case united states versus the th morning may please the court counsel my name stan you have a somewhat better public defender's office central district of illinois and i represent mr buffet in this case he asked this court to bake a his conviction and sentence because he was not physically mortum we wouldn't mind putting this off more or less indefinitely but i don't think that's in the court's interest or the interests of justice so we accept that as for what is required by the will rule federal criminal procedure forty three a requires presence of the case law including that he's putting this court's case in miranda so the longo interpret that to mean physical presence and that's not in dispute here so what we need to first address i think is whether physical presence can be in custody and i mean he's not you know well i mean he's i don't want to say he's i know this if he's doing ten half hours of kidney dialysis every day he's kind of in custody and who knows what else sure if there was a rule twenty transfer like the parties asked for the physical presence issue would not have come about like this he was able to appear in court in milwaukee he just couldn't travel up to madison  in the genesis for the whole problem on this incidentally because this coast invited air argument by the government the government suggested that the defense asked the court if he could appear by video and they said they wouldn't oppose if he was allowed to do that but the problem is you can't do that that it is a requirement under rule forty three as a him last forty three cease if you're disruptive or you can scott did you have to be physically present or there's no other way about and so he wasn't appropriate yes so there are lots of ways to get physical presence through twenty transfer the presence of the judge in a proceeding somewhere outside of the bricks of the courthouse that's all fine but the defendant has to be there in person with the judge and we rely on torres paula for that point and that before i get there if the chorus questions about invited air i really want to make certain i address that because the government is trying to create a third category of waiver here which is inconsistent with what the law requires under rule forty three and furthermore it be inconsistent with due process fundamentally people have to be in court with the judge for valid proceedings like it's a matter that goes back to the so there are ways to do it this wasn't sunil your point thank so i'm to the remaining parts of this the government we believe that it's per se prejudicial under the water torres palma talks about that they cite a case from the first circuit the towards palmer case citing first circuits opinion from baez which says that a defendant needn't chil pressured prejudice it's per se and that i think is correctly reasoned and even the concurrence judge henry says that harmless error analysis doesn't like the government says that you should have to show harm and if we did have to show we can because if the requirements for a ballot proceeding for the exercise of your substantial rights your substantial rights would include physical presence of the sixth amendment so he wasn't present there is a violation of the substantive rights is also a violation of the rule forty three a so we would have that established here if this court would determine plane air needs to be established but also as to the fourth factor we'd rely by analogy in this court's opinion united states versus thompson which is revocation proceeding but it's important because you have a denigrated set of rights relatively less and set of rights in revocation proceedings and you can show plain errors there all four factors the fourth factor certainly shown here under similar context where there's a criminal sentencing that you would have more rights than you would be as it be the revocation proceedings that was discussed in thompson so unless the court has questions on that i'd to move to what may be a moot point on the sentencing issue if we were to prevail of course on the senate and the you know forty three issue the court would need to reach the claims that we make about their sentencing hearing but i do want to address the w he would you have to judge he would have to go back for nuclear trial and then following that the sentencing hearing because right now we have an invalid conviction because the lack of the school presents he can play before different judge t again the defense was receptive before to the idea of a rule twenty transfer which would accomplish that exactly so as for the sentencing issues mr but there was a writ was given twenty one month sentence the judge spoke of the twenty four month sentence the defense got the judge's attention and asked the judge if he meant twenty four twenty one the judge said twenty one explain what the reasons were they government taking the position it's a very  cribbed excuse me a very tight reading of what the remarks were at the sentencing to say that once the judge said twenty one everything that he explained after is immaterial to the judge's reason for the imposition sentence but that's not correct because if you read the transcripts it shows once the judge was correct in these areas giving more fulsome explanation to the reasons of the sentence which is required and the judge was trying to satisfy the requirements of the sentencing problem is that when he was doing that he made some remarks that i think  unfortunate ones the judge said that he was not convinced that my client would get wholly inadequate care in prison and that is a low bar and that is not the right standard if you're going to get wholly inadequate care don't send him depressed because prisons have to give at least adequate care so probably right less or sending unit the same place if he's in prison because the other youth that this is for ten and a half hours a day you know where he's being you know well he's not being held yet so he's getting treated i prefer to get my medical treatment freely and i'd prefer not to be in prison at all i mean i'm with you judge so anyway it was a statement that shouldn't have been made wholly inadequate care is not the right standard sentence and i appreciate your view of the editorializing by the judge here but if we have a judge appropriately considering  sentence to reference that contrast that you will get care couching as he did in terms of wholly inadequate in terms of the relative wealth disparity that's the problem judge could have said things to get to the same point without incorporating well and the standard of care that he did well that's the man i don't know i don't think so there was every suggestion that it was very good care provided by a team of doctors and that it was going to be disruptive to his continuity of care and therefore opposed to he the government did send an email to public defender kelly welch in an attempt to try to accommodate a very sick