in both cases the judge in both cases failed to specify the reasons why an upper departure was necessary under thirty five fifty three c two and also all utilized in permissible factors and impression that he could utilize all the factors as decided in thirty five fifty three as opposed to the factors and thirty five fifty three minus those that are excluded in thirty five eighty three outside excerpts of the record page thirty eight where they were date didn't go through the factors that are appropriate for sentence in a situation such as this one and then the sentencing memorandum proceeds to go ahead isa the judge said that he was looking at all the factors under thirty five fifty three and that those were necessary for him to look that he was science supposed mandated to look at them and he proceeded to factors in game and the court also states that he is looking at all the thirty five fifty three factors the court does not proceed to recite the factors but he does say that he's looking at all thirty five fifty three factors now in the case of gantt while and east as far as prohibited factors the court recites specifically prohibited factors and can't the court that's not which makes a very difficult to really figure out on what factors that ford was using and whether the court was using factors that were prohibited that were not other and the fact that we do here from the government at this time certain things to show that the court did and page eighty eight and eighty nine of the extra record the court talks about the defendant's problems with drugs and alcohol and how the defendant would be good to the defendant to get help for these particular things and this is occurring while the sentencing the defendant clearly the court was aware of subsection d which deals with the need for correctional treatment the need for rehabilitation in prison and you know within one minute of his actual sentencing the court is discussing that it's certainly our position but that's not a finding it's certainly our position that if that's a colloquy right that that colloquy should be part of the court's finding in his particular has considered and talked with counsel so that's what the governor of youth seems to me and it's the government's position that that's what occurred in this particular case the court had heard all of the evidence that the court had heard all of the arguments relied on permissible factors or permissible factors and without findings it's almost impossible to do that we can't gas and whether it's permissible or and permissible and so that's the basis of the specificity from the findings were on iran an impermissible factors around two factors first time it's the government's contention that the government that the district court was very clear he talked about deterrence specifically and how in fact he sta be in essence a captive audience for purposes of treatment so instead of the reasons were very specific in the end the reasons are more implicit in the court's discussion of thirty five fifty three he talks about thirty five fifty three he talks about how he's familiar with the section and the requirements the thirty five fifty that's been on since he also talks though about the defendant needing treatment for his drug problem and that he hopes he take advantage of the treatment for the drug problem but one of the things the court said it's very important in this particular case is that the record to review it's the government's position that this should be reviewed under a plain error standard so even if the court finds that or it finds that there is error in this case the arabs can seriously affect the fairness integrity or public reputation of the process let's suppose that bill was on the books six months prior to the sentencing of these two individuals before the determination was made to violate the conditions and for the sentence for those violations were imposed and  judge in my hypothetical that exactly what judge pro did here with would we have to send that case back i don't think there's a distinction to be made before or after you saying requirement that you state specifically if your honour's inclined to go over the guidelines why you're doing so and then judge produce exactly in that hypothetical situation what he did here would be required adopted her to square that with mcdowell when you say that it's really hard hard just to if we if we were to hold in a published opinion for example that this was adequate i mean i think it would be clearly conflicting under the scenario the judge hawkins described whether pro also talked about his history and you also had probation and the judge talking about the defendant's past and this goes to this breach of trust concept that was talked about in make that  punishment may not be something that should be considered by the court this concept of breach of trust is something that can be considered and judge pro talked about that talked about the defendants leaving the halfway house and his drug case where it did not utilize and permissible factors and a court also have to go ahead and explain a departure or that's your answer here but why should we exercise discretion which is only the current  it is reasonably probable that the sentence would have been different after a proper and alice's of the factors that are permitted you know that argument would make sense to me if there was anything in this record let's just take ice for a moment if if it gets broken it said when talking about the impermissible factors respect for law need to punish deter and said ordinarily i would be right within the guidelines but those two factors cause me to go over if that were the record then that argument with makes more sense but that's not the record well the problem though impermissible factors respectful the law punishment and how he calibrated those factors in relationship with the other two factors we just simply have no idea and it could be that i mean this judge me upon simply looking at factors that are permissible say t to know whether or not it would have made a difference so it's kind of a conundrum i mean one way to look at plainer in this context of the say you have to have specificity sufficient to allow appellate review and that's what of the judicial process as opposed to affirmatively establishing that the sentence would have been different that makes me sense it just you know and i guess i mean really at the very core of think of specificity is not a very core but one of the things that it's me because if it does if for example the district court explicitly relies on permissible factors we can say well we can reverse on that the president and it's in the air as a parent on the record however when when the district court's not specific i don't know if you're required to show on your plan or review that it would have been different i don't know how you could ever show that because we don't know what the district court did but we are afraid to spend a whole night yesterday figuring or thinking about that because i mean it is kind of a catch twenty two