our second case for argument this morning is united states against will be placed upon a sense of imprisonment so the only question that remains that in this case for the first issue is whether or not the district court was aware that she did not have that discretion and based on the record and also the circumstances surrounding the multiple continuances of the sentencing hearing in this case it is pretty clear that the district court believed that she had some authority to dictate to the bureau of prisons that mr kaczynski should be placed somewhere in southern california i don't see that she actually  issued that directive it's a recommendation well the judgment reads recommendation but in the context of what she said at sentencing when she was making her ruling there's nothing there's nothing there that is a directive it's all in the language  you right that's not a directive that they place him at a particular facility or she didn't state you must place him in san diego but she did infer through her commentary that she believed that the prisons would listen to that recommendation that they would order most judges who orders something ordered judges recommend something recommended a second there's a judge recommended something she didn't actually recommended and in the first hearing and all of the original judgment was silent because the judgment did not contain anything about nothing and then she recommended the verbal commentary is there any place where the district judge ordered a particular place you know but the statements of the court indicate that she believed that she could have him placed in southern california well that doesn't matter what she believed unless she issued the order there's no error here well there's an error because when she decided to impose a fifteen month sentence it was under the assumption that mr cruz that he would be safe and that he would not be dead when he went to girlfriends and it's clear from the context in her ruling that and this is at this point it's been almost a year since the when the sentencing came to pass it was almost a year since the plea the sentencing had been continued three separate times specifically because mr kazuki was too ill to make it to central illinois and the court stated at the beginning of the sentencing hearing she said to the defendant's poor health and the doctor's orders that require he not travel more than two hours from his home i have repeatedly continued this hearing and then she later states on page seven of the record given his poor health and inability to travel i don't think we have much of a choice and all that all of us going to southern california i  the goal of the not want to go to southern california he does if you look at the later hearings in this cause it looks like the bureau of prisons would eventually doesn't need him to terminal island which would be acceptable i think the problem is is that when the district court decided on fifteen months she sentence could be served in a location which would not be detrimental to his health and it will because as though there are multiple medical records in the records which say that he can't travel he has a particular medical device implanted  his heart which is eight which is linked via the internet to his cardiologist office in san diego it's a device that was only marketable as of two thousand and fourteen there's under one hundred of them in the country and because of that particular condition if he travels and this is a guy who after he was sentenced had two additional cardiac surgery so if he were to go to if the placement is maintained as it stands right now which is still technically up in the air with  the placement is maintained butner north carolina there's a very real possibility that this guy is going to die on his way to prison and the court recognized him the existence of these challenging medical conditions and the court said in multiple places on the he cannot travel research facilities in southern california she was aware that there were the facilities in southern california she had continued the sentencing three times because he couldn't make it to illinois which is the closer ride the north carolina for this gentleman and then she said she assumes that the b o p s if they have an issue with placing him will get back to her that indicates at least a belief that if the b o p were to come back and say we can't place this guy or we can't place him and southern california that the district court believes it could do something about that what else could it mean the plain language i want to be reassured by the opi and if there's a problem deal get back to me that indicates that she believes she could do something about it but she couldn't because it's a final judgment so when you say that there is no order you must go to san diego that's correct but the context of her imposition of the sentence clearly indicates that she believed that she could the buke he would put him where she wanted him put which was in southern california and all evidence states that if he is forced to travel to north carolina not only could the trip kill him but the existence of this particular rise cardio men's device monitoring system it is there's no indication anywhere that the b o p has that capability of caring for somebody with that specific of a device and i don't know if you know we argue this i guess sort of outside of with any evidence in the record the government says well you know we used to get assurance from the that for people with particular conditions like this that they could cure her and we stopped doing it because the b o p always said ok if you can care for someone with this run of the mill chronic condition this isn't a run of the mill chronic condition and there's no evidence es bailey where it's not the b o p s responsibility to demonstrate however if a judge is considering the medical treatment of a defendant insanity and can't consider the medical treatment then it's just not her job well thirty five fifty three  factors do tell a judge to consider the history and characteristics of the defendant including needed care education etc so it is in fact her job that she has to address those things what exactly is the legal here you mean you've now we're in agreement there is no order that he be placed at a particular facility if illegal there were such an order maybe that would be a legal error but there isn't such an order so what exactly is the legal in the procedural error in this case is that the district court when issuing the sentence even though it wasn't in writing in the original judgment and then later there was an attempt to fix that and i understand it was in the language of recommendation because the judgment is a form that people can allow the judge just fill out that says you know is there recognition for placement yes but as this court has held previously in many cases what is stated on the record at sentencing is important and if something in the oral transcript contradicts a judgment then it's the oral transcript the governor right but we've just confirmed that the oral transcript contains no order it doesn't although it does contain the suggestion that the district court did not understand that she could not make sure that this individual was in southern right but it's still in the nature of a suggestion so there isn't a there isn't a procedural error here what a district court considers under thirty five fifty three a if they make a mistake and they think something they can do something that they really cannot do that she didn't she didn't do anything other than make a recommendation which is what she can do she can make a recommendation but in making the recommendations