i sometimes will be as a lot of the council but first case today is number one seven one eight seven eight united states versus luis waiving hearing and this was after having received written notice of the expansion of what was to be considered as a basis for revocation  is that correct the court the court did refer to that and there was no at that point there was no objection there was no one judge you can do that we only received does impose the sentence and does it in the with a fairly summary explanation and then counsel challenger's the sentence and then the judge begins to explain more fully some of the considerations that led to the sentence that your claim is that what he does that you learn for the first time a lot of facts that he was relying upon for that sentence that you don't even know about can you summarize for us the facts that you learned about for the first time that the court was relied upon and where those facts might have come from people understanding yes terri she stated to him that he wasn't going this was at four fifty she also stated to psychology at five o five that he's tired and he doesn't want to do anything not even work she complained to psychology that he was tired the same defendant probably six months before and there was some information there and i also information provided by the by their probation officer so is it your position i mean that information was accessible to the court is it your position that if the court was going to rely on my kind of detail that should have been disclosed to defense counsel so the defense counsel could respond to it so we just thompson with our initial question referred to the to the waiver in this case i mean how do you given that there was no true that there was no request at this point for any kind of eviden hearing correct and that that that was waived for purposes of this final there was no no demand that evidence be put on at this final revocation here you would just go directly to sentencing correct correct so how does that even considered that this new information was going to be taken into consideration and i'm referring to the information that is not in that us implement the report or in any other document i can understand their way be regarding that issue because they come some just didn't know about that information so and i waiver have to be knowledgeable employment and the costs and you said that you thought that may have come from the earlier probation revocation proceeding which i think took place in september of sixteen is that what you're referring to  appointments that mean there was some suggestion that he had a good reason not to make the point about the fourteenth car club or something like this and the statements of his girlfriend she just that was  i just would just be clear in terms of chronology what you just put on the record about the various conversations about the july fourteenth appointment were those statements made by the judge when he was passing sentence or was it made bad the judge beef when he was talking about what he was taking into consideration but before he actually passons you know he just stated the sentence and then when then the you a little boring why would we consider that lack of a probable cause determination which should have therefore without anything more specific meant that the court and the court could revisit what happened on the fourteenth found that there was enough evidence to support a probable cause determination well your honor neither the government nor the probation officer tried to revive their july fourteenth violation two days before the final hearing in fact the violations that were found here i think that we could get rid of that all together and it wouldn't make any difference in that struggle and somehow july fourteenth doesn't matter but when pressed by counsel the judge went into all this detail about what happened on july fourteenth statements of his girlfriend about what was going on on the fourteenth so i don't know how you can see the top fourteenth in matter when the rationale or any of the allegations here that defense counsel objected to and i don't think that it's fair to read into that that the july fourteenth absence alone independent of the two other absences the established independent of the failure to notify the term nation independent of the end of the admitted failed drug test i don't think it's fair to read an extended discussion of that as being the driving force of the sentence why i'm sorry why i mean why would you talk about it extensively as you just put it if it wasn't these important in the judge's mind but i think again because that's what defense counsel was pressing on defense counsel did not object debuted for the first time during the judge's explanation his sentence i don't see anywhere else in the record that we have the specific comment about mr ray our no not showing up for that hearing because he was tired i think i believe that was what the district court said there was contradictory testimony offered in ads at the probable cause hearing as to what was going on that day specifically now knows partner had shown up to the office that day or was instead with him trying to get their vehicle towed there is a contradiction there between the testimony of dr is an any violation of supervised release at that point the magistrate judge is supposed to terminate the detention and not forward anything to the district court the converse is not true that the government hearing rule thirty two point one sets out a whole basket of independent procedural protections that don't depend on what happened at the earlier hearing before the magistrate judge so the hearing before the magistrate judge is only to determine whether the government has justification for continued detention pending the ultimate merits determination before the district court once you get over that hurdle of the government demonstrating that it has justification for the detention in the