have declared that a sentence that is based upon erroneous or false information constitutes an abuse of discretion violates due process and therefore requires reset and c and that's what happened here in the district court at the on the augment that sentencing on the violation of probation the government told the court that this defendant the appellant had not paid question the rest of this court has held repeatedly that actual law in this is not required to be established this court has held that in the one nine hundred seventy six opinion of united states forces robin and repeated that but in direct answer to you on his question the only in the very long argument that sentencing the court only interrupted the government once and that was immediately upon the government statement that no payments had been made to quote stop the government and said you mean to two hundred sixteen thousand dollars conclusion of the government statement defense counsel get up got up and said three times may i reply judge the district court said no please your honor may i replied the district court said no you are on it there has been a misrepresentation the district court said no and sentenced mr on strongly appellant to jail that's what happened defense counsel three time so what to correct the record and the district court said no now book in the united states versus robin the stay were to robin cases the first case the first decision by this court in seventy six said this circuit standards for considering in a row needless and false presentation at sentencing the government cites some cases from other circuits that's not the law sure that the government in its brief misconstrues this court's decision in king we hope in king we hope the government based upon that the government says that it is the burden to establish that it was quite probable that the false information affected the court that's not what this court said in king the whole rather this court said we're period the statement of robin and the statement in magee that says actual lawyer is not required and then listed several cases where that we are that standard had been a ploy and in king v how it mentioned the standard was was satisfied and more because there was quite probable but that's not the standard next the third point of this court's decision in robin is  court's failure to take appropriate steps to ensure fairness and accuracy must be held as plain error and an abuse of discretion here defense counsel troy three times to correct the where ever and the court refused to listen and finally this court in robin emphasized that accuracy is a prime concern and therefore a defendant must be given an opportunity to r information that he contests we were not given that opportunity to report the government's statement that the false statement be government fails to even in this quarter come forward to the myth that this was a false statement even though it knows it is a matter of fact that at least fourteen and as many as sixteen payments were made the gov this was an important part of the government's presentation because the government was attempting to show that mr on strong had no respect for the court and was rejecting the court's order was disobeying the court's order two he's financially strapped to say the very least and number three the order was only ten percent of gross income to begin with that's what the that's what the restitution payments were based upon the principle is whether you were being disrespectful making sixteen payments is not as the government was trying to establish disrespectful finally if i may i recognize that asking this court to remain to a different judge is a difficult presentation however in applying the test that this quarter established in the second robin decision the one thousand nine hundred seventy seven robin decision this court said that to set forth three factors and counsel that we should focus on the firm of the trial judge's earlier expressed views in my brief i point out to multiple factors that establish that the district court was very formal and therefore unlikely to objectively abandon its point of decision and those factors include again that he refused to allow defense counsel to correct the record that no defense counsel wanted to say right no he did most respectfully you want to put on the record supports that is because the third request by defense counsel was your honor there has been a misrepresentation he had no idea what was true he had no idea what it was because most respectfully he wouldn't allow defense counsel to continue if if if if the district court said what's the misrepresentation counsel then the court would have known but he didn't give us that opportunity if we were with you on the substance if you i'm sorry if we were to agree with you on the substance of the argument but this agree with you about sending it to a different judge you would want it to speak said to the same judge anyhow for reasons well i of course i would request a different judge yes but i did have a half a party is better than no home times it isn't that so i am asking ok yes we would request that your may i make one final comment and that is i emphasized to the court to be cognizant of the fact that mr armstrong began his sentence on march thirtieth and that according to the bureau of prisons his and to subpoena the date of relief of release is june twentieth he has served as of today more than half of that sentence i think the court how is it that the government told the judge below that nothing had been paid your honor that information and it may please the court my name is alicia washington and i'm here representing the government that statement was made based on the government's good faith basis of what was in the violation of probation report so the government still would argue and based on the information that continues to be provided to the government it's not an accurate that the i r s has not