grisanti sentencing procedure that undermines the validity of his sentencing for bake injured a district judge has a duty to ensure that sentencing is fair that means it must be an individualized assessment based only on the appropriate appropriate sentencing factors and the record before the court when a judging ages and in appropriate digressions this undermines ability of the defendant sentence because it's impossible to know how these irrelevant considerations figured into the judge's determination and this is so even when the court also discusses the appropriate sentencing factors thus when there is referring to judge pratt's references to the defense counsel's prior defendant in the same correct your honor why is it inappropriate everybody's been in the same room the nurse lawyers are there i've gone to the new albany courthouse to deal with a number of cases on the same day and that sort of cross reference would not be unusual understood your honor i think of course we can expect a district judge to bring his or her experiences to bear on on a sentencing i think the issue here is that the judge the judge's comments which were made both at the beginning and at the end of the sentencing procedure suggesting that this so i think and she has statements to the to the effect that i hope you will get some treatment for your condition and when you get out of prison you won't be like the man we just sentence before you it was the nd time doing the same thing it suppose she just says i hope you will do this again the defendant brought up through the issue of his addiction and right so i would hope that a judge would encourage the defendant that situation to do whatever he threw through avoider you from i think it would be different your honor if she had just said i hope you won't do this again and it's true we would have no way of knowing and in that circumstance whether the other defendant was on her mind and that's why she was making that statement but i think the fact that she made these statements about the other defendant and saying to mr zanti that he risked being just like this other defendant what about what happens if we're to be clear on or i'm not suggesting a per se rule where a district court can never make reference to another sentencing or another defendant in another case it's the suggestion from the transcript that the judge drew an improper conclusion based on the post conviction conduct of another defended here and in other words the fact that this other defend it with a completely different life experience and perhaps a different you know obviously different facts giving rise to a conviction  transcript suggests that the judge concluded on the basis of that defendant's recidivism that mr santee two was likely to a city so it's not so much just the fact of mentioning another defendant but the fact that it appears that the judge may have drawn an improper conclusion on the basis of this is brought up sentencing st it is correct here that this defendant argued that being white was a mitigating factor correct his counsel made reference to a risk offender tool for which one of the factors was race that's correct and argued that in because he was white and employed he was a lower risk of recidivism it was one of the argument a court's medical diagnosis and i think in that case the defendant actually did when traduce expert testimony counsel on his mention also what worries me here i'm going to refer to the arguments we've already heard this morning sure fair enough yes ok and where other defendants were arguing the district judges did not address their principal arguments in mitigation seems to me that one of the principal risk offender tool but to ask whether there is any expert evidence indicating that he had a medically diagnosable illness that required treatment lest he you know are otherwise it would be an operable that he would  think there would be a way for the judge to a dress mr chris and his trial counsel argument that there may be some similarities to the behavior of a substance abuser and mr santis behavior here without going a step further and concluding network investigative technique was is admissible under the good faith exception and we understand that just this past week the government filed a notice of supplemental authority advising that other circuit courts of jumped on board this argument on this front is that these decisions overlook the active role that law enforcement played in obtaining this warrant that every circuit that has addressed the issue of the constitutionality of the warrant has found it to be unconstitutional it is not simply an error on the part of the correct t choose whether a valid warrant issued so i think it was that if a state court judge issued a valid warrant that was valid under the rules about state then it could but there's some question as to whether the i think the state statute that authorizes state judge to do that might have some constitutional questions i don't quite understand what you're telling us but i'm i understand the your objection to the difference between a district judge magistrate judge under the law at the time that particular warr issued and you know i can imagine an argument that says the difference between article three in article one makes a difference that's why i'm asking about whether it's unconstitutional for a state judge to issue a warrant well let's say that would the would have authorized the use of the software for to to to identify through pewters that were dialing you know or hooking up with again i don't think it's necessarily unconstitutional for a state judge to issue that warrant i think the issue was whether a valid warrant ever issued by someone which jurisdictions over state court judge had jurisdiction to issue  permitted this kind of search then that wouldn't be unconstitutional but i don't know and it would depend on the state law whether it authorized that the issuance of this kind of search th edge in mr sati sentencing memorandum he said that he had an illness a mental health illness that operated akin to an addiction and that he needed help to quote overcome it the district court st of all was required under th court's precedents to address this principal medication argument and in fact the district court excepted mr santis argument that he could improve and if he accepted responsibility and got the treatment he needed he would not be would be at a lower risk to offend so mr dishonesties appeal here is one that the district court affectively should have either norton or discounted his own principle mitigation there was an expert diagnosis moving on to the reference to a different offender i think the biggest broad point here is that the district court did not presume that mr  nt was a way to encourage the defendant here to seek the treatment and hopefully not reoffend before moving on to be the warrant i think one point of clarification to my brief is necessary the sensing hearing said that he was requesting a sentence at the lower end which we took as a lowering of the guidelines but the the judge later on and said that  honor i would just like to note that it may be that the reference to the prior defendant was a way to encourage mr sandy to not do this again but the point here i think is that we don't know the answer to that and  it's a not that i doubt was cast on what was on the judge's mind and whether she went beyond the appropriate statutory sentencing factors in the record before her and consider the fact that another defendant receptive aided and in  and would also just emphasize that this is not harmless error here just because mr zanti received a guideline sentence which is a point that government emphasizes in their brief this court has numerous on numerous occasions