six factors that the courts look to in determining whether or not a young juvenile should be transferred and i think that there are four of those factors the fair emphasis to know is case in this case and that's primarily this juveniles response to treatment as treatment efforts which when it come by and with is done social history and his intellectual development bode well i think for his prospects had rehabilitation as the court is aware of my mr mel born i'm sorry that you've been out grew up in what could probably best described as a chaotic violent on alcohol and influenced in environment and as a result of the environment that he grew up in and as a result of the things that he saw and experienced as a young man he undeveloped as one might expect a number of trauma related problems and the interesting thing about mr about the juvenile is that he really received no treatment until he got into the criminal justice system he received probably best be described a few counseling sessions after he saw his son cousin murder and and he went to a thirty day seeking treatment program time or not unexpectedly and didn't seem to resolve this problem but when mr melbourne did get into the juvenile system he was given an opportunity to engage in rehabilitate rehabilitated programs he seemed to do pretty well on when he was at the rio facility  receive appropriate treatment and he was also engaged in a number of other rehabilitative programs on looting anger management cognitive thinking and by the reports at least from the real facility he seemed to do pretty well  i guess you know one thing i would say to that is that when you take the youngster like this with this much trauma and very little treatment it it's somewhat unrealistic to expect him to  be rehabilitated and in just such a short time and certainly i know the court will consider the assault conviction and it's not a factor bearing in our favor obviously but i would ask court to put that in into and enough emphasis to this juveniles history and the efforts that he had made and apparently had made strong efforts at rehabilitation was the district judge clearly erroneous in that regard five and an opportunity that he hasn't had and so i think it's unfair to assess his chances as bleak at this point when he really hasn't had that opportunity of your honors i'm carl hiaasen i'm with the u s attorney's office out of great falls here on behalf of the united states there's only i think most of the points are fairly well made in the in the brief here which was originally authored by the tribal council who handled this case bloke a caller who says look our office i think what mr ness is has candidly told the court is that his disagreement is not necessarily with the findings that the court made or the fact that those fact are in any way erroneous it's just that he prefers to have had weeks more weight put on rehabilitation rather than than what judge had and obviously relied upon which was that the danger to the community of treating this young man as a juvenile fit in that regard i think it's important jeff to size several factors first of all is that criminal record this crime occurred in july of two thousand and two by february of two thousand and three a d m was convicted  burglary in the federal system treated as a juvenile and given a twelve month sentence for which he was released obviously early because by september he committed in the salt in the state in the state system for which he was prosecuted for aggravated assault as an adult  and that was in september of two thousand and three and that he was prosecuted as an adult and served time in the state system and so by the time we picked him up he's already had the chance of rehabilitation in the federal system he's already had a chance at rehabilitation in the state system and he responds to that by trying to stab other people in the in the institution with a share of either metal or plastic both and so this is a young man who obviously did not take advantage of the  montana and throughout the west of that has indian country and we every once in a while come across people like a t m who don't respond but you'll never see all the ones that do and when you say how good are the programs in the least in the context of this particular in and frankly your honor having not gotten into that part of it i can't testify to it but i think the really important point here is a d m was put into the federal system as a juvenile for that burglary conviction back in two thousand and three so regardless of what the program's good or bad if you if you are listening to mr nestor saying what we have to leave in the juvenile system so yes an opportunity of rehabilitation but we've already put him through that program so there's no reason to believe that the program improved since two thousand and three when he had his first shot at it i think that there's every effort was there to give him a treat the opportunity and am just didn't take advantage of it and now he's almost twenty one and to standing back into the juvenile system in our view is is it difficult to comprehend as to what we can do for him at the age of twenty one that we could not do with him was almost sixteen but isn't that his fault to the current system school that's beecher's fault i guess your honor because we've he's this keeps he's been consistently in gaming the system whether state or federal system since he was sixteen years old except for the times when he's out committing crime i don't know that i mean you could say if the court systems fault but if have not committed the assault in the autumn of two thousand and three he may have been treated as a juvenile he was this he was a month shy of sixteen when he committed the murder yes your honor and here we are fruitful and i understand your honor and three of those years have been as we've argued about the transfer once and come up on an issue that was remanded and so we the court system has taken it but if you're trying to decide what's best for the juvenile and what's best for the community regardless of whose fault it is in terms of the passage of time we also have to look at did judge hadn't abused his discretion in realizing that this young man is no longer a sixteen year old boy he is now at least to the age of twenty twenty one almost twenty one years old an uncle and a stepfather i mean there's other obviously other people that were causing problems in that and as he looked at the dynamic that was between the juvenile and his grandparents to the exclusion of others and again we get back to the waiting i mean he's aware you're clear on this one know your honor because i think that the six factors are not are not destructive in excess and and all have to be present it is again we get back to this abuse of discretion standard as easy as a trial judge you obvious obviously will always look at a multitude of factors and sometimes you're going to weigh the rehabilitation higher because you so you look at someone and say this person can can make it that doesn't make the fact that you didn't look at a criminal record somehow flawed but isn't there a distinction between thinks that that would materially affect the judge's decision and order and his discretion i see that your argument he could have made a record to saying he had a poor child hood but if and when all the other factors that come to  same conclusion right we go back down and just happen would think this is the findings this thing i assume that i recognize that that there were other factors in his activity in his life besides his relationship with his grandparents that that i should've taken note of i now take note of them and i make the same finding because of all the other five factors that i found correctly so i think in discretion if it's not it is not your honor one that that the failure to find on a particular fact error for first the judge's decision here because otherwise we go back down all the time because a judge is oh very rarely make errors but every once in a while they do it and we could always be sending it back down for i think when you're looking at the weighing of these factors and the standard to use the abuse of discretion standard it also has to be kept in mind that the government bears the burden of proof here they are the ones that have to establish within the scope of an abuse of discretion standard if you get the facts wrong i don't understand how the wayne can necessarily be said to have been correctly done or even within the broad range for abuse of discretion and it's  similar i guess to to error in a guideline calculation and coming up with a sens that done this court would send that back even if it was a relatively small error because it would have errors continue this incident or is it must be so i think so because i don't see how you can do an adequate wayne analysis when you get the facts wrong even with one fact