real criminal history and his original sentencing won't stop exaggerating that criminal history and his revocation sentencing so it would make much sense at the revocation sensing to use the exaggerated criminal history category as the one to two as the basis for calculating the sensing range that's going to serve as the starting point and benchmark of that sentencing  section seventy one point four doesn't make that mistake it's very first application no and it's the it's the i've i think it's the application of the decides this case the provision that decides this case instead is the only application note that instructs district courts about how to identify which criminal history category is to be u five and then say that five overstay is overstated you know what the district well the probation officer found that was five the district said that that was not correct because i understood what as i read the transcript of that hearing that  it at the outset when she begins to get into that guideline calculations she says that with primary with the exception of the criminal history category she accepts all the calculations right and she knows that there's some dispute about whether he was on probation or whether there had been revoked and been on formal probation or summary probation right she declined to reach that question because she decided that  whether the there was an there was an error in calculating the range or for a one point point one that she she didn't go to whether the criminal history category the crimean history points were correct right because the dispute was about whether was on probation or not so i think  whether he got the two point right so that is the court just simply declined to reach that and said that the crimean history even accepting that the criminal history category five is overstated respect counsel i don't i don't see that what i understood was she in effect except of the five but departed anyway and that was the real focus and as i understand understand your appeal you're saying she treated this as a for once having treated it as a for you can't change it is that essentially what your argument is well that's that's my the argument is that she didn't think she formally departed but i mean she actually judges a part of the question about that the question is  you're saying that she changed the classification and made it before i don't see that on the record i see that she simply didn't address that she left it as a five in a sense but then departed downward so from from your client's perspective you've got the same result now you come back again and the question is is she bound to which you or whoever the council was did not object by the well what she's yours i mean what she said was that she just declined to resolve the legal dispute under for a one point one she didn't cite one for a one point one but the legal dispute was about whether was properly  criminal history kind of court points that was it was it not though as judge reinhardt indicated she simply said i do i can't tell but for purposes of my ruling today i'm going to treat it as if it were for she she didn't use the subjective mode she said that she declined to reach that she can it was unclear that's how much is correct right but that didn't matter because it was in any case overstated well  what she says i think it's your forty three that is undoubtedly part of why she departed down get that but now we're coming back a second time around the question is is having once made that determination for purposes of the downward departure is any judge that looks at it if you will stuck with that nobody objected to the original five determination as i understand it is then said in any case it's over so i just want to say that the government has conceded that there was a departure and therefore i mean well you know that we don't have to accept the government's concessions but let me let me just ask you a question suppose she departed upwards which you're going to still be the same today i would not have brought an appeal that's for sure well i mean suppose you do have the guidelines when you do when you get to the to the revocation priests chapter chapter seven you know the guidelines don't the commission did not have down adopt guidelines they adopted policy statements and one of the policy statements is they want to give considerable flexibility to district judges when they're doing revocation sentencing yes so why would you want to bind why would you want to argue that i don't hear they're stuck with whatever findings they made at the prior hearing i don't think it's a matter of being stuck i mean they have the job description to very now anyway post booker the point here is i don't understand your point that well the point is that there has been arguing yes i understand he want to either an upward she'd have to start with four but if she got or if she got upwards she'd have to she would start that that would be the starting point that we have your argument that would that would not be my i mean i would have to concede the point i wouldn't try to try to bring that to the court's attention to put it neutrally the the concern should be that the whatever criminal history category was affirmatively determined to to be the most adequate to the case should be the make should make for the starting for should be the basis for the starting point revocation sentencing and and if i can just i mean that's my main substantive point i want to underline i just want to say something about mr lawson remember which is that had he been sentenced at the low end under the correct guideline range as we were arguing it is  release date would have been maybe yesterday so i think that the only way he could get effective relief relief should the court rule in his favor is an order vacating remanding for sensing within with an opinion to follow just want to put that in the courts here  whether the question of what the district judge this record which had criminal