david sanchez the issue before the court is whether the seriousness of the murder offense which had been dismissed by the state of texas as justifiable force or the need to punish mr sanchez for that murder offense were dominant factors  decision to vary upwards from the five to eleven month range to impose a thirty two months and here the district courts have the right occasion hearing the district court's repeated in versus on the fact that someone died as a result of the and it's really a geisha and of the murder case including specifically mr sanchez's self defense justification show that what the court was essentially doing was deciding whether to hold mr sanchez liable for murder and therefore i read the record correctly that the judge is someone died as a result of the offense and making findings that the conduct was not justified by self defense so the in the court's case i think it's clear that what this court is concerned with in reviewing a case like this is what the court actually did in the context of the hearing as a whole and not just what factors the court stated explicitly when imposing the sentence but don't you need to describe the fact the criminal conduct of issue in order to explain as a district judge why is that the public needs protecting certainly i think the describing the facts of the revocation offense would obviously be relevant to the sentence the court is imposing but what the court did throughout the hearing was actually related to the facts of the murder case that mr sanchez had admitted to the knife possession violation as well as to the positive drug tests at the beginning of the hearing but the court's inquiries throughout the hearing went far beyond verifying the facts of that  ocation offense and crossed to essentially determining whether mr sanchez should be held criminally culpable for the murder not simply for the knife possession the these are odd hearings these thirty five eighty three hearings because they're often assessing the violation even though he admitted truthful to true to the amended petition but then they also turn into the sentencing same moment correct yes so it's a little hard always to tease out the line and i'm just as you're speaking i'm thinking i don't think we would want to it's not a question of labels but on the other hand why would we be looking at the judge's questions as opposed to the stated reasons at the end where she does you're all back in on protecting the public well for one thing it's not just the judge's questions it's also throughout the hearing what the court noted as important but i and i hear having just said it's not labels when you look at the transcript she never used the word punish she doesn't but again it's not about court on this thirty five eighty three era ground where the district court didn't explicitly mention a prohibited factor and that may not seem like a logical rule but just in terms of our case law can you think of one where  sentencing court was reversed and suddenly the court was reversed in hudson and that that opinion is very abbreviated and i believe does not contain a lot of analysis that would tell us exactly what factors were mentioned by the district court when in the hearing but that certainly is a reversal here i think the important thing to do is to look at the context of the court's statements at the hearing throughout the hearing as a whole where the court were set for a trial in the recent yes this is the fact so many of the facts were contained in the exhibits that were presented by the government as supporting the the facts underlying the revocation but one thing ordering the act of violence and the description which apparently the judge relied on finding this person to be a threat to the public well my my point is what the court did was go beyond what is permissible which is verifying the nature of the kni violation and went beyond that to determining whether or not mr sanchez had in fact committed a murder and should be punished for having a why can't we look at it as she's not disagreeing with texas texas says if you want to stand your ground you can stab somebody so th indictment was dismissed or whatever happened to it or one way of looking at it is not judge jack is saying i don't agree i'm going to punish you for the murder after all instead most of our inquiry was why didn't you call the police you had time to call the police and the inference is people that don't resort to the police before they stab someone are dangerous so i need to protect the public and she's really inquiring into i don't know why in this episode you never call the police and from that she says finally at the end i've got to protect the public thirty two months so i agree that after a certain point she does make inquiries about why you didn't call the police which would go to the nature of the violation and the extent of the breach of the court's trust but i think it is not a fair reading of this record to say that judge jackson's determination doesn't disagree with the state of texas this is the standard view not a fair reading i thought obviousness is built into it even if it's not su the legal error was clear not that the tissue court as you know permitted to have this mushy analogy got to be pretty sure of the dominant factor was a prohibited one usually that's when they actually just say in the top your circumstance i want to rehabilitate you to give you more times you get the extra day and then you get the treatment they say and it's too bad and i would think this line of authority is moving in that direction when the district judge just misspeaks and says you need more punishment so i think what i would looked at the hearing as a whole and the court mentioned those factors but really when you look at the context the court was talking about the breach of trust or talking about you know verifying