good morning me and please the court my name is brian mullins i represent becky folman the appellant in this case we are asking the court to remain and her case to the district court for a response saying in light of the fact that the district court procedurally erred because it impose or lengthened his woman's prison sentence to promote her rehabilitation from heroin addiction this case first of all that's based on eighteen term to promote not now the judge make comments about the rehabilitation after home and sweet quest that if he were incarcerated she'd be housed at a great thought facility which is more consistent with her illness so that's how the whole topic of rehabilitation came up well all right it had been i don't i don't agree with that interpretation i think first of all the conversation about a grade five facility which i believe occurs on page twelve of the transcending transcript i think that was referring to her medical condition rather than her addiction to heroin i believe that she has rheumatoid arthritis and defense counsel was pointing out that her medical condition had not been adequately cared for in the bureau of prisons and was asking the court to recommended a facility such as rochester which is a federal medical facility i don't believe i think most that's just a recommendation because the court can't tell you every word we understand and that's and to preface all of this the court heard defense counsel is asking for a sentence of probation this was only if the court found it necessary to impose a prison sentence was to the defense asking for placement  medical facility which defense counsel referred to as a level five facility but i believe defense counsel was referring to his home and medical condition and not her addiction to heroin but the district court i think it was more than a straight comment that the district court made about needing to treat ms homans heroin addiction was a theme throughout the sentencing hearing and i just want to review comments that the that the district court made throughout the sentencing hearing discussing her heroin addiction first of all on page fifteen of the sentencing transcript the district court was referring to the thirty five fifty three a factors for why it was imposed sentence that it was which was thirty three months three sundays and it stated quote in the case of and the court had in the first instance and still feels in this particular instance a need to address the defendant's drug problem at this stage there is nothing to suggest i shouldn't say the court is not satisfied that holeman has undergone sufficient treatment for her drug problem and then a little further down the court states it does seem to me prudent that ms holden receive further treatment and or counseling so that she can see can continue with  unencumbered by a drug addiction and certainly ms holden needs the tools to cope with the potential of relapse after she is finished with her obligations in this case so i think a reasonable most reasonable interpretation of that comment is that the court was considering her drug addiction at thirty five fifty three a factor in imposing a sentence and it was a basis for the court to impose a sentence and now i think there's any doubt about what the court was doing there i think that doubt is eliminated later on in the hearing we go to page twenty three of the sentencing transcript and this was after defense counsel had objected to the sentence of this was after the district court imposed this thirty three month sentence the defense counsel objected to the sentences being longer of them necessary to achieve the sentencing purposes under a thirty five fifty three day and the district court responded and so when i look at the distribution of heroin here in the conspiracy with your client was involved a sense of thirty three months a given ms hold and sufficient to take into account her acceptance of responsibility taking into account her debriefing which resulted in her eligibility for the safety valve and looking at her and looking after need for rehab and treatment i and immediately after that statement district court said i just cannot come to the conclusion that a probationary sentence such as you have urged for a lesser sentence would be appropriate given all of the circumstances here i think a reasonable ell i'm not suggesting she doesn't enjoy treatment well i think first of all the disk or we're not arguing that it was the only reason for the district court to impose the sentence that it did but if it was a factor i believe tapir requires that the case be remanded because i think it was a factor at all it doesn't have to be the only factor that the district court relied on but if it was a factor number one thing is the need to the price the number one thing is the need to get my treatment in other words so she is in long enough to get a five hundred hour drug program the sense has to be sufficient to provide that correctional treatment and and to make sure that the defendant was able to take advantage of the five hundred hour program in this case it would appear that the district court just impose a sentence in general for a prison sentence because his home and needed the tools to cult and had not received down so far and if i think the interpretation from the courts comments is that the court did not think this home and could receive those tools outside of the prison setting and that's with thirty five eighty two a prohibits and then me just address the court's last comment which i believe was the most revealing this was after defense counsel objectives of the fact that the district court did not adequately consider ms homans post offense rehabilitation and the fact that she had been clean from heroin and then the court made clear that it was not imposing the sentence the prison sentence because it  believed was home and was a danger to the community which would have which actually would have been a proper reason for the court to impose a prison sentence but then if it clarifies and says on page