because the judge went into the sentencing hearing believing that he didn't have any discretion with regard to a minimum term supervised release and he didn't hear arguments as to is  impression i got from reading the judge's comments was that he believed he had to impose thirty six months i think that that's further by chris my comment of mr hale at his eighty one to eighty two of the transcript in the where he i believe mr hale says in the transition at the bottom eighty one going into the two that the minimum term allowed under the statute is thirty six months now that would have been correct if they were talking about the original statute of conviction ok but in this case we're talking about a statute that governs revocations of supervised release and now expects you to i think that statute they should have been talking about is eighteen u s c thirty five eighty three age where there is no minimum term and i think i don't think there's any malice you're i just think there are mistakes made and the judge didn't have the correct law when he imposed the sentence so i do think mr barnes rights were substantially affected because arguments were not heard that that some term a supervised release would have been more appropriate then three years mr gable argued for no more supervised release and in his arguments he stated outside of the instance that was sort of the main focus of the revocation proceedings mr barnes had been a model  sort of probation or person on supervised release and i think in general the parties agreed that there was a lot of positive conduct of mr harms but that this in the interest of the instance that was described in this revocation hearing was the reason why they were there and him is what supports revocation i'm not saying that that event isn't a bad event all i'm saying is that if you if there were arguments made to the judge at that time that liston judge you can accomplish the thirty five fifty three factors with less than three years of supervised release the judge might have done in the judge believes he had to give thirty six months and so we're arguing to this court that the rights of mr barnes were substantially affected transcript where he says that he thinks he there need to be individual punishment for each violation and it might be appropriate to have individual punishment for each violation but i guess our argument to the court would be that's why we have state courts and that's a court was sort of treating the violations as counts we're going to he's running counter to the guidelines and he's a he's imposing the sentences not supported by the guidelines and then not supported by his reasoning saying don't go near the child now i think actually that was enough to keep mr barnes away from the child and in the fact is i would argue to this court that judge reagan just reported willingness to keep individual violation punishment was within the guidelines or that's correct your honor it's only above the guidelines if you consider the ten the eight together and then it's eighteen months that would be above the eight to fourteen range that's correct  receive bad information from myself as well as from the probation department and i believe the source of that information was the underlying drug statute which stated a term of supervised release must be a minimum of thirty six month mr barnett still had time left on his period of supervision he asked the probation officer how much time did he have left the permission office that he had forty eight months minus the year approximately that he did from his release from prison thirty six months but the reason that we do not believe that this meets the plane error standard is there is no miscarriage of justice the court indicated a desire to places to find a non supervisory least repeat of thirty six months the court had its reasons for doing so and it was whether the court mistakenly thought it was required to do so is not relevant because there is no miscarriage of justice here that this defendant received thirty six months of supervised release when he was facing anywhere up to potentially life time supervised release because his underlying statute of conviction had no ceiling for supervised release i want to make sure i understand you point he had about thirty six months left when this occurred when the incident occurred he actually had more of forty four months by the time the paperwork had actually been filed for petition he had thirty six months later on that's determining the violations and by preponderance that the defendant was guilty of those little relations asked the probation officer how long does he have left on supervisor lease and was informed thirty six months at that point are the court you and the defense all under the same disc construction with regard to a minimum i believe we must have been and i only speak for the fence in that they did not raise any objections both when i made my statement on the record as well as a probation officer that we believe the required minimum or floor was thirty six months and then the reconvening happens when five days later on the full twenty fifth at that point is it your position that the misconception still existed among the governmental court or had that dissipated i don't believe that it dissipated your honor i was not there personally but from a reading of that transcript the court addresses a very limited brief hearing it addresses the sole issue of i intended to revoke this defendant i accidentally misspoke and said i was placing him back on supervised release when that's impossible because a supervised release was being revoked  court makes a statement that i had intended to reimpose the same terms and conditions for the balance of the term pending for mr barnes after conversing with probation i realized of course by revoking his term a supervisor at least i now need to reimpose john no further argument was made out whether or not it was mandatory by the government in the court did not speak further on that issue so the position therefore that you're offering there believes from the whole of the court statements regarding the sentence given to mr barnes that's correct in that i believe that this was remanded for the reason the court was under a mistaken impression it's the government's belief that the defendant would again be given thirty six months because that as we sit here today yes i believe that he would be who had twenty criminal history once the court went through the thirty five fifty three sentencing factors the court applied those factors the court specifically stated a that it was giving based on the evidence the court heard in the the minor victims the civic sentences as each victim based on the nature of the offense towards that victim finding what jay one suffered at the hands of the senate to be more severe as it resulted in physical injury that in the court's belief the guidelines did not take into account two important things with regard to the defendant the first being his a visible criminal criminal history the court noted he was a criminal history category six but state was five points above the top were fifteen for that with his twenty criminal history points the court also took into account the dishonesty of the defendant and the fact that with guidelines did not take into account that there was two victims here not just one which the court did find and the government believed to be reasonable the court address three characteristics of the defendant the nature of the offen is reflected in statements about the criminal history as well as protecting the public the court mentioned when it said it was went to the likelihood of this defendant re the and after considering all the factors the court stated in the if will twentieth period and eighteen u s c thirty five fifty three was sending the defendant to eighteen months so if the government is asking unless there's any questions that the well the guidelines don't take into account criminal history points you know after a certain point and so there it's sort of not taken into account or the other way to say or think about it is a guidelines take into account that there is a possibility of people  asking criminal history points past this point that we're choosing not to punish them further for one reason or the other i don't know that it necessarily means or the guidelines you know don't take into account they don't increase them after a in category six there is no information on that there's no there's because it's in category six because people sort of stopped keeping track there's no way to compare him to some other people in that scenario so i would argue driving either that two sentences in or a greater punishment in this case the law does take into account that there are two victims and there can be a criminal case while it is not this judge's he doesn't have to always take into account every possible victim ever there is another court for this this is a supervised release violation not a prosecution for domestic battery maybe mr bourne should have been prosecuted for domestic battery but that is not in front of judge