involve a two step process the first step is wholly retrospective and factual determining what actually happened and the second step is on by contrast predictive and discretionary determining whether supervised release should in fact be revoked and if so what sentence should be imposed and mr bin rose case the district court's errors so infected both phases of this process that we are asking this court to charged in the violation petition which is the allegation before this court today and before the district court and there are allegations as to ford specific days february twenty third twenty six twenty eight and also march thirteenth i'm going to take them in reverse order once the district court has a basis for revoking he used the first two months just yes so starting with the second of those february twenty sixth it's undisputed by the government there was reason why he didn't check in is a different issue yes but as a casual matter he did not he did present himself to at phoenix house later but he was not admitted so he did present himself at the facility authored in that case it was the shanks primly persuasion again condition and that it had to be knowing association versus inadvertent but here the case that more closely mirrors the facts of this case i feel your to report no your honor but i would point out that this condition unlike the gang condition is not self executing in that a defendant or a person on supervised release cannot just present himself at a rehab facility and say i'm checking in for substance abuse treatment it has to be approved by the probation officer thing already been approved it has been approved but the compliance also presupposes a facility the existence of a facility that's ready willing and able to accept him as a patient and he did present himself three times the first he was late but he was given a chance to come back on the twenty third  now i would say it was probably a knowing act there isn't evidence in the record however it's not clear that he knew that he would not be admitted to substance abuse treatment if he was you know showed signs of substance abuse and i think but i think the last one is particularly important because on that day which was his last clear shot to enter the vicinity the testimony show that he wasn't late he wasn't under the influence but he wasn't excepted due to his mental health needs and this did not seem to be what something the facility was willing to accept him as a patient at least on that last date and by inference on the preceding dates and it was well known to the proceeding dates but on the last day when he complied with the requirements they had given they said we can't you know deal with his mental health needs which was an ongoing concern in this record and i saw what you want me to language  criminal but we're not talking about a criminal here right but this is how they are construed court is construing a condition of supervised release which is association with gang members in that case which in itself is not a criminal act but they're saying that there has to be something more than inadvertent or it has to be within your control to some extent and i think our i think the reason that language is in there because the condition said that to the finish i'm not associate with any criminal street do you think that makes a difference i would say no your honor i still think that in itself is not a criminal act but the question is whether a person can be violated for an unknowing or unwitting violation and here the i i can see the conditions are different can kind but if the probation officer has directed mr monroe to report to a facility that doesn't handle people with you know his degree of mental health issues and he's not admitted for that reason well but that came after the  case that does not involve a prohibition of associating with a criminal gang that has the means of radio requirement no your honor however i would also argue with in the alternative that even if there is technically sufficient evidence that he violated the the mitigating circumstance of whether he went to urgent care and the facts surrounding that that visit and the following visits go to the exercise of his discretion the district court's discretion and revoking step supervised release which goes to the second phase so even if it's not technically insufficient it would you know an abuse of discretion wasn't disputed was it that the probation officer directed him to go directly to the treatment center and it was six hours or so later and so why couldn't the district court have concluded from those facts if there had been a knowing noncompliance with direction report i think the way that the allegation is worded just says he failed to report on this day and that if he had gone in and been admitted albeit at that late hour there wouldn't necessarily have been a violation but again i think even if the evidence is sufficient that it still falls back to an abuse of discretion as to the district courts you know uncertain grasp of the facts as to which days he was ordered to report versus not i would just briefly like to  speak to the spars a condition and the requirement for mental health residential treatment which was ordered by the district of nevada back at the original sentencing spars it then came out later and show those conditions to be plain error and we would argue that to the extent the government argues that the district court subsequent modification affects those conditions it only does so as to the substance abuse and that no court no judge has made the call that he must go to residential mental health treatment and let me ask you a different question did your client the cocaine yes you did your honor here certainly it's within the discretion to revoke but we're not remaining for re sentencing in that particular case because the charge that was upheld was more serious i think in this case they were not they were both great see that which is correct they they were of that the same grade however i don't think that was i think in the basis i think here the failure to go to drug treatment was what was on the district court's mind versus one positive drug test and i think it would be an extraordinarily harsh sanction to give someone nine months for that one positive especially when the probation officer said at the r seven he didn't start revocation proceedings after that one positive that just proved that he needed good morning your honour's may please the court in you know on behalf of the united states and to address what judge rowland just asked the the district court's decision to revoke supervised release here wasn't based on an error it was based on an admission by the defendant allegation one in a minute but i just want to right he admitted one of the two allegations which both of which were great to see but i wanted to know that appellant has not cited any authority not one case where this court has reversed an order revoking supervised release when a defendant has admitted one of the allegations not one so i submit to the court that based on appellate submission alone that the court's decision discretionary decision to revoke supervised release is warranted now to address the the comments in the argument about the feb twenty third the failure to enter into the residential facility the facts in the evidence show that the the probation officer instructed the defendant to show up at the facility at nine am he did the defendant do that he checked himself into a energy care facility and the probation