section thirty five fifty three a factors other than the guidelines range and even looking to the broader context of the sentencing hearing doesn't provide any reasoning that we can infer or import into that decision either under this court's decision in united states versus rhodes that's a place that violates section thirty five fifty three  that error affected mr much you know as a substantial rights in that it undermines confidence in the outcome in this case an adequate verbal explanation might have changed the outcome because it would have or might have entailed the district court giving more consideration to the mitigating individual characteristics of mr martinez such as the fact that his offense was motivated by his desire to support his family as well as the fact that his criminal history category five in this case was due in large part to jail nonviolent convictions as well as two points which were added because he had violated the terms of the supervised release for those points argued no your honor but again i believe that that is rolled into the fact that we're here i'm doing this as a sentencing hearing now i know i know you didn't challenge the lack of reasoning by the district court but at the sentencing hearing did the counsel for the defense go through the background of the defendant and explain to the court you situation i believe that the defense counsel did discuss mr martinez as motivation for coming into the country and that th part of the reason why defense counsel and the judge and the prosecutor agreed that a low and guideline sentence was appropriate under the court already had that information the court had that information however the court  refer to or address that information in the courses making at sentencing decision and didn't address or refer to that information when deciding to impose this additional four month sentence for the supervisor really phylicia and just to return to what i was discussing before i think the additional two criminal history points that he received for having violated the terms of his supervised release a significant here because that alone increased its guidelines or interest for you to thirty seven months and i believe under the circumstances you know to paraphrase the ninth circuit had the district court gone to the effort of explaining why an additional four months was necessary when he was already receiving increased sentence because of this prior supervised release violation he might have changed his mind particularly in light of the fact that everyone agrees that a low incidence was appropriate and the district court in this case they sided not to approach provides relief because that's not generally recommended under the guidelines  he said that's the bad news he clearly understood exactly what he was doing and yes i'm here under here suggests that he didn't but i don't know how you can guess and with that that exchange between defense counsel on the court you know i i don't think that i have to show that he was mistaken are on you know misunderstood what he was doing rather that the that how he gone to the effort of explaining his decision which was a plain error in this case whether there's a possibility  sufficient to undermine our confidence in that outcome and here i think that we can look to the record and look to a few things to suggest that there is a possibility again first that there's this lack of reasoning which you know i believe the the reason we were choir tours to give the reasoning is because the articulation of reasoning sometimes has an impact on our people sure doesn't take a genius to figure out why he wanted to sentences person the way he was intended to do respectfully your honor i don't believe there's anything in the sentencing record that indicates that the district court sentencing decision was based on his belief that mr martinez remember oh it was a scofflaw or you know  time that you're concerned with are you concerned with the thirty seven months you know your honor we're only concerned with the four consecutive yes or on the on the supervised release yesterday and i thought you i thought you gave us a different number just now so we're really here about the four month consecutive sentence yes you're ok and to the extent that there is any reasoning in the record all that reasoning goes to why the thirty seven months was imposed we don't have any additional reasoning for the four m sentence and again given this lack of reasoning and in combination with you know potentially mitigating individual characteristics of mr martinez as well as in the potentially mitigating qualities of the offense you know i think that we that we can't say that we're confident that the district court would have done the same thing had he followed this long established principle that the district court is required to give consideration to these individual characteristics and explain the decision to impose a consecutive sentence in those terms you know finally i would just say that the district court's decision affects the fairness integrity and public reputation of judicial proceedings the lack of explanation in this case is deprive the public of any knowledge of why this additional sentence was imposed and in that way undermines the perception of fairness in addition  release required under the guidelines i don't believe it's required under the guidelines though that may be it's very guideline recommendation however that's not what the disheveled you want point three i'm not sure  no you know that isn't explained by the guidelines either well it was a guideline that i just listed says any term of imprisonment imposed upon the revocation of probation or supervise to if you read shelby well you know there shall be consecutive two responses first the district court didn't strictly follow the guideline anyway the district court imposed the sentence partially consecutively so four months c months consecutive so i think that limits the explanatory power of the guidelines even if we assume that that was a just or works in type second there's no requirement that the district court follow the guidelines with respect to the supervised release file ations unlike the understanding is that the while the underlying conviction that he pleaded guilty