defendant we sent an e mail i sent an e mail saying why don't you look into the possibility of a video conference because it was clear that mr but there was very sick and we were trying to do the right thing no good  this well she emailed me back said you know i think that might be a violation of the rules and i don't know if that's appropriate and then she e mailed me back a week later saying it's all arranged i've set it up at the court so while mr hill it states that it is he says that we cited the burner case out of the eastern district of wisconsin where the federal public defender's office had represented it was ended with this exact issue and he said well look the united states attorney's office in the eastern district of michigan was aware that this was against the rules so therefore the western district must have been aware and i take issue with that if i had our office had been aware that we wouldn't have suggested this what i do suggest is that the federal public defender's office it seems hard to believe that they weren't aware that they had already represented a client a year ago that this same issue and then after the judgment of conviction came down the next day they file a notice of appeal saying we're appealing because obviously this is an error of the federal rules of permanent procedure now mr hillis brief said well mr bug me is the one who represented the defendant in the eastern district and he's not the one who has represented mr but there but mr bug me was in court with mr but they his plea and sensing he was in the western district with me in the drive while kelly wallace the other federal public defender was in court in milwaukee so to say that mr bugged me was not representing is just not that actually adequate he made the first statement for defendant he may be closing statement for defending he was very active in this procedure so the government believes that the federal public defender's office have invited this terror the reason we are here today is because mr but they doesn't like the sentence that he got really that's the bottom line if he would have got custody sentence we wouldn't be here we were all on board we all wanted this we all wanted to help a sick man and we did the best we could unfortunately i didn't realize it was a violation of the federal criminal procedure and so now but it seems from the record that the public defender's office may have realized it was a violation in the late in the weeds until they got a sense they didn't like and now we're here so that's my invited error you know there's case law showing that when you invite here you waive this issue and there is no review so the government put because this court said there is no reason to expand the limited list of structural rights violation constitute per se or by adding rule forty three to that list and this court found it was not a person there so then we move on probability that the error affected the outcome and that is the defendant's burden to show under plain error and then you look at to impugn the fairness reputation or integrity of the judicial proceedings that also that phantom a show in the government's inmates that defense just hasn't shown that now with the court disagrees this case has remained and will review this again but will we just believe that they haven't shown the error the judge gave his reasons for the sentence and there's no reason to believe that would have been different had mr but they ben in court what we do recognize that if that's what this court finds again we will redo this and this time with mr but they will be coming to madison and he will make that trip that will be really really hard on him why wouldn't you just have a judge in your district s that maybe one solution but that this was not approved in this case and i don't i can't say that it would be approved in the future and so what i believe would happen is that we would be doing this and he would be forced to travel to madison which is what we were all trying to avoid  far as a sentencing argument as far as the judge making in incorrect comments i think it's clear from the record that judge pearson really did consider mr but there's help and he went over and he said i recognize it's a concern but i have to sentence him to present based on all the factors he went over his health conditions what he did say this while the public defenders in their sentencing brief and in their argument said repeatedly look sentencing him to prison is going to be a step back it's going to be like starting over he's not going to get any good care he has this excellent care as i get these teams of doctors and cardiologists and after my knowledge assists in you know all these things so when judge peterson over from scratch and is going to be so horrible in prison and he's getting this amazing care outside he's commenting on an issue that they have brought up and he says i am putting you in a federal medical facility and giving you ninety days report instead of the usual thirty i'm going to take all of this into consideration to try to accommodate you so that you can get the best care that you will be able to receive while you are in custody so to say that his comments were the basis for a sense is just not accurate they were a response to defenses arguments and they were after he had already said here's my sentence and here's why so in by the way i don't buy  i understand the facts and been happy are different right well that's critical it seems to me that the facts are different but the holding sad is that the court does not require automatic reversal or violation of federal role of criminal procedure forty three based on a your honor i just heard the government explain that there was a sequence for the e mails where they were suggesting something the defense for alerted them to the problem and the government chose to go forward that's a problem for the government and that's exactly what happened here so to claim invited there in those circumstances is that correct also it's a given so it's no case where invited error was accepted all the cases where we have these types of errors invited errors never carried the day i'm not certain that was argued any of those cases but you think that it would have had a place in the analysis it would have not this out of the box and yet it did as a rule forty three and what it says the knobby talks about rule forty three see that rule forty three and there's a world of difference between those provisions and then furthermore to your point about what the congress known when did it know it and what could do differently will five rule ten have video concept conferencing provisions and so if we look at the efforts as a whole by congress as we should we do see here then that they deliberately did not include the circumstance which does suggest that your honor's point is correct in so far as we can discern from the case law on the rules that it is a per se by aleisha and so for all