morning may please the court my name is peter henderson i represent rachel caught in this case federal law precludes a sentencing judge from lengthening the term of imprisonment to promote rehabilitation in this case the sentencing judge consider the thirty five fifty three a factors listen to the parties arguments about sentence engage in dialogue with the defendant and announce that a sentence based on all those considerations was eighteen months it then turn the probation officer and said well i want to make sure is eighteen months going to be enough so that she gets this drug abuse program probation officer said well i'd drive out the minimum you'd have to impose judge and the court and said well i'm going to make it twenty months then miss cop immediately object i said can't wait the program doesn't take that long and i don't want that extra time and the court said well no you do have to get into it you have to find a spot for it and i think it's very important for you and so the sentence is going to be twenty months that is plainly a violation of section thirty five eighty two a i think it's an error on plenary review it's a claim error that resulted in an extra two months of imprisonment the only argument that would preclude this court from reaching the merits is this the government's waiver arguments are invited their argument but miss cop did not invite the sarah she protested it she didn't do so in the language of thirty five  nonstarter i think that's right and the six circuit case that we cited i think makes that same point and this transcript reflects this is an explicit linkage between the court's change of mind about the initial eighteen month sentence and upping the ante to twenty months because of rehabilitative programming there's really no question about it this is about as clear an this case it's it's on its face that the kicker of course this miss cop is now ineligible for the program because of her escape conviction so the judges efforts are are for naught but that's that's why federal courts cannot the court my name is diane schuler and i represent the united states every person in racial cop sentencing hearing including the judge including rachel cop and defense counsel were concerned with miss cops criminal history and her addiction and how her addiction drove her criminal behavior putting the community at risk and the judge sentenced her cordingley as the district judge acknowledged that sentencing this cop was thirty years old with a criminal history category of six her first federal conviction was aged twenty four during the hearing the judge never lost sight of these cops criminal behavior which was again driven by her addiction explained that there is nothing in the statute or in the language or reasoning in tapia that suggests that there is any impropriety in the link that in a sentence because of concern or even based on addiction that the defendant is likely to commit further crimes upon release so that he won her sentence is required for protection of the public further this court in the same case gave to hypotheticals which are on point the first which would violate the statute section thirty five eighty two a would occur when a judge during sentencing tells the defendant that the judge is not worried that the defendant would commit more crimes if the judge gets to find a shorter sentence but then goes on to give a longer sentence to enable the defendant to obtain psychiatric assistance that will bring about complete rehabilitation that is not what happened here below what happened during this cop sentencing was almost identical to defendant to obtain psychiatric assistance because until they defend it it scares me because until then the defendant will continue to be a danger to the public because the defendant can't control in the hypothetical their violent impulses unless and until her addiction issues were fully under control and therefore a long enough term of imprisonment was needed to protect the community every time the district judge talked about this cop's criminal behavior he described it as stemming twenty months for him to take the judge said i'm picking twenty months to promote rehabilitation rehabilitation i picked eighteen months initially i now conclude that an extra two months will help promote rehabilitate and that does seem to be exactly on the cheap the statute which shows no sentence can ever be increase on the grounds of rehabilitation the judges announce that he's increased the sentence on the grounds of rehabilitation really respect you take a different position in suggesting that the judge was choosing the twenty month sentence to promote public safety which could only be done if she were to receive the proper rehabilitation that that sounds like you're just disagreeing with the statute whenever the judge says i'm doing extra promote rehabilitate if your office is going to say aha that also promotes into pacha take on that understanding some of this out of this court the there's also a big difference in the fact that the defendant and the defense counsel or herself were asking for this the defense counsel was the first person to actually initiate with the judge the discussion about treatment in response to the district court saying that cop's criminal history wasn't abating counsel said treatment doesn't always take suggesting that a lack of treatment in this case was linked to her continued criminal behavior disorder my problem with your argument is the transcript when the court decides to impose the eighteen months he says i want to the defense in this case was to ask for rehabilitation to make sure that the court knows that it is cop has completed you know yeah no i don't disagree with that the train trip longer and then so it's hard to get away from for me anyway the suggestion that for two months was the response of the agents concerned that rehabilitation needed addition already stated which may not be guarded much support in this courtroom but the government's position is that the court then found that the twenty months was necessary to promote public safety based on everybody's clee and his own understanding of our doubt being necessary her treatment being necessary in order to reduce her criminal behavior and so that's where we stand on that but additionally the the court very quickly after engaging in the discussion with the agent and miss carr who's the government's position is she did not object to our gap or treatment she objected to the period of time it was as though their strategy wasn't working both she and the defense counsel were asking for years so that she can complete our doubt that that's a topic objection when you object to the amount of time and the rationale for it's being i the waiver error or in lieu of the invited error your honor the government's position as is that the that it was the strategy by ms cop and her defense counsel the entire argument that they put forth between the judge was to say look we're motivated by treated she wants treatment this time she herself going to her behaviors and her criminal criminal behaviors with  ability to stay clean and so we would put forth that that was her strategy and even again that was their only argument but alternatively under any standard of review the government on this record believes is on warranted any claimed error did not effect cops ultimate sentence the judge said after we're at it towards the end of his statements that given all of these circumstances he could be persuaded