to that plea agreement was this the one he sentence that she was required to follow the guidelines however that requirement did not apply to the additional supervised release and just finally to return to my fourth argument you know in this case i think one of the most important things to recognize is there's really no record that mr martinez or merit was considered as an individual there's no discussion his history in characteristics by the court or even reference to the thirty five fifty three a factors you know there's nothing to show that he wasn't sentence is just another standard fast practice and and so if there are no further first because he hasn't shown that the district court was obliged to explain that decision at all and second because he hasn't shown that any error if it occurred in declining to explain that decision affected his substantial rights i've argued in my brief why the statutory scheme between thirty five fifty three and thirty five eighty four don't require a district court to explain this particular decision but moving on and assuming that an error did occur when the district court declined to explain why it was running mr martinez supervised release sentence partially consecutive and partially concurrent to his underlying sense for illegal reentry he still hadn't shown that that failure of explanation affected his substantial rights yes to show a probability sufficient to undermine confidence in the outcome and yet to show that had the district court given an explanation if there is a fair probability that it would have resulted in something different martinez argues that he doesn't have to show that the district court was mistaken in pronouncing a partially consecutive sentence but given the argument that he makes in his brief he really does all the points to are these two comments that the district court made indicating that it was imposing the low end of the lowest sentence that it could impose under the parties eleven c one c fastrack agreement and that it was imposing a revocation sentence at the low end of the commission's policy statements now he argues that these comments indicate that the district court wanted martinez to face the lowest amount of imprisonment possible given those i guess the constraints of the eleven c one c agreement and the constraints of admissions policy statements that are only advisory but the district court repeated its pronouncement twice including the pronouncement of partially consecutive and partially concurrent sentences so given that there's just no possibility in the record that the district court made so any sort of mistake that would have been corrected with a brief explanation about why it was running the sentences partially consecutively and partially concurrently doesn't have to make any explanation i argue in brief that it does not have to explain anything at all but even assuming that it does have to give an explanation for why it's running sentences consecutively or concurrently rodriguez continued shows you exactly how little that explanation needs to be in that case cited in the united states brief the court stated that a district court sufficiently explained its decision to run sentences consecutively to one another when it's a revocation of supervised release and an underlying sentence merely by stating that or it relies on guideline section seventy one point three zero commendation of fully consecutive sentences so had the district court explained its decision this case all it needed to say was i'm relying on the guidelines in making my decision and that would have been a sufficient explanation so given that it needed to state so little there's just no possibility under the record that stating that cursory conclusory statement would have resulted in anything different murkiness bill to show that the district court erred at all in declining to explain its decision about concurrent or consecutive sentences and even assuming there was an error he hasn't shown that the error affected his substantial rights given the district court's repeated pronouncement of consecutive sentences showing that it wasn't a mistake either for to demonstrate plain error and the courts  if the panel has no further questions i mean i don't want to talk about your novel theory that that's why room that is why we're here the court didn't seem very interested in it with mission now so i wasn't sure if it was not her issue true so section thirty five fifty three c only requires an explanation of a particular decision if that decision has the imposition of a particular sentence and so in this case a decision about ordering sentences running consecutively or concurrently is only the emphasis is only covered by thirty five fifty three see if it's either itself the imposition of a particular sentence or if it's included in the part of imposition of a particular sentence and your brief made an interesting argument on this point but i didn't understand i didn't understand your argument about why we didn't already directly address this issue we didn't obviously direct this to branch in your argument because that argument wasn't made at rose but we certainly answered this issue and why isn't rose controlling you thinking that the argument is interesting in rose though that case really wasn't a case about whether section thirty five fifty three c generally applies to decisions about running sentences consecutively or concurrently the only argument that that court addressed and the only argument that the parties advanced was an argument about whether section thirty five fifty three c imposes any general explanation requirement aside from the two specific explanation requirements in its two  the court basically assumed that section thirty five fifty three c applied to decisions about running sentences consecutively or concurrently and true it did vacate the sentence in that case and remanded but it did so only after assuming that section thirty five fifty three c applied in that case and given that that issue was not squarely addressed by the court it was merely assumed it doesn't make sense to treat rose as a holding about section thirty five fifty three c's general of like ability to decisions about concurrent or consecutive sentences or you think you think when