disagreement about what was going on with the setting of the guideline range with the pardons and what was ultimately proposed and agreed to the court had no issue at that time that the advisory guidelines sensing range of thirty three to forty one month continued through the aggravation mitigation process of the sentencing without raising any issue in regards to anything about the guidelines the range that been set in any enhanced m that were granted it were not even talked about ultimately in the end we realized that the judge had it in issue of some sort of problem of some sort with the advisory guideline range in this case it went forty more than numerous factors that were guideline enhancements considered by the guidelines in justifying giving him a sentence of twenty nine months over the bottle are you saying it's never appropriate for a court  guideline factors if they overlap with the thirty five fifty three factors in imposing a sentence i am not because in that case clearly that's what the judge did do we know that from the record that he was basically applying those under thirty five fifty three analysis the problem is your honour's that sophisticated means impact to victims acceptance of responsibility those are all things that are report rated specifically in guideline and that as acceptance was addressed at the time the guidelines were set set ultimately i would discuss this obviously at some point the court than under thirty five fifty three took away those three points of responsibility but the impact upon the victim there was an enhancement for that that was not contemplated by the party and swore by probation at the time the guidelines was set under thirty five fifty three the court in this particular case president impact in this particular case the signet i find significant impact upon these victims i'm going to give him a great a sentence greater than the guidelines basically serve the entire ever still process of sentencing because the victims some of the victims a couple came in and testified you had the opportunity to cross examine and you had the opportunity to address the impact on those victims even more significantly because of the victims themselves where the testifying and subject to the adversarial process so how can you see this subverts see after syria well i say as far as the acceptance i'm not saying that did the only be i guess i am saying that that because at the beginning there was no disagreement because the defendant pled guilty and see if the government the burden is using its resources to go to trial but he didn't feel from a remorse standpoint or the fact that the defendant w timing of that the government then had agreed to the one point based on if the court was going to grant the tube the court had an opportunity based on the reasons of course just you're just indicated to disagree with that it's not a technicality i don't believe that the enhanced for the the guideline is a technical guy like if you plead guilty before trial at any point in time you're going to get the two points up i think all those things that you're saying that you said that were clearly in the p r about his and probation mentioned it clear in that particular enhancement portion of the p s site that he was wofully that he was not accepting responsibility but it never the court never raised any issue with it at that time to allow the part and the court is under no obligation to stay here problem with this guideline strange out of time that you know the parties know what the facts are and have to anticipate that the court's going to exercise book or discretion differently based on anything that is in the record i would say that thirty five fifty three factors yes your honor i would say this particular case the court use three guideline enhancements that were not dealt with during the sentencing hearing to enhance your service and i think if we have and i think it's a practical matter for a defense lawyer then to deal with the fact that we've got these guidelines issues they're resolved at that point without any dissent from the court there are going  he used those three enhanced you seem to be arguing that the problem with using those factors under thirty five fifty three and that you didn't have the opportunity to address them to the court but all of  judge they didn't come but they should not have come complete surprise to defense counsel because they were in all of the papers including the p s r with respect to sentencing i understand your point and i think i do have  permissible under the thirty five fifty three eight factors to address aspects which the guidelines also address that happens all the time this court has made clear t court has certain obligations to meet its procedural requirements of sentencing has to calculate the guidelines correctly there's no dispute that that was done here how stupid demonstrate that the guidelines are not mandatory but instead the ultimate sentence is under thirty five that would take a certain amount of factual development so perhaps the district court didn't think he had in front of them but that doesn't mean that in considering the nature of the experiments that a district court shouldn't still consider other types of impacts on the that are not financial impact such as divorce depression emotional trauma and the district court here had heard from a number of victims personally had also heard of victims through the p s r that described the devastating i indicated their lack of remorse was what disturbed the district court judge and that's different than acceptance of responsibility they do overlap but there's a different assessment to be made when you're assessing the nat history of the defendant as well as whether there's a need for specific deterrence and more just punishment under thirty five fifty three i hear the district court both saw how mr crooks are only pled guilty at the los last moment how to continue to minimize his conduct in the scheme and how he engaged and yet another proud scheme even after being charged the guidelines don't take that into account in the district court was right to say that there should be more punishment because at my understanding is that was given over in error that's not simply disclosed by the court i don't think that that issue really has any bearing on the ultimate issue in front of the court however because provided by thirty five fifty three a it's all defendants are under notice that sentencing will proceed by the factors in that statute and this court said that directly and walker that's all the notice that a defendant is entitled  centrally determined for a second scene and there would be no more need to litigate the facts again because the defendant didn't like how the judge was applying the thirty five fifty three a factor to those facts that doesn't give you a new