guidelines in general there's a three step process after booker that i'm sure this court is aware of consider calculate that advisory guideline range consider whether guidelines should be adjusted by departure and then consider the thirty five fifty three  factors this just record certainly did the first step calculating the advisory guideline range and it's the second stuff that went a little astray in this case before you get into the merits of that argument i'm a little concerned about the consequences of her remain and have her state cases been resolved her state cases have been resolved and those fictions would count in a recalculated going to history good portion of them were dismissed the one that she would have received credit for that she was in custody for i believe she got time served on that one so we have discussed the possibility of that and she is aware that that could be a possible rule on the fly ok motion itself is a is an issue isn't the ruling implicit in what the judge said about wanting to give her credit for her cooperation i'm not sure taken together with the written statement of reasons where there's an explicit right now it's certainly explicit the implicit brings in the concept of response acceptance of responsibility in addition or instead of cooperation and that's one problem the other issue is that the court didn't specifically mention many of the factors in granting a five page departure which are different of course then both acceptance of responsibility and thirty five fifty three a factors in this case the court clearly considered mitigation and the thirty five fifty three factors were certainly not arguing the court failed to consider that but the failure comes at that five k process the departure process which is still cognisable in this court even though departures in general are obsolete the court has never said that five k departures are obsolete because they have a purpose above and beyond the other departures considered by the guidelines so the findings the court talked a little bit about time two operation but didn't talk about the significance and the truthfulness completeness nature and extent of the injury or risk of injury that she put herself in do we have cases that say you really need to do  that certainly it's part of the guidelines it is part of granting the guidelines the zings chime case deals with the court's failure to make a ruling on it which necessarily included failure to make any findings on it there's certainly there's the consideration is much narrower for a five k and that's certainly part of a guideline construct and this court said fairly recently in the case and i'm not remember when you have that when talking about a five k motion the district court should not talk about extraneous matters so i think that that  necessarily means that there are two separate considerations how do you reconcile that with the approach that we took in the brown case to sentencing after booker changes after brown as long as it's clear we we can follow what the district court did and are comfortable with that he didn't frack touchable basis and i certainly think that that's a factor there are cases kind of everywhere from that section has been revised and seems to talk about there being a step by step process is not a political here i think so guyton of course was a thirty five eighty two case but it is talking about the way the sentencing guidelines changed with brown i'm having difficulty which i struggle with that as well i certainly agree with that your honor because i think there are cases on both sides of that issue there are still cases post brown guyton talking about departures being obsolete and there right and then there are cases that talk about certainly five k departures not being obsolete being still very much alive and requiring additional findings and i apologize for not being able to remember the name of the case i can look at it pretty well veuve brown as saying will this approach that was taken in brown passes muster as opposed to saying this is the preferred approach is there any would you lou would that be a principled way to try to reconcile guide to maneuver i think so it comes down to this court's review essentially and going back to say at this court can conduct a meaningful review in the process was probably good enough but if the court cannot conduct that meaningful review then it does go off into whether you know you can look at the sentenc this is what the district court did and i'm not sure if you read the court's reasoning you can do that taking well let's pursue that a little bit if we may if you lead to judge peterson's section transcript from  isn't it possible to say with our comfort level that yes he knew everything that was on the table and indeed he touched all those patients the simple fact is he thought this was the appropriate much she got for a five k how much she got for the credit and those are the two that really need to be clear because they have implications later on and possibly such as the thirty five eighty two needs to be calculated with regards to how much was given for a five k and a credit if you really did mean to give her the credit and sends her as he said you know i realize your sentence will start today and that means your real sentence was approximately the beginning of the guideline range i'm not sure of that accounts for the five k at all the court did not specifically address the government's argument to start higher than the guideline range when calculating the five k and that's an issue as well if this were to come back for thirty five eighty two which is speculative but of course we never know and certainly none of us could have predicted all of the crack cocaine changes five ten years beforehand but also thirty five b which is specifically contemplated by so it doesn't matter to a certain extent even if the court said this is the sentence we should get and the court may still do that it's their findings that we're concerned about because it can have implications later on so  question judge sykes show she'll be a career friend or she's got she pled to she's got fifteen c f sixty one possession with intent to distribute would come out she also pled to fifteen c f to thirty nine delivery methamphetamine so those are going to impact her and put her up were a lot of other people were with pretty much life based on the amount of methamphetamine involved put simply as this as you mentioned judge that judge peterson did it right he followed the guy the procedural framework in this case set forth by the supreme court and all in read he properly calculated the advisory guidelines he invited the parties to allocute and listened to their arguments for sentencing and then he applied thirty five fifty three eighty factors and imposed a sentence he gave them an explanation of his sentence that allows this court to know that it was well reasoned and based on logical consistent application of thirty five fifty three day and that he considered all the parties arguments that argument is that if we can't tell from record a quantification cap credit for substantial assistance and miss christiansen is telling us that that has consequences or at least potential consequences for our future additional assistance motions which is all speculative is based on changes to the guidelines are those real moral consequences for the lack of a record on that quantification so two points i'd like to address one in the law is if you don't have to give the number the procedural error exists when you when the court the district court doesn't give you enough of an explanation of its reasons when it pronounces sense to the as you mentioned judge the reconciling departure analysis is not required it's obsolete however as pointed out in all of these cases in two thousand and twelve thirteen and sixteen you can use district court can go to the guidelines departure provisions for and for guidance when it's fashioning what it wants to do but in the end it's the thirty five fifty three factors and does the court do that here he did do that right i understand that but what about the future consequences too to get  how much credit she got for substantial assistance under five k correct so well those are