the court pronounces the sentence and says whether it will run concurrently or consecutively with other sentences that is not part of the sentence imposed then is not part of the any particular sentence imposed for the special rate or partition reasons given in the brief first section thirty five eighty four b would be entirely superfluous if it were or section thirty five eighty four b in the isn't that really just a housekeeping provision to help the bureau of prisons calculate time i think you're thinking of only five when or when well there's several of them in that particular area in the statute when the court doesn't say one administratively treat consecutive or concurrent sentences as one aggregate sentence section thirty five eighty four eight sets forth the default provisions about whether sentences run consecutively or concurrently when the district court says nothing at all about the decision that it's making and then section thirty five before be the prison that i was referring to is the provision that incorporates the section thirty five fifty three a factors and tells district courts that when they're making a decision about whether to run sentences concurrently or consecutively they shall consider for each offense the factors in section thirty five fifty three a and that would be entirely superfluous if the decision to run a sentence consecutively or concurrently were itself a particular sentence imposed or part of particular sentence imposed because section thirty five fifty three a already tells district court that when you're imposing a particular sentence you need to consider these factors and the congress would have no reason to put in section thirty five eighty four b if that decision were part of a particular sentence imposed section thirty five fifty three  what already do the work by its own language further the fact that thirty five eighty four a provides default rules when it just reports of nothing at all indicates that congress specifically contemplated that it was ok not to explain this particular  contends that even if the district court need not wait thirty five fifty three eight factors on the record it must still state in open court percent to thirty five fifty three see the reasons for imposing consecutive terms of imprisonment and he says the government response that that section is not a put the ball to cases in which a sentence doesn't exceed twenty four months wasn't that the time for the government to make the argument you're making today through the end of i don't understand how you can say we didn't result even if you're suggesting we didn't correctly resolve it we resolve that issue and the government had a chance to make this argument so true but looking at the analysis of her perform now it was only a case discussing whether thirty five c impose the general explanation conclusion on that issue it states accordingly this court rejects the united states contention that section thirty five fifty three c is not a quibble to this case because neither rosa sent sixty to twenty four months but what would have prevented you from making the argument you're making now i think you rely on one circuit cases come out since then but still there's nothing that would have prevented you from saying at that point oh why there is a reason you shouldn't you shouldn't find that thirty five fifty three see applies and here it is but i just i'm just to me it's just an argument you didn't make because maybe nobody thought of it but but still we're rose controls there's nothing that prevented us from making that argument and you know legal holding is nothing more than a principle that you draw from a case to aid you in deciding a future case and just when looking at rose it doesn't make much sense to say that looking at the reasoning in that case helps us decide whether section thirty five fifty three c applies generally to decisions about concurrent or consecutive sentences and so in that sense i don't think it's a holding of roads so again thirty five eighty four age presumptions indicate that congress specifically contemplated that court's weren't going to even state the decision that they were making her'n sentences on the record so it doesn't make sense to say that they're required to explain that decision when congress provided default rules in the event they said nothing at all so have the district court said nothing at all then section thirty five eighty four a would have implicitly saying what the district court that but the fact that it decided to say something should indicate that it has an indication that it has a requirement to explain that decision even when it was more defendant friendly if you penalize no further questions i'm happy to return the rest of my time to the court thank you consecutive sentences as necessary to the outcome in rows and that's part of their holding and you know as to the c one versus t two argument i just would note that this court had already previously rejected that argument in underwood's and so it would be somewhat unusual to say that rose was confined to merely confirming that point and then i just want to return to the government's arguments about the third and fourth prong of the plan or standard you know first i just want to emphasize that our surprising burden is to show merely that there is a probability sufficient to undermine confidence in the outcome of the proceeding or not to show by a preponderance of the evidence that the outcome would have been different you know i want to just say here again that sort of fundamental to this whole exercise is the principle that sometimes articulating the reasoning that we have for a decision affects what we think that's why we're here and so i think that in this case given that there's nothing in the record going to the district courts reasoning for imposing a four month consecutive term we have nothing to show us what the district court was thinking that in combination with the fact that there are some reasons to believe that the additional four months government talks about how little is required to satisfy the duty of explanation under thirty five fifty three seats and i think that the fact that the district court was unable to meet even that minimal burden in this case really shows why our fo