is that the trial judge on a supervised violation of supervised release proceeding did not have enough evidence under federal rules of criminal procedure thirty two point one to find that mr lloyd had violated his the conditions of his supervised release with respect to the alleged criminal activity he had engaged in the court i'm sure aware that the state court charges that were brought against mr lloyd and which form the original basis for the violation of supervised release were dismissed nevertheless the probation department in the eastern district decided to go forward or maybe the u s attorney's office decided to go forward with their presentation that there had been there were witnesses who testified to what they observed namely her injuries yes they saw her with injuries there was the witnesses testified to her statements which probably are indeed excited utterance is that he hit me well i disagree with that your honor in the sense that excited utterance is usually not an every very not and every single circumstance but usually require  this was how long after the minutes i don't think it was minutes judge i think that they they began to investigate they had to find ms can't be missed can't he was somewhere else  missed can't they was did say that she had been head but that evidence was put forward by miss canty but by law enforcement and so as we said in our brief when law enforcement puts forth evidence it has to be looked at with a different kind of ah it's not just hearsay but it's hearsay proposed by someone with an adversarial interest in the outcome and miss kitty was not ever approached by the government here to see if she was willing to testify judge the judge belo female spot the female victim is afraid to go forward against the male perpetrator and we all know that that's the case and so i'm i believe that that's why this situation  warrants a finding of violation but i don't believe that the trial judge had the right to assume that because ms can't he wasn't actually testifying herself judge would have had that information available to him so that he could have used it in his analysis what he has first of all he assumed that that was the case and second of all he bas his finding on a general assumption that where an alleged victim refuses to testify but that somehow is affirmative evidence of guilt that the that the person has committed the specific crime there's no direct evidence at all it's all circumstantial evidence about the brute the bruising and that's sort of thing that came indirectly so that isn't enough in our view to sustain the judge's finding that this was this that this event happened our second argument of course is about the sentencing and we say that judge the trial judge did not go through the proper analysis just basically said that there was  mentioned that the maximum sentence was twenty four months in that he was going to give the maximum sentence he didn't detail why he was or the report indicated what the range was in the range was above the statutory maximum and that's correct but he but so there were there wasn't any pointing going through a calculation of if the of well there's no there's no x and there's no automatic finding that if the guideline is above the statutory maximum that you are required to impose a statutory maximum you he could have even without a statutory maximum he could have imposed a sentence of twenty two months twenty correct john and when you but when you look at it in the context of the original sentence here was eighteen months and then mr ward was sentenced to twenty four months for violating and what was the underlying crime remind me please the underlying crime was failing to register as a sex offender mr lloyd had a sex offense conviction the judge could quite reasonably have concluded that assaulting this woman was more serious than failing to register particularly when it comes on the heels of a prior criminal conviction and he does it on supervised release and belied violation of the terms of his release i'm not arguing that if in fact it had been proven that he had assaulted the woman that that isn't a very serious charge but what our whole point is that there wasn't enough evidence for the trial judge to make that true sentencing argument foules if we think that the evidence was sufficient to sustain the conviction for the violation i don't know that it falls but it's certainly we can be on its way down if that's how you admissibility of the overwhelming amount of the evidence an overwhelming part of the evidence that was a deuced below his issue is really with a subset of that evidence that involves certain but not all out of court statements made by miss canty taken as a whole the officers personal observations the demeanor of the parties the physical appearance of the victim all of these things together easily meet the preponderance standard in this context and one of the issues that mr lloyd's counsel raised a moment ago in his brief is that for some reason i don't think supported by the law that the law enforcement witnesses are not entitled to talk about or  e skeptical i should be cast on their personal observations the rule certainly in general in a trial context would prohibit the admission of police reports that's obviously well settled it's an entirely different situation when you have officers who responded to an incident observed the marks on her neck on her face and so on and are simply reporting that there's no reason to discredit that and the judge certainly found on i think just to follow up on a brief point you may judge kaplan one of the issues with respect to the to the issues that mr girls are grazes is that they were almost no objections below there was an objection to a set of documents but with respect to for example ms canty there was no objection to the government's proffered reason for her on availability there was no objection to her out of court statements as admitted through the probation officer and in fact the defense such as it was appears to have been either that nobody saw personally saw mr lloyd hit her but no no dispute she was hit or that there was in an argument between the two of them or alternatively that she was provoked that that mr lloyd rather was provoked and i think that the district judge was entitled to understand that through the cross examination that these two conflicting defenses really don't cast any doubt whatsoever on any of the evidence that was a deuce to trial and to find by a preponderance that that the government there any further questions i'm happy to answer them otherwise we'll rest on our papers thank you thank you i'll just briefly mention in reverse order if it's not a conflicting defense to say that it never happened but if it did happen it happened because of provocation those are not those are perfectly valid defenses to put forward under those circumstances the judge would have to find in the first place which he had no defendant have marks on his body now observe now it marks on her by right she did and that was testified they did and wrote my colleague is quite correct that that was not he that was not hearsay they saw that so there isn't fully entitled to say yes we saw when she was crying and whatever else one point one of the federal right you know procedure right my colleague said that it's doesn't make sense to have a lot to say that law enforcement can't testify as to what they've observed and of course that's correct that's not our  about mr lloyd's appearance but then i don't know how that would have been necessarily probative the fact that that he wasn't injured doesn't mean that if in fact there we