isn't that big of a deal the victim was not even three months old when the defendant wrote it's over and over this bundle you make a substantive on reasonable this argument right that's correct your honor well i thought our case  that because we have to determine whether this was procedurally on reasonable before we go to whether it's substantively and recently set the way i read our press yes i'm aware of those cases including the carter decision by ron so we have to do that st no matter what the government district court of it if i'm question you on we can look at the record and know why the district court did what it did yes your honor so you there's no procedural problem who got the record together in this case usually the appellant does didn't review it this week it was as and i'm looking at right now yes your honor is just exactly what i say right yes absolutely it says the dish i believe at the bottom it says the district court cannot provide at the bottom of yeah no i absolutely agree with the court reasonable probationary sentence i just don't think that's an answer to the question maybe my colleague is satisfied but are you saying that this sentence was preceding really reasonable but substantively unreasonable or that it was procedurally unreasonable and substantively on rebounder stand the question i apologize for not answering the government's position is that it was a procedurally reasonable sentence reasonable yes because because the district court statements and its focus number of the arguments that the defendant has cited in this thread brief to justify the sentence most significantly the defendant's repeated argument that that what happened is he's clearly an accident and merely a product of  ineptitude and what the district court i think because a district court didn't give us reasons we don't know that it seems to me the district court there there is indication in the record that the district court faulted of white woman partner or the district court sympathized with the male partner or i mean i just think there was a a range of reasons and since maybe you can tell me what what the theory of the argument is absolutely right and the reason the government is not contesting secret reason why this is our fundamental view that this case simply under any explanation including the defense had not mon not years to come up with a justification for this and but it seems to me that all goes to procedural on reasonableness i understand our position your honor is that they did there is no substantive sentences procedurally unreasonable to speak or do your duty and do what you're supposed to do that the court might well agree with you and come up with a different sentence that's correct your honor on how the district court mate sit down and recite and her because not only she was criminally culpable as he is we didn't charge her the bottom line is probability doesn't change nothing about the district court's questions and focus on her change the simple fact that this defendant deliberately and violen it's procedurally unreasonable it is also said but here you're asking us to say it is procedurally reasonable that's what the government says nothing to see here but nonetheless it's subsequently unreasonable right i see the reasonableness year ok as the government's contend that the sentence was procedurally reasonable as you said to us earlier or was not procedurally reasonable she said just a nd that the government's contention is that it was procedurally unreasonable  set normally courts do not rescue parties from their concessions maybe least of all concessions from a party as able to affect its interests as the federal government and i think that has particular resonance here where the government is involved procedure on reasonable is that you should just focus on substantive reason i mean some people are reasonable and that the court should not if you're not making wrestling that we should still look at i don't think that this court should review this case for procedural reasonableness because the government has conceded and i don't think the court should save the government from its concession well there would be an argument and i think the government would embrace that argument that e u would do better six months probation and he did so because as in this case the defendant had no significant criminal history no use of weapons in the offense of conviction he had provided truthful information that he had already stopped using drugs and submitted many sentencing he has participated in psychotherapy sessions twenty four and those were before the get information was filed in this which according all found particularly resonant this is someone who the court has found in this is coming from go understands the consequences of this criminal conduct and is doing everything in his power to forge a new life defendant's coast offense conduct indicates neither that will return to criminal behavior nor that the defendant is a danger to society and that forty four dollars forty court might have thought that somehow the mother was more culpable here and that she wasn't being prosecuted because that consideration was also discussed right and that's why it would be important to look at that read those reasons which we neither of whom raised concern of this is what used to the child until that was drawn to their attention and neither one of them did what neither of them recognize that the child had suffered such injuries until they were told by  a probationary sentence this is also addressed involved and as well this is decision and knights probation is not only an sentence mr crowder is has significant restrictions on his liberty and they are restrictions that are and eighty three instructs to target the need for a sentence to provide treatment in the most effective manner here mr province is able to receive mental health treatment and counseling which is a condition of his probation in the community for it's his question is are relevant for two reasons one is to understand that this is not something that mr province had been aware of before the medical professionals and the courts intervened so her statement that she was not aware of any abuse of the child was consistent with this idea that they were just really inexperienced but that's different than suggesting that because she wasn't punished he shouldn't be punished as severely as he might otherwise b think the district was trying to get a sense of the lay of the land in the nature and circumstances of the offense and he also asked when mispronounce returned to work which i know that the government has taken issue with some sort of and proper commentary but i think it's important in this the civic case because legs and arms would have been broken i gag back and i can't give a good response to why that question was asked but i think that was one question does not render a sentence that is otherwise very appropriate it's rebuilding a healthy and productive relationship will also be traumatize the child which is important for the court to consider mr province has no history of substance abuse the district court asked him if he had any mental health history and his other depression he did not he has again this three years of completed rehabilitation this is not someone who had been detained during the pendency of this case and was merely making promises to the district court about his future behavior this is someone who could point concretely to what exactly he had done to ensure that this would not happen again in the church he was remorseful and he pursued it again and again to the district court how much he loved his son and how upset he was at how  the sentencing judge being in as pure your position to find the facts and their import this is the person who is viewing any witness in the window know the basis of his we do have review and we have to know what the basis for those experience was and what his care arrangements and custody support and child support for the child had been i also have not come across and i worked for a single case where the government conceded procedural reasonable ness and the court reached out to touch it nonetheless so i'm not aware of any precedent for the i'm sorry saying and i'm not aware of any precedent where the government has conceded that a sentence was procedurally reasonable and this court wasn't raised procedural where there's reasonable ness so in those cases it would be one way here the government is conceding it was procedurally reasonable that's not waiver so the government could be wrong and we c say the government is wrong i think it is waiver your honor because the government did not break loose procedural reasonable less in any respect in its opening brief and this court has held in many cases but i say the united states  page thirteen of our brief for the principle that contention is not reason the argument section of the opening brief are and that so we believe that argument is waived it was a no even session by the governor and for all the reasons that justice course that cited in his concurrence longer than the government asked for him to be incarcerated he has now been a provision is of the same mr carter i completely agree your honor that it's not the same and i think it's it is different in chris facts that are critical and appropriate onerous conditions he has also two hundred hours of probation which it two hundred hours excuse me of community service you were doing eight hour days that would take him on the court he hasn't done any of it i'm sorry he hasn't done any of it ye you started your sentence which if he was to do this so no he was that was part of the sentence that i understand it was part of his sentence as he completed his community service he has not completed it yet and he started it i'm not aware that he that has been difficult because of his  all of those factors that you talked about the month tarm the mental health treatment has the fact that he holds a job where all the things that you are presented in mitigation of the offense but how do we know that the district court considered all that i think we can take information from the court's questions well when the court asked you know how you supporting your child financially when the court asked within this province or back to to understand the duration of the offense and how long it's going on this is not a case where we're talking about years and years we're talking about someone who had had repeated interventions either by c p s or by or it's assumed there was an you st have to do with procedural reasons and then substance brazenness but in this case we only want to do is that ok they say yes you don't have to reach procedural reasonable the guidance of the united states government in this case was was that   can you share with me the rationale for taking the position the government has taken here because there are cases in which we find something is procedurally are reasonable and here in conflict with their other cases and then go ahead and look at substantive on reasonable is two that's correct and the government hasn't taken that path here in is there or is there maybe this is a secret but is there a reason why not just reversing on procedural reasonable news that's correct ok but and i can understand that if you had suggested that this should go back to another district judge but you didn't do that did you we have not asked that your hon