the court imposed a sentence that was both illegal and under reasonable and also failed to provide specific reasons as required by the statute why a sentence outside of the guideline range  end well i would disagree with the statement that he knew him pretty well because this was actually the first time used against head appeared before him since two thousand and two the time of his original sentencing but in any event all the district court really said was you've had too many chances i don't think you'll cooperate in the court didn't do what it statutorily required to do which is consider the guideline range and go through the factors in thirty five fifty three a at least the ones that are referenced by thirty five eighty three and this court has previously stated invalid united states versus george and united states versus today will the court has held that in determining an appropriate sentence upon revocation supervised release the court must consider the chapter seven policy statements and the court didn't do that here the court this court has also stated that the failure to do so constitutes an abuse of discretion by district court the court didn't do that and for that reason alone this case should be reversed and remanded at least for a resentencing as this court also noted in nick bell a district court is required to consider the factors that are within section thirty five eighty three which incorporate by reference the majority of the other factors in thirty five fifty three day again in this case the court didn't do that in never on the record even in the knowledge that those were the factors it was supposed to take into consideration and imposing the sentence and again and make the eldest with sectors you think might have made a difference well i think first of all i have the court really looked at his his dream characteristics the person as a whole that may have made a difference in this case the probation officer had initially this recommended a sentence of eleven months which was need a range of the guidelines of the advisory guideline range but actually backed off of that  recommendation at sentencing and encourage residential drug treatment as i had been urged by filed by the defense at the time of sentencing the probation officer noted that mr gibbs had been cooperative had actually sel surrendered to the marshals when he learned that a warrant was out a psychologist submitted a letter on behalf of mr gates indicating that what he needed was treatment and so one of the other factors apart from his history in characteristics the fact that he had been trying had actually been cooperating and had reached out for help the violation was actually that he had been terminated from the c c c which is like a halfway house which is a condition he had requested because he realized he was the last he needed help and had been asking for individual counseling instead of group counseling because he needed more attention and that's actually in the record in the supplemental excerpt a record in the modifications so i think had the court looked at the need for rehabilitation which was urged by probation and by the defense that that would have been an important for the court to look at and it really didn't go through that in this case marg knowledge that it had the responsibility to do that and for those reasons as the court noted in  failure to consider the factors in thirty five eighty three and thirty five city to be a contravenes a statute and for that reason just as well the sentence should be reversed in this case i would also urge the court to find that the sentence in determining whether sentence is reasonable and a sentence may be unreasonable when the court fails to consider the guidelines or the other factors listed and i believe judge wordless approach has been adopted by this court subsequently in cases like  cantrell in those cases the court indicated that the guidelines are starting point they need to be properly calculated so there are certain procedures that need to be employed or the sentence will be found to be unreasonable  this court explicitly stated that a sentence would be unreasonable is it fail if the court the district court failed to consider the factors in thirty five fifty three day and like i said i believe the sentence in this case wasn't reasonable because that just wasn't done here  and if court also failed to provide specific reasons as it's required to do by statute in a bell the court actually this court reversed the sentence where the court considered the guidelines on the record and found the guidelines were insufficient failed to explain why the particulars above guideline sentenced that it chose was appropriate and so we have an even worse situation here where the court never even referenced the guidelines at all and your honor with that i reserve the remainder of my time  and which point he was advised that he had an opportunity to have a hearing and he elected to waive that hearing and how much should we impute knowledge from past experiences use that modification what would information about what happens at a modification necessarily translate in his mind to what would happen in regard to  yes your honor and i think we would go back even further than that regarding his experience the defendant here is the cruelest category of six it's not his first go around with the criminal justice system he's well aware what his rights are were crap how many times sophistication that he would understand that procedures that might apply in a trial might apply when conditions are being revised or might apply in state court i mean a lawyer would look that up why would we expect a defendant to just know that well he certainly was he was certainly an advice but he did have a right to a hearing and as far as what the additional rights are at that hearing magistrate judge papa explain to defended that he would have an opportunity to start something like that said he complaining about his he didn't wasn't told about his right to consul and they said you were told previously about your right to counsel the hearing and therefore that's enough where was hearings correct and well he says he's had a history of violations of probation and parole so he is there any indication in that history that he's ever been told that he had the right to present here's the additional evidence that the defendant was advised that he had this right to present a distal evidence his defense counsel standing right next to him at the time that the defendant interest his admission well this is something we see coming coming all the time defense counsel jumps up in