good morning your honor to me it please the court christy hughes and federal defenders on behalf of mr de la rosa your honor the government agrees here that mr taylor rose as entitled to remain and in light of the district court's miscalculation of the prior time he spent in custody it's clear from the cases that the government cited in its brief and that mr dale rose as cited in his twenty eight day letter that this disregard general practice is to consider the cost of prosecution apprehension when sentencing defendants who repeatedly reenter the country and here the record reflects about occurred in the district court first reading quoted from the prior sentence and transcript it which in which it had told mr rose that it was going to consider the cost of apprehension the paperwork cost of his repeated entries and it never told the parties that it was going to rely on that factor at the sentencing hearing it never said that was an improper factor but isn't that really a sin of omission i read the transcript also he does do that the district court does do that he summarizes prior comments and it may be that she's not before us today that the comments of the original sentencing hearing were inappropriate in some way i'm not saying that they were as i said the issues not in front of us but he summarizes prior comments and then my recollection is he turns to this question of the promise and the importance of the promise that the defendant made and how upset the judge is by the violation of that promise he doesn't say anything about the costs and then later at the hearing it at pages forty seven through forty eight he goes through the factors that he's considering in in sentencing the defendant for the probation violation the number of times he's been apprehended the speed with which he violated his promise and so forth is saw that the question is becoming more long winded than i meant it to is is it the sin of omission did he have the obligation in that moment to say well i'm summarizing my prior comments but i promise you i'm not considering that today i don't think you have the obligation to do so your honor but the fact that he didn't i think is telling judge burns had to say and i'm not considering the cost of apprehension even though i referred to it in my prior comments to you and so if you didn't have to do that you said it's clear that a bothers him so how are how are we supposed to tell him not to let it bother him if we if we don't have an instruction if we're if we're not obligated to tell him that he's got to tell us that he's not it's not letting him bothering i think there's two other places in the record that make clear that it is bothering him aside from the fact that he never disavowed reliance guess i've got i've got a page sixteen of the transcript of thirty two of the one of the cars but so what else that he did refer to i think that little aside it starts at line ten where he says the gist of that was i'm not talking about what it cost to keep you in jail but rather the resources having to apprehend and do all the paperwork that's not quoting from the prior transcript that judge burns explaining why wasn't improperly relying on the cost of imprisonment when i was talking about is the cost of apprehension and doing paperwork and implicit in that aside a party  still think that's a proper factor i'm not going to rely on imprisonment but i still think it's proper to consider the fact that we have to pay and i'm sorry what page is that on that's on e r thirty two and it starts at line ten to line twelve it starts with the gist of the yeah ok that's all that's all but it's all part of the same th speech correct but but my point is just it's a speech saying i'm not going to rely on coffee just to lull well no i think he's he's showing here that his reasoning is it's ok to consider apprehension of paperwork and then later on your forty one government explicitly asked him to consider the cost of apprehension the prosecutor says as the apprehension in the processing in the most recent case not only to mr taylor as a drive across in a truck in the middle of night in the lives of the desert then she says the chase is on and there's a whole paragraph cost as a sentencing factor and but but the but the the prosecutor here is also said look he drove through the countryside putting many people's lives in danger and say look we're wasting a lot of gas chasing this guy i mean the focus to be focused on people's lives being in danger and having to chase him across the desert well i disagree your honor she says that line nineteen and so as the court's point about the amount of time and work and effort to apprehend and process somebody mr daly rossa unlike a defendant that was in your core a little bit earlier did not make it easy and just turned himself in at the port of entry so i think really few so keen on focusing on the district court earlier point about the cost of apprehension and in terms of your honor's point about plain error this affected mr taylor as a substantial right he disagreed more than doubled his previous sentence the previous sentence was five months this was twelve and really the do you think that could have had something to do with the fact that the five months didn't cure him it could have your honor but my point is just the disparate there's mean that five in twelve months for the district court to say you know maybe this was eight months maybe this was nine but the district the two motivating factors for the district court doubling of the prior sentence were the twenty eight prior apprehensions which we know that judge brinn use as a drain on the public resources and the breathe of the court process let's say i'm a trial judge and i'm adjudicating a probation violation and i come to find out that the person before me has been arrested twenty times for the same thing twenty eight look restorer robberies or twenty eight car thefts or whatever what have you if i don't care about the burden on the public fisc i mean titled to be concerned about the number of arrests so we can in other words we can slice this a little more finely judge burns is entitled to be concerned about the twenty eight arrests so long as the basis of the concern is not the burden on the public treasury and he's importing that concern into his s  i take it there's not a dispute with the proposition that as between two probationers one of whom is before the court has only probation violation ever and the other has before the court in a violation but has been not that long ago arrest improper for the court to consider the cost of apprehension well dr because theo was very clear on this point that was one of the cases that we twenty eight that was almost an identical sentence in transcript judge brinn