that excuse me the government's interest in prosecuting miss osborne specifically in this particular case where miss osborne's guideline range is erode to six months and  she has served three years and seven months in this particular case renders the government's interest not important for that reason i can address each of those six the cell factors for the statutory maximum this court looked at style and the first case that this court looked at following cell which was and so was pre booker case many came down when the guidelines for mandatory and bradleys discourse took self language which was that there are two circumstances when a court can look to whether the government's important interests is no longer important and one of those is when a defendant has been confined to an extent of time that they will be credited for the amount of time that they've served me eating under thirty five eighty three g b they'll get credit for that time when string court said that because the guidelines for mandatory the logical inferences guideline time this expects the sense to be if a defendant coming before court is a criminal history sex like in dallas when your friend says with multiple convictions eight to ten convictions the district court looks at that and says this is a problem i'm not going to give that person a guideline sentence because this court in crystal expects that the guideline sentences o reasonableness well how precise are you or are you expecting i mean my we have to fashion a fandor this not only can govern in this case but other cases i mean how how precise is the court have to be in this analysis the sometimes cases are complicated you don't even know until after the pre sentence report you don't know until after the parties argue what willie could be a viable expected census i mean so are you talking about just roughly general ballpark based upon looking at the guidelines and looking at the statutory much more you talking about something else well i think cell direct because of the importance of this type of case cell commands that the court specifically at the defendant and then i'm there's nothing and seldom with the oh there's going to speak directly to this issue and if there is please point it out to me because still speaks in general terms i will set it just this morning and think of last night and from what in it well i'm sorry please and that's when your friend says the court looked very specifically at the guidelines an estimated two ranges actually for that particular defendant and said it would be an imprecise science correct because i was giving the complete benefit of the doubt let's assume she was a six because i didn't have the information at the time i didn't have the information i didn't want to quibble i was saying l listen worst case scenario but for it to be zero to six months now she seven times that even worst case scenario she's been in longer than twenty four miles ok correct and that's my that's my problem is when this court has interpreted cell to mean this is one of those special circumstances that the district court did not properly account for it did not say anything that would have indicated that she was such a precipitous or such a serious case of that this was such a serious case that i expected i was going to sentence her to something seven times or eight times the guideline range that's not compliant with this court's case law and it also i think the leg that sells requirements are considered a special circumstance of civil state facility she's not a danger for civil commitment i don't know with what the future holds for ms osborne but for the government to argue out of those sides of its mouth merely to get the court below to find that she is not a danger for purposes of voluntarily or involuntarily medicating or here i don't understand the point anymore of this litigation on the government's part to attempt to try to forc the government admits that when ms osborne was forcibly medicated when she was in the utah state or the county jail while she was awaiting this court decision the first time around that they forcibly medicated her because the jail facility thought she was a danger the government admits ministry saying that that wasn't true apparently it was just that the state jailers didn't know what to do with someone who made verbal threats of that caliber the government's now saying civil commitment is always like a harper proceeding a dangerous proceeding the government is stating its brief now that civil commitment is not she's not a candidate for civil commitment because she's not really a danger that authorities overreacted practically with her harper which forcibly injected her under the harper so she there is a danger or she is in a danger depending on what government wants argue on a given day the medications that he's suggesting for her will significantly further the government's interest and bringing her competency dr silvis did not look at anything other than a two thousand and fourteen record regarding this federal case and making those very serious decisions about miss osborne there is not a single medical practitioner in this country who would make these types of very serious decisions about someone's medical that and about injecting these type of drugs into someone without taking a peek at their medical records about looking at their heart rates about putting a standstill to them and why could he do that after after the order had been answered and determining at any given occasion whether she was a candidate to go for mean that's part of the order right that if it shows that it's contraindicated then we stopped because he sold the district court on the idea that he was going to push grist for it all and then told the district  that even if it turned out that after doing some testing that she wasn't a candidate that his plan was going to stay the same i thought there was a backup plan i thought there were at least three the least side effects with that drug but then he also said he's not going to do any testing and so he gets the authorization but if that testing shows that risperdal isn't the best drug he's going to move to the other well why is he not doing that testing first why is they not could you have tested her first without first having the cell hearing i mean can absolutely it can go to without her consent she hasn't consented to anything he's supposed to be able to go basically whenever he wants and do a bunch of tests on her to determine whether these are going to be appropriate drugs i mean doesn't it have to come afterwards he can examine her he can take her blood had been used on her dozens of time and she was delusional after each time now the government would like to say that successful i don't call that successful so the fact that he's refusing to look at records and wants to use she if she's not willing to be involuntarily medicated why does she have to agree to be tested and i agree in retrospect i agree with that but when you have someone like miss agua who comes with this history well then let me see that they let me focus not on the testing issue but the history and i want to know what the scope is on your notion that they he they should look at records i mean this osbourne is been having problems for a long time she probably the file like that are easy to get out ok yes twenty two thousand that's what i didn't remember the exact number but i knew it was something like that and so are you saying he needs to go through every one of those records before you can make any sort of any it's best to especially given the fact he's been doing this for want i would think that  summary or her counsel say hey here's a summary for you to consider jet her doctor since you don't want to review all these records are examined her actually dr hamilton made reference to it in her report and just chose not to so that the issue of whether he should have big salmon her is sort of illusory then i mean because he did have information that would have provided the same thing that you can to him he would have found a fee to down these drugs but he just didn't do it he didn't do it and correct he said he was very contradictory he said it would be helpful i didn't do it wouldn't change even if i did that's what i read your tongue thank you dr silva's report he acts which was created approximately six months before he testified in september he explained that he had reviewed dr hamilton's report dr hamilton's report turn reviewed