court katie shepherd for mr belmont there are two contested issues in the case the st is whether the district court relied on an improper factor and the nd is whether the alcohol conditions are unnecessary factors are seriousness respect for the law and just punishment the miller rule is important because it avoids serious constitutional problems under the double jeopardy clause and the th amendment right to a jury trial i've never really understood our law in this area so as you stated for certain sentences for people supervision has been revoked we can't consider the seriousness of the offense but we can consider their judge can consider the nature and circumstances of the offense and what what's the difference i think this court's opinion and sanchez illustrates that difference in that case the court was considering the nature of the often where the defendant had been called by someone or through rd party had heard that someone wanted to fight him and instead of deescalating the situation the defendant said come over let's get this over with and armed himself with a knife and in that case the district court focused on those circumstances and emphasize the fact that he the defendant was on the court supervision and there's an example where because of those facts of the underlying crime irrelevant to the nature of the often ends and the relevant and relevant to the breach of the district court's trust that's where a court was on the correct side of that line between nature of the oftens and seriousness but here we don't have facts like that instead the court repeatedly emphasized the seriousness of the oftens of the new law violation and in this case also mr belmont his had forgotten that he was on federal supervised release are helpful on the rd prong explaining that if the seriousness of the primary reason or essential reason or loomed large at the relatively short hearing then that is in effect on substantial rights and finally on the th pro fifty three fact that she didn't specify which ones so it's just if we conclude it's just uncertain which factors of those factors she was relying on doesn't that mean there was no obvious error but i think it is obvious in this case that the court was relying on seriousness although the court did not literally save the word seriousness the best example i think in the record of the court's focus on seriousness was the that the court made an estimate of the often slidell under the guidelines so that's not an example of where the court is considering the nature of the often so i can sanchez the court is considering the seriousness of the oftens and the court kept coming back to that throughout the hearing focusing on how it was a lot of drugs the court called that a big chunk of cocaine a couple of times and talked about how long the sentences are out of harris county he said the court said that he sees cases like this get ten years and some really big sentences in cases like that all of that goes to the seriousness of the off and the type of long sentence he's going to get out of paris county not the nature of the often it's and the focus on the district courts the breach of the district courts trust and again mr belmont is forgot that he was on federal supervised release he told the court that at the hearing he told his probation officer that when she st made contact with him and it's not all that surprising that he forgot considering the timeline of the state and federal sentences he was released from custody in july two thousand and eighteen but he was released from state custody in a federal custody it had been about two years since his federal sentences federal prison sentence has it's had expired in about may of two thousand and sixteen and this federal sentence was concurrent to the state sentence and shorter than the state sentence and throughout the original federal proceedings he was in primary state custody also the record shows that once her patient made contact with mr bell on tape she reported and followed all directives he hadn't had any additional problems on supervise release the probation officer at the revocation hearing even said that she wasn't sure he needed the curfew condition anymore because he had been talling and reporting following her directives and reporting and he'd also been cooperate with his harris county probation officer so all that contacts in addition of the district courts comments shows that the court here wasn't focused on the breach of the trust of the supervised release conditions but rather the improper factor of seriousness for the st time an appeal the government has argued that this was a mandatory revocation under g and so miller doesn't apply but no one in the district court thought that's what was happening in this case the district court found the new law violations at the record on page one of forty five dollars pages later counsel for mr belmont asked the court to continue him on supervision and the district court said it would consider that although it wasn't inclined to do that at that point the court turned to the prosecutor who did not say your honor you have to revoke and are proceeding under g the prosecutor said that the that she didn't have anything to say and although there was a worksheet in this case that mentioned she that doesn't give notice because it's a preprinted form in every case has that exact same information on it and what i would also mention that the record at page one hundred and three dollars the worksheet lists sentencing options for the court and doesn't actually list she just says it's a mandatory revocation for gr violation under the guidelines which of course are actually advisory since their policy was regardless of what everyone thought of the sentencing if in fact the record shows that it should have been mandatory to revoke a supervision because there was this drug factors now you don't think only me and the court could say oh no this is a mandatory revocation and i'm going to the same thing i did last time i think the court could do the same thing as last time with this discussion in considering proper factors but not to a mandatory revocation if the court if the government had made it clear that it was