standard of review and some of the reasons we argue the procedural error specifically we identify three errors this morning first it was error for the district court to hold the constitutionally required litigation of mr houston's competency against him at sentencing second it was error to inaccurately conclude that mr houston himself press this issue when in fact it was his attorneys who raised it over his objection and finally it was error for the yes your honor it's the only one the court references at sentencing so first we argue the standard of review we believe full reasonable reasonable n'est review is available in this case mr houston and the government fully argued the issues that were presented or that we identify as error both parties presented a full throated argument over the course of a very lengthy sentencing hearing and we identify the error that of the district court in making a resolution of those arguments which is distinguishable from the procedure identified is erroneous in united states versus villa for in will forte defense counsel failed to object at the end of a sensing proceeding and raised for the first time on appeal that the district court never addressed the thirty five fifty three a factors or state with specificity the reasons for the sentence under thirty five fifty three c the method of sentencing in other words was the un objected to error and this court held that plane air review would be appropriate in that circumstance since by objecting before the district court it surely would have turned its attention to that matter the district court had its full attention on the issues we raise here today and no know your honor mr houston prevails even under rigorous plane air review though this court has applied a less rigorous player review in the context of sentencing but i will turn now to the regulus plane air review analysis since i think the sentence is procedurally unreasonable in that regard as well having identified the air well the familiar four part test is first that there was air that there was the air was clear and obvious that it affected substantial rights and then finally that it seriously affected the fairness integrity or public reputation of the judicial proceeding to focus on loss to yes your honor the error in this government seems to other decisions that errors such as these that result in the imposition of a lengthy prison term do indeed affect substantial rights and that was true in cosi where it was a guideline sentence and here we have an above guideline sentance furthermore these errors do affect the fairness integrity and public reputation of these judicial proceedings because the court's sentence violated mr houston's constitutional right twice over mr houston has a constitutional right to be competent but if raising that concern a concern over a client's competency can later be used to justify in above guideline sentence or indeed any sentence it will have a chilling effect and ultimately at three different points during the sentencing the judge references the fact that mr houston raise competency only to withdraw at the first instance may the government characterize this as sort of introducing the procedural background but we would argue even in that instance it was not because he follows that sentence with he has all kinds of problems and then he withdrew it the second instance occurs between two other the discussion of the court of two other factors that the court i'm sorry the government believes relevant to the court sentencing namely where the judge discussed his criminal record and then also his behavior while incarcerated in the state system in the early two thousand sandwiched between those two factors is or nother reference to the fact that he raised competency and then withdraw it but then he sent via you sort of the first one says we have a lot of problems in the houston i'm not blaming him for anything but later says he does say that your hon s that that statement is at two twenty seven good morning may please the court my name is chris kaffir own assistant united states attorney in the eastern district of new york and i represent the united states in in this appeal i wanted to address miss mariano's argument she focused your honor had asked her about the last two on the plane error standard and i wanted to address that the district court's passing remarks about the defendant's competency they occurred in three different places the first two were to explain the procedural posture the second circuit had remained of the case to determine a competency evaluation nothing improper about that you cannot show that there is a demonstrably impact on the sentence the other was was referencing the defendant's criminal history and then went into how the defendant suffered from mental health issues the third time the court referenced it was in the context of doing the thirty five fifty three analysis but what i would say there is while that was a misguided remark it certainly does not demonstrate that the sentence was in any way enhanced by the defendant's exercise and we know that because if you look at the sentencing hearing this was a this was a long extended hearing  court posed a rhetorical question and use the words ever given what what respect for the law has this defendant ever given i think that relates back it shows that the court was well aware that this defendant he had previously said had thirty eight disciplinary violations while incarcerated had this long criminal history he has shown absolutely zero respect for the law so when he's posing that question he's saying this defendant has no respect for the law this is fourth felony conviction he was thirty two years old at the time of the incident arrest he was incarcerated for a significant period of his adult life one of those sentences i believe is he was sentenced to five or six years in custody he's repeatedly violated probation the underlying probation  probation officer for one of the underlying state offenses described him as a nightmare but the so but the framework for this of course was the original remained with the mandate at the district court judge and i was on that panel and i recall the case with a mandate that the district court judge determine competency and so rightly or wrongly the defendant here complained about the competency issues that we had mandated be looked into why can't question we remain and at least a rest assured that the sentencing judge did not consider that at all i think for several reasons for several reasons your honor first the totality of the sentencing make the oral pronouncement sense makes it clear that the court was most focused on the defendant's long and tortured criminal history that he was focused on the thirty eight disciplinary violations that he was focused on a dangerous weapon in the hands of a self admitted bloods member who was also selling drugs and extremely serious offense when you combine all those factors the court spent most of that sentencing hearing discussing those perfectly appropriate and and a perfectly appropriate and condition congressionally mandated  because they do touch on so many of those thirty five fifty three a factors the other thing i would say is it's unnecessary and this is one where we disagree on the standard review because had defense counsel objected at that time it would have given the district court an opportunity to explain that sentence was not being increased or in any way was the sentence imposed based on the constitutional exercise of the defendant's right to challenge a competency this is a perfect example of why you need to object at that time and they have the opportunity to do it they had the opportunity to do it before you formally impose sentence