clerk's order the rd point i would like to address is even if this court decides that some evidence is a constitutionally adequate standard that standard still requires that the evidence bear sufficient condition of reliability in this case constitutionally entitled to due process in the form of sufficient notice in an opportunity to respond to the allegations which he did not receive in this case this isn't an intelligent case where you have  liberty interest in remaining on release while the while the violations are held in advance and we believe he does the district court seem to get caught up in this idea that because he didn't have a constitutional right to advance in the st place that meant that he had no constitutional right to continue to advance we don't believe that's correct and we point to the parole situation where defendants obvious here inmates obviously have no constitutionally the court cited in its order asking a stance of it to question your view is that there needs to be some intervening circumstance some change in circumstance between the decision that was made to pull the violations of the bands and decision to revoke yes we the court needs to have some reason to revoke verses beyond just a simple change of mind either the change of mind of the judge or the change of mind of the probation officer very easy and obviously there was something that intervene namely your client's arrest but you don't think that that was adequate and why was that not an adequate he was sort of intervening circumstance that would be adequate if the court or the government had proven or found that history that she was do this this is the st time i've ever done this i'm pretty extraordinary reprieve here if you do anything wrong if you so much as get arrested i don't even care if it's you know of a legitimate arrest or not if you so much you get arrested condition but at least then this article i read notice of it why would it be unconstitutional because i don't think it's constitutional to impose a condition on a defendant outside of the defendant's control you know i don't think you could have a condition that says you know i'm going to hold these violations in abeyance but if your here wife smokes methamphetamine i'm going to revoke you because the defendant obvious has no control over whether or not he gets arrested under arrest for which there was no probable cause certainly wouldn't point to something that the defendant had done so you know our position is that a requirement you know i get why you would like to be a fireman but you're saying that revaluation the fan in this case i don't think so not if there was nothing that the defendant did i mean that was that's essentially the allegation that was charged in this case is that he associated with a felon but we don't want out of it that couldn't be violation of what if he didn't but what if he didn't have anything to do with the fellow showing every dish shows up on the the porch and he's arrested well i mean to prove of a violation of knowing association there has to be some actual association which means if you run into somebody in a public area or somebody shows up your house and you tell him look you've got to leave i can't be around you know it's not about all that problem i believe so you would have just sort of thrown our hypotheticals a nigger little silly but someone close to the facts here what if the judge says listen the only reason i'm granting you granting you this reprieve this time is because your probation officer has indicated that he or she has confidence in your ability to be performed if you do anything that causes that situation to change such that the probation officer now he's back to he says listen i've given up at that point sir you will be re that again but that be sufficient the notice of a of a lawful condition that the judge could impose because that's kind of what happened here that may be sufficient notice but i believe that the probation officer would still need some non arbitrary reason for changing his or her mind about the continued abeyance and the reasons underlying that change of mind would have to be proven by some standards so it could just be you know the probation officer woke up today decided he read an article in the newspaper that talked about how many people fail on parole or supervised release he no longer believes in prohibition provisos release as a concept so i don't believe we should continue mr who john supervise release in this case you know it is real and these are as racial views on your part or you think this case loves to dance well i don't we haven't found any specific cases they deal with the specific situation that presents itself in this case hopefully because it's a fairly rare situation so our our position is that there needs to be some non arbitrary reason that's very related to the goals of supervision and it's supported by really reliable verifiable facts that's our answer to the st question as far as the nd question goes you know the way the nd question is formed it makes it appear i could be wrong that the court is considering whether or not to some evidence standard should apply in this case and we don't believe it should and the reason we don't believe  should is because that standard was developed for a specific set of facts and a specific set of exigencies that are not present here that standard developed around it ministre to decisions made by industry to the board such as parole boards that nobody is represented by an attorney the fact that you need to show deference to the parole board all of these things are present in that case that make it so that that is not constitutionally adequate in this case we believe in needs to be  coming with the facts or you're saying that there was an explicit understanding that the abeyance was only for three months that the a pants would last for three months and then the parties would come together  honor is because and i think this is related to the st question that the panel asked why no reason is required to take a violation out of the bands of bands is essentially a continuance other occasion proceeding everything necessary district court could have immediately revoked mr gucci's supervised release what she did was she placed those violations and advance postpone making a ruling with regard to them no standard is necessary to dissolve the bands definite expiration with regard to the appearance status but there was a sharing where the parties were going to come together and the court was going to check in on mr gucci's progress and that's a continuation of the revocation proceeding to let the advanced in that situation revoke and impose sentence the court would then be reviewing what i just look at the sentences you know what i don't like what you're wearing today that's enough for me you're going away for eighteen months i presume that can't possibly be lawful and that would be reviewed for an abuse of discretion whether or not in that situation when the court sentenced mr gucci on the five and that of violations nothing had changed was the revocation of the sentence