proceeding under g in the st instance we could have for example preserved the illest argument that argument has been rejected by this cart that this court as far as miller applying to ji proceedings only on clean air review so of course now it's foreclosed but if we were notified at the beginning of the case that we could make that argument we could have made that argument we also could have made him an argument which now this court has rejected that only on plane air and because of how things happen in the district court we were able to make those arguments in a way that this court could actually review them opportunity i don't think the mandate will would bar that because you didn't have a chance to do that the st time around for the nd issue mr belmont taste is challenging to alcohol related conditions of supervised release the alcohol abuse treatment condition and the condition barring him from using or possessing alcohol he's not challenging any of the other conditions in the judgment including substance abuse treatment the directive to follow rules of a treatment program to submit to substance abuse testing and to not use controlled substances conditions of supervised release are important because they were strict a person's liberty and by statute courts can impose conditions that are greater deprivation of liberty than is reasonably necessary the alcohol conditions in this case are necessary for two reasons st the record shows that mr belmont his has a drug problem not an alcohol problem and nd there are separate unchallenged conditions that adequately addressed the drug problem to the st point mr bell montaser was forthcoming at the revocation hearing often doesn't specify the substance but when it does specify substances typically marijuana or cocaine there isn't one conviction in the p s r that talks about alcohol that it was a conviction for public intoxication of marijuana there's also  but that was from fifteen years before the judgment was entered there's also a five year old arrest where the police officer allegedly smelled alcohol in his breath but again that was five years before the judgment was entered and also in this case the original judgment entered into time for two thousand and fourteen that was much closer in time to those mentions of alcohol in the p s r didn't include alcohol related conditions and there's nothing in the record about alcohol since then that would support the imposition of these conditions under this court's cases in and salazar it's clear air that a court imposes a condition improperly when the only justification for that conviction is dated and also these courts cases  gordon and bree illustrate that it is error to impose a condition for flaws in gordon for example the district court imposed anger management condition and a mental health condition and this court struck the mental health condition because the anger management condition would address what was actually supported by the record this was that the defendant had a problem with anger and violence and similar situation in greek where there was a substance abuse treatment condition and a mental health condition and the district court imposed both and this court said that the substance abuse treatment was the better way to address the problems in the record which were a substance abuse problem as far as the rd prong of plane here error which applies to the alcohol treatment condition three points on that st this does require inpatient treatment if the probation officer directs that which is a substantial burden and might interfere with employment opportunities and things like that also alcohol unlike a controlled substances is otherwise legal for adults to consumes about imposes an additional burden and also finally mr belmont is would have to pay for it if he's able to and this court has recognized that on the rd prong in cases like gordon and alvarez and again also in the boarding case the court recognized that it's burdensome to require someone to participate in multiple  treatment and finally on the th prong the this part has exercises discretion in lots of cases to have judgments amended to eliminate unnecessary conditions for example jordan jordan alvarez tamera and floor's guzman and again with the results gross point about the cost of re sentencing being low and that being a factor for the court to weigh this here the possibly even lower because all we're asking for is an amended please the court andrew san for the united states of america just a couple points of clarification so my st point is that for the g provision for the mandatory revocation  the parties or the court neither the parties nor the court need to explicitly invoke that they are under the g provision the plain language of the statute is clear it states if the defendant possesses drugs the court shall revoke the term of supervised release and require the defendant to serve serve a term of imprisonment and this is further bolstered by the understanding that district courts are presumed to know the m the government would disagree with the reading of the record the the the defense attorneys stated that they would ask to be continued on supervised release and then the district court said i'll consider it but but our view is that the district was just being civil to the the defense attorney is there any indication in the record that either the government or the court were guarded this is automatic rather than yes your honor so i would point point you to the  g what about her argument that if the defendant knew it was mandatory he would have objected raising the constitutional argument based on the new supreme court case that casts some doubt on whether a jury is required for remained a tory revocations i think it's it's hard to argue from a negative that the defendant didn't object and whatever explanation decided i can't speak to the defendant's mindset but the fact is defendant failed object and again there is no part of the statute that requires any invocation for for them to be mandatory revoked under the g provision it's just an automatic statutory mechanism on the hayward issue as any court applied that jury requirement beyond the specific statute the supreme