without adequate and sufficient notice by the district court before the district court chose at the sentencing hearing without notice to depart if you have an upward variance more and help pled guilty to transportation of illegal aliens it's possible that it's a judge the judge could satisfy this obligation by the beginning of the hearing saying i am contemplating departing from the applicable guideline range here's why here's the facts and here's the reason a four levels or giving some type of i've notice of the amount of the upward departure or adjustment and also stating the basis the facts the facts about you and the legal rule factual and legal rule based upon an area that is covered by the guidelines that district court in pronouncing the fifteen month sentence said this is an area that is not contemplated by the guidelines these factors are not contemplated by time and in fact the factors that the court relied on are exactly those types of factors that are contemplated by the guidelines criminal history which was already determined within the pre sentence report and additionally the district court relied on the factors which were listed for the six level up these thirty five fifty three factors and i think just his circumstances are such that a sentence of whatever it was thirty months is more appropriate here what's wrong with that d i don't mean to make light of this there was literally a pink elephant in the in the courtroom it was very clear what the district court and what i was there was in the sullivan was there what the court was talking about we're talking about the aggravated nature there were other reasons other than just the the the events however i have to say that seems that that seems a little disingenuous of the government to say well there are other considerations but that informed our judgment that we should only ask for thirty months and then  of two thousand and five we're still dealing with how booker's effect on sentences and routinely probation officers are recommending within guidelines and they didn't recommend a specific departure or adjustment they were recommending sentences within she did have an opportunity because all of the factors were listed in the u s are and certainly with a with a recommendation from the government of thirty months and a recommendation from the from the p s r of thirty seven months  within the guidelines then that is the court is to give is to give the parties notice and give them an opportunity to address his concerns that is true however if we're talking about a sentence under thirty five fifty three a which is what this district court did he did not give any specific you're we wouldn't be where i i understand with you i would just like to know why you know because you know that's why you wear the black room thank you i would just like to point out that others around him even before law enforcement got involved it was then the pursuit occurred and then that's when he was driving at seventy to ninety miles an hour he was failing to yield to law enforcement he was driving north or south bound on heartland of the conduct or the office or whatever the sort of thing you could formally depart and arrive at either a higher guideline range or a lower guideline range yeah we said in mohamed that that departure adjustment scheme really doesn't have as much meaning as it did under the old mandatory system and we now look at all tim lee we look at the reasonableness of the sentence in light of the thirty fifty five three factors you know i thought that's where we were heading but it's still not clear and i you know i only i'm just i just start really trying to rationalize all this until we hear from the supreme court