vacating the revocation in this case the st is the government's failure to establish that mr thompson received notice of the condition that he was found to have violated the nd is the court's erroneous belief that revocation and imprisonment  mandatory in this case so st with respect to notice the government simply failed to introduce any evidence that mr thompson had notice of the particular condition that he was found  violated under what about the judgment the judgment sensing with the conditions is that not sufficient it's not your honor because there's nothing in the record that indicates that he received a copy of that judgment and there's nothing in the records indicate that officer apparently discussed the conditions but did not indicate what that meant it was just a notation in the file there's nothing in the record that indicates that he was in fact informed of this particular or perhaps the probation officer may have assumed that he had received a copy of the written conditions twenty years prior and may have simply said you received a copy of the conditions i'm sure make sure that you file of them again unless there's something in the record that indicates said was and again this was all on cross examination so there was none of this evidence was actually introduced by the government yes absolutely no i predict that on cross examination defense counsel said and you gave them information his conditions around november nd is that correct not me it was initially a somber basin officer and then the next question as far as the records go he was informed of his conditions again the question was not he was informed about this condition it was just a generic statement that there was a discussion about the conditions what you're suggesting is then we need to assume that the probation officer for some unknown reason decided to pick and choose your conditions and notify him of some and not others we don't know you fact is the government could have put on the you know the average lease on probation officer maybe maybe not i mean it's not uncommon for probation officers to be reassigned transferred retire files to be transferred from and to another officer that happens probably every day district courts around the country so there's nothing untoward about that option and the probation officer that seems to file that reads the filing testifies from it constantly this happens every day in this record so when the probation officer comes in and says a notation indicates the previous officer reviewed the conditions  case law that says that's not enough well again you didn't say he reviewed the conditions there was there was a discussion about the conditions and again this is all premised on the question from the defense counsel so this is not a specific testimony from the probation officer explaining what had taken place or exactly what the file indicated or the probation officer on the stand answering questions from the defense counsel is not testimony it's certainly testimony a question when the witness testifies there you have it you have your evidence that that's correct but again there was simply a general answer that there was a discussion about the conditions not that he in fact had been informed of this particular condition and this particular conditions  twenty five conditions it was buried among the list of standard conditions which very often are not in fact ever explained at the time of sentencing so what it's very important that the probation officer in fact does provide the defendant's ok so the other reason you argue that he didn't have notice is that he may not have received a copy of the judgment which of course lists all that the condition or give any case law that supports your argument that listing the conditions in the judgment is not sufficient to provide notice so what we're take a breed of this court said that so long as the defendant receives a copy of the written judgment if that's clear from the record then that certainly satisfies the standard in article brito they determine there wasn't anything in the record to establish that in fact he had received a copy of the written judgment and therefore this is when this court st said that will allow actual notice to substitute for written notice and in that particular case they did find  eighty eight of the record this is where the court discusses how the probation officer in fact was recommending only term of location monitoring no imprisonment nothing like that and the court then discussed how well he's not going to get location monitoring cause i'm finding that he in fact he was in possession of a firearm and as a result revocation is mandatory imprisonment is mandatory so again the court went out of its way to make this finding and so clearly it meant record the government i believe in its brief acknowledges that in fact defense counsel said it couldn't have been a replica in order for that prison to apply and the fact is i can't find a single case anywhere which says simply based on if you want a videotape that you can determine that a firearm is in fact a real firearm and not a replica or b b gun or something like that there are some cases where you don't have to produce the actual  mr thompson and i'm not sure himself actually looked at the video we're talking about a few seconds on this tape in which you can see mr thompson has a gun in his hand and immediately hands it over to somebody else who then puts it in a backpack right and from that very brief view on on the video there's no way to tell that in fact was a real gun that's not the only evidence right there was testimony from  question that i worked at the video it looks like a gun we're not disputing that it didn't look like a gun it looks like a gun why can't the court concluded it was a gun  reason that was a gun because being a gun is not enough to it has to be a firearm as defined by the statute so for example you know it's all robbery conviction it doesn't have to be a real gun you can use a toy gun for conviction however here the statute expressly defines a firearm and and therefore under that that definition it has to be real it cannot be a b b gun and we included the washington post article that discussed how in a two morning your honors merry song on behalf of the united states may please the court specifically as to whether or not the defendant received notice i'd like to address that st the district courts in range guideline sentence was justified by the evidence presented at the hearing and it was imposed only after it found sufficient proof that the defendant violated his seventy two hour reporting requirement by preponderance of the evidence now the defendant's argument that he was not meaning rather at all advised of the seventy two hour reporting requirement is on a family and four points expose that position as also disingenuous first and foremost as judge bad has put pointed out there was a written judgment and commitment order when the defendant was sentenced for his underlying conviction that laid out each and every one of his supervised release terms and conditions including the seventy two hour reporting requirement which was standard condition number twelve and that judgment and commitment order second the defendant was advised in person by his then probation officer to be in the room in the record shows that he was handed a copy of the judgment and no your hon but the probation officer specifically told or rather testified during the evidentiary hearing that his predecessor eddie lawrence i believe advised defendant about his supervised