section two the one point one of the guidelines versus the career offender provision of the guidelines of the district court in this case held that brokers ineligible for a minute seventy two really because he is a career offender but their original syncing judge who has since retired made conflicting and inconsistent statements at the time of sentencing about whether baroque is a career offender for example the judge stated at the request of the clerk that broker's offense level was thirty nine with a criminal history category of thirty six six the judge also spoke approvingly of the p s r but a finding that broca's offense level was thirty nine criminal history category six would have produced an advisory guideline range of three hundred sixty months to life the senate's imposed however was two hundred forty months moreover an offense level of thirty nine according to the p s r was not the result of the career offender guideline but rather section to the one point one current guideline produced a base often of thirty four which would have resulted in a guideline range of two hundred sixty two to three hundred twenty seven months and again the senate's impose was two hundred forty months the government recognizing the original sin is in courts sentenced and not comport with the p s r specifically asked the judge whether or not the senate's represented a departure and in response the original sensing judge cryptically stated and i am not sure that a downward departure is necessary or appropriate in the event that mr horowitz is correct with respect to his arguments but a sense of two hundred forty months is within the range even if it is in line with the sentencing range in the event that mr horwitz is correct in his calculations excuse me doesn't the two hundred forty month sentence just show that he was imposing the sentence that he thought was appropriate in clearly wasn't a guideline sentence which he had the right to do and therefore can you not you really can't make that much out of the two hundred forty month can you it's our position in this appeal your honor that when the government asked for clarification about whether or not the sentence constituted a departure and the judge basically said that this sentence is possibly based on the objections of sensing counsel the time that it's not clear that we can say that it is actually a departure because the court could have specifically said that and said no it a departure it seemed as if that the original sensing judge was giving weight actually to some of the objections that were made by broca's counsel at syncing and if that's true then that conflicts with the with the other searching or at least the  court's conclusion that there was a finding that it was career fender because the guideline ranges don't match why don't you think that that response was just saying even if i were to agree with the objections which i don't i'd give the same sentence anyway it seems like it sounds more like that doesn't it i mean that's one way that it could be interpreted but of course it's our position that if the court wanted to make that clear that it to go on just so i can understand at the end of the day where you're trying to get us to go so let's say we agree with you that the sentencing court actually sentenced under two to one point one rather than career offender so that's a two level difference or the other  as i see this case it's about two levels you agree correct or are so it's about two levels then even if we go through all of this calculations or the guidelines are we still looking at three sixty to life it's not because we run into the same issue about whether or not the judge the judge did not resolve the objections are also made about the drug quantity so we're running into the same issue of whether or not this two hundred forty months and it's also constitutes an implicit potential finding that there was credibility about the drug quantity objections and since a level thirty nine which would constitute the total offense level after consideration of drug quantity and other upward adjustments doesn't match with two hundred forty month you get to the conclusion that you cannot also rely on what's in the p s r with respect to the drug amounts that are there but if your argument is that there's a question about the drug amount mean and that the judge actually tied a sentence to a strict guidelines reading which is what you want us to conclude i think i mean you'd have to find there was almost no math in this case to get to two forty in this case would new with this guy's criminal history well the issue there is that there were over there were objections are made at the sensing about what kind of meth if it was el meth and there was objections about which version of the guidelines actually to apply and there was an argument made in the district court in the context of this specific proceeding that the district the modification court should utilize the older version of the guidelines like the one thousand nine hundred four version of the guidelines because it would have produced like in all different but i mean it seems to me that's getting a little far afield from what this appeal is about many appeals about the applicant bill your seventy two all the objections about drug quantities could have been raised in the initial pill correct th could have been and they were not they were not so how do we get to that question about whether it was el math or chemicals or precursors that mean that could have been litigated ten years ago the defendant the district or the modification court would be allowed to make additional findings with respect to drug quantity when there and consistency is about the finding or the findings are not clear on the drug quantity so we're not i mean it's a we recognize that the context of the thirty five eighty two proceeding is limited and that it's not a full recent but when we're confronted with a situation potentially where the where the drug quantity findings are there are no findings at the sentencing if you accept the premise that the two hundred fort month sentence creates ambiguity on that point i'm not sure i understood your answer the judge owens this question about that so you said it could have been an old version of the guidelines and various things that were contested but do you have a path that gets you to two forty because i didn't really hear the answer that i can you tell us how you get to two forty well if we soon that if we assume the two hundred forty months is a sentence i was imposed based on the guidelines by the district court then there's one things that could be at play there that could be an implicit conclusion that the district court it found that the offense level was either a thirty three or thirty four in criminal history category five which would give an item in if it was a thirty three for example the minute guideline range would be two hundred ten to two hundred sixty two months so they would give some there would be some play there but on the original sentence do you have a theory by which two hundred forty is in the range that has some amount of math still in the in the offense and everything else i don't know how you get the pieces to put together the original sentence right well i don't know the quantity off hand that would produce that often slow but if but don't you need to tell us that in order to show us why it makes a difference what the quantity is i mean if everyone agrees there is x quantity and x quantity given the same sentence then i don't see why i would have a hearing