very question that this court ripped reverse the sentence a remand is back to the district court for a new sentencing we do have with the says in court recently considered the mitigating factors in this case and coming to its conclusion for upward departure we would note that initially mr jevons morales rid of the united states he was offered a fast track league remit which he accepted and he pled guilty to the fast track he was looking at nine fifteen month range the district court rejected that which was when the court's right to do so initially there's a medication that the court would accept a guideline and sentence ultimately mr chavez moralist pled guilty to reentry with no agreement he says he arranged was twenty one to twenty seven months the court and he hit that point that it intended to go upward and it departed up to one third of the top in the range to us as of thirty six months we by opposing the maximum term supervised release in violation of five b one point one of the guidelines and that location notes as well as the section thirty eight fifty three of the statutes above the top of the guide we believe that this reflects of the court did not read me fully consider the vast amount of mitigation argument in this case first of all the nature of the upper departure justification  and object of disrespect for the law is really a fiction it doesn't really go to thirty five if you a factor there's some sort of speculation but that is but when the courting knowledge that subject  have disrespect for the law the gestates he was driven by desperation or darius and that is why he reenter the united states and thus once again as we do not challenge the court rejecting  really an either or situation i mean i understand that the argument was that he was and he backed help his family that there was financial motive but when doesn't have to be one single reason or one single motive or why can't those two coexist well i don't think well i don't think there's any indication that the  staged to thumb his nose at the united states that somehow he's making some kind of political statement by reentering the country that motivation was solely for economic but if someone commits the same crime by times over i mean this is the law you violated it don't do it again and then he does it again and it happens over and over and over well once again your honor i'm not justifying him coming back you know talking about justice just talking about whether it was permissible for this court to determine that there was at least a disrespect for a law reason for the sentence here well i don't think there is a disrespect i don't think there is a arguing that the judge was wrong in rejecting the fast track so once thirty five fifty story was thirty five fifty three c comes into play that is what changes this analysis your honor and that's what i think it return i counted at least two places where in the transcript where the court addresses specifically the financial motive and talk about comparing how he could meet this  motive by staying in mexico versus coming here so this was considered and it's you're not suggesting that the court didn't even consider the economic crash reason for coming back when we were all i can go in and i was not that the council sensing is what the record reflects what the court court only said those reasons were to do an up or departure yes there was a banter between the court and the council about  laws united states in that statement i think that shows that there was not a reasonable wayne of mitigation factors because the court decide basically came in five times that's all i need to know enough enough supervised release was also imposed in plane air in this case your honor the court or the not follow the guidelines and once again depart from the guideline and impose the maximum term  supervised release i would briefly request the court to consider reckon main that the circuit read review its position in steel because i think this case shows that the need for a process the the court as it was a court rejected that and not only did not give a guideline sentence but gave it up or departure i think at that point to change that and you look at what five the one point one talks about and also what thirty five sorry thirty eight fifty three talks about that we don't know the reason why the court imposed the supervised release in this case and much less to give the maximum term of it in this particular case if it's what the government suspects were swatter high we cannot assume that the reasons for the sentence they are the reasons for the supervisor of the positions supervised release but this particular case this sort of punishment aspect the court focused on under for the imposition of the upper end of the guidelines is not a factor the court can use under thirty eight fifty three do impose supervised release that o section five d one point one it makes it pretty clear that the court can consider using supervised release as an additional deterrent in any case even in a case where someone's individual eyes for example there's an issue of this person coming back and arresting somebody or that this issue is a person coming back to sell drugs or that's why i think commission is talking about because it's not it's not a or is not a comma it's deterrent and protection and in line before but trying to protect for the public but once again counsel on unsupervised on the supervised release issue under plane air review why why is it probable the result would be any different in this case how do you satisfy step three playing your review your honor in this particular case because what the guidelines talks about and in this case especially the sort of firms the thirty six months up were departure that the commission's whole point is prove the commissions that you don't have to pose as a not a secondary hammer because the new offense when you get the new made please the court counsel my name is paul mischler vance and i represent the united states in this matter as the defendants first argument about the upward departure the defendant has waived that argument by failing to plead plain error in his opening brief when it isn't on preserve protect jackson at the district court the united states knows that the court could exercise its discretion to review that decision but should not well but it was argued in the reply paree what that player was argued in the reply brief yes sir but while that gives the court the discretion to review it the united states argues that the court should not be e failing to let me just that how do you square that with their decision in united states versus zander where we see that arguing planar in reply brief would be my reading which could be inferior to the courts is that it is to fit it is sufficient to allow the court to review it should the court so choose but does not mantle well that would be true if there there was no argument at all it's a question of whether there's enough there to entitle the appellant to plane or review and correct me if i'm wrong but i thought we said in zander that  making the argument in the reply brief would be enough if zander says that the defendant is entitled to play in a review upon arguing it in the reply i don't ask the court to change that but not raising it in the opening brief was a strategic decision if i had not noticed and raised in the response brief the play in error analysis we would be put in a position where we would have to either ask for permission to serve a reply to add that argument or the defend it would be standing here today or mr dr as would be standing here today on a more favorable standard of review and the united states ask the court to discourage that sort of strategic behave well if we get to the if we get to the issue i understand your argument but if we get to the issue could you address the argument about the district court except being that chavez had no subjective disrespect for the law how do you address that issue we need not show that the defendant like some mustache twirling villain was committing the crime on purpose to show his contempt personally for the laws of the united states i have had cases where defendants have committed a crime on purpose to draw attention to