sentencing and i would like to spend my time there discussing the first to you if he says that i'll start with argument concerning his criminal history a court may not rely on its own under freeman's criminal history was overstated while the district court imposed a slightly below guideline sentence or rejected the variance requested by defense counsel because of its believe that the number of times m had been pulled over by law enforcement indicated that he was involved in more serious criminal activity that had been accounted for by the guidelines well mr freeman did admit to engaging and small scale it's not i don't believe it's improper for a court to determine that the nature of the convictions which here you know where the driving offenses didn't warrant earnings because his actions as a whole indicated i mean his own concessions that the criminal history accurately reflected his true criminal activity that that it was more serious than that and then the driving with would suggest judge i think that the record within the record there was nothing to suggest that mr freeman was pulled over because police suspected him of being involved in an activity that was more serious than driving on a suspended license and the court stated it was relying on it to you know the gangs he did judge and she had a lot of knowledge but i would i would submit and not argument that the current eight hundred to one disparity between crack and powder cocaine which approach is appropriate is inappropriate the part committed procedural on at least three occasions sense the case would have known why the court rejected this argument but that's simply not the case here it can't be assumed that the court implicitly considered mr freeman argument heard use ratio merely because it imposed a below guideline sentence the district court said absolutely nothing on this issue and in fact it only mentioned crack one time throughout the entire sentence but it's really clear from what the judge did see say that  drug quantity which is what this argument goes to is not the driving factor for this sentence it's the gun running that he was actively bartering guns for several years eighty of them conservative estimate and that's what she was most concerned about not just his drug dealing which you know if it were just solely a drug case guns weren't involved at all maybe your argument has some traction and of the three cases that you've cited despite the below guideline sentence but this case is materially different from those because we have this gun peddling  prominently in the case and the judge made it clear that that's what she was most concerned about the judge and i would point out that it's ironic then that it was actually the crack quantity that drove the sentencing guideline in this case and the district court that argument had or would have had on the court's decision i thought i think we can based on this transcript is my point we can conclude that it's crystal clear it would not have had any effect and so the judge passed over it not because she notice it but that it wasn't going to make any difference here she was going to give a blow guideline sentence and to give up a long line sentence you were asking for fifteen years the government was asking for something close to twenty she came in at sixteen and was concerned in the specific context of this case respectfully judge i disagree with i think the fact that the the drug plan to be played so prominently into the guideline calculation the fact that the court addressed it i think in drug quantity is always going to play prominently into the guideline calculation that's that's baked into the cake of guideline sentences in drug cases so vigation to explain it away even if it doesn't make any difference at all based on what the judge does say about what is qualitatively important to her under thirty five to three i the wise we're going to have to be requiring judges to address this every single time adding yet again to the burdens on sentencing judge as well judge i said i don't think that the court needs to spend hours addressing that but this court has held is this just becomes form over substance is my point and we've already you know crossed that bridge far too many times from our perch up here at the court of appeals as far as i'm concerned that was a special argument that whenever it was made had to be addressed no matter what the context the matter what the circumstances and no matter what additional arguments the defendant raised that made the application of the term principles somewhat questionable as was true here i want you to help us with something short mustn't the challenge in the crack cocaine ratio in united states versus johnson a cat line what i would say and i'm not sure that i remember every detail of johnson so i don't want to act like i do but what i would say is that what i believe from this court's precedent here is that in some cases the court is willing to say that reversal is required based on a failure to raise a cap even a categorical challenge if the context of the rest of the sentencing suggests that that was number one a very critical argument made by the defendant and number two that the crack i'd lines were really what was that play in that case and really mad so that the failure to consider the argument can be you i would say that it's possible to read it that way it would be favorable to the government to read it that way it would be favorable to the concept of not having to appear again again on cases that that really in our judgment don't warrant it but i think that it's also matter was consider about two things as to morris morris was a little bit of a special case because morris involved drugs that were mostly counterfeit and that was something of it that was important each year of the court's determination that was that was something that distinguished it also as a argument that was tailored to the defendant's particular circumstances but the history of this issue and of course of course it should be considered in determining whether we're going to interpret silence as essentially ignorance or you know just merely following the guidelines without thought i mean initially there was a debate as to whether that was an issue that the the district courts could even consider timber made it clear that was something that the courts the district court was empowered to consider that the district court had the right and the power to consider policy disagreements with the guidelines and this was a very prominent and of course we are we are far beyond that point i think there is there's no reason to assume that any district court today is making a determination under the cra guidelines that's based on a a a belief that they guidelines must be blindly followed that's not possible today and yet that the courts  gradually acceptance or gradual determination that the krakow disparity is not i think i think with regard says that it's or can be understood to say is that it's not a special argument that has to be considered every day and considering it such a such a special argument really over reads the court's prior precedent and it certainly does in the context of today's sentencing when this point has been hammered home multiple times and certainly if a court ha a policy disagreement with guidelines regarding crack the court will exercise its discretion with that policy disagreement in mind and it may be that the district court did that here it's unclear what's important but what is important in this case it was important the core very obviously was the gun running just as joe site said and that makes it clear to anyone who reads the transcript or was present at the sentencing makes it very clear abundantly clear that the crack powder disparity was just not an argument that was even and play and it had no bearing on the sentence and the fact that it that it drove the sentencing guideline i it's really not the important point the important point is how do we understand the district court's judgment and how do we how can this court have confidence that the district court consider the arguments that were presented and x properly exercised her discretion and determining the improper for the district court to base a determination on some of sentencing on speculation about crimes that the defendant may or may not have convicted crimes that he was never charged or convicted of but in the context this particular case the government thinks that the fairest reading of the court's comments was was actually an africa to reconcile the two images that were being preserved of the defendant every being presented by the parties the defendant was stressing that that his his and every quested a a reduction based on the fact that his criminal history understated his criminal history category understated his actual prior criminal conduct which was really flatly inconsistent and refuted by the defendant's own admissions that he had been dealing crack cocaine for five years continuously and had engaged in multiple multiple transactions involving both crack cocaine and gods and these were all of these crimes that he admitted having committed these numerous repeated crimes were not crimes that he was charged with were not crimes that he convicted of but they were present and the defendant had admitted it in that context it seems to me that the court's understanding of what was going on in it with respect to the  the criminal history points were justified under the guidelines the question was whether a departure was appropriate right i mean the criminal history points were counted based on the actual nature of the crime and that's the nub of it really is whether it's a departure actually pulled over while in the process of committing a drug crime the government has not agreed that that is necessarily a reasonable and friends what the court was saying i think wasn't that specific and of course this is a very small part of the court discussion of this overall issue of whether a variance was warranted but what i think the court was saying is look don't tell me that all you ever did before this was  you know it was drive without a license please don't that that argument i reject because what i already know about the defendant is something very very different and whether whatever reason they had for pulling you over maybe it was when you were doing just riveting drugs maybe it was and whatever that whatever their reasons you're you are smart enough to have made the decision every time you committed one of those offenses to do it you knew the consequences you did it just briefly address the last topic i think the court is right that that the district court in this case when she spoke about any worse traffic stops that mr freeman had had in this past was absolutely referring you are suggesting that he was pulled over because he was distributing drugs and the big problem with that is that yes he had admitted to that and yes it was as relevant conduct in this case and therefore if it went into his sentencing guidelines the record is absolutely bare that he was engaged in other criminal conduct that wasn't accounted for by the guidelines and in crack powder disparity arguments that the only possible argument that i could think of and i readily admit that there are greater legal minds than mine is the kind of argument  categorical argument which actually addresses some of the defendant's unique circumstances the defendant's race the defendant's income a where a defendant is