required unless the court accept that's not nice argument but it doesn't recognize that that concession is fundamentally inconsistent with this because the reason that daniel finds playing error in the situation is because there is error if there's even the possibility the court might impose a different sentence if it hears an allocution regardless of whether this court thinks it might actually do so by the same token the court's nuisance president precedent is clear the same time right if the court doesn't change anything on re man that's correct but i think that the court would have discretion to change things on remand well how much better can you do than getting to eventually well i mean the reversal is a st step is the end date of the supervision is going to change but there is let me st distinguish between the two errors one is a pure sentencing error which means that it and that's the one that the government concedes under daniel would just go back for resentencing we think that the entire revocation should be undone because of insufficient evidence ok so what if i agree with you if you win then why then it goes back to the district court and then the and in that case because if the court accept her argument that the should that the government is precluded from trying to reprove either allegations again then you're correct the term of supervision absen further discretionary action by the court would stay where it is right now it's the same so you get a reversal so the revocation proceeding you know is no lonely going to be a black mark against some of his record but he goes in the complete system of supervised release i don't understand why you hear but that doesn't mean that this is move your honor because there's two things because st of all let's say he he commits new via legibly commits new violations the rather case and that's in place now implicates what happens those three months in prison right then the bureau p will treat that as crime in the bank a few dozen other revocation then he gets credit for the three months down the road more important that what could happen on remand is the the defendant could go into the district court and say i know that our term of supervision and next april but given the th circuit's ruling i shouldn't serve those three months in prison you should compensate me for that by reducing my term of supervision because you made a mistake because of that it was basically your argument that united is happy with the reversal you wanted to go back so you can argue that this should be less supervised release it's already been established on the privacy that's in place that  defendant can go to a distant cousin any time and ask for early terminations and like the th circuit president precedent is absolutely clear if this is not his that would bill you there's nothing that would prevent you from going to the district court judge with  correct and then i don't the reversal on america a reversal on the merits for insufficient evidence for the government's case is no longer a viable case you when there's no basis for this revocation proceeding the case is reversed dismissed ok so what do you want then that i guess if you're if your honor is asking whether it's reversal where the government doesn't get the chance to reprove these allegations below then that's exactly the relief i'm asking for i don't understand  issue in this case which is that whether there was sufficient evidence to support correct the sentence imposed because i got to say it seems to me that i have a hard time understanding why this person doesn't appropriately qualify for mental health treatment given his conduct and and the sense that he's supposed to come back to all these appointments isn't that by itself the fact that he's been given all these appointments indicative of some previous finding by a mental health professional that this man needs some additional help so what's insufficient about that evidence or i think this you think st of all we do not dispute that he has mental health issues and that there was a evidence with regard to here's the mental health professional that made this recommendation that led to these additional points that he didn't show up for your own if i can explain again he had mental health issues he got a mental health condition that the government's violated that particular condition and i was no question about not showing up at the appointments you're out of let me please let me explain the specifics matter why did they have those appointments if he doesn't need help your honor here he had seventeen hours of therapy for thirteen different appointments or thirteen scheduled appointments who showed up for eleven of them for seventeen hours of therapy in three months this is not a case where he just blew off their appeal entirely it's there for incumbent upon the government to prove exactly what the treatment recommendations worse so we know whether mister mr christensen violated then if there's no question that he didn't show up for some of the appointments that had been scheduled for him by a mental health professional for me it's not a hard in there is a preponderance of evidence kind of when he violated the terms you're going to put out i'm going to tell you it's not enough to say that the government's got to prove why he the didn't show up for this particular appointment and i'm not saying that's not what i'm saying what i'm saying is let me can i can i give you an example that i think one of the via ledge violations is that he didn't show up for the april th appointment he schedule of he showed up for five other appointments that months for a total of nine hours if the treatment recommendation was you show up for one appointment a week you show up for five appointments a month you show up for nine hours of therapy a month he complied even though he missed that appointment but because the government didn't meet its burden to say exactly what was required by the treatment professional we don't know and we can  like that's the problem i think we can infer because i don't think the treatment professional sets up appointments that he's allowed to blow off what's the inference of of setting an appointment for me the inference is there was a need for that appointment it's