case for proceedings consistent with emmeline there are three reasons to support my request the first reason is that the court did not follow minimal requirement stated in emmeline to solicit the views of consul did you ever any sort of noticed that the judge was going to make this decision whether you needed a new sentencing and and that's why we feel obviously very strongly about that first point the second point being that also the court did not abide by the minimal requirement set out in am a line that a court needed to conducted a sentencing hearing at the field to have done so was an reasonable let's hope that that issue is a little premature and it may be there are yes indeed yes so in other words if if the judge had and the judge just did not do what we told him or her to do that's correct i'm not asking for anything more than what emmeline provides for essentially just the sort of use of counsel to be solicited and a second to provide a recent explanation on the record as to why dejection went ahead and did what he was supposed to do you have some reason to be hopeful that that process will be fruitful for you when you get back there on the distr mandatory guideline system and a series of reasons that i could bring now for instance drug abuse the rest due to drug abuse or diminished capacity bring in a coal lateral fashion to support my sentencing entrapment argument now post book or all those are grounds that are totally independent their reasons that the judge can go ahead and rough upbringing that he was a drug addict and obviously now i would be able to go ahead and explore each one of those reasons independently percent live witnesses et guidelines he complained about the guidelines he's basically said i can't remember his words he basically said i think the sentence is way too harsh but i'm compelled to give it to you by the guidelines i wouldn't do it if i didn't have to then booker came down and the guidelines were just advisory low behold the judge says would have made any difference i would've given him the same sentence but he never heard from counsel i'm thinking maybe just forgot what he said maybe forgot the case maybe that maybe a calendar clerk put it in his read without signing off for routine orders it seems funny from the say the first time i wouldn't do this if i didn't ask to and the second time i'm going to do this even though i don't have to do this issue why should we just remain so that he can hear from the lawyers and the so i would want to do this issue was addressed by this court in an align and exact examples that this court gave is that district court judges have been known to make straight comments about the guidelines and then a district court may choose to say something say some encouraging words for the benefit of the defendant's family and it's our fat just sort of thing people say at a full likeness i think that's what that passage means it's our position that you know based on that and based on the court's secondary review of the case it's clear by his order but how do we how do we know that if there was no chance for the lawyers to bring it to the judge's attention and for the judge to say well i've given it more thought and i really  that dealt with the law but didn't remember that it said to her and as oh i wouldn't do this if i didn't have to i think this is too hard the government can stand here and know exactly what the court thinking says basically sometimes judges say things they don't mean just that a concern for the defendant's feelings and his family's feelings and that's what that part you quoted and said in the judge's order he talked about booker as well and he states that upon consideration of booker the court found assistance would not have materially different certainly it seems that the court understood that the guidelines w did say that the court should give the opportunity for counsel to file either something written or something orally but it's our position that the court had before all of the information it needed the court had before the p s r a very lengthy regrown passed each other in different tracks you're saying the court had before and i think and when i was a district judge had hundreds of hundreds of cases and the chances of my remembering hernandez  if he'd been one of my cases would have been slight unless somebody reminded me of what i thought and said in that case based on the court's order i think it's fair to say that the court had the opportunity to review the case that the court didn't just willy nilly sign an order it's fair that the court based on his order that he look at the opportunity to we could tell the clerk bring the file down my chambers whether did it is what i don't know the court states that he reviewed the case and had reviewed booker and that based on booker that the sentence was reasonable in this particular case and it would not have been materially different was what he said in his one after the same  call to try to make sure that the district judge understood what he had previously said you know what occurred the procedural background here is the case was remanded by agreement of the parties after booker was decided almost two months lapsed in between the reno and the court's ruling in october of two thousand and five after the court's ruling there was a direct appeal taken here by the  the problem that i have is that you know what happened here was we were the court was in his case was faced with the plane here we didn't do the full flame  it out what how how best we should decide that third step the planer analysis and we sent it back to the district court and we expected certain things from the district court and we tell that we told the district court what to do and how to do it with an explanation and that wasn't done here again it's our position that the district court substantially followed what needed to be done emmeline so what bothers me is there's never been you know he's never had the we've district court did review the case and didn't answer that question and when the district court did answer the question the district court answer the question by stating that the sentence would not have been materially different if the district court had known the you looked into this case at the time of sentencing the likelihood is that it could very easily have been a difference we'd like to emphasize though what the judge didn't know and the judge knew the defendant's complete background at the time of sentencing the judge stated that he did review the case under booker in his order therefore we believe that  the judge gave the next explanation that he had reviewed a book or implicit in that is that he had reviewed the different things necessary in order for the sentence to be considered reasonable or unreasonable explanation given by the court is that upon consideration of booker he found that the sentencing of hernandez would not have differed materially and that's the ultimate conclusion well implicit in his upon his consideration of booker is that he had the opportunity to review the different things he needed to review after booker in order to determine the timing of that we don't know what he had in front of them no one can know exactly what we had  had in front of him well if you know offered an explanation he might have put in you know based on the commission report you know certain seeing record before the court at the time the transcript of the sentencing hearing that's my judgment that i would not impos