the district court asked at the end of the sentence as well they certainly had an opportunity before the judgment was entered or after the judgment was entered so that the court could have taken the opportunity to say i presided over this case for since its inception i've been with this defendant for years i've reviewed three different expert opinions on this defendant's mental health a number of which mention that this defendant is has character is characteristics of the lingering this defendant was an obstinate defendant that the district court witnessed during trial have the ability in the capability to maintain his composure to interact with his defense attorney one he was given clear guidance that if he had done otherwise he would have been watching the trial in a closed circuit in a room with a close circuit t v this defendant at all stages in the proceeding had the ability to control himself when he was reviewed down in butner on two occasions they had done extensive interviews of they they reviewed the testimony from his civil proceeding where he testified before judge bianco and judge bianco made observations of the defendant's ability to answer questions to a understand the nature of proceeding to understand what he was getting cross examined in an area that he didn't feel we should have to respond to he would look over as attorney he would look over at judge bianco this was a difficult defendant and the district court was well positioned to understand this was a difficult defend it was well positioned to understand you have a  o determine competency can the parties waive that i believe so your honor what's the story for that i will have to get back to you on that authority when we were down at the district court  withdrew their request and we after consulting with the fence counsel we thought they had the authority i have not i must admit i haven't researched it because it was an issue that was raised either on appeal  and defense counsel believe that that was permissible so i don't have the authority now has a main reason that it has not been raised now it wasn't raised at the district level i mention buckner which is a famous  federal correctional institution doing with psychiatric problems primarily what exact why was he so the first time he was sent to butler because the first trial the first defense attorney had raised an issue  about the defendant's competency was concerned that the defendant had written a letter to the court saying just give me the death penalty in an abundance of caution he was sent to butner for evaluation the report came back and said he was competent to stand trial after initially that the defendant is competent then reverses course after consulting with defense counsel they shared some additional documents with him he opines that he's incompetent district court orders him to go to a facility he goes down to but never again butler against these different experts and again after a much more extensive examination then dr mills the expert that was retained is concluded to be competent to stand trial and proceed to before the second one was after remained and the dr mills expert was after remained and then what happened was we had we had two expert opinions both opining that the defend it was competent to stand trial they waive hearing on it we agreed we had no doubts to defend his competency just wondering whether so so he did have a competency here he let's put it this way the district judge by definition  impose sentence based on the fool record before him that food record included not one but two competency examinations at burton one of them after the man that was issued by harcourt that's correct no how could it be said there was no the court had made observations i made observations that the defendant like i said had the ability to sit quietly he was interacting with his attorney passing notes defense attorney was cross examine him using some of those notes i think we would have been able to call those call the defense attorney say he was able to interact and communicate and understood the nature that is what happens in much respective nations and i believe that's what would have happened had the defendant   page the joint appendix page one seventy six sandwiched between the court's consideration of criminal history yes your honor sandwiched between a coarse consideration of mr houston's criminal history and his behavior  incarcerated in the state system is a reference to quote the defendant has a long record of alleged mental incompetency which ended with him withdrawing his charge of mental incompetency and then again on page one seventy seven it is that line ten eleven and twelve one seventy six yes joy appendix one seventy six the transcript numbers page forty nine  on the next page at line seven through ten the court again says the circuit remanded this competency to suggest a full retrospective determination including a hearing as to competency but he has withdrawn the request but then most telling us counsel i was at most telling the joint appendix that one seventy nine the top of the page continuing quote to promote the respect for law what respect for law has this defendant ever given starts off with competency hearing and withdraws it after all kinds of effort was made to help him the court did not rely or look to the mental illness of mr houston suffers indisputably suffers outlined in the pre sentence report in the multiple story no your honor i do not and the reason is this and our initial appeal to mr kaffir and his reference to two studies from butler but when mr houston was originally sentenced and i didn't handle his original trial case only his first appeal he was designated to f c i gilmore to serve the original sentence imposed within a month of arriving at kilmore he was diagnosed to be psychotic delusional and in fact was quote floridly psychotic and put in the shu for six months awaiting an emergency transfer to f m c devon's and other mental health institution he was in fact transferred to devin's where they found he was suffering from delusions and in fact there's an episode of forced medication that all occurred while i was representing him on appeal our initial appeal before this court so i raise the issue of competency based on the record before the trial court and also because of my own interactions with mr houston when this court re mandated on the competency issue of course the first thing i had to ensure was that mr houston was presently competent to move forward with that proceeding and he was again examined as mr kaffir on his already outlined by our jointly retained expert dr mills and then again it butler and ultimately it was determined he was presently competent you have no claim i do not because the client who repeatedly put on the record that he did not want to pursue the co yes well from buffalo that you're always welcome i'm here arguing err on the part of the court and that actually was error on my part when the the remained the jacobson remained i thought it would go back to the original panel and since i was a pellet counsel i felt that i before the original panel after that determination yes your honor yes your your honour's panel which chief judge katzman and judge droney and my mistake because of that i asked judge spat if he would allow me to remain in the case with local counsel matthew brissenden an excellent c j attorney the judge was happy to do so my office was able to you know handle some of the expert expenses i was i was grateful for the opportunity for your original honor we accept direct assignments from the circuit my office will accept direct assignments from the circuit from whatever district they come thank you thank you very much thank you richard thank you