officer received an eleven am call from the nurs if it was fine he checked himself and he was going to be released very shortly she gave him bus fare to get to the residential facility then the probation officer spoke with the defendant said go directly there as judge settle mentioned i think that the lapse in time between when defendant was instructed to leave the urgent care facility and when he purportedly arrived at the residential facility which was around eight o'clock when the defendant called the probation officer and told him that he tried to check in but he was not able to so i think just those facts alone viewing the evidence and like most favor of the government shows that the defendant did violate allegation one as to february twenty third which is a which supports the just records the actual file i also think that the other evidence that was that was offered to the other side of that is that the trial court said we don't have evidence of interview care doesn't that in this is the trial court was an error in recalling that evidence so your honor that's a good question but i would direct the the court to the excerpts of record that would be eighteen and what the at what actually transpired between the court to mislay see and mislead opened the her argument by saying now the probation officer testified that on february twenty third mr monroe communicated with him that he had to go to the urgent care facility and so  the decor said we don't have any evidence of that council we don't have any evidence of what you just told me and i submit that there was no evidence showing that mr monroe communicated with the probation officer before he had to go to the urgent care facility so i think that the court the crux of what the court was objecting to was that statement even though the court does go on and it appears that he misunderstood the testimony concerning the conversation with the nurse  it was your honor but i think that that doesn't really disturb the finding related to the twenty third because if we look at all of the evidence presented we show that the probation officer instructed the defendant to after the twenty third would be relevant conduct and they would certainly be relevant for sentencing purposes and so when the district court rendered sentence here a guideline sentence i would argue that that's justifiable and appropriate given that what the evidence that was presented  was that the to fit an admitted one violation and that he repeatedly violated the other the allegation one even though certain of those allegations the departed cuellar dates were included in the allegation conditions remained after the defendant was transferred from los to los angeles conditions are still in the so your honor i think as best as i can tell and i think the district court the most recent order by the district court incorporated all of the prior judgments and so i think that because the most recent order included the standard conditions of release for the central district think that the special conditions do apply but i think that the january two thousand and eighteen district court order a judgment in the central district the court superseded the special condition related to substance before we get let's the mental health conditions superceded by the district court order in california i think that not necessarily superseded but i think what sexual one moment sexual offender treatment program and what the condition stated was that the probation officer could determine once that offender was released from his nearly twenty years incarceration was whether or not that the offender had to be placed in a residential facility or placed or could get the sex offender treatment in an outpatient capacity and the court reason that the nature and extent essentially of those between those two options the level of confinement was too much of a discretion it was an inappropriate delegation to the probation officer here we don't have that issue because the district court has already said that the defendant is going to be placed in a residential substance abuse treatment and counseling program and so i think when read in context with that construct with that special condition and with the nevada special condition related to mental health treatment all that special condition is now allowing the probation officer to do is determine whether or not the defendant is placed in a facility where he can receive both mental health and substance abuse treatment and i submit that based on planar review that there is certainly no authority that says when  certainly nothing that counsel cited or that i found where if the district court has designated that a residential facility is appropriate for certain conditions that the can't be that the district court can't leave it to the discretion of the probation officer to determine the scope and the level of or what types of programs the the defendant receives while he's receiving that that residential treatment let me ask you  going back to the sentence since imposed was nine months and your contention is that if the court were to find that only the illegal use of drugs was the basis for revocation and sentence that the nine months was within the discretion of the court well it was certainly within the discretion of the court because under the guidelines the since both violations were grade c the guideline range of eight to fourteen months would apply to either violation but but i would also submit that because the district court heard evidence about multiple violations with respect allegation one the defendant repeatedly failed to enter into a residential program that even those dates that weren't listed in the actual allegation could be considered for sentencing purposes and so even if there was an error about a particular date the district court there's certainly nothing in the record that would suggest that the defendant would have received a different sentence and u s the court has further questions i just did want to make one one final note that although appellant only raises the sentencing challenge in his reply brief i submitted the gist records appropriately and justifiably entered the guideline sentence and i know that the court focused on deterrence and protection of the public the record before the court was was was quite quite clear that from an early age through the may seventh hearing that mr monroe was in and out of minute thank you i would just like to respond on the mental health treatment condition issue the condition opposed by the district court here in the central in the central district of california at p s r twenty four is specifically geared to substance residential residential substance abuse treatment and counseling and i don't think that mental health treatment can be shoehorned into that condition precisely on the record we see here phoenix house which was the residential drug treatment center found itself incapable of providing this sort of level of mental health treatment and that's why there's this talk of the dual diagnosis center that handles both of them and we're not arguing that that condition can be imposed but we're just arguing that residential especially psychiatric treatment is sufficiently different in kind than outpatient treatment such that it goes to the the substance abuse treatment and mental health the lack of discussion about mental health treatment once he arrived in the central district and the reason for imposing that residential substance abuse treatment was positive drug tests it didn't