court i'm curious west and i represent mr guadalupe cal of these the district court here abused its discretion and procedurally erred by giving a sentence that was greater than necessary she erred in two ways the district judge she did not consider the most relevant section of title eighteen thirty five fifty three a future dangerousness and she created this disparity among similarly situated defendant in her opinion that she considered the nature and circumstances but there is a and actually in thirty five fifty three a to c there's a section that says the court should consider to protect the public from further crimes of the defendant this is the section that i don't believe the court addressed moreover she did not authorise let me ask you in the pro se brief the argument is that since he was likely to i know that the trial counsel did put that in a subsequent briefing that the court asked for but he didn't go on and say so he wouldn't be a danger to the community trial counsel only said that it was likely that he would be deported to mexico so i think that what you your honor have done is implied that that's the case but what we're in that's true but what we're saying here is not only did the court not consider that section of thirty five fifty three but that she didn't consider what's nan dettori under dylan the note to one b one point ten where it says specifically in subsection a little to the public safety consideration the court shall consider the nature and seriousness of the danger to any person or the community that may be posed by every duction in the defendant's term of imprisonment and that's what the court is doing here in a thirty five eighty two it's not a reset and saying we're not looking at the whole sentence we're not trying to renegotiate the plea it's not anything like that we're just trying to make an adjustment to the sentence and the government points out  your argument is there was no violence there were no guns and the government points out where the district judge considered the harm to the community of the dissemination of these kinds of narcotics in these quantities and it's and the government at least sees that as addressing this question about whether this is a person and whether the kind of offense this person was involved with apart poses a danger that i think you're correct your honor judge the prosecutor does suggest that the court and the court did say that this was destructive to the community but destructive to the community is not the same as dangerousness it's a totally different concept and that's why i think any district judge can say ok we consider the nature and circumstances of the office and her history and characteristics of the defendant and be done with it they do that when they do the initial sentencing the problem with the thirty five eighty two re sentencing if you would could use that phrase is that it requires a district judge to do more and the government relies in part i think on the jones case man's danger to the community not only is it they should she should have considered it it's the most important thing if you're going to let nobody ever mentioned it even though she asked for additional briefing by the parties so obviously they didn't think it was very important or they thought she had already considered it that's what i'm trying to understand in her argument i can't speak for the government only to say that they didn't raise that because there intimidation are we looking this is not a sentencing or reset and saying this is only this the subsequent proceeding that's on review here is only addressed to whether the sentence needs to be adjusted that's correct in view of intervening change in law and is there anything about that intervening change that would a fact the judge's underlying determination about dangerousness or not i do believe so your honor how so  i think that thirty five eighty two requires the court in subsection to the palm motion the defendant or at the court may reduce the term of imprisonment so it's discretionary but with the advent of the sentencing commission's one point one b one point ten admonition in the comment it gives makes  ds an extra layer if he will for the district court to consider the seriousness of the danger to any person or the community by letting this person have a lesser sentence and i think it's important to note that m galaxy's got a sentence initially of fifteen years and his motion production of sentence merely asked for the twelve months off which would put him up to one hundred sixty eight months from the original hundred eighty months that he received and thirty five eighty two c requires the district court to consider factors in for thirty five fifty three to the extent that they are applicable so judge rogers is absolutely correct in saying the defense did not raise this very serious issue but the trial judge is required under thirty five eighty two to consider this on her own actually  factor under thirty five fifty three a but what the statute says that the court shall consider the factors set forth to the extent that they are applicable in mr gallop these arguments is a dangerous man s retroactively allow this adjustment i don't believe because he got one hundred eighteen months it means that he's a dangerous individual he was given one hundred eighteen months based on the amount of cocaine and heroin that was involved in this case  you don't think there's any dangerousness lurking around in there i don't know i didn't say there's no dangerousness but for this kind of case i think it's unusual in a drug case of this magnitude that there was no threats or violence or guns which is why the court this court in jones said that the court exercised this discretion correctly you know this is a very experienced trial judge all right i agree  it again seems to me just crying out for somebody to say to the judge you have to do this all over again you have to reconsider it and they're we're not asking for the court to as i said re sentence or reconfigure the play or anything about it what are you asking for from this course i mean i'm i'm saying that thirty five eighty two which is just for imposition of a sentence requires the court to consider the factors and thirty five fifty three that are most applicable and that's where we say that the district judge missed the boat here and i tele is very fisted he is very meticulous about everything that she does and i have great respect for the court our only argument is that in this kind of case unlike jones which i think six what's what's the appropriate baseline what do we look to and in particular does that apply the co defendants within a single case before a single judge does it apply across jurisdictions does apply nationwide how do we in  trying to advance these statutory objective of avoiding disparities among in between sentences you know yet where do we look how do we do that work   like regis offense conduct including distributing twenty two kilograms of heroin in fact in the government's factual proffer the truck prosecutor explained that that was so much heroin that a pot was delivering to washington d c in new york city that it wouldn't fit in the vehicle they usually used to deliver that the conspiracy had in the past used to deliver