part of my recommendation but but you're arguing to the contrary fine but i don't have difficulty saying by a preponderance of the evidence the inference that i drew is a logical one and it's one the district court is entitle to make you can prove to the contrary but now we're just talking about an absence of evidence in an alleged failure by the government to prove where for me it's there by the fact that the appointment was set well what was the treatment of that recommendation of the evaluating professional i'm trying to understand what actually the recommendation was that he's charged with violating that's what i'm trying and this was me a treatment plan right correct i don't know what the treatment plan is obviously he has been issues all right and it seems that this case is all about whether or not he missed two appointments or not but i don't know what the treatment recommendation was that would deal with correct your honor and the government points to certain things in the report that at best reflect that he was ordered to perform some therapy but that's so vague we don't know whether missing two out of thirteen appointments violates the conditions i'm sorry i know i'm way over my time so let's go to the questions and you can have a couple  like your question to my opposing counsel concerning what was the treatment recommendation government's exhibit exhibit excerpts of record one which is exhibit twelve from the hearing contains the following language if continued treatment is recommended discuss the plan for next month and then it says it is recommended to address jason's cognitive decline slash delusions his anger and his transition back into the community and it refers to him this is a monthly treatment report for september th so it does specify what the treatment recommendation is now is it true that i didn't alyssa testimony from the united states probation officer that the the the mental health appointments that we put in evidence of those were made pursuant to that treatment recommendation specifically i didn't i didn't elicit that specific testimony and i didn't listen elicit the testimony that the initial intake by detection treatment resources incorporated if that was a mental health evaluation it's almost a tautology and the additional evidence that councils looking for in the appellate briefing in this case yes he had an initial intake and it was a mental health evaluation and it occurred let me just respond to his his points in the reply brief it occurred after defendant went into the r c on august th twenty times we know what happened after the condition was ordered in his may tw report is only only filled out on october nd so we don't know if it happened before the october th the point to well but it's specifically for the period covering it i'm quoting from government an excerpt of record one for the period record where you establish what the treatment recommendation of evaluating professional was that apparently you rely upon as justification for a phony the as a reputation here doesn't want to be in the record to there is a copy there's a duplicate but it's hazard to accept that they government some excerpts of record one through six is what contains the language i read at the outset of my my comments this morning about it is recommended to address jason's cognitive decline in delusions his anger and his transition back in the community that is the one i'm going to treatment recommendation and that's not an evaluation by a professional lawyer i would submit that it is a treatment treatment recommendation it's a recommendation about how to you talk about a specific violation which goes beyond the standard condition that a person should be susceptible to mental health evaluation i think that these are two different things well you're under that same document the exhibit twelve from the exhibit talks about goals this month focused on jason's initial intake now and intake in this in this context on a monthly treatment report for mental health is clearly a mental health evaluation it then was justified it missing two appointments and there was some evidence as to why he missed the two appointments that seemed to be the focus it seems to me that what happened here is that he's been sent to jail for three months because this record judge was unsatisfied with  his explanation as to why he missed those appointments well your honor the focus of the testimony was by the united states probation officer was exactly that it was did he did he have these appointments and did he go right because the defense did not raise this issue below of well is there some sense in which an intake is an evaluation and is there some sense in which the provider is scheduling appointments that aren't in accordance with its treatment recommendations fill in the cracks you know they could have been handled differently by all the party sources well it is true that all of the parties below to include probation the government defense counsel and the district court assumed kind of a common sense understanding of of the situation here which was that he was ordered to attend mental health he attended mental health intake includes evaluation and appointments that are set up specific to very specific die pursuant to very specific diagnoses by the provider which are provided here in monthly treatment reports that appointments set up pursuant to that were in accordance with their treatment recommendations are not to set actual condition number five and that's different than the general type of thing that we do on revocations because it's standard to say you have to seek and comply with mental health treatment that stand the condition we do all the time but he in addition to that you have a special condition number five don't they mean two different things no i don't believe it's a condition that's above and beyond a typical condition ordering much mental health evaluation and following the treatment of the  health we quiet no no i'm sorry i must misspoke i don't know if it is only because there is the special condition number five that that he's he's violated here if that is as far as i understand the only condition that i would have to look at your honor i believe maybe that's what i did anyway but you know it's standard