division and in order to evaluate whether or not you really knew it or guessing at the answer you had to show your work gave the teacher confidence that you knew what you were doing and in this case i use that analogy when i teach law students how to answer their st law school exam you have to show how you came to your conclusion it gives the defendant who is being judged information about why they're being sente importantly it gives the public confidence in why a person is being sentenced as they're being sent and most specifically in these circumstances it allows the appellate court to know why the district court chose the starters the judge does not indicate how he reached the guideline calculation and the guy's going to count calculation is pronounced level thirty three but there's no indication that we're ruling that the recommendation of the guideline talk elation that was done by the probation officer was incorrect or correct we don't know how the judge reached level thirty three without guessing or inferring as my adversary would have it not so ordered or what would you say that just have to do with whether or not there w one plan to murder somebody or to well under not that is one of the calculations that the probation officer made different differed from the party that's correct the probation officer and a real unit were to axe under the racketeering charge correct and the plea agreement and the parties and to so that that is a different calculation correct whether or not the government got that right or the probation officer got that right is unclear and i direct the court specifically judge eaton to the statement of reasons attached to the judgment whether or not there were plans to murder one person or t a complaint maybe i have your complaint wrong maybe you could say to me again what was wrong with the thirty three d'souza also stipulated to a role in hanssen in the plea agreement to the record was very confusing i had difficulty determining what the district court was deciding with regard to rol my point if i may the st line of the statement of reason in the judgment says that the court adopts the pre sentence investigation report without change the district court checks  box off well we know that the probation report has an entirely different calculation an entirely different recommendation and an entirely different basis fence level and they have not applied any role in han just the opposite it adopts the pre sentence report without change will the present report has no role and hands in it and then low as judge morning as you absolutely correctly point out on the last page of the statesmen the reason that is the problem with how the court approached this particular sentence we cannot evaluate this court cannot evaluate whether it got it wrong on the rule enhanced got it wrong on a criminal history or whether we what in fact the court was inferring because the record is not clear and that's why it's not imperative that we show that the court does show its work i don't need to make it to elemental but it's impossible carol a court to review this and it's impossible for and did not include a role in hand by not grouping the two racketeering acts that lead to a one level increase and by not including the role and hanson and that negated the two level increase that had been contemplated by me level thirty three dollars for the same reasons and a criminal history category two so we can tell what the did what the court did because at stake in the grouping analysis was only one point and at stake in the wrong hands meant which a stipulat at no time prior to sentencing or at sentencing d'souza jack to it because it was heavily negotiated and he would have been in breach of the within the guidelines range me to be that suggests a confusion or at least i come away uncertain about the basis for the sentence how should m understand those apparently inconsistent actor why are they not inconsistent  based on the calculations we just discussed and there's no reason to send the case back on a stipulated fact that the defense could not have objected to without breaching the plea agreement so respectfully your honor i do i do recognize adjustment is warranted how does that fit in your honor i submit i think this is clear there's a maybe a lack of clarity in the way the transcription came out but he was quoting the p s r there and we know that because later on it was reading from his written opinion which was issued shortly thereafter defendant's favor although with the government's consent that two murder conspiracy wrecked earing actually be grouped i think we have charged them as racketeering act sixty six dollars a and b and in the plea agreement we grouped with the result that they were so i guess one thing that's bothering me is that we're doing a lot of fering what's a very substantial sent to two hundred and ten bots and there's some ambiguity also in the reasoning about criminal history won vs criminal history too especially on such a substantial sentence seems to me we should put in the defendant should be put to how the district court reached the clickable range and reach the final sentence would you agree t d'souza sentenced below nobody in the courtroom had any lack of understanding about what was happening to susan his lawyer never said they didn't understand what the judge was deciding or why was imposing the above guidelines sentence the court maybe crossed over the explanation because for example a factor stipulated to and then there is a degree of inference involved in resolving an appeal as to that issue but i think under rose in the similar cases extensive factual findings discussion of every section three thousand five hundred and fifty three factor including the defendant's criminal history as to i know my time is almost up as to the criminal history category again the arguments were plainly made and clearly made forcefully by the defense before sentencing and at sentencing the government responded that sentence again explain why the three prior convictions were worse than they may have appeared on paper so the court had every reason in the world to stick to the correct determination that category two applied and not to take the unusual step of finding that the criminal history was was overstated all the support it needed was in the record and it clearly considered the arguments stipulation couldn't be clear at page eight hundred and ninety four dollars the appendix paragraph three the guideline calculation in the plea agreement is not binding on the court and it's certainly not binding on the probation department has the power to make that decision is a court free to rely on the stipulation mr de souza did stipulate to his role and if i have to be questioned  because the court says consequently there is neither an aggravating or mitigating role involved because it's because it is unclear and because there are no findings of by the probation department the water rather than provides clarity your honor this is a seventeen and a half year sentence for a twenty eight year old man and while we can infer and we may in hindsight say there are a lot of bad reasons why the court could have done what it did it's too serious it's too permanent and it's too opaque to allow the sentence to stand and for those reasons i asked the court vacated and the man for the sentencing