that she imposed under those circumstances and abuse of discretion so that but that's got to be a standard that you know what he whether it's abuse or you're saying no notice is required no standard no level of evidence whether it's some evidence or something else with regard was an indefinite of am so let's just argue end of take that for a moment there was no scheduling going to come up where she was just going to check and see i was doing you got an indefinite advance he  had the five earlier violations had she chosen to send him a stun those no problem everybody agrees with that the problem is she said you know i'm going to rely on your role officer i have a good feeling about this i'm going to let this go so there's an advance it's a legal point he has some constitutional right it right he agree with your colleague that he has a constitutional interest delivery interest in that advance no your honor and i think that's where one of the fundamental points of disagreement lay in this case is that at the time when the court places the violations in the bans and continues the revocation proceeding or holds it in advance there isn't a liberty interest that's created in that circumstance and the cases that the pilot relies on regard to the good time credit situation there it's a state statutory scheme that's creating that liberty interest and why further procedures are required before you r strong liberty interest your honor and i think that it goes back to what is a a bands it's just a time for the defendant to prove himself but it doesn't tie the district court's hands and any way that there is for we're struggling ye wearing today you're going to jail it's got to be some standard what is it so our position is that with regard to the lifting of the bans there's nothing magical that has happened has to happen  when she does the timing of the lifting of the bans the revocation the sentence is going to be reviewed for an abuse of discretion but it appears that this court is inclined to find that there should be a standard and reason should apply so every since are required your honor then those reasons would should not be arbitrary increases if a standard is necessary what's wrong with that regime that your opponent has proposed which is simply i think this is the positions change between the time that you all everything here but i think the position is that the judge just needs to give the defendant notice of the specific things that he or she could do wrong that would trigger the judge not being so lean and here did it just seem like that didn't happen the judge did say you better not lie lie again to your probation officer but there's no charge that you did that you better not commit any further supervised for the violations of the terms of supervised release but again you respond to that question your honor the court didn't say the only time i'm not going to revoke you is if you don't buy if there's no other violation proven she didn't create that expectation she just generally told him don't lie do your preparation officer follow the conditions of her lease and so in the law but but what's wrong with a regime that would require the judge to specify that these are the conditions under which i'm giving you this sort of gridley's and i think that the response is found in the record with regard to judge molly's comments not under that type of regime district courts are not going to want to take that chance to hold the violations and advance because they're going to be deprived of  opportunity to course correct in this area of supervised release went may be but do you not agree that at the very least there has to be some kind of notice as to what would terminate the event some type a no  if there is a standard that's required and maybe let's say there is ok then the court had cited to the some evidence standard and hill and may finish the question right the some evidence standard if a standard is required and some level evidence is necessary to take a violation to act on it it's right that's notice then it would be the some evidence standard a modicum evidence and if that's the standard that's applied that was clearly m arrest the circumstances of the arrest were very concerning it involved mystery gucci associating with a felon that's all i'm disputed and those facts are concerning in a situation where a defendant is on supervised release by a been continuing out in the community and so something short of a violation in that situation should be sufficient for the court to then let the violations out of abandonment work to fill in that yes your honor that's what always said ok i'm bad here don't be back here again but i'm going to put these in abeyance nothing about what would be required terminated he gets arrested turned out there was nothing to the charge at all so we're back where we started fro and then the ultimate decision to revoke and sentenced him your honor if he said you know what i don't like what i had for breakfast i'm revoking you and sentencing you to x nothing has changed the review court could then review whether in that situation was there an this question of whether this was a bay answer whether it was just merely a continuation of the sentencing you know the the court seems to indicate that they needed some change in this is on page one hundred and twenty of the electronic record  to now as a practical matter this is the court saying this is a credible matter we all know that probation officers attorneys and judges do not go around thinking every day gee i wonder if i should revoke mystery gucci today having held his violations in abeyance i mean some information has to cause people to revisit the matter so should the judge so that's what the judge said so obviously something would have needed to change for her to have revoked what would you hope to go back and look at the transcript here but what if the judge has said as the government trouble couldn't the judge at that point just say you know what i've decided i am going after well i think the court is well within its right to continue sentencing to a later date the cork and say you know what i can make a decision today i don't know what i'm going to do let's continue this three months  i'll make a decision that and then i think the court has continued to sentencing versus making a decision to hold the violations in abeyance and see what happens still at the continued sentencing hearing if there were factual allegations that came up that the court was considering in imposing a sentence those factual allegations still need to be proven by a preponderance of the evidence what why would i don't understand that the judge has just said i'm prepared to you back to prison but but i'm going to hold off on that you know maybe i need to give this some more thought let me let me think about it for three months you know i'll just i'm not going to tell you so i'm not going to list out all the subsequent allegations in imposing sentence those allegations need to be proven just like any other allegation that a court considers at sentencing or right thank you both counsel