an issue this is not that crime but the united states position both at sentencing and here was that thirty five fifty three a demands a sentence that is sufficient to deter and if a person commits the same crime over and over again they demonstrate that the prior sentences they got for that same crime of conviction have failed to deter either a because they have some inability to understand choices and consequences or b because their motivation to return to america is so great that whatever sentence of imprisonment was imposed before simply was unable to overcome their motivation to come to the united states to try to earn more money when deterrence is insufficient to deter it is merely a cost and mr job as morale as demonstrated through the conduct of his life up until this crime that all of the costs that were imposed by all of the prior district courts one of them being the same judge and one of his earlier felony reactionaries was insufficient to deter and was considered by the defendant to be merely a co money in the united states so when the district court says that he has objectively demonstrated a disrespect for the united states that disrespect is not imagined as as mr chavez says on page forty one of his brief but demonstrated that mr chavez demonstrates his insufficient respect for the united states every time he breaks its laws for whatever reason he breaks its laws whatever his motivation ok so later your argument if any person has made a second entry which obviously means they know what their law is doesn't that mean that a for draw the line on whether it's one two three or four my answer your honor is that all subsequent felony reactionaries are proof that the sentence for always happens when there is no error in a sentencing on a prior event whether it's for felony reentry of an illegal alien or any crime when a district court sees that a person has been sentenced in a federal court for doing any thing and then does that thing again that is proof that the penalty they received the prior time was insufficient to deter their their subsequent conduct and indeed that whatever any any re entry without permission in violation of thirteen twenty zero after a prior sentence and he's aware of that same crime so i wouldn't analyze it the same if it was an entry without inspection misdemeanor deportation and then a first felony reentry but when someone is sentenced by a federal judge for felony reentry and then is deported again and doesn't seek permission and comes back to the united states again voluntarily yes that demonstrates a disrespect for the law  t the the next thing i want to say about argument one meaningfully considered defense proposal is that quote meaningfully considered isn't the standard in the tenth circuit the standard that we get from the supreme court is consideration we get that in rita against the united states lengthy from a ten circuit tells us the court must address and surnow from the tenth circuit says the court must consider if we at this circuit adopt meaningfully consider what we are doing is inviting every subjective complaint about a failure to persuade the district court to be brought up to this court as a procedural error rather than a substantive i think the most important sentence in the appellant's brief on that point comes on page twenty three and the sentence is quote the district court was unconvinced end quote the dialogue with counsel and one time in explaining that the defendant actually wasn't going to make more money in the united states because he got caught every time and in jail he makes less money than he makes in mexico the quote meaningfully considered argument is really just a complaint that the district court wasn't convinced i respectfully request this court if it does reach the merits on argument one find that it continues not to adopt that standard so the court adopted the findings of the p s r and the findings of the p s are included and we're looking at volume two pages twelve to thirteen that the p s r said specifically normally supervised release is not at the paragraph in which chief judge johnson imposed the term of supervised release and that paragraph reads after service of the sentence the defendant is placed on supervised release for a term of three years the term is unsupervised with tori's standard conditions and the following special condition the defendant shall not be legally reenter the united states and i hope this time around the defendant will listen to what i'm telling him and listen to what his lawyer told him you will never ever be authorized to come to the united states so unless you want essentially to spend the rest of your life sitting in a u s prison cell i strongly recommend that after you serve this sentence in your deported you never return to the united states and quote clearly that paragraph reveals the district court's motive to deter and while it is true that the new sentence on a potential new reentry case could also serv punishment we don't know if mr chavez morale was sometime in the future will return to the united states through our zone or through texas and several of which he's done all right well i i still need you to connect the dots  y how does that satisfy the court's obligation to address the guideline is that are you just saying in so many words that  they go ahead if the court is required to say words such as and i'm imposing supervised release because you can see that there is no such sentence in the record and if the court is required to say and i find under this no to the guideline that the specific deterrence justifying supervised release is required because or i grew there is or required to recognize that there is this guideline and and but in spite of the general message of the guideline the court has decided to impose supervised release and here the reasons why why why isn't a court required to get that on the record to ensure for purposes including appellate review that the guideline was considering we take the position that by adopting the p s r which explicitly mention that guideline that he did by reference explicitly mention the guideline our position is that he that's the issue isn't it was there procedural error or not it's what we're supposed to decide that's problems one and two serious yesterday well then help us with making that decision by answering that question yes or we take the position that by explaining his explicit deterrent motive to to impose that term of supervised release that he has invoked the deterrent permission to invoke the supervised release that judge mchugh mentioned being in the note term of supervised release that he is now not allowed to do the district court could have imposed a term of supervised release that commanded that he never reenter to united states whether or not he gets permission the district court could have as in san expose impose a term of home confinement that is more restrictive than the absence of that term but that's not what happened here that the district court imposed the standard edition of supervised release in an unsupervised format and commanded that  appropriate simply to assume that the sentencing court's reason for posing a prison term extends to the decision regarding supervised release maybe your answer to this question going to be the same as the last one was there error in about dialogue between the defense attorney and the court about a term of supervised release there is no request by the defendant to impose a term of supervised release as an alternative to more prison as we see in volume three of the record here on page five and there is no explanation by the district court as we have in the paragraph in volume three on page sixteen about the explicit deterrent motive of the court in imposing the term of supervised release a go back to still as i think just briefly is i think that this is why be helpful to have a rule requiring defense counsel at opera or given the defense counsel the government opportunity to comment on sentences once they're pronounced and which would i think would have does comply with thirty five fifty three c and thirty five or thirty eight fifty three thank you your honor thank you counsel case will be submitted counsel are excused thank you for your