the next item on our calendar is united states versus free country grant thanks i'm here on behalf of the appellant defendant mr franklin graham who compiled a terrible record when he was out on release and you can see that i'm not denying that he has a some problems and that he has well as his drug problems and these co morbidity a person who is subject to these problems tends to have more severe reactions and more severe power problems in trying to deal with life and trying to correct them so all this does tend to combine and create further problems with his life he did plead guilty to of violating a condition of his supervised release that is that he not commit another federal state or local crime when he tested positive for marijuana and therefore at some point he had possessed a quantity of marijuana that was what he pled guilty to and there's no dispute about that  in my papers i raise three points this morning my and i i intend to focus on the first issue whether the district court committed procedural error when it failed to comply with section three five five three seek to use requirement to adequately explain and then memorialize in writing its reasons for imposing sentence above the guideline range of set forth in seventy one point four and if there's time i'll talk the substantive reason most of the twenty four month sentence that was imposed it's my intention to rely on the papers regarding the question as to whether or not the court use the correct criminal history when imposing its sentence under the advisory range section three five five three c two requires a district court to do two things at sentencing in my state no open court it's reasons for imposing a sentence and if a sense is above the guideline range the court is supposed to memorialize with specificity in writing its reasons for that range and the record in this case shows that the court failed to do this  of talking and mr graham acknowledged that he has had these problems and he's been trying to work on them and even the probation officer has acknowledged that he has mental health issues that he has drug issues that he has been trying to comply with his health care providers to address these issues but these issues are such that they don't go away immediately that there's going to be failures in trying to correct th the talking that was done is rather interesting because there was a lot of statements made by the court as to her problems with mr graham but this does not explain why the co imposed the sentence above the guideline range no magic words a courts have said that no magic words are necessary when imposing a sentence and we're not saying that magic words are needed but what we do need is clarity as to why the sentence itself isn't ohs and that we don't have one word would act you don't doubt that that she could have sentenced him to about an above guideline she if she gave  a clear reason so that mr graham would understand the public wonder stan the bureau of prisons would understand so that you in dealing with this appeal would also clearly understand well no magic words are needed actually one word could have changed this entire appeal if the court just said because and one more could have taken care of this because we would have had a reason as to in a supervised release context or an underlying conviction context what you are now saying is that the district court needs to connect that discussion directly with the sentence by saying because of all of this therefore i am more therefore therefore we can we can think of many words to bring this connection to the other that you want it with it would make things much clearer what i'm asking for an up with the the standard is not much clear it's is it clear enough well we want yes no this is the way it is right now it is not clear enough then to state additive reasons is faulty because there is no there's no indication on the statement of reasons there is no statement of reasons at all miss case nope no statement of reasons portion of the judgment was filed which would we could be managed to ask and that would be a perfectly reasonable thing to do i just i have it up right now and really looking at eighty four eighty seven of the sentencing of the sentencing when she says to him she goes through his background she goes through his plea if she goes through with the sentencing calculation was she goes for the fact that he's repeatedly been given a break with regard to probation she goes through the fact that he she specifically mentions eighty seven clients twenty twenty one that he cuts off as his bonnet during device because he gets anxious about it and she says you know she says that sooner or later you have you know you have to be held accountable for these things and then she goes ahead and says and the fact that you have drug problems in your emotional isn't enough because it hasn't worked before with you and so what i'm going to do is i'm going to give you time in jail but i'm going to do my best to make sure that you have the treatment that you need in jail which in this sounds like drug court i think saying what my point is she saying a lot of things he exactly it was a lot of things to say he'd been constantly violating probation for years he had a long criminal record he cut off as he cut off his bracelet because it made him nervous but we don't know if the reason for the increased sentence is because a cut off bracelet we don't know if it's the increased sentences because of the continued drug use we don't know if the increase ends is because he has a long term not history we don't even know if it's all of the above it because it was irrelevant for the same reason why she mentioned a older conviction that she says we're not going to consider that that's right so she said she wasn't going to consider so implying that the other thing she was she went through with great care with this fellow's whole history to try to make him understand what she was doing and then said to him and i understand you have a problem you have a problem and so therefore i'm going to do everything i can do ensure that you're at a facility that has treatment she was tying his reincarnation ratio with his continued violations of the law and deciding that perhaps he needed a little less liberty a little more treatment under controlled environment how much clearer could it be in that sense