she was under the at the idea that she believed that she could make sure mr  think somewhat i mean whether she misstepped be handed her authority she never issued an order expecting it to be but it was a mistake plagued with one that could very well result in in death were serious physical damage to the fence what was the mistake the mistake was her stating on the record that it's right here in plain english i don't know what the other reading of that could be that she believed that the b o p so the mistake was what was in her head yes not what she actually did well she said what was in her head and what she said was that she thought b o p could get back to her which would lead her to be able to change her opinion i'd like to reserve the rest of my time for about certainly counsel so did just so but let me ask you this you know she never said sorry she never said now this this issue of where he gets place is really critical to me so i want to get an assurance from the bureau of prisons that she's going to california before i finally impose my s she didn't say it in those words but she did say at the sentencing that she recognized the severity of his medical condition that she had researched the availability of facilities in southern california and she never said if he cannot go to good morning rounders may please the court second phillips on behalf united states your honour's district court judges are presumed to know the law and a claim that the district court judge did not understand its authority has been based on more than in prints and this is especially true in cases such as this and what we're talking about is something as routine as a b o p placement i mean happens in virtually every sentence that's imposed so are you disputing what she's saying in terms of only one hundred people or in this situation need this particular equipment need to be connected to the doctor are you disputing his underlying condition and some of the issues surrounding that so i hope that he would keep him close in southern california so that he could perhaps see his own doctors but really b o p s so was it is this this issue that she raised that it had to be within this geographical is that he had to be in the southern california because of dr had to be able to contact him that you don't agree with that no no at least it seems fairly clear from the evidence that the judge was just making  recommendation that it hoped that that mr causey could stay close to his southern california physicians but everything else suggests that this was just a recommendation as the court pointed out you know let me ask you this if it were medically certain that his life would be in grave danger if he was moved to north carolina and placed in up there with this change the government's position that well that's that's a fact obviously that isn't here or there there is a procedure to find a key point saying that there is no way for the court or for the b o p to come back to the court after judgment but that's actually simply not true thirty five eighty two c allows b o p commissioner to come back to the court if there are and i think the language is extraordinary and compelling circumstances if you look at the guidelines i believe it's one the one point thirteen don't hold me on that good points out that the opi should come back to the court if there is a terminal illness or if there is a  illness that is basically beyond a means that the defendant cannot self care in the prison environment so that there are ways to be able to and absolutely combat but it's rare and it's rare because b o p has extraordinary medical facilities i mean i've been to the federal medical facility in in butner it is thirty minutes from duke university in the universe in north carolina hospitals and has access to those i mean it's there's just no not enough here to overcome the presumption i mean if you look at both what happened at sentencing including at the court left it open because it assumed that the opi would want to take its time in placing mr because a key that the court told him to watch  under the new look to that actual judgment which is the same judgment form that occurs in every sentencing which has both a recommendation check box as well actually as a check box that says the defendant shall surrender for service of sentence at the institution designated by the bureau of prisons both of those boxes were checked in this case and then looking to all that the post sentencing i mean we had a sentencing in may there was a july ruling in july hearing there was an august hearing september here in november here and now we're awaiting a january hearing never once and beyond that time certainly and some of that time there was the understanding that he was going to be designated the partner in the court never once took the opportunity to say hey wait a second i ordered him to be to go to southern california i mean that that simply never never existed in fact if it can be point out that in their reply brief just three and four  defendants says that well what the judge said at sensing could mean that it wanted to let her know if she couldn't be held in southern california or it could be that if the court  pita let them know if you can be housed all well if it's an either or the presumption suggests that the judge understood the law when it didn't when and when it ruled as it did and given the court's earlier questioning and no further the last thing that mr phillips stated about the court never addressing that issue again is actually falls in a later status hearing when the b o p had come back and said ok now we think that you should be in terminal island which is a facility in southern california everybody seemed to be on the same page at that status hearing and the only reason for continuing the reporting date at that time was because mr is that he had a further hurt procedure scheduled and could not physically report due to his ill health so that that not addressing southern again and so i think that what needs to happen here and we're sort of neglect of the second argument which is that under the circumstances the particular in this case it's not just the existence of procedural error it's also the fact that this could be venus substantively on reasonable science under the circumstance actually that that's the whole argument here i hazard it really wasn't an error what you're trying to persuade us is that the sentence itself is unreasonable because of the premise on which it was based i believe that's what that is a fair statement your honor so i mean i disagree about the fact there was no procedural error but i also have the second argument which is that there this is just a substantively unreasonable sentence under the circumstances and if you look at the way that everything was conducted after the original sentencing hearing i mean mr visit he was sentenced in may of two thousand and sixteen and here we are in january and the district court is continuing to allow him not to report because of his ill health so i suppose one remedy is to just keep continuing his reporting date forever until he is finally safe to report to butler which will probably be never cared for well he goes to north carolina but the b o p in its multitudinous program statements has a prohibition against moving on a stable patients and particularly with cardiomyopathy and cardiac conditions so in fact there is just not  evidence here we don't know that he could safely get there we do know based on our medical evidence that there is a significant problem with his transport and that if he goes he could die and corpse you know a destines is not appropriate for somebody particularly eighty one year old guy