the district court sentence in this case was not procedurally sound and was substantially unreasonable there's no confidence that the sentencing court fully considered the factors under thirty five fifty three in fact it ga little or no attention to the defendant's medical condition and why imprisonment in the bureau of prisons for twenty four months was an effective and adequate sentence versus twenty four months for example in a residential facility or on home detention but it was very aware it was making that choice because that had been the recommendation of the probation people and the district court said that his recidivism particularly his commission of this violent probation  so troubling that it didn't think that that proposed sentence was correct and it also had the harvey letter and front of it so i don't know that it would be a big an odd standard for us in reviewing a sentence to think that that wasn't enough because i just sa that well and i agree obviously the court did comment on the fact that the defendant had a period of recidivism but i think and also the medical it had before it and clearly relied on the statement from dr harvey now honor however i don't believe the court fully explained why a sentence in for the same amount of time in the residential facility or home or even on home detention was not fully adequate well it said i mean it is certainly talked about that it is it said that it thought that he had gotten the message and that in fact he had committed his second round of fraudulent activity while he was ill just as you know while he was on probation and we would submit your honor that that wasn't enough a particular when you look at what we think can dictate to me what you think he should have said that would be helpful wife i think because of the lack of information the record about the medical condition and the lack of explanation for why this particular defendant with this particular medical condition and the uncertainties at the time about what how the b o p would treat him or provide the drug wasn't adequate well but you haven't told me what you think he should have said why should he change yeah i think he should have a value wait at the medical information before the court and fully developed whether or not the bureau of prisons could and will provide that and that medicine in the time in which will provide that medicine to mr rock or otherwise we're all left still in the same situation that we were a month ago with the speculative nature about whether or not mr offguard will suffer a health consequence by being in prison to the bureau of prisons versus being in a residential facility or home i don't really know what else the p could say unless you are proposing that at least for people with a certain seriousness of medical condition there needs to be sound sort of medical evaluation before residential facility i know but i'm just thinking procedurally if your view is correct and it's an abuse of discretion sort of thing that should override sentencing guidelines to put somebody let's say with as serious a medical of incarceration and seems to me the logical corollary to that is what the government has suggested that they're really almost as a matter of i don't know what some sort of law i can't believe constitutional law that they have to be evaluated before the court pronounces sentence and i don't know of any such rule and the b o p has represented that it will act promptly that it has ten times provided this drug that the money hasn't stopped it you know well i think like mr posner raised it at our last argument on the motion to stay that the record really doesn't answer much and even the subsequent information that the government has provided reply brief doesn't answer much i think there's still too much speculation so i think there should be no can the government pre commit maybe you're confident that your client would pass the test i don't know why you wouldn't actually people will need to have some sort of government evaluation and for the government to precommit signing and blood that it's going to give this drug seems to me not a burden that it has well of course that creates this situation if it's not going to provide some sort of adequate assurance then we're in a situation where perhaps a defendant like this rothbart who's placed in prison is suffering unfairly and we start to get into i couldn't use it in with a t r o four days later after he doesn't get i mean in your hypothetical that he doesn't get it well then we're of course at the liberty of the district court to set a hearing grant that hearing and we don't know how long it will take not for a t mean that that would be for temporary relief immediately to preserve the status quo irreparable harm and cetera i guess when we look at this particular case we don't feel like a nothing was done to allow this court to discern whether or not the court fully considered the impact of this particular defendant now are you suggesting we should disregard this additional information that we requested no but i don't think that additional information that you requested and and that was attempted to be provided by the government gets us really any farther than we were before you know yeah they say we've we've provided militant ten times but they don't give us any facts or circumstances behind that was this as a result of appeal and was it given six months later i mean nace they've acknowledged they don't know think that not a lot of weight was given to that recommendation by them from the judges reason for rejecting that i believe the only comment was in twenty four years and maybe i'll get wrong start in all of his life that's what he says on the record of course i can you know i don't i think that's not a fair description of what he said he's concerned about the nature of froth cards crime i'm looking page eight of the government's brief where he says it's a crime that if you are greedy you haven't had a good history here recently mr ross hard you committed this while you're on probation what's the lesson you  that correct judge posner and i could judge what i would direct your attention to page forty eight of the transcript where the court says it never really considered probation here he hasn't done that in twenty six years of sentencing for people of these types of crimes and to do that would be in a word sentence disparity so you know i think you kind of walked into the sentencing thinking i'm i've never given probation or i'm not going to give it now and really quite frankly we're not asking for probation we're not asking that there not be any form of imprisonment are issues with the placement of that in prison that we are now being at in a halfway house or at homes