your honor the court the first time around is granted a downward departure from over representation of criminal history given that's the last time where he says it's not clear to the government that really anything different needs to be done this time around and was done the first time around then the government did not respond to the stenches departure and only responded to the overrepresentation departure and then skipping that if you look at page eighteen of the excerpts of record when the when judge in the end stated that he was granting a par amended guidelines leave it as an available but unaddressed basis then the third question i really have to answer is whether it was harmless in light of what the judge said here and he had cations where he was not allowed it would have started to the guidelines are full of examples of where they have to explicitly stated for example in section five p two points well the last sentence of that provision read the commission consider the relevance of economic hardship and determine their personal financial difficulties in economic pressures upon a trade or business do not north of the commission's acutely aware of what's country as a real health in regards to the minor nature of the conviction aggravated felony and not be taken into account by the district court full or crystalized as the defendant minus wanted but there is certainly no clear statement in the transcript no clear unambiguous statement in the transcript the district court last discretion that was that was mount moves issue there now defense counsel mentions th history there is a discussion of sanchez record as both the beginning and the end of the transcript and there was also a lengthy discussion running over representation and this was a case where the government did not oppose the overrepresentation departure just by way of some factual background of between eight levels and sixteen levels depending on the seriousness of the prior aggravated felony clearly the sensing commission has look at the issue of seriousness we have in the one nine hundred ninety seven amendment application no five there are a number of cases sentencing cases because i think we are given some of the language in the cases about linguistics and that sort of thing so with if you just go back to basic principles of mexico where they say we can act categorically for being a district court from departing of seriousness i'm guess i'm having a little trouble taking through one and then your argument and their argument and then looking at the guidelines and saying well i don't see it there so i don't know that we have any choice  word seriously i think taken in context including the amendment and the reason for the in the link the language in the government's briefs was part of which i've just described i do think certainly encompasses the notion of seriousness becomes sanchez rodriguez and the category i'm mentioned characteristic if you will the government doesn't agree with that but let's work on that based on the recent page i believe twenty forty five of the community union and it says here that the factors i mentioned in the guidelines to court must after considering the structure in theory of both relevant individual guidelines and the guidelines taken as a whole stack whether it is sufficient to take the case to one of the guy planning the guidelines hartland announces that there simply is no room for just records any longer to look at the relative seriousness of the under one predicate offenses let me ask the question  i'm i'm hoping i'm addressing your question directly but because there is no departure based on the relative seriousness hundred to a one point two i guess you could say no harm no foul in other words the decision of the  district court is an appropriate one in this case based on these facts again based importantly on the amendments in two thousand one hundred ninety seven and the machine working in which is of this castle did did the government object at all to  ranging up to sixteen well it's a sack and that's exactly what we should should the district court have applied to two thousand one guideline it should apply the two thousand one guidelines of the change i think it because they're still required to do operate under  just states that you can take into account the relative seriousness of the underlying crime it doesn't it doesn't say anything about whether or not simple assault is the same as murder then it speaks to that and this circuit in united