court considered by some i'm not sure your honor but at least in this court there has no been a impermissible factors as initial matter mr belmont as his argument that the district court essentially hammered him by dominantly relying on the seriousness of the fence and the need for just punishment is odd considering he received a below guidelines range sentence the government invites this court to review the sentencing transcript in its entirety it's it's only about twenty pages long and will provide context to the district court's comments that my friend referred to will show that the district court did not expressly mention or based it sentence on impermissible factors and instead it tried to understand mr belmont his situation the circumstances of the underlying supervised release violation and try to fashion the most appropriate sentence in the st part of the sentencing discussion of the district order mostly had a conversation with mr belmont himself they talked about his failed drug tests they talked about julio his his half brother who was found in the car with them and then they talked about why he was staying at a hotel when he had a house in houston it's during this exchange that  and five and one dollar of six he raised the it two of his pending charges in in harris county he said to quote he was in houston for the charge i know i got this charge pending i'm trying to get that charge out of my record i know it's hard to which the district responded it looks pretty bad they're tough in houston and if the court went on to make those other comments about it's a lot of  it's a big chunk of cocaine they hand out stiff sentences in harris county but these actually implicate these comments actually implicate the permissible factors mr belmont races history and characteristics and the nature and circumstances of the underlying supervised release revocation indeed this court has stated that it is permissible for the court to consider the nature of the criminal conduct underlying supervised release violations in order to measure the and the defense attorney about fashioning the approach most appropriate sentence it's at this part of the sentencing discussion that the probation officer discusses contact with mr belmont ace and recommended both alcohol and drug treatment  the district court recognized that mr belmont is had a significant drug issue and at one point was even trying to figure out a way to get him the state credit again these implicate permissible factors  history and characteristics and the need for treatment thus the record shows that the district court did not dominantly focus on the seriousness of the fence or the need for just punishment in s sentence was not based on impermissible factors he was mandatory revoked under three thousand five hundred and eighty three g and even if he was not the district court did not dominantly rely on any impermissible factors so in p s r paragraph forty seven dollars mr belmont is self reported that he began using alcohol along with marijuana and cocaine as a teenager and then as my my colleague pointed out from two thousand  until two thousand and thirteen most of his adult life when he was not in custody he was arrested eight times for d w i or public intoxication arrests two of those arrests one from two thousand and four for d w i one from two thousand thirteen public intoxication explicitly mention both drugs and alcohol those are at p s are paragraphs twenty four and thirty sixty three dollars of those arrests involve unknown intoxicants which must be drugs alcohol or bot h and based on this the probation officer assessed at p s r paragraph forty seven dollars that he was both a drug a drug and alcohol abuser mr bone latte's argues that his two thousand and thirteen public intoxication arrest was to temporarily remove but he fails to mention that he was in custody from two thousand and fourteen and till two thousand and eighteen so he couldn't be arrested for the revocation of his probation associated with his two thousand and fourteen felony you why offense and his probation was revoked in part because he failed to comply with the state courts drug and alcohol treatment conditions that's it p s r twenty seven finally this court has routinely up held alcohol conditions for drug abusers imma call this court upheld an alcohol prohibition for a defendant with a criminal history of drug abuse despite no evidence of alcohol because alcohol also presents a danger of addiction in already a hold in the post on bank opinion this court upheld an alcohol prohibition because for a defendant with a criminal history of drug abuse even though the p s r explicitly stated that the defendant had no history of alcohol thus based on the record in the law mr belmonte says alcohol conditions reasonably relate to the relevant sentencing factors pending any further questions the government respectfully request that this court involving the possession of alcohol so the condition in this case is actually broader than the condition in those cases nd the government pointed to evidence in the p s r which was produced in october two thousand and fourteen but didn't point to any evidence since the original judgment in this case pointing to alcohol issues so there is no evidence since two thousand and thirteen that he has an alcohol problem he was locked up most of the time correct but he did get out into i have two thousand and eighteen in the revocation proceedings happened in december two thousand and eighteen and his arrest that led to the new law violations involved marijuana and not alcohol and he also was forthcoming to both his probation officer and the court about there's also in this case though the fact that he's admitting to a drug problem and it doesn't make a whole lot of sense that he would hide an alcohol problem but it may have to doing illegal drugs so putting all of that together in this record it doesn't if the conditions for alcohol are unnecessary when he's going to be doing substance abuse treatment it has those conditions as well and a final point the government mention the below guidelines sentence this court's non bank decision in escalante ray has involved a slightly below guideline