history category that this record used at the time of the original sentencing is not an issue on appeal the parties agree that there was a determination of criminal history category five and and there was a downward departure to criminal history category for your forty three indicates that the judge found that the category five was over stated and that's a direct quote from your forty three and she used category four at the time of the original sentencing at the time of the revocation sentencing the district court correctly used category five in reaching its sentence of eighteen months which was the low end of the guidelines range for great b violation and criminal history category five and  the government saw some mission to the to this court is that a planned reading of the sentencing guidelines compels the conclusion that the pre departure criminal history category at the time of the original sentencing that made that determination the the focus that the government didn't decide that she said well you know in any event you know it's overstated anyway i'm just going to use it for the reason why she used the term overstated and that is  of criminal history and that is the reasoning that the district judge used in reaching cadmium to guess what she did because she's i can't resolve this whole business about whether he was on formal probation informal probation they have a discussion about what's the difference between informal and formal she says i can't figure this out and i don't have to there is a quote there is that question that remained unresolved  appeal here and yonder is that whether the question of whether the category that was whether the pre departure category or points departure category is the category that should be occasion sentencing and so let me ask you this counsel let's assume that contrary to apparently what happened let's assume the judge said you know i can't resolve this exactly but i am going to treat this as if it's a four and i'm going to depart from there even at a revocation hearing with the judge be bound by such a determination the other would be required to stay with the four in this case the judge really did decide that or alternatively that it was a five inch simply she departed from the five correct reading reading the transcript from the original sentencing parties both agree i believe that there was a term there was a the starting point of the of that that this record used was five and from there there was a departure to four and so what the parties are  which was the determined category was it five or four and the government's the mission inside it was five at the time and so that is what let me ask you just correct let's suppose for a minute that she just flat out determined that the that the revocation is that here there would not be an error if the use of category five now and i forget category five for a minute she determines on her own she makes a legal finding i find it's a category fo category at the time of the original sentencing and if the determine category at the time of the original sentencing was for that should be the category that is used at revocation and so here the parties agree that there was a corresponds to the offense level and criminal history category determined percent to one the one point one which is determined before consideration of any departure or variance and so the determination of criminal history category and the applicable guideline guideline range and analogizing from that provision that determination legally speaking occurs before there is any departure before there honor what was for the purposes the revocation sentencing what was if she had used before what would the guideline range have been if she had use for the range would high end or the low end right within the guidelines for i can't remember off the top of my head right now but but when she imposed the sentence did she give any explanation for choosing eighteen months you say i'm giving it because it's who recommended eighteen months at the low end of the guidelines and after consulting after hearing from counsel she said the specific reason that she gave was that after listening to the defendant who allocute it she did not believe that she believed that she did not believe that he would stay away from the united states that that he would return and that was the primary stated reason but it and in reaching the number eighteen months she to tell a tale the record your own is just two things first going to be very clear i don't concede that category five is the starting point not in the book or sense anyway it's the starting point in the sense that she accepted first the sake of argument because she couldn't resolve the legal argue to speak about points she accepted that it was a five and rule that in any case she would if it were five she would depart downward for i just want to read sorry read from forty four this is after they've she's discussed you know it's two unclear i don't know how to resolve that dispute about the points starting from the first full paragraph so i find in this case that five overstates the criminal history history category and it should be for a four and that's what the court concludes so i think she could she can redirect could mean that he that it was an incorrect criminal history category right but it could be ready either way in which case she should be stuck with it either way i mean you know right both both cut in the same direction the other thing is that the the basis of the eighteen months i mean counsels correct it after it was after the mr las remember allocute didn't he said he was probably enough to flee el salvador again but the basis of the eighteen months in particular is clearly  the guideline range moment she has the probation officer why why eighteen months why not something else the probation officer said eighteen months so i think that the basis is clear that that she had based on the guidelines and i think it's likely that if the the range were