i factor that was not mentioned for the time of sentencing and that is the violence of the organization that he had been associated with prior to the time of his arrest thirty five which governs these prior cooperation to be aggregated with the current cooperation to reduce the sentence i think that's important because i think it's clear that in modifying the statute the focus is on the extent and the quality of the defense cooperation and that's why when they when the statute was modified the focus was directed to clearly if   and that's the process of these cooperative a thirty five b to get substantial assistance and the government takes the position that substantial assistance was rendered  undercuts the incentive for that cooperation if the court is going to not focus on that but nonetheless thirty five b is that the if the government so  one year after the sentence is oppose the court may reduce it doesn't say shall review and so the question then becomes may reduce does that mean that the choice to the court the court might have a different view of the quality and quantity of the substantial assistance but what what you're saying here is that the error of the district court was that she explained the reasons for her ruling or she would have simply said i look at this and i don't think i was substantial enough i'm not going to grammar then you wouldn't be here only because she said look this guy was a serious criminal and the the ariano of the cartel and so on so it's all not going to i'm not going to go any further i consider that already i'm not going to go any further i think that's correct your honor but i think that the district court has an obligation and virtually all instances to explain the basis for their rulings and in this instance the district court did and it's our position that the factors that she numerated are not factors that can be legitimately considered in the rule thirty five you terminate in the philosophy behind the sentencing  reference to the violence because you know from beijing reports and there were two one for your group or one for just gave there is no reference to violence there because there came a point in time where there was a tremendous amount of publicity about this organization and the violence associated with this organization but it's not a part of our record and it's been in all the newspapers it's been on the television and i don't argue with the fact that the organization  demonstrated that i think at that time that this man was arrested and he was no longer involved in this there was no record of that violence and there is it's not you know robert you're not you're not arguing with the sentence that the just the court actually client's sentence in accordance with thirty five yes your honor because you moore has discretion to do that because thirty five b says that that is the court many reduce but she relied on improper factors in making that an argument that that would be a problem it would be an improper factor and that's my point here through are you familiar with the case where you said it you just cited the sharia just as the only factor that i know of hate in favor of a rule thirty five b reduction is the finance substantial assistance the latter point but it's there's nothing in the text of the rule purports to limit what factors might military against granting rule thirty five emotions and that's really what what just keeps state buying that they can't then use it as a new opportunity to revisit the sentence previously imposed whereas in this case the discretion is committed to the district court to decide whether on the motion of the government on substantial services to accept and say yes i am persuaded and i understand your argument you're saying that's the context so therefore the factors that present on which the discretion have to be exercised have to be related to the basis for the doubt for the downward departure the knowledge case however says no it's discretionary with the emphasis on me and discretion to depart downward so accepting that point of view i understand you challenge it but normally where the district court has discretion in the ability to depart downward that's not bias so long as the court has made it clear on the record that she recognizes she has discretion and i think million diverted to dismiss question to suppose what judge keep it done is simply say i have discretion i understand my discretion here i've reviewed the record and i decline to grant any adjustment downward what would we have to review i don't argue with that so i think that that is a correct statement of the law and if that were the case then we would hold in this case that it couldn't be based on a factor other than analyzing substantial systems we would then have to impose would be not a statement or requirement on the district no reference in there to revisiting the sentencing to considering the defendant's role to agonizing over the amount of drugs well i'm just simply simply suggesting is that the focus on all thirty five the in the its discretionary decision not to depart downward any further than it already have there via limiting the extent of its departure to eight levels rather than one more level requested in july if the idea of thirty five the which was specifically a may grant of discretion and may reduce based on what appears to be on the face of a court to reduce the sentence previously impose and the government comes in and says all right we've performed our function we have worked with the defendant and we have made the determination as the government the executive branch side of this equation that this defendant has mapped what we consider to be the requirements for thirty five the motion by us of substantial assistance and the reason i would assume that the government is interested in this whole structure is to get substantial assistance and in this case presumably you were satisfied you go in and the court says no i don't care about whether or not th defendant rendered substantial assistance to the government i've decided that because of all of the nature of this crime of violence and so on and so forth doesn't make any difference so i'm not going to grant intrude the court in the process of second guessing or undercutting the executive branch and interest in what thirty five b c if the conclave is the purpose of this whole thing which is to reasons other than additional substantial assistance it was made because the government felt it may have made an incorrect calculation and what do you intend to do the government had intended to make a fifty five percent reduction because that most mean just leave to woman in march of two thousand and two she made it very clear that she was reluctant to grant that departure but she granted the departure they still only on the defendant's cooperation substantial assistance in granting a rule thirty five reduction and in the no opposite situation where they're looking at the refusal to grant further departure limiting the expense of the departure again looking at that very same had this defendant who had worked in cooperated with the government the government got valuable tips and the district court said you know that's all great but i think that's not what applied something that narrowed down what judge he may have been doing but are you asking the government's comfortable with a ruling from this court saying hey government can do it side of things with the court can consider whatever it wants effort was sort of high risk waste of time since the nature of the crime was such that it wasn't much chance that he would if we could cooperate he was going to get anything i think with the understanding has always been it is in the course discretion whether or at risk or whatever else comes from being seen as cooperating with the government and i do that and i do and do that in good faith and stepping back from the facts of this case just in general and i go should have the discretion as intended under thirty five b the district court has discretion that if it is limited to considering only the nature and quality of the cooperation and it depends on the defendant actually cooperates then the district court is put in the position of having to go ahead and exercises discretion favor of some downward departure because if it says no time sentencing when all the factors and thirty five thirty three are being considered and i think it's very different in that regard all of the cases set forth in the twenty eight j letter all relate to five one point one the