the nature of the violation was not actually punishment but if you look at the context of what the court did and said here throughout the hearing where the court repeatedly emphasized the result of the conduct admitted agreed that it was related aiding the murder what the court actually did was decide that mr sanchez was criminally culpable for the murder and should be punished more because  that she was very explicit in saying obviously the reason for the sentence was because of the throat the potential threat to the public so just because she discussed why she's basing her opinion on the issue is furrow enough at the end just to give the permissible reasons so how can we ignore that i'm not asking the court to ignore it my point is that the fact that the court and admitted that that's what she was doing so the fact that the court the course related engine of the murder took up so much of the the hearing and so much of the court's focused and shows that the judgment about the seriousness of that conduct and the need to punish it were dominant factors even if the court didn't also state some permissible factors alongside that and again to turn back to callers and that's exactly what happened and where the court had made statements throughout the hearing that implicated both permissible and impermissible factors and this to be imposing punishment for a repetition offense and it's also important that there are constitutional considerations and meeting that rule because revocation cannot be punishment for new criminal conduct specifically because the authority with jurisdiction over that new criminal conduct is the appropriate authority to determine the seriousness about offense and whether there's a need for punishment after finding a criminal offense beyond reasonable doubt be here exactly the opposite happened where the state of texas charge then there's an amended petition like well it's been dismissed so it's the violence right yes exactly i don't think it was formally stayed but mr sanchez had been arrested by the state and was going through the state process he was in state custody of the initial petition alleging the murder w to a knife possession allegation and then of course at the hearing of the case or the case with david as if it was still a murder case when in fact it was not then the court stated multiple permissible factors as a basis for substantial upward variance but this had also stated multiple times that the defendant was a police officer and what this court did was went back and looked at the court's statements in context and determined that do want to just briefly address the standard of review my position is that this error was preserved while not citing i think to the specific dorothy that would be ideal the defense attorney did repeatedly object to the court be litigating the murder case  to the murder was not the basis for the revocation and i think in context that was sufficiently a specific to alert the court to defense counsel's objection to punishing mr sanchez for the murder at this revocation hearing but even if the court disagrees and finds that the error was not preserved all the plainer so rivera the court did not reverse on the fourth prong and the court did reverse and stand there was a plan or a case as well where the court did reverse and here i think one on the fourth prong if the court needs to reach that objected even if this court ultimately determined that the objection was not specific enough to preserve the air and here defense counsel repeatedly and mr firstly objected to what additional court was doing it's also going on the facts of sorry the guidelines specifically provide that the purpose of a supervised release is to reintegrate an offender into the community and that is exactly what judge jack was trying to assess here she was also assessing the extent and the magnitude of his multiple in that this was a multiple breach of the trust of the court and that's exactly what she did here this court and i went to also provide that a district court can you seem to focus more on protecting the private she did specifically say that at the end she didn't use any magic words like breach of trust of trust but she did in fact that was the first thing out of her mouth after the probation officer made his recommendation of a thirty four month revocation time that she says he was on supervised release he did not call the police he got a knife and that was her focus from the beginning and as to the one who starts talking about the facts and you know he says that a mob came to his house and he was protecting himself so if you look carefully at the record it's really defense counsel who starts going into all of that  it's it's and i pointed this out in the brief there are many times when she comes back to you but you were on supervised release you could have just called the police i think the prosecutors you know kind of makes comments about this too about you know he know he was on supervised release he knew we need to stay out of trouble he doesn't avoid trouble you know he writes this enraged husband of his recently ex girlfriend to his house to have a fight you know in the twenty minutes who took the man to get to his house he arms him self for the knife and goes outside to wait and those are not the actions of a person who is concerned about keeping his contract with the district court and i believe that is what judge jack focused on throughout this and of course as as has been mentioned here at the end when she is stating her reasons for this  need to deter future criminal conduct report the public which is certainly a permissible factor is at the end of a long story i mean or their point is sort of what's good for the goose is good for the gander in cases where we do see prohibited factors mentioned we've been willing to overlook that looking at the full context