all right may please the court many ms dan paulson i am the assistant federal defender representing cinda collins and this is a sentencing appeal from a sentence imposed for d a supervised release violation of the court impose an above guideline sentence of eighteen months and this is actually the nd time that ms collins has appealed her sentence in this case in this collins's previous appeal this court found that the district court had committed plain error by imposing an above guideline sentence based on impermissible statutory sentencing criteria that do not apply and revocation proceedings in this matter was remanded to the district court and when it was reminded for resentencing a couple of things happened the st is that the judge did not comply with this court mandate and took issue with this court's holding on appeal and  well and i think with the law the mandate holds is that when a district court you know gets a matter remained it the district court doesn't have the authority to reexamine the factual findings the legal conclusions unrelated to the st issue involving rehabilitations maybe you want to address that sure enough yeah and that's fine with respect to it and again there are a couple of problems at the resentencing i would stress though that  as far as you know the court's ultimate compliance with this court's ruling i think there is room to conclude that the court had difficulty setting aside previously held opinions about about the prior ruling but you're correct that in addition to not complying with the mandate the district court judge also explicitly stated that he was imposing a term of incarceration in order to achieve rehabilitation and under tapia as well as federal attorney inquired as you know you know whether or not it was realistic that ms collins would in fact receive treatment if you know if she got an additional nine months of incarceration and we'll will agree that that wasn't case because this judge committed plain error and i think that the question is can we say that this and that the government agrees that if this court finds that his decision was plainly erroneous this matter should be assigned to a different traditional and i think that was a pretty clear signal that he he wasn't open to reconsideration and i guess i we would just say that you know regardless of whether or not it was preserved or not it is plainly around us i mean the facts that th death and the supreme court said you know well intentioned or not that was erroneous you can never use incarceration to achieve rehabilitation and i ask you about the you're given free assignment and so the district court made  one back to the same district right and again i think that the government has conceded that just to maintain the appearance of justice it's appropriate to have this is signed to a different judicial officer  yeah yeah and again we're not here to slam the judge we're not arguing that he is biased against ms collins personally but just that the history of this case and the mistakes that have been made in the courts expression of frustration and i guess discontent is how your armor put it indicates that the assignment to a different additional officer is appropriate and i only have about two minutes left so i'm going to reserve that remaining time for a although the judge took issue and wanted additional briefing on those two main issues that he actually requested supplemental briefing on one being identifying in the transcript a specific section where he referred to critically important  issues with understanding how how and what context to consider seriousness and to the degree and so it was complying with the mandate in the sentencing d and this individual did novo and part of that w if we reverse on the tapio issue that reassignment would be appropriate i mean it wasn't totally clear to me from where you discussed for a reassignment in your brief that you were conceding that you would be appropriate for reversal on that issue as be sentencing was done the judge did not commit the same error it was a different hair so i think what the records show is that there's just a court judge to care over three different areas to ensure that it was complying with the mandate and th prong the government doesn't believe that this has been met so specifically regarding this it doesn't affect mrs collins substantial rights or seriously affect the fairness of the proceedings because the record is quite clear that her sanctions would have been the same enough i may i can point out a couple of areas of the trend of the transcripts where this makes clear you know out in the district court's written order which is that exits of record seven there the court them starts out by framing the reset and saying that she was originally sentenced on the underlying conviction to ten to twelve months and one day and that was a sentence that was significantly lower than the range of eighteen to twenty four months and i think this is indicative because it sets the stage of the of the trust that the district court impose would impose the below guideline of a low guideline sentence to this individual the nd part of the record custody at highland mountain she had the use of opiates a refusal to provide a urine sample and then additionally she also had another in january of that year she also had another violation and so those steph that the the government was making are derived from the violation disposition report which was submitted under seal in this case but they're on page two of the disposition reporter two paragraphs which outline  what isn't and the fact that he could have a live in something else that was the relevance there and i think i think of the relevance of this is that it's showing that the judge considered from several other factors so how how could we say a few of this this thing was critically important that if it were taken away that wouldn't have made any difference to the outcome yes your honor i think the the what the court can look to regarding that issue is that her sentence was that ultimately not lengthened because her sentence was actually reduced by six months from twenty four to eighteen months and additionally i think what is this kid this case is distinguished fall from popular in that case the judge explicitly stated where they were lengthening the sentence to ensure that there was she was able to qualify and complete  death in this case we have the judge actually imposing sentence st and then inquiring whether there was a recommendation to complete our gap so i think the timing of the district court's comments  the fact that it knew that it was decreasing the sentence additionally the fact that it was not extending the sentence to ensure that she was able to complete our graph and they do have a quote  transcript where you're able to where the district court is able to actually write to the fact that they are not she is not eligible to complete our gap and  announced explicitly that it was imperative for that defendant to complete our gap and you were lengthening the sentence to ensure that they were eligible in this case the judge imposed the sentence st without explicitly judge stated that the reason he was imposing a term of incarceration was to ensure that ms collins continued to receive substance abuse treatment and that's in the excerpts of record on or i  believe so i don't think there's really any question that the judge and the thing is this is an above guideline sentence it's twice what the parties are recommending so i think it is fair to say that the judge weighed incarceration as a means to achieve rehabilitation i think that's expressly linked in the judge's order and with respect to you know mrs collins as history and characteristics certainly ms collins has struggled with with substance abusers no question about that but to the extent that the you know if this court reverses and re man's ms collins will have the benefit of being able to argue for a sentence based on her current history and characteristics not just the fact that she's been drug free for some time now but also in the wake of the cove it up a demick and she does also have some medical issues so i don't think that this court can say with confidence that if this matter is reminded that miss collins is going to get stuck with this with the same sentence i'm sorry what rock and what she still had she's on the tail