extensively massaged going to history and the twenty two thousand pages of medical records she explained that she too had reviewed dr johnson's very detailed report which we included for this court in our supplement and she noted that dr johnson's report was very correct and incorporated it in dr silvis explained that she reviewed dr hamilton's report and she noted that the review of history record and that's correct apparently he did not review the twenty thousand pages of medical records well did he know well that that's not my question my question was he testified as i understood it it would be helpful if and i think i was the exact word it would be helpful if i knew convincing evidence to lower ranks as slim you have a position that you're relying on to by your own admission was forgetting a lot of things perhaps not making a clear record for the district court to rely on explained that it was not his job to review the actual medical records but that he had discussed things with dr hamilton he room recalled asking dr hamilton what drugs had been prescribed to ms was born previously but he could test the bases of the recommendation and to have that individual under oath cocking about the recommendation right correct ok well then based upon that if you if it's painful to read his testimony in his testimony not give you any basis well i'm not saying you i'm saying just generally does would not give one any basis for confidence that this individual made this recommendation with an internally consistent basis for understanding as a matter of science it wasn't helpful you just said it may be helpful but i don't look at it and it would change anything anyway i mean what do you do with that your honor he said it would be helpful what do you do with the clearing convincingly you're wanting to look at the entire record the entire record includes those reports and those reports were made contemporaneous to the review of the other report dr hamilton's report and dr johnson's report that very clearly do go into all of those details and he did recall asking dr hamilton about the previous medications prescribed he just again at the hearing could not recall what had been prescribed he also though explained i mean in terms of looking at the hearing as well that hearing testimony as well he explained that nothing the defense counsel was suggesting would change his opinion in terms of different medications  mending to give you a great deal of confidence when in that moment in time he he doesn't have any real recollection of what it was i mean when somebody says you no matter what you tell me it's not going to change my mind does that is that a persuasive way to respond to something monitor any potential side effect he explained that the potential side effects that defense counsel were raising as as potential problems would be one that he would be monitoring for in managing and that if he could not manage them he would take the patient off the medication and try something different so he really did address a lot of the concerns that your honor is raising however i can only concede that his testimony was not ideal he did not recall any really had not reviewed everything he had reviewed at the time he wrote his very detailed report nonetheless that report is so detailed and it does refer so clearly to dr himmel since report into the history that i believe the court can medical records but that's all he was acknowledging your honor never be given all of this difficulty that we've been talking and you've been responding to in regards to that then let me take you to the reason for proceeding with the prosecution of this lady and the argument that opposing counsel is making that look you're going to do all this and the trial court could just give her six months if found guilty paraphrasing her argument but doesn't that the seem to that big question with everything you said about how hard it is and why it should be done and why we should take this is clear and convincing and weigh that against the probability that this is really going to serve some type of justice in this matter your honor the government still has a strong interest in prosecution and then i think but may have a strong n t but tell me what that strong interest is and a lot of the possible punishments in regards to this matter absolutely on her and the kids and what you're going through just to be able to get her medicated absolutely honor in addition to a period of custodial confinement ms us one will also be subject to supervise release and with a class a felony like the one with which she is charged with a ten year that's three maximum supervised release will be three years long can be as long as three years even if the court decided that she had served all of her the deal through and that that should be granted at a time served the government has a very strong interest in having federal resources supervising ms osborn as she returns to the state system which is what the federal statutes require return to the state system and gets evaluated again your honor i'm not convinced she's going to violate i am convinced i am very convinced that it will be extremely helpful and extremely helpful to the victim in this case to know that there is a layer of federal supervision on top of the safety net provided by the state of utah the seat of your side some remarkable job for her to know part it's important for her to know and yet right now you're arguing she doesn't know or the argument is she doesn't know or didn't understand because she needed to be medicate six months how long has she been locked up now i mean a it we're talking about a period of confinement that towards anything she possibly could get in and know that the would you know the court well i want to get a specific point let's assume we're working with the guidelines the guidelines although i definitely think press the federal judges are a big deal but i mean the guidelines have an expected range which really is not that hot and so the bottom line is that the the granted the court is very all that but but the point is that you start from a point that is a low baseline and if she's going to be incarcerated it would not really have to reach a decision here assume that you know when she gets prosecuted it could be two years before she ever sees the inside of any jail or is put on supervised release the media will let the so mediately put on to rise  behavior and the real danger that is presented here i don't believe he sees this as a guideline well you bled into you but exactly into my second question which is that it's not clear on the record whether he saw it he considered the expected sentence and expected sentence is not just a session or a math and less your court work to articulate on the record exactly what you said that you know i've looked at the guidelines that tell you the guidelines are going to do it for me on a case involving somebody threatening a federal refers to three charges being relevant so i played edition with those charges and with the math on them and there are three that add up to fifty years there's no way you can get fifty years in bradley from the guidelines even considering what your honor has not limiting the government interest so the court clearly was doing precisely what cell requires which is to look at the interest in the facts of the individual case and then see if there are special circumstances that  sentence and then parity with bradley meant what it said the argument that the government has an interest in supervised release makes no sense in this context if  got three years of supervised release she would have already done her sentence in the this case and done her supervised release time so that there's no way in this case either with regard to silva's the government's contention that this court can look at the record as a whole and find that this court can pick the record together or that the district somehow piece the record together to build some findings to build up dr silver says pay for it with an appropriate the government bore the burden below to build that case to make the clear and convincing standard it failed to do so the court cannot somehow piece that record together it's appropriate for this court to reverse the district court's decision below the next step would be and i'll proffer this to the court for the defense to move to dismiss this case because this case has gone on long enough thank you thank you counsel cases submitted