release conditions which included the seventy two hour reporting requirement rd when the probation officer at the time joseph carlos then reached out to the defendant to affirmatively ask him about the arrest that occurred on june  thousand and eighteen that triggered his duty to report the defendant showed a complete lack of surprise he didn't say i didn't know i had to report he didn't say i didn't remember that i had to report specifically what he did was he tried to downplay and minimize the arrest as not into rust and he explained to his probation officer that's why he didn't report now that response is in the response of someone who had who did not have  noticed that he had this duty to report and lastly the th point that i want to make as to the fact that the defendant did indeed have actual notice of the seventy two hour reporting requirement is that the defendant admitted that he had been advised of the terms and conditions of his supervised release including the seventy two hour reporting requirement and for that your honor i specifically invited you to look at e r sixteen where the defendant says quote in his allocution to the court i'm doing ok now the st choice i was from not turning into my c e o or correction officer and in this context the probation officer i didn't understand that i didn't read it but then he goes on to say he explained it to me before i had to i didn't remember so the point that i want to make is that he did it wit r sixteen that the probation officer had explained this duty to report to him before he admits that and then he tries to say i didn't remember but again the phone call that  probation officer joseph carlos details during his testimony to the court shows that that's not actually the case again the defendant didn't say i didn't remember i had to report he lied and said i wasn't arrested but as officer cullender from the los angeles police department had testified that was actually not true the defendant was not only handcuffed he was transported to the booking station he was fingerprinted he was tagged he was photographed he was then placed in jail where he had to spend the night and then he had to post bail in order to be released there was no question that he was arrested and indeed he later admits no less than three times that he had actually been arrested and that he was not forthcoming with his probation officer for that he says and i quote i'm wrong for to that judge i admit to that i'm wrong and quote and you are twenty four he also says quote only i was mad because i got arrested for a reason and quote and he also said when he's talking about how he got a friend to bail him out he says quote i said i got arrested they arrested me and quote twenty one so the the district court found that the the defendant had been notified of his seventy two hour reporting requirement and that he deliberately failed to report to his probation officer even though extraordinarily the probation officer in a great deal of patience and compassion waited past the seventy two hour a reporting requirement and called him the defendant two weeks later to give him an opportunity to come clean could you address the nd point the counsel raised which was the judge operator and the mistaken belief that he had to impose a man he had to post some prison time yes your honor specifically asked to that  district court actually revoked on the basis of the seventy two hour reporting requirement and the portion of the record that the that mr libby pointed  to showed an initial kind of inclination to see whether or not this mandatory revocation applied however the district court then corrects himself before imposing any kind of sentence were just to do that i was just looking for that after counsel said yes  the defense counsel made an objection and that's a good ok your twenty seven what lines starting with twenty three your honor ok we got we says let's give him the benefit of the doubt correct your  honor at that point the defense counsel as well as a probation officer had corrected the defense the district court and pointed out that the actual allegation at issue here was a seventy two hour requirement reporting requirement was there for was it instead  it was a state of being in it was a grade c instead of being a grade b instead of being a grade b it was a great c for the applicable i just changed the that just changed the guideline range yes it did it but that doesn't respond to his his argument which was because he found that if the gun was he was in possession of a gun a gun was involved that he won he had to revoke supervised release two he had to pose he had to in circumstances of the case i do think that some time is warranted yes your honor if we go a little bit above the lines that i've stated the defense counsel specifically say that this  was the actual allegation is a grade c and that it was for the failure to report not a matter of replication of the gun and the judge specifically said you're right let's give him the benefit of the doubt i'm making that finding  and throughout the record the judge makes clear that there was no question that he violated that allegation and that the government proved its burden as to that allegation and that he will then sentence him for  to be forthcoming with his probation officer as required do you know you knew she was inclined to you know pretty significant certains until he was corrected yes your honor but he was corrected and he did specifically say that the applicable allegation was the seventy two hour reporting requirement and that he was going to revoke based on that now i think where the confusion lies is that the district court was going to revoke no matter what not necessarily because it was mandatory but because of the circumstances of the goes through each one of the mitigating factors that the defense put forward and that was that he was a law abiding citizen the district court directly addressed it and said we don't know that in fact he wasn't even forthcoming with his probation officer about the fact that he was working at an illegal marijuana store as a security guard who had a gun to protect that illegal marijuana store asked to the mental health and memory issues your honor the defense counsel undercut that  mitigating factor by saying that quote there had not been sufficient medically cognizable information presented at this evidentiary hearing to two there was one of their think he made or attempted to make which is that he he did his original sentence had been i forget how many years or how many months the very and then it was reduced to a period of time that was less than what he had actually served  is someone who has been given several chances before and that the criminal history score suggests that that he was not actually a law abiding that if i just addressed some of the last points counsel was making with respect to some of the sentencing arguments counsel kept bringing up some argument about him being a law abiding citizen i don't recall there being any argument about  townson being a law abiding citizen the arguments were that he had serious mental health issues nothing was undercut defense counsel objected to an additional supervised release condition that could have subjected him to additional imprisonment sho his medications but there was nothing to suggest that he didn't have serious mental health issues that was in the original violation report and it was testified to by the probation officer all of that was in the record the arguments were made that this these were matter submitted at this