to me yeah i measured department always recommends this whenever somebody has a history of mental problems that they should be susceptible to seeking help at the discretion of the probation department i'm not i'm not sure i guess the important point is your honor i'm not relying on any other condition here i am relying on the specific condition can get a special condition number five about completing a mental health evaluation and following and i just would like to know what the evaluation of the professional was well your honor the evaluation of professional was that he would see you see as the patient do you do this particular type of therapy do you make yourself available for this type of treatment or that type of treatment i don't see anything like that in this way could your honor the evaluation was the specific diagnoses that are laid out on the nd page of each what we know is problems but i'm not so sure i know specifically what professional evaluated exactly what he's supposed to do to deal with th problems you're i would i would just return to the continued treatment that is recommended which is to address his cognitive decline and delusions anger and transition back in the community also note that if these appointments weren't in in accordance with their treatment recommendation why is the provider sending the vial violation reports to the probation officer so when he doesn't show up for these they don't just say oh well that was sort of optional we didn't really care about that particular appointment that wasn't in accordance with our treatment recommendations they actually send a violation report those are in the record as well as i believe it's exhibits a record  and fifty seven thousand one hundred and fifty eight those are the mental health providers saying hey he didn't show up for these so that also supports a reasonable inference that these were in accordance with their treatment recommendation time but i think we have a practical problem here and i'm curious if there's any way that should impact upon how we deal with it absolutely and i think i mean in a moment to answer that answer that question fully i think the best way and i think that the premise of the course question probably from wrong is well government is all we know the case is going to go back because of the lack of allocution maybe it doesn't have to go back because we reach another verdict by the  decision but the question becomes we don't have the district judge anymore right to have to be reassigned and specifically government some of your brief reading from wrong but some of your brief relies on that the disc this specific district court has said a number of things that you could argue that hey this is this is futile because we know it's going to happen but we don't have that district judge any more right than a week so yeah i guess let me just address movies generally because i think that helps but then i'll get to specifically judge guilford on the move this issue because i think that's what this is most relevant to the best way to view this is to ask what is defendant get if he gets everything so this court finds it's not moot you were st for insufficiency the evidence and double jeopardy precludes any further proceedings there isn't any new reset and sing hearing this thing just ends and by he goes back on his old terms supervised release so there isn't some re makes the arguing that because of this three month sentence that possibly if he goes back al accused and gets assigned to the judge that the judge could reduce his term of supervised release that th and from the prior to cd but i point out that you can always make that application now to modify terms of supervised release all the time he could have done it this morning he could have done it yesterday he could do it tomorrow but the other thing to just sort of look at procedurally is if he gets everything he wants there will be no resets in proceed for there to be this resets and proceeding he has to fail on his double jeopardy claim so in order for him to maintain this case or controversy he actually has to lose part of his appeal now the language of of honor that you know we're hoping we don't have to have that conversation but that certainly hasn't happened that's part of the speculative nature of him whether he'll have any injury any ongoing injury to correct we would you i mean it is a reversal you know he still is going to have to so the next month or two it will be the end of it all he can make an application for a modification of his private condition a supervisor these what is it that you want well your honor i don't i don't want to you know probations an arm of the court and i want to find probation by my comments today probation was obviously in it through their efforts in this case trying to keep somebody who clearly posed a danger to the community to have their his mental health supervised adequately i want to make sure i also answer judge clifton's question about about judge guilford i think it's important that to note that even though this could go to another judge  again the notion that that judge is going to decide to overturn the decision of the judge the district court in eastern district washington and overturn the kind of explicit well do but now it's going to be judge well yes we know judge x so that's why i raised the question i understand your honor and i yes and if there are no further questions i know on the way over my time thank you thank you your honour's can accept the government's mis argument without jettisoning its own precedent in favor of the nd circuit case on which it relies black brown and even black during the majority and justice sotomayor in dissent recognized that that case was going against the consensus all the other circuits including this one this court has to follow its own precedent if the court does go down that road putting what the retirement aside the if the court looks at pages eleven through thirteen of the axis of record judge guilford is actually quite equivocal he says i don't know the background to that yet it may well be you're right he's not susceptible to super vision i mean i don't have sufficient evidence about that here expressed open it's not certain laws but no part of the recommendations