was intent on two things punishing mr crow for supervised release violations and showing respect for the law based on that frustration intent to punish required procedural safeguards were ignored the district court failed to secure personal admission of the supervised release violations from mr cross and the district court also failed to allow the government to speak regarding revocation so you are asking us to extend the law to say that it's required to give a direct  defendant is that right in a supervised release revocation your honor i think i think at a bare minimum a court is required to take an admission from the defendant but that is the question and is asking whether you're wanting us to extend the unpublished in the madonna decision that's exactly what the panel there did the panel reversed and remanded the judgment in that case because there had not been any formal admission by the defendant it was essentially the exact same position that's being what's in the defendant's best interest make admissions on behalf of the defendant and there would be no redress for that situation with counsel's admission before after the defendant spoke before the hearing began  judge whaley asked counsel how do you intend to proceed counsel stated that the defendant would admit judge whaley then called both counsel and mr cross into the podium and that's when judge really asked the question in  essence should i give you more treatment or should i just punish you it was at that point that mr cross and began to speak there was a bit of a dialogue he seemed to be acknowledging at that point i read this transcript and it seemed to be that he was acknowledging that the treatment wasn't working well for him mr cross in your speak i think i misunderstand his remarks i think mr cross in was stating that the overall structure was not working well for him i would agree with that have another choice then i mean i think that context is important because your argument here as i understand it when we get to that part is that the judge was speaking about punishing him and at this point they had it at they heard from the probation there really wasn't much question about the nature of the allegations probation spoken to five of the six violations that's correct well counsel what was that what did you want the district court judge to do in this context it seems to me when the judge talked about punishing he's asked mr cross on the mr cross has made the statement that treatment wasn't working for him well i think the problem is that they are the court phrased the question in terms of you want more sentencing court to view and determining what the right sentences so from the outset the way judge wally had phrase that inquiry a binary choice between two options one of those options is not tolerated by binding one circuit precedent they mean the macbook case and so my question is what other option did the court have and in light of the record and context here what would you expect the district court to do i'm not sure if you're asking me what kind of sentence or what the district court should have taken  argument your honor and in terms of punishment i think there are two different ways that one can look at it one can look at what is a correct sanction for the breach of trust i e these grade c violations what is the correct sanction for that or i believe where the district court erred was in looking at punishing mr cross and for in essence and i'm categorizing my own words wasting the court's time and wasting the court's resources that was one thing that comes out from the transcript is there appears to be frustration that mr crossan had wanted to engage in treatment and i think it's clear that the district was frustrated with that and sought to punish him for going through that process previously and essentially going to treatment you don't disagree that he the judge could punish him for breach of trust right i think we use the word sanction in some of our prior cases but that's certainly within the court's discretion you know i disagree with that right i don't disagree that the you and don't provide any more help and so what is what how do you understand the punish even at context i think that the phraseology punish in that context is best understood in terms of the arguments and evidence that occurred previously and the government has actually submitted and supplemental excerpts the prior hearing back in january it was there was a lengthy discussion about resources and using resources for treatment and i  think the most logical interpretation of judge whaley's reference to punish is to punitively assess time to mr cross and for wasting the court's time and in effect wasting the court's money on treatment that mr cross and ultimately did not sanctioning someone for breach of trust i find that distinction in a case like your i think i think the distinction is in a breach of trust a person is trusted to do something such as perhaps go to treatment or avoid new criminal law violations or the like and if they violate those terms they may have to undergo some sort of sanction based in essence on the in a either the unwillingness of the inability to simply follow a command that is different than perhaps looking at the underlying conduct assessing the severity of the conduct that caused the violation and then decided what is an adequate  and just point out that if one reads the transcript in context the district court's opinion and sanction was not intended to punish the defendant but rather  to properly sanction him for as the court pointed out a breach of trust and that's a not only a permissible consideration under us we sin tobe but in fact one of the paramount if we paid for this inpatient treatment and if we accepted your recommendation and if we kept you out of prison and allowed you to and allowed you to undergo this treatment and record sentences you turned your back on us that's that's a direct properly took into consideration all of the factors that are available under the relevant statute in fact adopted the probation officers recommendation which as the probation officer set forth was based on all of the proper factors for consideration not including providing just punishment or anything like that i merely just trying to address when the court refers to do you want to continue treatment or should i just punish you and move on what he's saying to the app t is is do you want more treatment you want to continue on supervision because that was the question and the appellant actually asked to be taken off supervision or do we go forward with the sanction for the violations of the conditions and  move on right so for me the important context is that he first saw the great lengths to get him into treatment but also because he washed out right away right away and so i think in context it seems to me what he's saying is is there reason to send you back that's that's correct and that was the one of the disputes probation in this case was recommending some continued supervision the appellant actually was asked to be taken off supervision and so the court was asking after all this time money and effort that we invested in this treatment which you