form of probable cause that there has the conditions of supervised release then all whole new basket of procedural protections apply and those are the ones that are spelled out in rule thirty two point one the two a three so that's where we get written counsel isn't title to understand what facts the judges relied upon in making the sentencing determination the basic claim here is the court revealed that there were all these details all these facts about what happened on the fourteenth about the costs of the government of the medical treatment about the reason for his employment terminations all of these things defense counsel is learning for the first do you even know where all those facts came from well your honor specifically with respect to the cause of his term nation frequent absences point is made on page two of the supplemental motion that was issued two days prior to that hearing exactly sure of everything that happened at every hearing but if that is what happened could you defend that if that is what happened it may constitute error with respect to that one specific point again i would point out that what we're talking about here is one missed appointment out of three missed appointments that are underlying one hundred three violations of supervised release so i do not think it is remotely fair to say that the july fourteenth missed appointment standing alone is the reason that the district court and in the sense that it dead i think we have to look at the totality of the circumstances this court's case i tells use of the synthetic marijuana and the finding of the mistreatment on the thirteen that that's that's what we thought was going to be before the court not all these other charges  understanding by defense counsel who violations that the court was going to consider i don't think so your honor because they did receive written notice prior to the hearing which is all that rule thirty two point one requires in connection with a final revocation hearing and after the district court explained it sends and went through exactly every violation that it was pinpointing and there was no objection from defense counsel as to the failure to notify of term nation or as to the absences on june twenty second or june thirtieth we would expect that if those were coming out of the clear blue sky and defense counsel on that fund and had no idea that these were pending against him that at that point he would have strenuously objected to the inclusion of those in had shown a lack of respect toward the court in the supervision process and the district sons was necessary in light of the special consideration given to him during the first revocation hearing in december of twenty sixteen a defendant's failure to make the that despite multiple chances from the district court and despite patient mental health and substance abuse treatment paid for by the government he's been able to consistently stay away from drugs only when he is in jail or on her closely monitored home confinement so the  determination that this case warranted statutory maximum sentence was reasonable there's no basis for vacating that judgment and there's no likelihood that the court would reach a different conclusion i've remained if you were to remain in this case we would go back and there would be a slightly more comprehensive process but you would still have at least two but these two absences from mental health and substance abuse treatment that the defendant has never and something that making almost zero argument really you're saying that even if the judge became aware of additional facts not known to defense counsel most likely through a conversation with probation and even acknowledging that that's not the way the process is supposed to work it just doesn't matter because he clearly did  the crud use the mistreatment and apparently the failure to disclose to probation determination of employment because of th that the single controverted date here july fourteenth and whether you defined and did not show up for that date because he had car trouble or because he had some other conflict or because he was sick or because he was tired as magistrate judges determination is looking at something different than district court is in its ultimate revocation hearing the magistrate judge is just trying to decide whether there is enough evidence of some violation to justify the detention that he has not necessarily looking at the entire comprehensive record of all possible allegations all possible evidence and factors so i'm just the court has for the questions i see the my time is running out argument of the government cannot hold because basically what the government stain is that we can find probable cause for one violation and two days before the final patient hearing we that the judge specifically says when he's itemizing the violations that underlie the the revocation of supervised release he refers generally to failing to report for mental health treatment he doesn't specify which days he hasn't gone now we know we've been talking about july thirteenth july fourteenth july twenty second july third lie thirty of the government said in approaching the final revocation here and let's forget about the thirteenth we're going to focus on the fourteenth that all this detail comes in about why the judge was focused on the fourteenth all these communications with a girlfriend and so forth nobody says anything about the twenty second of the thirty and so far as i can tell but the government says well the defendant admitted to the twenty second and the thirtieth were what my basic question is what date are we talking about when the judge says a failure to think that we don't think it's fair to focus on that because on the thirteenth they found out well apparently there was a agreed upon postponed until the fourteen years now it's the fourteenth that matters and now it's the fourteenth that you have all these disputes about no way he could have been found guilty