three reasons assume that we've we've read the briefing and we know what's going on here help us understand why it's reversible way for the district court in this case to talk about rehabilitation when in fact your clients attorney at the hearing spoke about nothing but drug rehabilitation the entire conversation that your clients were presented to the district court was about rehabilitation and the district court responded to that and to your clients now the question about rehabilitation how can it be reversed where for the disrepair to respond to the very arguments are successful and i speak with you when you're able to monitor yourself right and that's in the context of the discussion your client and your clients when you're brought up to court can be faulted for actually responding to what you expectation you'll be participating in both mental health treatment programs and drug addiction treatment and if you look at the full context of both hearings the first hearing the court placing is tied into inpatient treatment and the court said there we're going to give you another chance it's a little bit rehabilitate her not to deter her well if it were quote clear then i'm assuming that the government would be in a position and would have to say hey this is clear is happy violation so it's not really clear you're reading between light and saying if you look at all this the most logical conclusion is that that's what's going on but at no point did district court say i'm sending you to prison for rehabilitation quote ever said that this court has never used the kind of we weren't sure as you are that that's what happened and if there was some ambiguity and we try to shape a rule that would be a guide and help the district courts how do we go about doing that there's a conditions again with the prison sentence and by the way while you are prison i think urge you to seek out or treatment that be fine but that's not what happened here i think you're asking this too for that's not what happened here it's really not that clear and how can we find  disposition report presented by the probation office did have a guideline range calculation that is clear and in that respect this case is just like missing are in this nowhere it was a supervisor at least violation hearing that court never discuss structure where no i mean this court is seemed to treat it as per se plane air drug structure the only time we say look it's you're absolutely going back whether objected to or not  reversal isn't that isn't that what structural here is i guess that's right but i don't think you need to treat this a structure where to reverse here because in this miller the court said that there was prejudice of effect on the defendant substantial rights because had the court considered the rebuttal if you we've talked about the various ways courts have gone about dealing with temp error or how to deal with the order not to be error and you know one is a dominant factor for driving force that may be ok in certain circuits permissible comment may be ok another circuit secondary concert concert or additional justification maybe maybe acceptable in some circuits and the love circuit of course you can't even consider it so when you come back if you could tell us if you were reading this what you would suggest as a good means to go but i will address that issue thank you is saying you need to be in you know you can't you can't manage this outside so put you inside because of it here this is the language from justice kagan subpoena tapia at page three thirty four in this case the sentencing transcript suggests the possibility that tap waiter at page one thirty one one thirty two one seems to be yeah one thirty three one thirty four that's certainly the plan that we had hoped would work does not work and it hasn't yet clicked with you and you really must have ongoing twenty four seventh's supervision and white of those statements hey kevin the language in tapia how do we look at that now a dominant factor the very useful language dominant factor in price that there could be subservient factors right does ok how can that be square with what the supreme court said happy happy said congress is clear you can't use rehabilitation that is a consideration that it cannot be on the table that's the main message of tapia you cannot pavement and that is a statement seems pretty clear that they don't want this now maybe it's actually saying the same thing he wanted he can't affect the sentence in any way right now let's assume that's the case how does the factor that can enter into your work calculus at all you cannot say you know what i'm doing this for your own good yet you know you broke the law or fed you with ten bags of heroin you broke your that is playing there and that is crucial here indeed but it sounds like you're agreeing that the way i framed it a moment ago in the hypothetical would be happier now how is that in any meaningful way different from what the have with revoking your supervised release i am going to send you back to prison for a period of twelve months during which will be my expectation that you will be participating about mental health treatment programs and drug addiction treatment programs that really actively considered by for rehabilitation and it comes right after her statement that it didn't work for you before so i'm giving you twenty percent supervision when you read that right i mean both two things are  does not work and it hasn't yet clicked with you and what you really must have is ongoing twenty four seven supervision it sounds like that is you need rehab rehabilitation you can't be a place mind of the court imposing sentence and you've argued that that's not here so it's almost as if the government is saying in order for the top tier of the district court has to say something like i am sending me to jail for rehabilitation which if supreme court addressed that exact point in tapia is essentially two ways you could think a prison is rehabilitated one is that the inherent solitude and confinement and supervision of prison might rehabilitate the offender and the other is that some specific treatment program could  offender and top of the supreme court said both reasons for imprisoning someone or acquitted it's a total loss of faith in prison as a rehabilitated institution now you could imprison someone to say i'm going to protect the public from you by keeping you locked up that would be a true incapacitated justification and judge posner discusses this the station in because pesto decision which we quote in our brief but in this case the only violations that this type committed were harmful to herself she was in possession of drugs she was using drugs there was with that criminal activity because she's acquiring controlled substances i suppose that's right but the court never said i'm trying to protect other people from you the court said we're doing this essentially said we're doing this so it's got to be you know understand the government not wanting to say yeah there was here but let's assume for the sake of discussion that we read this and thought that transcript looks like rebuild patient what's going on during the discussion  we were to frame a test that would provide a reasonable standard what should it be well how would we say it i think you can do better than quoting tapia page three twenty seven where the court said that sentence in court should consider the specified rationales  punishment except for rehabilitation which it acknowledged as an unsuitable justification for prison term so sentencing court should consider all of the factors except for utilization does that mean does that mean that the mention the discussion of rehabilitation will courts trying to get the idea that you're allowed to discuss opportunities for rehabilitation but it's not supposed to be a consideration but i don't think it really captures that distinction the distinction is are you considering rehabilitation imposing th for you just addressing the defendant about the opportunities that they may find when they're present so you place on the same page and i hear you both say that if it's a cause and effect that the way you're using the word consideration is it's actually got some cause or effect on the way the son's turns out sentencing explanation is supposed to be the reason for the sentence so if the court is mentioning a consideration as rehabilitation then rehabilitation is a causal factor in the senate so i don't think that the show where we should have to prove someone somehow that the causal connection i think we should have to show that it was a consideration in forming the sentence because by definition that is a causal factor so if a judge was to impose a sentence within that length range sentence and say this is an appropriate sentence with the factors thing is judges are going to and justifiably so if you read the concurrence and top you are going to want to to have at least somehow included in the equation and be sure this was a former causal connection between the precise length of the sentence because it's not always clear that you know that the judge judges don't always explain exactly why they selected the right certainly in this case the judge picked well not that an identifiable basis so if you don't know