twenty five what i was more concerned about and was trying to address is the fact that she does have a potential relapsing given her history and the need to make sure that she has the coping skills to handle her personal affairs when she leaves prison and when she goes back into the community where stressors do rehabilitation it sentencing if the judge thinks it's a mitigating factor that warrants a lower sentence yes that the chords have but i'm routinely or consistently held that post offense rehabilitation is a to probation because that would be a disparate sentence it would undermine respect for law and it would provide little if any deterrence the district court then also summarized right there why it also rejected the government's request for this hole in was eligible for safety valve consideration she was in criminal history category one and quote wade should be given to her level of cooperation and the trigger for her involvement in this case i e her addiction consequently the court said it imposed a thirty three month sentence right there on page eighteen is the key reasoning in this case contrast tapia as your honor mentioned there the  court sentenced the defendant to the top of the guidelines range quote so she is in long enough to get the five hundred hour drug program number one say there is no analog case is an understatement there is absolutely nothing in this record suggesting that the district court calculated ms horman sentence to get her treatment in prison making this case even easier is the fact that it arises on plain error  said it was increasing or imposing a sentence of imprisonment because of those concerns about rehabilitation unsurprisingly then there was never any discussion of tapia thirty five eighty two or the principles there and as a result even if there is something subtle or debatable a question like that in this transcript it is not cognized full on appeal in fact i think you know this case reflects the importance of timely objections on this record is very easy to imagine what would have happened if mr coleman had raised a toppy objection the district court could have explained again the key reasons for its sentence the reasons that appear on page eighteen and it could have been crystal there she asked for a shorter sentence to reflect that she'd already made progress against her addiction but as this court has clearly explained there is a legally significant difference between increasing a sentence to provide more rehabilitation which is for better and taking rehabilitation into account when declining to further reduce the sentence determined by reference to other can sit regions which is allowed to consider here the impossible situation that the district court would have been in if ms woman's argument is correct as your honor reflected in this home and arguments in this case really all about her addiction and her need for rehab and her it you can see that page just six seven eight nine ten and twelve the transcript it's really the bulk of her argument the district court was obliged to address these payments arguments if it hadn't we would be here today and raised was about her request to be incarcerated in a level five medical facility just want to address that briefly since it came up before council indicated that that really went to her needs for medical treatment for her underlying disease two responses first if that is true and the district court was confused about the significance of the medical facility then his home and counsel really should have said so said as much at sentencing which he did not second m condition and her addiction here really go hand in hand at as counsel defense counsel himself emphasized at sentencing her addiction was that her addiction to heroin was the price took her previous addiction to opiates which was the product of her medical condition to treating her medical condition here really means managing her pain prescriptions and getting her on to something that's not you know if it's manageable and i have one i think the closest president from this court that we should look at t gallagher page six hundred sixty four in particular i would urge the court to focus on which emphasizes that the district court in that case although it discussed rehabilitation in response to the defendant's arguments those comments were not made when the court was and now and seeing or explaining the rationale for its sentence rather those comments were really a a response to the defendant and that is exactly what happened in this case finally closer finally honors this is an by her addiction and her need for rehab and on page eighteen where again a district court explained it's now it lists the trigger for her involvement in this case her addiction as a mitigating factor on page twenty three the court her addiction and her need for rehab and treatment along with other mitigating factors like her acceptance of responsibility and her eligibility for the safety though so far from imposing or lengthening a sentence to reflect her addiction does not create a sort of exception to the rule that an objection must be specific so it's not enough to say oh we talked about addiction and rehab therefore i did not need to raise a tapia exception if will fifty one lucas gallagher established that the district court commits no error by simply discussing rehabilitation at a sensing hearing that is what happens here the government respectfully request that the court affirm its own sentence if there are the district court here was presented with an option between probation no person or person you chose prison in part because it was home and was addicted to heroin and the court knew felt the need for his  home and to get treatment and that's exactly what thirty five eighty to a prohibits with respect to the standard of review we believe that defense counsel did preserve  appellate rights by objecting to the sentence twice but even if he didn't we believe this case is similar to bartlett i think he could have given thirty three months without saying anything