references during the public resources didn't to protect the public and the hearing here was was when the hearing here was september two thousand and fourteen so so that would have been before that correct but i hard to be point error if you if if you didn't have a case that would tell you that it was wrong while your honor plain error applies if the case comes down walls while the appeal is pending it doesn't have to be before the district court judge makes the air charge for the united states to me please the court united states is asking for limited dreamin to clarify if necessary correct the sentencing adjustment done under seventy case your honor yes we reviewed reviewed the record and didn't weren't able to find any source for the additional thirty days and that would be plain error certainly is prejudicial and it's possible some of us wrote mistook of a five for an eight it's possible your honor that said we're asking that the court affirm the sentence otherwise and help focus first on the procedural issue of whether the court impermissibly and materially relied on an impermissible sentencing factor and i don't think that's the case here i think the court your honor recognized that this is a colloquy that's going on in the underlying sentence and the district court is orienting the parties they will say who in this case is not the same as who handled the underlying underlying sentencing and it's orange in all the parties including the defendant to say this is the promise that you made you made the promise not to return and he's really focusing everyone on that promise because although he mentions that the prior transcript the resources the drain on resources etc he immediately then shifts to you made me a promise and he focuses on a number of instances on the breach of that promise in fact he says repeatedly you know you look me face to face man to man and you told me that you weren't going to return and instead you did so i think that's the focus of the court and in fact he goes on when he's actually explain the reasoning for the revocation sentence he goes at length there's like two or three pages in the transcript that are explaining the exact reason the breach of the trust the agree just nature of the trust not just the fact that he came back smuggling drugs which i think is egregious by itself but the court is extra cautious to say look i've sentence you for that i understand that happened but i'm really focused on the breach of your promise to me not to return the fact that it was agree just in the nature that you returned nine months after you promised not to return  there's what is irrefutable on this record is that that's what the court was really focused on to address the comments of this is the united states attorney who mentioned the cleaning on the i think those are referring to the comments to your forty one yes the comment that your forty one i have a couple responses first that the first time that that issue was even brought up is on reply so we didn't have a chance to address it but shape after an individual first by truck then by foot but also to the public at large when that happens now there is a mention of resources but she just really trying to talk about apprehension i think if we're looking at plane air or a view that is i don't think that that constitutes a plane there nor is there any suggestion in the record after that that the court really considered those comments essentially says all right that's fine i've heard from you but i'm really focused on this breach of trust and reach of your are readily distinguishable first we have to realize this is a fact by fact terminations obvious the question is whether there was material reliance by the district court on on the cost of apprehension or impermissible factors and here it's it's very hard to say that the court relied at all let alone materially relied on a plane or standard the court mentions it once and while he's mentioning it he just say well you know i wasn't talking about in that case talk about incarceration tried to clarify what he was talking about before but then that's it that's the last time to any cost of apprehension it's not even actually cos he has resources but anything about apprehension or drain on resources is ever mentioned and he goes at length as before five pages of transcripts after that that discuss the real issue that he's concerned about which is this is your twenty nine thirty it thirty first time that you've returned here and i gave you a break i gave you an opportunity to have probation which is a future break for someone who is facing otherwise a link the custodial sentence and then he determine the said you know i'm going to i'm going to do this and i'm going to post this sentence because of the breach of that trust and i think that's ultimately what the court is focused on in terms of substantive reasonable notice until this issue doesn't come up as much that's the the sentence here of twelve months is within guidelines it's substantively reasonable because the court in looking at the breach of that trust determined went through the factors and said look i'm considering the need for deterrence here i'm considering the need to the fact that you breached my trust and then fashion the twelve month sentence he also looked at the other sentence the one for drug trafficking where appellant had received sixty months and said look the sentence that i was going to give you is somewhat meter by the fact that i just gave you sixteen months in that sentence and so perhaps i can give you a fashion sense of twelve months as it's less than maybe i would have given you otherwise and then give the coleman case i think that's also reasonable if the court has any you quick points about plain error first of all the case and i was trying to think of the plane or something can be error if the governing legal authority comes down while the case on appeal is henderson it's a supreme court case i think it's one three one thirty three well aware of that case and third if this court believes that the record is ambiguous whether or not judge burns relied on the cost of of apprehension i don't think it's a big i think it's pretty clear  clarify whether or not he relied on that improper factor and if he did the recent ns and so my hope is that this court is going to vacate a marine manned for re sentencing based on the thirty day air anyway and so it should also remind with instructions for just a court for just a court judge burns to clarify whether or not he relied on the cost of apprehension and if so to resign since and my third quick point is the government's asking just for this limited re man to correct but that's not the general practice of this court under matthews when a district court airs at