we'll hear argument now in the case of united states against jordan mister henderson welcome back good morning again and may have please the court i'm peter hundreds sonera pr anthony jordan in this case due process requires at a revocation hearing that the district judge issued a written statement our statement on the record as to the evidence it relies on and the reasons for revoking supervised release there are two main reasons i think in this case especially that that is a requirement one is to permit the defendant to know how he violated and you know mister jordan is on supervised release currently pursuant to the judgment he needs to know how do i can for my conduct to these conditions how do i not get revoked and part of that is understanding why  district court found that he should be revoked in the st place and then the nd more to listen to mister henderson i hope the judge didn't find that he should be provoked maybe found that he was supervised release should practitioners as such i know and the discrimination cases we keep hearing that the plaintiff was terminated and i wonder how he's still walking around well release can be revoked jobs can be terminated and so on and that always helps to be a little better with language i will never raise money for a couple of things with you sir and yes one of the things that struck me as noteworthy about this case whether it was appropriate for prison or not and is a different question but i thought it was unusual that the the mister jordan was apparently out of touch with probation for several weeks who they were unable to contact him with with when they were trying to the other question is more general question about practices and simple district of illinois where they gather revocations of supervised release committing a new crime or positive drug test yeah let me address the nd question st our our general experience i would say is that it is more common to see technical violations in our district that's sort of our general experience and this case certainly fits the bill and you know part of part of the problem is the culture of the role of probation and i think in the end because there are two competing roles one is to act sort of as a social worker to help people get back on their feet after they've served lengthy prison sentence like and part of it is as a law enforcement officer and so i think different districts do have different weights that they assigned to those roles our experience we certainly have our perspective on it as the law enforcement side comes into play more often which is why you get technical violations like this it seems plain from the record the mister jordan showed up for the st appointment after these alleged failures that occur and at that point meant he had a bad reaction to what he perceived to be a false allegation of misconduct of missing a drug test and the rabbit the decision to file a petition to revoke came a week later and so from our perspective that was a great opportunity to say look we need to go before the judge and have things modify and we need to somehow correct this attitude problem or correct this you know relationship problem without resorting to look if you don't listen to us you're going to prison which it seems as what happened here and do that the lack of findings by the district or it's hard to see on what basis mister jordan's  supervised release was revoked might what is it sufficient that the court adapt the factual findings in the probational weakness or point i suppose there are two answers one is we don't think that the district court did it case that's because had that right but you i think again this is sort of the practice in the trial court which of course you're familiar with page four of the transcript the district judge says look at the facts in the violation memorandum but she hadn't heard any facts that came directly after discussing what are the guidelines statutory provisions so it seems clear she was addressing at that point there no objections to the legal parameters i'm going to what the violation memorandum says i'm page ninety four that's in the context she's already found mister jermyn violation and she's moved on to the conditions of supervised release there have been no objections whether there was an objection a halfway house things like that and when considering the conditions of supervised release which take up about half the memorandum she says i adopt the findings and that memorandum because of course  conditions of supervised release must be justified by findings that they are appropriate so in context our position is that that the judge never adopt those but assuming that that she did it the problem is that the central issues in the case winds unresolved we have we're competing testimony about whether mister jordan was blameworthy for not showing up to this june th drug test and not completing an evaluation the district judge did not hear argument from counsel as to whether mister jordan actually violated supervised release instead  he had and moved on to sentencing but we don't know on that particular point why wouldn't it be sufficient if the district court did adapt the findings in the probation officers memorandum which were findings or factual statements that he did intentionally or failed to show up or why would that be sufficient i suppose i read the violation memorandum differently than i there are allegations for example that you violate these conditions i didn't read the probation officer's accounts which she largely repeated in her testimony to say that she explanation that seems to be required i agree with that and that that has to do with the various alternatives we laid out in our reply brief the government's treating this as a sufficiency of the evidence claim which it i not we don't know why the district court decided to revoke mister durham supervised release if the district court has set or made factual findings and then explained and so this is why i think you know this deserves revocation instead of proceeding immediately to sentencing then we would have probably an abuse of discretion standard but we would be able to argue as defendants have in other cases that sending somebody to prison over this is an abuse of discretion whether that would be a successful challenge or not the fact is that competent appellate review of that question is foreclosed because we simply don't