ok our fifth case for this morning is united states against lee mr henderson are two main objectives in explaining sentence one is to ensure that the district court has given due consideration to the sentence and to thus explain with a thorough analysis as to why a particular census is just the other one that touches on this court more is to ensure that there is an adequate record for an appellate review of the sentence now so so let me just say first of all i'm concerned about your argument because i can't find a spot in the transcript in which mr lee's counsel will just say mr lee clearly says i'm making an unwarranted disparity argument that's a well recognized argument of course under the sentencing process so i don't see that and as far as the written statement is concerned i think even if if we were to agree with the majority of circuits that the written statement rule does apply to the terms of imprisonment revocation i just don't see how it makes too much difference here because judge shadid makes it quite clear whether you agree with him or not he makes it quite clear that the reason he's going above the top of the recommended range is because of the domestic abuse so he says i mean it's not like he doesn't say so on the transcript in the record he just doesn't fill out that swarm so why do we know why what would have alerted him to the fact that an unwarranted disparity arguments counsel made to the district judge denny cake that string outside of the guidelines would be unwarranted so and you said that and you make an argument from things that this court and others have said that a sentence within a recommended guideline range and we kind of have recommendation upon recommendation as pushes you know in chapter seven is not at all likely to raise an unwarranted disparity problem because the guidelines and selves sure uniformity across the country but i take it you're taking then the negative inference that any sentence above the guideline range automatically raises an unwarranted disparity issue and that i'm having problems with  i think what counsel did below was he paid special attention to the guidelines and to to both the fact of the guidelines and to the fact of what was happening in iowa and told the district judge if you if you sentence outside of these ranges then we're not we're not looking at the guidelines we're not paying respect to the guidelines and we're also not paying respect to the other jurisdiction that's involved with this but you know there isn't anything there are a lot of differences in sentencing philosophy between you know our fifty states and the district of columbia and everybody else and the federal system so there isn't any principle that i know that says the federal judge is required to weigh the severity of behavior that's under criminal consideration in the state for revocation for that matter for sentencing the same way no i think the main point below was imposing a sentence at that for example what the government suggested i think they suggest about thirty six months right would would be inconsistent with both the guidelines and how iowa treats this type of offense and of that when i take a look at the transcript the judge first says ok the the real problem here is you got a break and you didn't take advantage of that break you didn't show up to drug testing you didn't show up to meetings with the probation officer but the cherry on top is this domestic assault but there were there were a number of controversial issues in terms of what the incident was under the most you know the least severe version my client kicked the victim and it was that's the mastic assault under the worst version he bloodied her face he pushed her down to the stair landing the son got involved and was in in this fight but we don't know which version the district court adopted that that's really why we we want more explanation in the sentence so why do you send unwarranted just i still don't understand without saying to the judge you know we think you are creating an unwarranted disparity between mr lee's sentence invitation to the judge to think about if you impose a sense of the government suggest i'm suggesting you're going to have the tail wagging the dog you're going to be disregarding what's what's happening in chapter seven we're not paying heed to what's happening in a shade over twelve months government said thirty six judge goes down six months from the government gives thirty dance me like he was thinking about it at least or he would've picked maybe one of the other but that why are you just saying look thirty months is too long for this person well our concern in our reading of the record is that we don't know why that sentence was chosen we don't know why ultimately right the judges you know look at a sentencing guideline range they ma that some point they're just exercising as it were judgement no no i don't know certainly but you know why not forty eight months why not twenty four months is what was there something about the domestic assault that was particularly serious as particularly  the judge said ok this was just a dispute it got out of hand she got bruised a little bit but i think that sort of behavior and supervised release is this serious and i'm going to pose in terms thirty months so that's why this is a procedural argument is this we feel that explanation for its sense but the issue raised by the defendant in his opening brief was whether the district court failed to address the principle argument made a geisha and this court's jurisprudence is clear that while there might be overlap between those two issues they are distinct and united states versus the a d s miranda that which we cited in our brief this court held that it explanation may be completely adequate but if the court passes over a principle argument mitigation silence they're still there