immediately abandoned in a few days do you really want to continue or do i just sanction you for the violations that you've already admitted and move on do you did you read the district court to be offering or at least considering that he would send mr grossman back to treatment mr crossed and wanted more treatment i can't read what's in the district court's mind i think the district court's question was following the sanction provision and do you want to continue on supervision which could include some type of treatment but in this case the appellant then defendant was recommending seven months of incarceration so even adopting that recommendation there would have been a period of incarceration then the it was the palin specific request that supervision be discontinued and so at the same way that was that was my interpretation sitting in the hearing yes counsel is it problematic that the government didn't speak as to the appropriate sentence so that's a that's an excellent question and i'm used to getting in trouble for when i opened my mouth this is the first time i've ever gotten in trouble for not thinking that the government found error not of the plane or a standard but under the harmless error standard when the district court refused to permit the government to speak in that case because the defendant specifically objected it was the government's burden to show mention and the other case that this court wouldn't let the government speak over and wouldn't allow really quite different i think in that regard but what about prejudice is your position that the defendant here would still need to show the fourth part of players in light of what we situation in that was a similar situation where the government had filed a sentencing memorandum but didn't have the opportunity to speak at the sentencing hearing and what the court said is in the context of a plain error review as opposed to a harmless  the defendant or appellant must show that a different outcome would have been probable not just that it was possible is that is the harmlessness or the prejudice prong the same as the fourth prong see effected the fairness integrity or public reputation judicial proceedings to take collapse into each other as distinct progress that's a good question i think it's the third prong which is that the error seriously impacted the defendant's rights and the fourth problem that it also seriously impacted the integrity of the proceeding and you can see that in the original contrarians case even though it was a different standard or a view right there the district court said government you're not allowed to speak i don't care what the government has to say i'm going to disregard it that is not what happened here here the probation officer provided a recommendation the government had the opportunity to ask questions or provide additional information and the government didn't do that and so the only thing missing was of the court didn't specifically ask the government you do you agree with probations recommendation account or you're not speaking to the prejudice problem and that's our problem here because we have this earlier cases we have held that where a defendant is denied the right to speak at sentencing there is prejudice right and then it goes on to talk about as long as the court look at the waca nine case which i don't understand a rigid contrary overruled in the context of when the government doesn't speak then the question is really is it more probable than not what's the probability that having the government speak would have led admission they found and did admit to the violations through counsel in this case after the probation officer provided extensive on the record sworn testimony defense counsel admitting to the violations on behalf of the defend and then admitted to the colloquy between the judge and the defendant personally is not required in a revocation proceeding and other circuits at least three that i'm aware of has specifically held that in the context of a revocation proceeding  the defendant's counsel may provide the admission for the defendant and rejected appeals where where the defendant appealed based on the fact that his counsel not he had made the admission to the court so unless there's further note that one of the issues that came up in that case and one of the issues commented on by the court was that not allowing the government to speak can create the appearance of the court standing in for the government calling into question the impartiality of the sentencing language in our prior case how could that be and the it is the court's responsibility to impose this evidence i don't understand that you're on what i understood the court to be saying in that instance is that we have an adversarial system where you have the prosecution and the defense and the court is supposed to act as sort of a referee i thought in the revocation proceeding it was the court making a determination based on breach of trust that's what we said in the initial determination for a court to make is whether the violation occurred at all and what the probation officer provided who is an officer of the court correct i don't think a court is allowed to simply rely on a probation officers  report without input from the party right the court makes the findings and the defendant has a chance to speak but it's by preponderance of the evidence it's not even it's not by have beyond a reasonable doubt the way it is in the original criminal proceeding the distinction between finding that the violation has occurred and then that courthouse discretion about what to do about that isn't that where the adversarial nature comes in this case there wasn't thinking in both cases there wasn't really an issue about whether or not the revocation had occurred question about what the court's going to do and i think that that's true but i also believe that what the court was getting at was if the court takes the role of the government in advocating for a high sentence just the court advocating for a high sentence by determining what the appropriate sanction as i don't understand that well if we're only if if the court is only hearing from one party then that that does  from the he was hearing from the probation officer who is an officer of the court and he was hearing from sit across and but he did not hear at all from the government which so the government was unfairly prejudiced by not having the ability to advocate for a high resistance but i don't understand why the courts determination based on its findings and the defendant's statements is is stepping into the shoes of the government i very puzzling i believe that what the court was getting at in that case is that the public in looking at those hearings if they're seeing what amounts to in essence a defendant advocating for one position and what appears to be the court stepping into the role of the government in advocating for an adverse position that creates a situation where the court no longer appears to the public as a whole as being a neutral arbiter but in fact is taking on the role of the government i took you over your time your argument in the case of united states versus frozen is states