know the basis of the district court's decision so it's very hard to come up to this court and say that the district court abused its discretion because we just we have no no findings to suggest either way whether the discretion of well founded or not i will reserve the remaining thirty may have please the court because of korea pretty united states the core issue here is whether or not the court committed error in finding after a full revocation hearing that the defendant did in fact  the terms of his supervise release oh note that this is a procedural challenge and one we've seen this on appeal normally the standard is plain error  whether or not the war has a complete record coming up on appeal about what transpired in district court in order for further review to take place in this instance as judge state even noted not only did the court rely on that the memory of the violation memorandum and it's a little interesting that the appellant wants to say that the court has only taken notice of certain portions  of the violation memorandum at the end of the day the court twice indicated that it relied on the battle findings of the violation memorandum so to parse it out and to say that only two portions of the violation memorandum were relied upon and the was discarded doesn't seem to make a whole lot of sense in this context but even if the court were to believe that the court only looked at conditions of supervis sort of things that judge and walton is worried about i understand the defendant's position here to be in the nature of a concession and avoidance he says well i did the things i was accused of but my real problem is i don't deal with cell phones very well i don't listen to my voicemail all right so i haven't kept up with schedules and i'm not as bad as somebody who does those things deliberately  my question is where did the district judge deal with that line of argument by the defen your honor the court dealt with it in an implicit way when it ruled that the defendant did in fact violate the terms of his supervisor lease is making the findings of the defendant  that he's giving explanations for is violation the explanations may or may not be good ones but i take it from your answer that the answer is no the district judge never dealt with those explanations by the defendant correct judge than the district court did not specifically in its findings say i find the defendant incredible i find of the defendant's explanations are not sufficient you knew your own you know the fundamental judgment given the facts given the violations with or without mitigating circumstances use and that's what i'd just haven't seen in this instance because the court was seemed in its finding i think it's important to rely on the record as a whole and that record is not devoid of the circumstances surrounding the defendant's noncompliance this korea in and if we look at the court's consideration of three thousand five hundred and fifty three a factors in determining whether or not to revoke the defendant supervised release the court says i've considered the factors of three thousand five hundred and fifty three and a particularly the nature and circumstances of the offense in the history and characteristics of mister jordan in reaching a sentence but doesn't say anything else about three thousand five hundred and fifty three a or the significance of either of those factors how is that a sufficient explanation for revocation again that for the the underlying facts but for the revocation itself to justify whether or not the defendant's supervisory release should be revoked the court needs to articulate its finding but that does not have to be just what the court says and i think that's the fundamental difference here is the court didn't it's correct the court did not outline every instance of a violation did not outline all of the defendant's misconduct that require that the court felt required revocation but in the greater context of this hearing the court had all that information the reality is that maybe a dozen who the facts may be developed but the question is not the are the facts there to make that determination the question is what did the court rely on in making that determination and i believe the answer is that the court relied on the evidence that came out during a contested revocation hearing if there had been no contested revocation hearing in which evidence was presented by two government witnesses and the defendant himself if the conversation i think here would be different however it's not the prior president has shown that it is the totality of the hearing it's all of the information that the court at available to it and relied upon and i understand that the issue this court takes with the lower court is that it didn't articulate exactly what relied upon  an implicit way it did it relied upon the factual finding the violation memorandum that was not implicit that was explicit and it made these findings after a fool revocation hearing those facts that incredible did the court say that in its finding it did not but if the this court is reviewing what occurred at the lower court this court has the entire transcript of the revocation hearing and c make a similar determination if this was a dyno review this court would be reviewing everything that transpired at the lower court level and again would have the facts in front of it to make the determination of whether or not certain witnesses were more credible than the other and whether or not there was a substantial basis to find that revocation that revocation was justified the government admits the district co sinks but we see in other cases that implicit findings in the record are sufficient when a court relies on violation memorandums and has an adequate record below a higher court can review it this court made excuse me the district court when it found that the defendant violated the terms of the supervisor really said you violated for character and history of the defendant sure it makes a determination for the court in determining that and at least in the government's argument at sentencing it developed  gave the court all the history of the defendant's conduct dating back to two thousand and four thank you  henderson unless the panel has questions i have limited time so i'm happy to rest on the argument i've already presented thank you very much the case is taken under advi