all right our fifth case for this morning is united states against james white mr carlson that were made were merely inadvertent and number two the statements weren't relied on by judge but what i'm going to start out with you with the statement made by the assistant united states attorney in this case and i want to say to  reasons probation had given for mr white's not complying with the conditions of the supervised release was that even getting him to submit to a psychological evaluation was a problem and he refused to do that two things with that argument number one and i should point out that it's referred to as a psychological it was actually a psychiatric examination it was requested but that was never a condition of mr white's supervised release when the u s attorney's office realized that probation asked for it mr wipe said no it's not a condition the government filed a motion to modify terms and conditions of the supervisor release judge buck well ordered that the psychological psychiatric evaluation be done and mr white while i'm terribly in compliance with the court order did the evaluation saying your position there is simply that it wasn't a condition he was allowed to say it's not a condition that was changed easily now that's right good night but he wasn't violating any condition of supervisory race by not doing very well the statements that the assistant the statement that the probation officer made were far from an adverse well the probation officer really spouts off but the question is you know what effect is this really have on the judge it seems to me when all is said and done she's thinking that there needs to be some marginal punishment for this and this struck me is really all about the choice of the consecutive sentence in that's correct agreed with the probation officer when he said he's not amenable to supervision the judge goes on to say that she took that into wouldn't count in arriving at the appropriate sentence and i think that that's where the problem lies because the judge refers to all of these violations of supervised release and she refers to them in the plural not in the singular and she's agreeing with the probation officer who is saying my because actually in general when supervised release revocations are at issue the judge would listen to what the probation people had to say wouldn't they and this guy was pretty intemperate i agree with you about certainly george but his comments were not even under a point to what judge walker was asking she was asking whether this the state court violation occurred on more than one occasion and all of sudden he comes out and starts calling him a psychopath and and problem is that i really think it's from his the judge then says or he says this is why this man shouldn't be answered provision he actually said that people who suffer from that are not amenable to supervision and so he is saying for all these reasons judge none of which are supported by the record not about which were anything other the only thing in the improper and i suggest that the comments that he made are far more than an offhand comments and i don't this court has said many times that you know there are a few words standing alone that would warrant a reversal the words that were spoken here were far more than just a few little words they were very very serious accusations with absolutely nothing to support them which the judge then relies on and says she relies on and opposing the sentence that she did which and part of it is the consecutive sentence i think those words along are enough sentence and the section thirty five fifty three a there's the putting the nature of the underlying conduct which was repeated a continuous could i ask what confidence can we have so sometimes you have a situation where particular sentence might be quite acceptable if you know that it's arrived at the right way but there's something in the record that undermines your confidence you don't know if they just record would come to that same sentence again i mean we've reminded frequently for that sort of reason so what what reassurance should we have that these outbursts from the probation officer in particular didn't taint the sent the sentence she chose didn't you know maybe would have been one year consecutive lots of possibilities and you can imagine it would have been within the realm of her discretion but there's there's this poison the well so how do we know it doesn't affect things because you had the the district court went through the thirty five fifty three eight hector's in explaining i know you asked her to do that but she some of the things she says make one think that she is in fact crediting what this probation officer said there is nothing in the record that appear to be amenable to supervised release and keep in mind that the defendant had appeared before the court multiple times and the defendant in the end the probation officer wanted to what he'd done wrong she adds the condition for the psychiatric examination he complies she lets him visit with his grandchildren there's a certainly a misstatement about living with vs visiting but i don't think that's earth shattering as far as we know he's complying with with those terms what what she talking about if not the kinds of things the probation officer was raising the district court appears to be talking about that from july through august the defendant repeated relying on the defendant's reach he did canada that were violations of the supervised release that it wasn't just one time but he kept down the district court also talked about how the defendant minimized his conduct the moment doubt that in an untainted proceeding the district court might have chosen re imprisonment for twenty months i just don't think that's what this case is about i think it's about whether this choice was everyone in the courtroom ignored the statements and moved on to something more relevant i believe right after those comments at the government test the court wanted the government to answer the question that the court had actually asked the court said yes let's talk about that and it was never brought up again and it was never addressed does the judge give the later explanation of the sentence and the very last time there were three sessions in which the sentencing occurred and the last time the court might through the thirty three eight right now i remember that partially she says on page this of the very last page of the opening brief she says i also decided not to impose any further term of supervised release which has certainly caused mr white i mean a lot of trouble so i took that into account in deciding the twenty month sentence but without any further supervised release was appropriate and here's the thing and it was also clear that the probation officer did not want to have further supervised release release because it became clear at least in the probation officer view which seem to be i found was substantiated by mr white's conduct and she goes on so i'm having trouble finding her finding evidence she's uninfluenced by the probation officer she refers to him twice yes matter but there would have been it would hit it is not let me put it this way the district is certainly entitled to view this that further supervised release would not been productive under the circumstances given that the probation officer did not want to continue supervised release and given that the defendant also was complaining about his maybe this guy doesn't have the disposition to be you probation officer defendant was found guilty only in violation one all right thank you mr carlson all right thank you and thank you very much for taking this case because your pals and we appreciate it thanks as well to the government will take the case under advisement