quite different from being at but even a partner makes a big difference that you're asking for it is a big difference but i don't know that amounts to any more deterrence to this individual or any other individual wasn't that for that is are we supposed to just recent events no i think the corsets and the case back for recent and seeing so that these issues could be more fully developed and that what you're asking for re sentencing yes  is it more closely for the government to have someone in prison or someone then home confinement more more cost and you know and have to play us more costly in prison your honor because the defendant unless he's indigent is responsible for paying the costs of his home detention and in this case he would obviously continue to pay the cost of his medical care has his medical the government is paying for that as a as they point out either way because he's on medical assistance well and we defendant to a low in guideline sentence of twenty four months as this case is there any reason to be concerned about the district judges comment that he doesn't believe that well if you put if you read it the way mr garcia's reading it that he doesn't think that incarceration outside the walls of a prison or you know detainment i should say maybe home confinement halfway houses are an effective  deterrent for people such as mr roth barred if that is the way you read it certainly it is concerning i don't believe that is the way that that statement should be read i was at the sentencing here what's your  alternative i believe that that comes at the conclusion of a long deliberation that the district court did stated at multiple times throughout the sentencing hearing not only about the recidivism but a lot about m do he talks about the fact that he had read the memos at one point he even states that the defense's sentencing brief was very thorough he spent time talking what do you think of the of the fact that last part had been clean for the last two and a half years i don't believe that he felt that that compared with what was before him the entirety of the record was enough to mitigate against the finding prison i would also note although that the district court didn't do didn't explicitly say that i didn't listen to what the probation office surely knows more about about criminals an and so i think the probation office is very knowledgeable about this than maybe the histories are awesome but i don't know that he's more knowledgeable than judge young who has been a federal district court judge for quite a number of years he's sentenced and evaluated a number of criminal defendants both white collar violent and everything in between judge young has certainly adequate enough experience and he's seen the defendants when they are placed on probation for supervised release when they they re offend and they come back so these are all the knowledge base that the district court judge has and is not generally a probation officer nugent is a background that's correct  and guess who wins the judge every time and in this case we have probably seen judges disagree with recommendations from the probation office on a summer of different times usually it's the other way around the probation office recommends a sentence of a prison thing or a guideline sentence in the district judge goes down in this case the district judge felt that the syncing guidelines were appropriate and  wiod reached this was it looked at all the information and if it was clear to the record anyone who was there the district court took very seriously the medical condition of the defendant as did everyone who will provide him with this no again rather than an aspirin or something but as the court has already put out that the bureau person has to be able to do the then then we agree that no logic is the correct medication for it and lucan to something a little bit more like that i mean they certainly do have to make sure that they are not dealing with some charlatan doctor on the outside  or some other problem even a doctor who signs off on things without perhaps as much care as that doctor ought to and i have no reason to think dr cripes is such a doctor not at all but that they're out there and we see them sometimes so i can i can imagine that dr harvey couldn't just pre commit but that he could say if this checks out then he gets in a lot maybe he could maybe he couldn't i think he got as close to that as he probably was allowed to and i think that the subsequent information requested by this court has borne that out to the harvey examiner he did not examine your i don't understand why if you have someone who obviously has medical problems why he wouldn't be examined before he was sent there's no procedure examined by a reputable who's an expert in the kenyans but then where does that and does every defendant get that does that does every defendant get that does every know just the ones who have it sounds sensible in the in the fact that he provided his records the records were evaluated they put there was a informed opinion based upon past practices by the b o p that if the if these records are found of course to be accurate this is what has happened to hold a higher standard would require either extended periods of the person's report it could potentially require new contracts going through g s a to come up with approved providers from the b o p to do these evaluations it would provide extended litigation as to what constitutes a terminally ill diagnosis what doesn't what is serious and najaf and that's just not something that the government feels is warranted the procedures in place are adequate and so you put them in prison and nobody knows what kind of medical care is going to receive your honor i think if we look at this this is an existing in a vacuum the bureau of prisons is well he's absolutely right in there you said that's correct you're on your brief which is the pledge the government's premier medical facility i understand for be ok not only that it is the facility where dr harvey has his own it was prescribed there's the continuity of care program in place there's the expedited review there's no reason to believe based upon the record before it that he is not going to get adequate care  any other questions i can answer them otherwise the government got the prescription maybe doesn't need the butner facilities only if the facility goes to obviously approves and will provide that drug you know pay who provides it it's not  unclear i don't know i mean i think the whole issue that we have here is in this court try to get this information at our last hearing the district court didn't have all of the information it needed to make the decision didn't fully discern that information