received any payments what it appears to be is that there's a disconnect between what's gone to the clerk of the court and what is what is owed to or what the i r s has received basically we're conceding your statement to the court was inaccurate you i guess the government would concede that to the extent i think there is still a little bit of attention because the judgment has two requirements one that the defendant has to learn the fact fourteen or sixteen whatever payments it is with respect to the court's order the government learned that when the defendant or at least was cognizant about it when the defendant filed its motion for reconsideration in the district court that is when the government sort of was sort of took the time to look back and see what the tension was between the statements that were made for the basis of the second charge which the government  it does say that restitution should be paid to the clerk of the court but then there is a separate requiring in the judgment that the defendant complies with the i r s for the assessment of all taxes owed and payment of those taxes  restitution as who or what entity the i r s ok so it's clear from the judgment that the restitution is for the account of the internal revenue service that is correct that's a matter of public record that is correct  and there are no other restitution papers as i write that is yes that is correct now does the docket sheet reflect the restitution payments that the docket sheet itself does not reflect that specific section in the violation of probation report that was provided to the court that talks about the court order obligation talks about the court order obligation of the restitution payments and how many have been made at that point but then separately know one more question defense counsel in attempting to get the judge to hear him after you got finished conveying i assume innocently the misinformation said judge there's been a misrepresentation did you ask him the fence counsel what the misrepresentation was at that point in time the government did not or not i think similarly i didn't know what he was referring to and i didn't as i was standing there think that any misrepresentation had been made based on what i was for trying or what i was characterizing from the probation report and i think importantly the issue about the restitution is preferable to what the court was considering this was a defendant who was given and not incarcerated torrie sentence and the net effect of your representation was to suggest to the court look you gave him a break but you expected him to make these payments and you know what judge he's not making them when in fact he made fourteen even if the mot amounts were small so what does it does  t to a sentencing judge that someone whom he or she had given a break to has just ignored their obligations is that actually the reason you told the judge that and that was the impression the judge got the what the government was trying to convey more generally was the defendant's history of noncompliance and that the crux of what the government was the argument that was being made was that it wasn't until the court the district court put the defendant in jail for approximately five days that he then began to comply with the what was that issue and the second charge which is that he was not cooperating with the type of cooperation you your representation was effectively and you know what else judge you ordered restitution or you ordered these payments and he hasn't made a one i'm finding it difficult to understand how we don't and the district judge may think that that didn't affect his sentence he may tell us that but that's not apparent on the record i'm not sure how you can argue to us as you do in your brief that we can confidently conclude that he didn't inform the inaccurate information was relied upon such as when the the court gives its reasons for the sentence that it really emphasizes the incorrect information or the inaccurate information none of which happened here and i understand that the defense counsel is relying on an interruption that was made during the government's presentation and i think that in the same way the district court interrupted defense counsel when he was discussing the defendant's family i don't know that we can say well because the interruptions were during the district the defense counsel statements about the defendant's family that's why he decided to do every month that unless the judge references the misinformation various no basis for re mandating to ensure that he did not factoring to sentencing me that one can hypothesize all kinds of agreed just conduct that might be represented to the court and that the court might not specifically say reference it is sentence because judge doesn't have that's that's correct your honor but again the government points of the cases that that were cited such as david where it says reversal is required for a district judge while giving his provide based on the history of noncompliance by the defendant and the probation department provided a number of examples of how the defendant had not been complying started by asking how this happened because of course the importance of the government's representations being accurate to the district court can't be overstated that didn't happen here i'm just surprised that the government doesn't think ok let it go back before the district judge we think it'll likely be the same sentence but we want the defendant to be sentenced on an accurate statement of the facts that the government certainly does want the defendant to be sentenced on an accurate representation of the facts if the government if the court it seems like the court is inclined to remain and it then the government will request that it be reminded to the same district court judge we don't think there are any extra optional circumstances or special circumstances that would warrant three manning to a different j