about the quantity well that's an issue that wasn't really brief in the appeal because they were the district court when he considered the modification of the weather not to grant thirty five eighty two relief it did so exclusively on the career ender issue so the way that we had approached this appeal was about whether or not a remand was in order for the district court to be able to address that in the first instance it wouldn't do that if it doesn't right but if there's been if there still we're still left with the with the question about whether or not there's this inconsistency in this ambiguity and so we believe that we should have the opportunity to be able to put on that evidence in the district court on remand and as opposed to m this make any difference at all as long as the criminal history category is six which the district court but if some statements clearly did conclude it if if this court concludes that the criminals  category was six and accept some kind of implicit idea that he found that he was a career offender then the two hundred forty months sentence would be below what the current or guideline range is and that it's absolutely required that the sentence must be based on to the one point one for him to be able to get relief so if there is a conclusion by the court that he's a career offender then there's no opportunity for him to be able to receive relief in light of the amendment because twenty forty months sentence is below what the current guideline would call for so the part of the appeal turns on the this court accepting the premise that the district court statements about the tune of forty months and it's creates ambiguity such that are manned is in order for the modification court to further consider the other issue with respect to drug quantity i good morning may it please the court i'm douglas wilson on behalf united states has as counsel has pointed out the entire issue in this case is whether the defendant was a career offender in two thousand and six in our view the district court clearly found that he was a career offender first of all and most obviously the disc the district court stated that the offense level was thirty nine which and the criminal history category or it was six that offense level comes from to do one point one but for b one point one states that the court has to use the offense a little from the a plausible guideline if that offense level is a guideline is higher so the court found the career offender guideline offense level for the defendant by using to due one point one under waters more moreover this court may rely soley on section two d one point one as long as the court finds that a fit is a career offender person's report found that he was a queer friend and the court did not specifically say it was adopted it said it was imposing the sentence consistent and in conformity with the pre sentence report so if it is it is finding that the defendant is a career offender now you said coun that he cannot take advantage of this and then a seventy two because he is a career offender that's correct and what authority is there that says that the simply that that is the case this court has repeatedly said that it says that it is about him in water in the first  has problem here is that when you reduce even if you the guidelines are only going to go down under thirty seven from thirty nine and so is still above the career offender isn't that the actual reason position your honor is that that four b one point one states that one should use the offense flow from the guideline which is to do one point one for the career offender and so our position is that the  support him as a career offender with an offense level of thirty nine so he doesn't we don't even look at the reduction of the amendment because of that but getting back to judge buckles question i think normally i understand your point that i the career offender is higher than the two to one point one and they can't take advantage of it because they're saying look your career offender and you can't basically be excused from being a career defender through seventy two this is the odd case where the guideline sentence is actually higher than a career offender there are many of these left anymore but there are still some that's correct your honor in this bizarre situation wouldn't it now maybe makes no difference but wouldn't  if the amendment doesn't matter maybe i'm not following a call i think i just think maybe you're over reading these cases waters and the other ones you're citing because he did any of them involve a situation where the career offender guideline put the sentence lower than what don't think we have a case that talks about what happens when it's flipped i don't believe the court does what the the guidelines are very clear that under forty one point one that the offense level for for a career offender is the offense level from the guidelines from the guideline if that political guideline is higher so the offense flow from to the one point one is the career offender offense level so this defendant is a career offender even though the district court used the thirty nine and you don't think the amendment affects that guideline that gets incorporated at that point i don't think amendment affects the guideline because the district court found that it was a career offender it doesn't really matter what his offense level was but it sounds like you're saying your interpretation of the career fender guideline is that it incorporates the other relief under section thirty five it you see to but never in a context where it looked like this there is no case that i'm aware from this court that in which the as you said the got the that was flipped but but he is the defendant still is a career offender under section forty one point one and therefore i think or i think waters actually might have been this case waters actually might have been at the pleads guilty in two thousand and four can you briefly explained to the best of your knowledge what happened in this case and i got to say i've never seen it like this before i hadn't seen anything like this before her  district court severed the gun counts from the drug counts and the door and the and the gun counts were were tried first that took some time i can't account for all of the time but there was a two and it was briefed it was it came down after the briefing in this case was complete the district court the court of appeals this court said that the district court may supplement its original finding quote unquote only when the supplemental findings are necessary to determine the defendant's eligibility under section thirty five ready to see to and in our position is that the district court did not need to supplement the findings in this case because it's clear that the district court found the defendant  two minutes or i would simply like to tack on to what the court the court's questions about the which version of the guidelines if the critter is higher than the two the one point one i think the cases from outside the circuit are pretty clear that if the guideline forty one point one is higher than the current or then that is the guideline that is utilized for purposes of amendment seven eighty two because it gets back to the central question about whether or not this amendment is going to result in a sentence that is correct and you know for the other reasons we've already indicated we believe that every man should be given to the district court so that way this issue about drug quantity and whether or not this record should rely upon