they could support compassionate release yet the district court has repeatedly declined to reconsider our any reduction to the above guidelines that most recently imposed before these extraordinary circumstances could have been foreseen account all specific offense characteristic including the possession of a weapon any attempt to steal controlled substance as well as each of mr azaria's prior felony conviction the district court nevertheless indicated that if fifteen year imposed was still appropriate and correct justifying the substantial upward departure on the court conclusion that mr rich areas criminal history category was understated this court has repeatedly recognized that think that right now i believe your honor when you can i say an upward departure to an understated criminal history category the guidelines require st of all that it's a horizontal departure you can go all the way up to a level six  apart from a criminal history that is particularly egregious and serious as what the guidelines call for and i think for a one point one application and that you know this criminal history is certainly an unfortunate one but it wasn't the most egregious and it was a you know the offenses he was convicted of for all offenses he got full measure of criminal history point four and to go beyond a level time he was eligible to start the program at a time when his mother was ill and soon after passed away and he wanted to have a clear head before he did it and the g o p folks said fine you can sign up for it again when you're ready and this was not a question of avoiding a hard program it was an attempt to do the hard program when he could do a good job with it not be disqualified and lose out because his emotional you know condition was understandably i heard that explanation and i think didn't fully accept it well understandable your honor but if that was the case that this was going to be something that was used to enhance the defendant i think there should have been more inquiry of the key personnel before that was a consideration and even if it were consideration that it had been established some effect the things that happen in the almost two years since mr area was the most recent infraction show that he is somebody who is ready to come home i mean he will be home this year one way or the other with good time credit he will be eligible for a halfway house as early as may and as late as november and he will be coming home and he's meanwhile being exposed as a vulnerable defendant  to the continuing difficulties of the coated pandemic in prison there should be a point where they can considerations of sentencing goals and you know medical needs a dependent are balance in a way that considers a pandemic and considers the hardship inmates are suffering under it and allows either a reduction in an over guideline sentence to start with so that was march of late march of two thousand and twenty and oh yeah that application was made to the warden originally the district court deferred consideration until thirty days after and and hasn't been able to predict the paint program in any case but he was still in d c three months later so we renewed our application that request denied in december and most recently the district court has invited him to be apply in may if his record of career conduct continues i'm not quite sure at that point he had been in quarantine and early september when he was leaving the m d he he kind of passed through louisburg for a few months here maine in quarantine the entire time he was there and at this point he that hazelton and it remains in corinth united to me because i haven't been able to hear from him or reach him so i'm not sure if that is a designated facility or if he even has the ability to participate in program while there but he has such a small amount of time left he may be disqualified on that basis as well ok thank you puzzling and i'm not trying to ever seen anything quite like it where one of the three counts of conviction that cryo dropped out of the case entirely i did and yet the analysis that the held it was the subjectively reasonable th at the time of mr last appeal that was when one hundred and eighty month was within the guidelines range which is relevant if not you know mandatory at this point and certainly before the pandemic had its effect and also before mr perry had cures more than ninety percent of the one hundred and eighty months and demonstrated close to two years of positive behavior that the district co itself agreed showed that he may have turned a corner he's going to be coming home again for a halfway house consideration as early as may that's when the district court has committed him to reapply for compassionate release which you know may be mooted if