front of a district court and says we will we admit it and that's the end of that and then turns around on appeal and says well you didn't give us our  no yes that's correct i've told you the answer is no it's not in the record is not the end no your honor i think we're looking at thirty two point one what the district court judge does is he provides an opportunity for the defendant to be able to do these things and he had that hearing the united states position i think is as is not reflected correctly and the reply brief in that first the united states position is that he had his hearing he had the opportunity to present evidence he had the opportunity to confront and cross examine any witnesses that were there he was before the district court judge he had his hearing so it was a situation where he absolutely waived his right to a hearing he was there he presented the information he in fact he presented information in mitigation so he had his hearing now as well as a fallback position in the alternative yes he was advised of this information and for looking at the totality of the circumstances with his counsel standing right at his side he said that he was going to admit to the allegations  grapes at the conclusion of the hearing the defendant didn't like his sentence and on appeal is now saying well wait a minute my admission was not voluntary well let me finish this plane or what if we go back and and we find that the has even made it a proffer as to what prejudice the defendant suffered as a result of the admission the only prejudice which they've alleged or that they may be alleging is that he got too high of a sentence it wasn't that he would not have admitted it  admission and certainly there was sufficient evidence before the district court that the defendant had in fact violated his supervised release not only in the modifications but also the six separate allegations that were made against the defendant to which the defendant admitted only once again providing evidence the defendant had talked with his counsel about this information and was savvy enough to know i'm only want to hit the enter in admission to one of these allegations his me how in the world can you raise that if he doesn't know about what you are to what he must be provided at the at the hearing is an opportunity to present this information and he had that opportunity how did he it he didn't know he hadn't he what he knew is that he had his counsel at his side and he had the opportunity to for a hearing and certainly at that point again in a revocation situation what's required by rule thirty two point one is that the defendant have an opportunity to present that information and he had that opportunity in thirty two point one there are specific references where the judges actually have to advise the defendant and in this section thirty two point one be it doesn't discuss the need to advise the defendant of these rights what it says is that the defendant must have an opportunity then to entitled to these rights and he was entitled to those rights and he had the opportunity to present tha information with and specifically at thirty two point one a three it says that the defendant must be advised of certain information and thirty two point one b all it says is that he's entitled to these rights not that the district court judge has to advise him of these rights and that's exactly what he was entitled to and he was presented that opportunity finally regarding the sentence itself the sense that was imposed the district court judge did not specifically addressed the guidelines that's clear but what the district court judge did and as judge lester points out is he had a familiarity with th defendant over the last from two thousand and two to the time of the revocation proceedings less than three months after his release from custody he again is violating his supervised release by testing positive and failing to test then over a period of time he continues to violate even after given an opportunity to have a modification or actually my time has expired me i conclude you may conclude thank you if you are not looking at the the entirety of th proceeding the defendant was given an opportunity to come and to have his hearing what does he do the first words out of defense counsel's mouth is that he was way prepared to admit to the violation and that's the district court judge a him of the allegation to which he said he wished to admit and the defendant said that i admit later on he was given the opportunity to provide information he was well aware of the proceedings there's no issue regarding whether this was knowing involuntary injury of admission he was well aware of his rights regarding the sentence the sentence itself the district court judge was well aware of the defendant he had had experience with the defendant without specifically going through the thirty five fifty three factors as well as an initial matter i think that that was waived by the government as it wasn't raised in their briefs however and united states versus docs this court stated that any waiver of the rights in rule thirty  silent record so regardless of whether rule thirty two specifically states that those that an accused must be advised of those particular rights stocks the court is dead that any waiver of those rights must be knowing intelligent involuntary and without a court advising a defendant of what those rights are it's impossible for the court to to determine that those rights were knowing and without a defendant being advised of what those rights are a defendant can't knowingly and intelligently wai prejudice is a fact that he admitted to a violation and in arizona verses from a not for example the supreme court stated that defendants confession is the most pro good and damning damaging evidence that can be  well if you actually look at the only allegation he had needed was being terminated from the c c c well the question isn't only whether he was terminated from the c c c that was not an well i'm not saying that there's evidence he wasn't terminated what i'm saying is that he may not have admitted to that allegation well that seems like the most easily provable of allegations i mean it isn't it isn't something that would require you know say proof consorting with felons or something where there's questions about what it means that seems like a really objective standard was he or wa lawyer goes on to try to get treatment for him again whether it's a tactical decision or not i think the court the district court has a responsibility before accepting and in addition to an advisor to send it what his or her rights