your honor brings us to my second point in that the sentence that was imposed then is really not substantively reasonable when we know that the inspector general the partner justice tells us drug treatment program check him into one of the residential treatment facilities from which illustrate in rochester and then he'll commit another crime and then he'll say because well i've schizo phrenic and i also have drug addiction i suffer from this is the constant problem that the judge is faced with people have drug addiction sure they have drug addiction but sooner or later they have to come to grips with accountability and one way to make them become accountable is to incarcerate them it works me please the court my name is shawn eldridge i'm an assistant united states attorney in the western district of new york and i represent the united states on this appeal the district court did not commit plain error nor did it abuse its considerable discretion and sent she just  written statement that we see this regularly not just in the western just but we see it all over can't your office just regular and i realize that the judge the district court judges have big targets but can't your office just regularly remind them  honor we need a written statement or i mean you know a lot of times you did your office is done here admitted that remained is necessary sure your honor when you just both point the answer your first question is absolutely we can and we will and we've already discussed with the probation department which primarily prepares the g and c that this needs to be done in any of these cases and i think we're obviously alerted to that fact and we'll make sure that we pay attention to that as i'm sure my colleague on the other side will as i'm sure the court will as i'm sure the probation office well i'll deal with the end of the i'm sorry joining it here you know on friday we met here you know no idea rima no judge just to be clear what we say in the brief is i think is what is completely consistent with this court's case law this court has repeatedly said in many cases that remain and is not required but that the better practice may be a limited reman if this court wants to a limited remain in this case for the court to append the statement of reasons none at all judge  and how do we make clear to the district judges in your district and the other districts that after going through all of the things that disturb them about the defendant standing in front of them they don't say have for or because of all this i am imposing an above guideline sentence that would be easy judge i don't think it's required though and i'll say two things to that number one this court in the jones case discussed an issue similar to that there the claim was basically the court should have articulated why it imposed fifteen months as opposed to fourteen months or sixteen months and this court said the district court is not required to do that we presume that the district court consider the correct factors and the court articulate those reasons on the record to district court judges but when they don't put it in the statement of reasons and they don't draw that conclusion in their colloquy we wonder if they know that they're doing an above guidelines and  respectfully i disagree the judge will for did not do this in her oral presentation from the bench and what i call judge will first kind of wrap up paragraph of her sentencing which is it page is a ninety five to ninety six of the record i think that in and of itself is sufficient in there she says i'm sentence you to two years and two years imprisonment to your supervisor release i frankly find i could have imposed a more significant sentence you need some mental health and substance abuse treatment you have to be willing to use the tools that the probation department has provided you with you haven't done that instead you violated my direction that you comply with electronic monitoring which would make there's complete is if he said i am sentencing different criminal history category should have been applied based on the prior plea agreement that's inconsistent with the lodges wilford rejected that challenge discussed how she reviewed the original p s r in two thousand and five i'm not going to go back through the factors the court has obviously familiar with them the twenty four month sentence in and of itself is reasonably is substantively reasonable mr graham made his co morbidity arguments to the district court judge woolford articulated her reasons why she thought twenty four months was appropriate in there as this court has repeatedly said this court is one of restraint and not one of micro management in the reasons that she provided or more than sufficient to discharge her obligations under thirty five fifty three a especially in the context of supervised release where this court invercargill you had said that the district court's explanation need not be extensive nor detailed last but not least the district court's other determinations were procedurally sound in terms of the criminal history category which we've briefly discussed so much the court has any at further questions i've asked her from the district court with the exception of if the court wants a limited remained for the statement of reasons we certainly don't oppose that thank you thank you very much judge wesley pointed out i find interesting and stood out particularly as i was working on this of he'll and going back for some reason in the western district in supervised release violations we never see a statement of reasons portion of the judgment it doesn't appear to ever be filed or if it does it's something that never crosses my desk and i have not been able to find one or look at all those pills aren't those  seal the written statements of reason yes but we also my office does a lot of these cases oil we have access to them in our client director our client files so we do see them there they're relevant to us we don't see cases but we do see on our own and we do see a lot of supervised release violations in our office so it stands out that for some reason these are not being done so there needs to be some type of a defenders are very well respected so a call from a federal defender might might do the trick in action by this court would probably be creative much faster response no please you go first