minutes each i'd like to reserve about a minute and a half of my time for rebuttal and since my time is short i'd like to concentrate on the issue of the upward departure for just extreme conduct as i noted in my r that paragraph contains the exact same language as paragraph one seventy eight of the updated p s r suggesting the potential for an upward departure pursuant to five k two point eight significantly however there was or departure pursuant to five k two point two for bodily injury might be appropriate nonetheless on this appeal i think probably the main argument that the government makes is that that would support the upward departure in this case again we had absolutely no notice of it were and it was not the basis that the district court judge relied on and in up for departing  the first time in fact in the briefing on appeal it's the first time that the government has ever even mentioned that bodily injury was never mentioned in the p s r it was never mentioned at the sentencing hearing it has never come at all and well it's certainly not mentioned in the judgment didn't come up at all until the government's brief in this appeal and it's inappropriate this time inappropriate at this time to attempt to justify the upper departure on a basis that was never brought up before explicitly that he believes that he is sentencing within the guidelines range on all but the conspiracy count regarding the consumer kind of charges right yes i mean i think anyone disappeared before you know i mean judges are kind of and you know if you want someone to do a certain amount of time i think i'm disclosing anything but you sort of you come to that figure that you think is appropriate and they get those number of years in some way and this one back right things got stricken but in the original sentencing the judge never said i think that this might be an appropriate basis but i think that this is enough time that it was never even mentioned the judge to simply said i'm sentencing him within the eighty there's no explanation in the original sentencing order or as to why the judge imposed consecutive sentences but there is also nothing in that original order that would support the argument that he was he imposed consecutive sentences in order to achieve an upward departure there's that your argument why you can't do it here it's yet in part in part because if the facts weren't there then there was no new evidence presented that would justify the facts now and in fact just by the departure now and in fact the government's own witness and prostitution francis morgan his testimony established beyond doubt that it's as good as this case is it is firmly within the heartland of a prostitution case and it's and particularly prostitution case where one of the one of the prostitutes is under the age of sixteen mr sallust in this case got seven points added to his base offense level because  l b was less than sixteen he got another forty four points added for physical abuse that it's just the just the the four points for the abuse which was imposed using exact almost precisely the same language as the three points for the upward departure that enhancement in and of itself added between three and four years to an underlying sentence of between seven and eight and seven and eight and a half years so half again as much was added to the top of that already for the exact same facts further and i think probably going back to the testimony of francis morgan which shows i think that the part just conclusively that this case is within the heartland of prostitutes of this type of prostitution cases there was the judge made absolutely no indication of what was different about this case what took it out of the heartland why those four points weren't adequate to address the issues presented by that case because this case is within the heartland  yes you started this off with an argument it seemed to me that the government was raising issues on appeal that it never raised in the district court the governor what the government suggested in its place that said there was never a suggestion has asserted for the first time in its response brief both that it's that there was no suggestion in the previous p s r that an upper departure might be appropriate and also that  on the first appeal before this court the court reminded on the victim vulnerability and has meant for our case with particular instructions that upon recency and the district court was to look at the relationship between my client and our kids as well as whether mr williams exploited any particular vulnerability found on remain and of course the probation office prepared a new p s r and in reviewing that p s r we saw for the first time allegations of that have been outlined in the briefs that r k had been sexually and physically abused by her mother's boyfriend the defendant my client should have known about these or didn't know about these these new factors were raised by the government for the first time after this case has gone through a trial through sentencing through appeal and then back down from recent and saying of course i brought to the list of course attention that this was the first time we heard about this and that most importantly there is no evidence for indication that my client knew of these additional factors or should have known of these additional factors and in fact pointed the cork the district court and pointed this court in my brief to the trial record where r k testified and indicated in response to direct questioning by the government during the trial that they had very little conversation she and my client before the party the state of montana and the fact that the basically the only thing my client knew including this print more allegation that and despite my objections the court and its sentencing of my client did indicate that my client knew or should have known about  these matters when in fact there is no evidence in the records court that if we compare and this was also before that in the briefing if we compare there was another victim s s and we could compare her testimony that did support the fact that my client knew about her history and her vulnerability and in fact s s testified at the trial about that and s testified that my client made certain promises to s s to help her and so there was a record before this court before the trial court on the enhanced meant as it pertained to s s it's not the case when a person we're nexus between the vulnerability between the defendant's actions and the defendant's knowledge there must be a nexus between those and those three qualifiers in order to enhance the sentence by the three point evidence and and hence fancy under the sentencing guidelines and there simply is no factual information before on the record to support that my client knew of this information that is and you could argue that there is no evidence in the record to show that hands of that day your client had any knowledge whatsoever for a particular vulnerability but are we limited to looking at what your client knew or should have known on the date of is charged with committing the crime or can we look to what he would have learned over the course of the traveling interstate commerce and the generous in question because and on the original appeal i argued that having to do with a different issue that we look at the time that the act was committed and that's where you start your analysis i think this court based on this other issue would probably look to the course of the conduct and other words there was a continuing conduct here when in this particular these two counts went from montana to new mexico and then east from there and and and response to your hon question i think it would be the latter given this court's prior decision but again i did just nothing in the record to show that my client knew about these allegations that that are in the p s r about print more or that he knew about our case specific to the other factors that are discussed in the future as far as the record is actually just the opposite where assume that they have the discussion when she when she hopped in the car with us especially a strange person and dropped in the back new mexico why would she then all of sudden start talking about her life if they even continue after new mexico i think there's a fair assumption