of her argument is well here we have a legitimate factor mentioned but if you look at the whole context you would accept that analysis in other words it's not that the judge at the end says a legitimate thirty five eighty three factor or do you disagree that well again i don't think there is any magic words that can be said i think it is a factor it shows all these other factors were also on her  mind but i've heard i mean i think you need to look at the whole thing is all the tapi a line of authority appropriate i'm sorry the rehabilitation is that the exact same regime that we're just looking at the sentence or making sure the judge didn't mention i want to rehabilitate you all those let all that case laws apply couple here yes i think that what they were just teasing out what's the dominant factor yes and i and i think that was the point that was made on rehearing in reverse to that that it is a fine line sometime you know you know in that case the court said it would be best left to future cases here i just don't think you can say that any improper factor was the dominant  him there was really no improper use of this factor since the court and the guidelines to contemplate that the judge can consider the seriousness of the violation in determining the magnitude of breach of trust and i think when you consider the very different that defendant had out committed a murder and had been senates to murder and the judge in that case focused very much on the brutality of the murder the fact that the the defendant appeared in her court very unreal morsel and that the district court also commented that to defend it will only do about eleven years on that murder so none of that type of the child was gone into here this was a totally different focus here so i don't believe the finding of error and let that out applies here in just a quick argument about standard of review i think i've said all that out and great detail in the brief he had we probably wouldn't be here having this conversation it would have been really some paul and the judge jack could have explained exactly to what degree she was using those factors but they didn't stand up and make that objection that's really all i have a lot you have further questions now thank you very much got to  bond to a few points and the government pointed out that there were multiple violations in this case but i think it is important to note that after the dish accord accepted the pleas of true to the drug related violations the court never mentioned them again and just prior to imposing  sentence the court specifically disclaimed that it was relying on mr sanchez's history noting that he didn't believe that the history was relevant so in context i think it's clear that the court is really sentencing based on the next possession and doing that went beyond verifying th revocation to punish any new criminal conduct that that should be left to the jurisdiction with the authority to actually charge and punish any new criminal offense and here i want to emphasize again that the court agreed that it was re gating the murder case in response to defense counsel objecting to believe at one twenty two page one hundred two of the hearing the defense counsel objected again to the court retrying the murder and said that if the court was going to do that the court should listen to or watch all of the video statements from the witnesses and not just mr sanchez his statement and the court responded this is a preponderance of the evidence i am not here for beyond a reasonable doubt and when defense counsel continued to object the court stated again this is a preponderance of the evidence so the court is agreeing that what it is doing is determining whether or not mr sanchez had an adequate self defense justification and if not whether or not he actually committed a murder and should be criminally culpable for a murder the court mentioned again and the government also mentioned the multiple unpublished cases from this court affirming sentences against an argument like this and i think it's important to to look at all those cases and know that none of those cases is there a lengthy was not convinced that it was adequate i think a lot of those are where the defendant's denying the truth of the violation therefore it's going to be even more understandable you'd have learned so those cases do not have a lot of analysis the most of them i believe are summary calendar unpublished opinions and my reading of them is that i think a lot of them did involve pleas of true but where the focus of the hearing the discussion at the hearing was about the violation was about the defendant's the specific violation and then in just the that list of reasons for the sentence as opposed to here where you know we have an entire hearing where we re can review what the district court actually focus on and what the court consider to be important before selecting the sentence so it's not just a matter the you know the kind of standard list of reasons that the just report gives for the sentence but what the court actually did it actually focused on throughout the hearing the facts of the murder case and here we have exactly that situation where the court focused extensively on the facts of the murder offense and the self defense justification and think that tells us that what the court was considered was considered to be important was whether mr sanchez should be held liable for murder because he had engaged in this conduct without adequate self defense justification so i think a a reading of the record as a whole shows that the court's focus was on impermissible factors and that even though it did state some permissible factors impermissible factors were the court's dominant consideration in selecting the thirty two months and so that reason it asked this court to find that the sentence is unreasonable