two different things so they can't both be right is it keyed to the original guidelines either either a sentence reduction because of our direction and the guidelines for a future cooperation sentence reduction is that key to the original so guidelines range for the ultimate sentence or does it matter that there is not for the five k i'm also baking into that the state court pretrial detention time of one year and i'm coming out down at eighty four months and that's all that the law requires i words you gave a little bit pretreatment which you say what he said is i'm giving you a just four months and he said i been in in that i'm giving you credit for the time that you spent and stay custody even though he didn't have to because under five to one point three didn't matter and he said i'm giving you credit for cooperation and they argue that there was some conflation between acceptance and cooperation but that wasn't the case if you look at the context he did he was talking about the kindliness issue because the defense attorney in his allocution was bringing up the fact mr pank howard originally wasn't a real enthusiastic member of team america but she came around and he was trying to explain i still don't see how we unbundle do a five k one point one and giving her credit for time served and i think point that transcript it just does what you know even all of the steps that the defense attorney asked him to follow which again is another reason why there's no procedural error in why we're making the waiver argument or at least a forfeiture argument defense attorney said start with the guidelines then give her thirteen months off for the state credit for time served and then give her two years off for a five k so one judge peterson was announcing the sentence and you read the transcript you'll see he says i'm giving you a sentence i'm looking at the two big thirty five fifty three factors one i want to be fair to the similar situated defendants in a one thousand defend a conspiracy and she starts at thirteen years graber is right that she's at second layer a second tier distributor and she said started thirteen but then i'm going to mitigate under the second factor because she has had this horrible life of abuse and addiction and i'm going to go back down and i'm going to land an eighty four and then he says i'm recognizing that you're getting credit for the state time and i'm recognizing that you're getting a five k and that it is substantial even though you didn't start out real strong you ended strong on five k so he hit three of the five factors under five k the significance of that the cooperation the nature of an extent of cooperation the timeliness and that's what counts when you're doing your review is it a meaningful analysis that's what counts quite honestly if you send it back down and you tell him break it out he breaks it out that doesn't help her at all that doesn't help her because she can't appeal you have no jurisdiction she can't get into the extent of the departure anyway that's why i cited the scent case she can't it doesn't help her moreover as i said she waived the argument to begin with by saying judge do it this way the judge did it that way they didn't object when the judge at the end of the sentencing said is there anything else bill from bill jones didn't object and say no your honor you did it wrong you didn't give her the numbers that i don't know what your five k is i don't know what your state credit is he never objected and said the bottom of her or her range was as far as one way to one thirty five and he gave geisha and i'm going to get her down to eighty four and i'm taking into account state credit and five k to get you down to eighty four and he said if you noticed that he talks about by me giving you that credit you're getting down to near the low end which is want to wait so if you go you know i set this the ceiling at one fifty six fifteen and then i said don't go below one twenty because nobody's going the one twenty if you take one twenty and dump off a year procedural posture with the thirty thirty thirty five eighty two which is all get the procedure past in this case is at least they can prove plain error if you're not going to do the waiver it's forfeiture and they can't complain or they can't show that this woman received a sense two years under the law under the guidelines there's no way she can show substantial effect on her on her rights and or that the fairness integrity of the judicial system was somehow impugn judge peterson did it the right way he followed the steps he was supposed to follow under the procedural framework set forth and read and all and he gave really good reasons as to why he was doing what he was doing and yet there's no question about that false witness of his analysis at the appropriate sentence that was well explained has here he didn't give you the amounts but what he gave you was the reasons why he was doing what he was doing and that allows for meaningful appellate review which is the end of their counsel could you give us harvey your view on the tension between say the following departure analysis is obsolete however we we encourage the district judges to look at the parts are provisions in the guidelines for guidance it's still there for guidance but it's not mandatory anymore when you're doing your thirty five fifty three analysis look to that to see whether it's proper or not and in the end give us a reasonable explanation that shows that you've given us a well the nation here i just didn't hear you know maxfield is a twenty six thousand case which is just the latest iteration on lucas and brown which are all along this line of cases saying look the partner analysis is obsolete that show your view is max field solves the problem i think i think that this court is coming to the position that what what was originally stated in a footnote in guyton is now brought up and not picked any more and it's now this is the seventh circuit and it certainly isn't the position they're taking which is that you've got to have this sequential step by step guidelines analysis done because that's not the that's not the case anymore it's the thirty five fifty three analysis certainly look at the the guidelines for guidance but what matters because the supreme court's told us under read and all do a thirty five fifty three an analysis and make sure that  give us enough reasons so that we know that it was well reasoned and that you considered all the arguments of the party thank you  the waiver argument first there was no waiver in this case the district court heard the defense counsel asked the district court to do something in particular the district court did not call the defense counsel's request and did its own thing if defense counsel objected further that would merely be an exception not an objection and there's no need to when the district court has clearly rejected what defense counsel asked for so it is  if the court had made a significant ruling on the substantial assistance that would not be reviewable it's not reviewable now because we don't know if the court relied on impermissible factors or not well this is not a substantive challenge this is a procedural challenge and there were no objection to the procedure well there was a all there was you know it a substantive approach that was proposed by the government and by the defense the judge rejected both and right as you said did his own thing when and what we have now is this procedural challenge and i said at least forfeiture of the procedural challenge because there was no objection placed on the record to the judge failure to allocate a certain amount of credit for five k i or quantify how much of the below guideline sentence was attributable to the five should i it's a there should have been an objection to that and this is the kind of thing that could easily have been addressed had there been an objection correct correct i also would like to just i know when time is up williams is the case that i was referring to talking about the five k factors being considered by the district court and i will also note that maxfield does not address five k departures and while departures are obsolete in general certainly the case taken under advisement