of the district courts re manned and part of the sentencing and that is i think one of those deserves a little special attention because my adversary noted in his reply brief i think he misunderstands there were two episodes one involving internet blocking software and another involving internet monitoring software so in and sixteen after mr escott boss's arrest he has a home built computer he says he doesn't want to pay for monitoring software so none is installed in january of two thousand and sixteen he says he wants to at that time use his home built computer for installed games and other purposes that don't require internet access so pretrial installs internet blocking software at that point between january and august he's using his home built computer with internet blocking software in august receives g mail e mails from him which leads to a series of events that causes pretrial to say we want to install additional software at that point in september they take his home the computer they try to install in an internet monitoring software and at that point realize they can't because of the number of drives in the technical issues they have they don't return that to him they they keep it from that point on in november of that year mr escott boss who purchases a laptop sealed brings to pretrial pretrial installs internet monitoring software on that separate computer now between january th and august that is using the homebuilt computer with pretrial services internet blocking software on it the f b i analysis subsequently demonstrates that there were internet artifacts from that time period on the computer so this is i think in government in thirteen and fourteen of our brief with transcripts citations amazon yahoo not unlawful sites but sites and on the last that in the government's view and subsequently in the court's  made clear that he was able to circumvent the blocking software in order to access the internet that's one category the nd thing is the internet monitoring software on the laptop in spite of that monitoring software  discussion or an allegation about the content or even frankly about the timing other than that it was brought to pretrial sealed that in fact the software was installed and the artifacts concerning those two was later found by the f b i so the reasonable inference being the visit happened between the unsealing of that computer and the time it was seized so there's no question about him possibility i think it's he my adversary suggests not only was the p s are wrong but this is in fact impossible that's plainly not true there were two different things happening and at the time of sentence there were a number of violations that the court found very reasonably to have been serious and significant in light of those conditions those were all part of the sentence the court's description of the procedural posture up to that point is just simply not a factual finding it's not stated as such in the p s r and doesn't play that role in the opinion so that pretrial told me that because that's plainly true and there would have been no reason to take it out of the p s r the reference when the district court represents violating bail conditions he's by your reading of the transcript referring back to the violations that were found with regard to computer access i think that's clear your honor and i think one important point about that is i don't think we typically read a district judges sentencing memorandum as we would an ambiguous statute he's he's talking he presided over two days of hearings participated actively i don't think there's a shred of evidence to suggest he misunderstood what the government was doing and in fact the government submitted findings of fact after the hearing nowhere is there any reference whatsoever to the to  he alleged statement during therapy and there is i believe in the government statement of facts a factually correct statement that pretrial learned about the step father's conviction from a background check rather than from him but not that that was a violation of conditions just it was true so i don't think there's any reason to believe the district court misunderstood that and and for that reason i think that from that explanation with regard to the conditions of supervised release hillary mann is appropriate as to that that's correct your honor yes and i think the record makes clear that at that point i think the court sentenced mr escobar said to a sentence that he wasn't expecting there was a bit of confusion and sounds like he directly addressed the court again and the court in imposing simply the sentence that the conditions recommended by probation it just was over looked there were other things happening at the time and and so composes behavior for five and eight certainly of the of the big ones for us and the government has conceded they were improperly imposed now with respect to the government's position as i hear it it's the government contends that they didn't argue that the bell was violated by these other actions they just focused on their findings of fact and their findings of fact about the  improper access to the internet and the judge clearly understood that but that's not what's reflected in the judge's reasons for sentencing the judge says unwillingness to reform his behavior as evidenced by noncompliance with bail conditions and unauthorized access of the internet it's cunt junk to have meaning he looked at both of them if he just wanted to say unauthorized access of the internet he would have said that the  she testify she didn't even know the date and the timeline that certain access occurred to the internet she didn't know what activity other then the computer access you to which she  conceded could have been for educational purposes and were important only the f b i agent testified that there was no evidence of any criminal activity and any of the forensic reports that she may so there was a legit access on two computers the home belt and the laptop with respect to the homebuilt there was no proof that he accessed anything improperly or accessed anything at theory was he he knew had to do something by putting the computer in some kind of safe mode like he was a computer expert with respect to the laptop i submit that counsel missed the whole issue there the only whole issue was that anyone other than the appellant used this computer to do a test run so that computer that laptop was brought in the box to pre trial services to install the monitoring software but all computers all computers before they are marketed are tested by somebody so they could have been access to an internet whatever site at the testing site before it was packaged and brought so there was no inquiry into any of that with respect to counsel the last thing i want to say which goes back to my ineffective counsel claim is counsel didn't even have the facts right counsel argued at sentencing that all this activity access to the internet the child pornography stuff or curd one day during the course of four hours when the plea that my client and it said it occurred over two years and that's what the indictment lead's so the attorney didn't even have the most basic facts correct she apparently didn't even read the plea transcript and the indictment thank you your honor thank you beth and will take the matter under