the drugs and this is a huge amount of heroin  the district court judge recognized that said that these were very dangerous drugs that were a danger to the community and therefore did if i dress future dangerousness but in any event this court has made it clear in cases like a lock and  similar cases that the court doesn't have to specifically address each factor or sort of puzzled by that mr smith i mean if a factor and i'm not saying this one is but for example disparity among defendants given in my ortiz and the fact that these two were involved in the same operation you might think that it would be particularly important to bear in mind how you're going to treat this reduction question across the group of defendants i would think that if the facts present an issue that would be a case in which you would expect the judge to look at it in other words that are precedent about you don't have to consider every single factor is more like yeah in cases in which it's not really in the max you understand that differently the judges i do not pick and choose among thirty five fifty three like i really like those factors i'm not going to consider them i think that the court you know i think that what is required under the statute and cases like locke recognize the fact that what the statue acquires is that the court considers these things not that the court or that the court has a reason basis for  decision and considering it may be nice in a case like locke simply adverting to the factors the court can say in a sense it's not that they have a reasoned basis i'm sorry you said it doesn't require that they have a  lot but the claim of error is that the ct community a procedural error so the question before the court isn't whether the just part made the right decision or the decision that this court would ultimately come to the question is did it make a procedural error or did it either ignore the thirty five fifty three a factors all together or did it do something else that was procedurally improper and locks against for the proposition that so long as the district court looks at the factors i e says i've heard the parties arguments i've looked at the statute here is what i think that's sufficient so that would be sufficient here and as to the other portion of what is your position on what accounts was charged with two offenses and convicted of those through his plea of guilty and my art he's only had one offense that involves cocaine not heroin twenty two kilos of heroin as i mentioned before is a huge amount and the s and i guess the other part of my answer to the court's question would be that the said the probation office did not recommend a sentence reduction in politics and it either did or it was agnostic with risp either appendix plate page three thirty four was a recommendation against and that probation office gave a number of reasons but i take the principal reason to be the great quantity of heroin that appellant distributed which distinguishes least the guidelines the guideline range the point of the guideline range is to look at drug conspiracies across the country right or at least across a jurisdiction is it i don't take it that your position is that the sensing disparity concerns don't apply with him one operation but that there may be relevant differences and cracks within an operation of the different roles as you pointing out here the different types of drugs that of which there's evidence different people are dealing in but but the disparity analysis it would seem would also apply there to it's true i would might well be mad sure it's relevant and i guess the overall quest question or issue that actually supports the government's position is that ultimately in sentencing because the guidelines are non binding is the court has great discretion in sentencing of course nicknack siddur all kinds of things but one would want to have a rationale for example if it had been otherwise that debate why that treatment was different i think the district court would but upon review i guess i would if i don't think that it's this court's task to analyze that rationale i think that appellant's claim of procedural error is such that this court would look to whether the court looked at the factor at all and if it did and it gave a reason basis and exactly so we want to perceive the rationale we're not really doing it but we would want to at least perceive the rationale that it has that it at least that it's address the factor or the factors in general i got in lock would say that the court can address the factors in general doesn't have to go through each one  and it doesn't have to articulate its rationale in the way that either discord or pollen would want and what i mean by that is if the court doesn't say ok now i'm going to address future dangerousness if it as it did here spends you know ten or fifteen minutes during the sentencing hearing are spends two or three pages of its opinion discussing the nature of opponents offense conduct that does go to future dangerousness but it doesn't have to use the language that appellant once  now so this court simply looking at whether the court looked at the factors which here it did and in fact you have a eight or ten page written opinion from judge clark to catelli explaining that rationale the judge went off the guidelines in a way that just took it out of the rubric i don't think that or at least i didn't read it that way again it's at page three thirty four of the joint appendix and when you get to the portion there's a paragraph that says you know the recommendation the heading is something like the recommendation in the first sentence is you know the probation office doesn't recommend a reduction for a power line and then i think that it talks about our maracle actions the talks the court doesn't have any other questions we would urge the court to from the judgment of just a court thank you very much thank  thank you your honor with regard to the court asking questions about disparity it's important that the appendix of the sealed appendix some page three thirty one in the statement of reasons that the court initially did the sentencing in february of two thousand and fourteen for giving her reasons for her sentence she did not check the box to protect the public from further crimes of the defendant which i'm inferring from that from prison is going to be extradited from right yes here in mexico so public the public in the united states of america doesn't pose a risk to anybody states over the border in texas they might come back right finally i'd ask the court to look at the dissenting opinion in piles that was written by judge williams versus the majority opinion in jones which is also written by judge williams and it my only point is this whole issue was a law and nobody made these types of arguments i don't disagree with the court let me just ask you this before you sit down in the first round of  that that was done before i was appointed to the case your honor finally i love to give analogies because i do mostly trial work and if i made this court a pot of spaghetti and i put peppers onions tomatoes and tomato sauce in it and said here's your spaghetti i'd be missing the noodles and that's all our argument is is that you're talking about getti