being drawn that they don't have any conversation of any substance and that's what's troubled with me troubled me with this record is there is nothing there to show that my defendant knew about these these other factors supporting yes i will if i can make one final comment with regard to count ten and very briefly it's brief but it's a very big concern to me that that was segregated out of the grouping because it ime she was married she had gone through a chemical dependency treatment she had their life together so she certainly even if she were very vulnerable at some time in the past she wasn't w mr thompson contacted her and there's nothing in the record to say that she was in fact everything was put on the record sentencing and the man was stuff that other people had done to e however the same panel decided both cases and in both of those cases the the panel when it sent back down for  specific references as to what the court had to do for one thing when the conspiracy was overturned throughout all the pinkerton counts and it completely did basically the district court did exactly what this court told it to do it regrouped and those those counts also the the original court noted that also suggested that what the court might want to do in researching is to take a look at the extreme conduct that's where i think mr holton says i think she's arguing there was a limited remained it's finally starting  vulnerable when she met thompson when she met topps well i packed two questions there ok the first is what hacks indicate that william knew or should have known of our case vulnerability well first of  all we have what the vulnerabilities were that how but it's a newer sort of now i don't know that if you look at the if you look at all the facts that court had second time around  our case background those are facts that are very similar to the background of incest and that and that was in williams she was found to be vulnerable victim he was with her for a great deal of time she escaped from him went back to billings when and to drug treatment and i don't think that that took he runs into her on the street into a place called the crystal lounge and well it's in front of other pets who were in there and tells one of the other pinched this is my for and you leave her alone she then goes back with him he knew at that point he knew at that point that she was vulnerable to his advances because of what he had done to her in the past so whether he knew of her background as far as  her mother attempting suicide and and all those things she certainly knew about her greg addiction knew that her character was such that she would yield to it and this is the same thing that happened when when thompson went over to her house how does that make her different than any other prostitute i guess when the way you're describing vulnerability i mean i do you know i i i i agree that a prostitute can be you know one can be more vulnerable than others and can meet this criteria i think it would be you know it's wrong to say that just because you're a prostitute and everything is the damage to being a pros but when you're showing vulnerability it has to be more than just what is common to all prostitutes well thank you agree with me on that what they what the court said in williams was that homelessness drug certainly he knew or should have known that her character was such that so that he could get her to come with him again and i don't think although the court hasn't hasn't seemed to embrace it i don't think the reload something like that right here i mean there are certain rules i didn't use don't like to see things for the first time i didn't use the term reloading and neither did the court because frankly i didn't know the term free loading but what the court heard escaping again and then being picked up by yet another pick up and taken round the country and that was condition that she was in its time thompson came to so that is while i didn't use the john sallis knew all the history of this woman and she says and it says in a recent report i can't give you the exact paragraph but she says you know that i knew about me john chalis knew about me next the reason that he and thompson came over brought this guy by the name sputnik who was looking for a prostitute and brought her brought him over there to recruit her because they knew that she had been a crew to it leas she was homeless when williams first found and this is the only this one of cases is the only situation that i have found where a co has gone outside of the guidelines and looked at the history of the underlying offense and that is not exactly what the guidelines call on court to do when you're talking it was well known in billings and i think that local law enforcement it's time there was no camping statute in montana  developed we developed a lot of victims that are not mentioned in any of this we we developed a lot of victims who testified in the original trial we developed a lot of victims from their protest but all we developed victims ok well but i fortunately as it's one of those things that the facts are confusing me more as with each person that i hear from and that's not good well the only thing i can do is to talk about what the court originally talked about in waves and and this court is you know this court has has approved and  so i guess what i guess what i'm asking you is i thought i told you what you have to what you have to show in order to prevail here and i'm saying give me your best argument if that west your best argument then soviet well i think it changes t he should know but he knew the characteristics he was very good this is this guy going to williams had been doing this since she was thirteen years old and he was very good at carving out those from the herd that he knew or took with vulnerable so he could go after this are very good at that but when you when you're making certain predators they're very good at that and i would have no doubt that him so very good at finding people that you know pimps were not probably going to come up and ask any one person in the courtroom where to find them you know i mean they go to look for dr people they go to look for homeless people but when you're talking about you know a vulnerability finding or that someone should or should have known that you know it i think it you know i'm looking for facts that go beyond the fact that he's a really good credit and you know one of the things that i identified was the fact that they travel around and they spent that time together does that or does that sufficiently give rise to the inference and i asked counsel for the defendant on that and he has his respon i don't think i don't think you are that that it would be possible for people to be together as much as these were without him having an idea about what her background was i mean she just she was also the fact that that this woman had just had this background i don't i don't think that the victim enhanced men requires that he know all of the conduct are the specific conduct in under the guidelines and it's and it's not and it's not i don't think the courts were correct in those cases that decided that we were going to carve out an exception to women taken into prostitution and then it cases from all the other cases that come before this court you don't have cases that carvel eight a new church for women who are victims of rape on indian reservations although i have handled many of those cases and i can tell you that they have a lot of similarities a lot of times i think the courts i think the seventeen zero court was just should have another shot at it to say well he didn't turn on the evidence now but he can have another try to already i guess we've had reams and reams of ok testimony sentenced under count ten for two hundred four months and i've outlined the procedural reasons why but i i want to urge the court that should the court reverse the victim  the second final comment i would have been the facts regarding the reloading argument respectfully i did not find in the record and i'll just leave it at that  against i think both the green and order in this case and the general rule of this circuit what i am arguing as far as the operative hanson goes that with no new evidence presented they re sentencing the fact that the district court had rejected that