the issue he has raised has nothing to do with whether the court adequately justified the thirty month sentence they did not raise that issue they raised the issue of whether the court passed over a principle mitigation argument and silence that is whether a sentence above the guideline range of the policy statement range would create an unwarranted sentence disparity and we submit to the court by repeatedly pointing out the guideline range of the policy statement range by noting that this is a misdemeanor in state court which is the same as again pointing out the policy statement range since the misdemeanor sentence is what drove the great se violation that repeatedly doing that does not alert the court to the argument that if you sentence above that range you will create an unborn and sentence disparity the focus of thirty five fifty three a six is on unwarranted disparities that is when we compare sentences among similarly situated defendants to have the same personal or criminal record and similar conduct absent coming forward with  or comparative oars or a sample for the judge to evaluate there is simply no alerting the court that we are making an unwarranted sense disparity argument and in fact if their argument is that for going above the range they may disagree with that and they may now as they're arguing your appeal that they didn't argue in their opening brief that that is not an adequate explanation and perhaps that would have been the better argument to make but they did not make that argument they didn't trigger the court's cunninghame duty to the extent there is a canadian duty in the context of a revocation proceeding so we would ask the court to affirm the imposition of imprisonment of thirty months upon that revocation that occurred below with regard to the second issue your honor ultimately regardless of how this court rules i think judge would you know that the primary issue if there is no prejudice the absence of filling out that ministerial form i did not create prejudice whether we're looking at it under the didn't know standard and then we would submit it's harmless error for looking at it under the plane or standard so i don't observe that although this court had an early foray into that in unpublished in non presidential order in two thousand and five after our order not the eighth circuit and maybe not the third but you know the six the d c the ninth the second tenth have all said no this this requirement does apply to two revocations and there are some very good textual reasons for saying that it does and so i'm not sure are that are one that's why the called non presidential orders hum i may they're not always  they don't always have the benefit of a really full presentation of the arguments but we certainly stayed away from your not presidential decision because i wasn't allowed to sign it based on the year that it was so that was i think think so then the question is you know and the other thing we've said is we don't i think we have a more lenient view than some about the need to file a bunch of motions after the judges already finished with something you don't need to file exceptions so it might take is just harmless error rather than plainer although there is still the argument what was the conceivable prejudice here if i could just make the point about and maybe it's just common courtesy with the discord judge because i box right sort of thing and i think that's what that form is it is to know what's interesting about that form your honor and if if this court were to rule and there is textual scored in thirty five fifty three c to mean i think we we noted that in our brief what and this is a concern like a tail wagging the dog true tail wagging the dog argument is that if you look at title twenty eight section ninety four subsection it directs  district court that you have to use a form that is approved by the judicial conference and the sentencing commission and we're asking this court that if you rule that thirty five fifty three c two applies to the revocation cont and provide guidance to district court so what form is to be used because the current form that is approved by the judicial conference and the sentencing commission which is on the air as website clearly applies to criminal sens you look at all of the subheadings on that form it talks about sentencing guidelines it talks about departures it talks about mandatory minimum there's very little if anything and the approved judicial conference for that applies to of revocation proceedings and so the judge has to operate under that statute nine ninety four of subsection w and so we would just ask that you give the court guidance on what it should do i don't want to make a bureaucratic argument that he can't do a statement of reasons because there's no form but by statute that's exactly what congress has directed that he do ultimately we're asking the court to fur the revocation sentence we don't believe th issue there now arguing that oral argument is what they raised in their brief and secondly if in fact the judge erred by not entering a written statement of reasons that the error is harmless if review is to know henderson let me clarify i may be addressing the flip side of the same coin the argument on appeal is that the district court failed to address a primary argument in mitigation but the reason why that is it rule is because the district court needs to adequately argument on appeal i agree with some of the things that you judge wood were implying about that the need for rule thirty five thirty six i think that unnecessarily mucks up the works the other the other thing of course is there's a fourteen day limit both on the notice of appeal and on rule thirty five week and jurisdictional problems i do i don't think that that should be basically the defendant has to raise it or you lose it apart from