some kind of objective reasonable basis for that search problem as in this case that we have to version of events and the district court those version of events first are based upon the testimony of the security guards at the western village you see now and the police officers who responded to the call of the security guards and the other version of advances based upon the videotape of lee by making its conclusions well your honor i've seen that and frankly i think doesn't help your side at all i mean i think if that's not suspicious behavior by your client i don't know what  the tape does not contain a good deal of things that the officers testified i mean when the car goes partially behind the trees in the building you know i mean when he crosses the street and he is not he's not clutching the fanny pack as the conclusions or findings of fact that it based upon its decision of reasonable suspicion on it hell there was no new opinion issued there was there was a whole set of facts including the fact that he heard of it looked back at the officers that he clutched the fanny pack as the officers were coming to him the district court made no findings of fact concerning those issues are those facts at all  he did not respond to their calls he was clutching the fanny pack none of that was true none of that was true what you're saying is that those findings were clearly erroneous and those findings were clearly  sufficient facts remaining that the videotape is not challenge which are sufficient for reasonable because i understand that and then we have the testimony of the security guards themselves to say he's just kind of wandering around the parking lot like  lost his car he has as one of the security guards one of the security guard just officer warner he has his hands folded in front of him he's not clutching the security pact like the security guards say he has i mean even the just  that's on the take the security in fact the district court in its review said he either has his hands folded in front of him or behind him as he's walking through the parking lot the fact this is that one of the things that is very troublesome in this case is that the security guards call up the sparts police department and say there's a gun in the fanny pack we believe there's a gun in the fanny pack there is nothing at all to support that conclusion i mean there's no indicia reliability that there's a that fanny pack how did they reach that conclusion the district court based its findings pretty much on that also on that conclusion by them there's there's testimony the fanny attack was high all of that is contradictory how do we resolve that the fact is is that there is no indication of reliability that there was a gun in this fanny pack at all the other thing that is troubling in this case is that mr avery crosses the street he is completely removed from any activity on the in the parking lot of the western village essentially gone there is no immediate activity when he crosses the street any any interest of any i mean it criminal activity on his part he's gone he's leaving he's away from the scene  he's he's on his way he's not attempting an auto burglary he's not looking into cars and in fact this the officers testified that the security guards testified that his behavior was not really indicative of any kind of suspicious or criminal activity he was just there if i'm an officer and i'm walking through i'm a police officer and i'm walking through a parking lot and i look into a window that's considered plain view and you know the difference for an average citizen i mean certainly that's a rhetorical question but the fact is is that we do allow behavior on people's parts even if it's odd behavior that we don't allow police to violate people's fourth amendment rights we have a man here w park in the parking lots on by western village casino so it was on private property it was on private property that's correct and then he's leaving private property he's across the street he's walking away he's not committing any crimes there's no end and didn't show that he was attempting to commit any crimes when he crosses the street in fact is any reasonable suspicion should have ended at that point and yet the officers chase him down and the fact if he was going to run that's what that's what the officers testified to the district court found well that's correct but that's not what the videotape shows well you know again i ask i also have seen the videotape i don't understand where you've got this great conflict i mean if anything the videotape cooperates the events that we're we're going down but the videotape does not show that he was running from the officers and does not show that he was clutching the fanny pack it shows that within twenty three seconds of the officers i mean they they call him he turns around he responds to them he does not run away from them he does not clutch the fanny pack as the officers there is the record is difficult on that point the fact this is that he does not challenge or he does challenge his counsel but there is no finding on the record that the family cracked any testimony that he did not i would agree with the court's observation that what is being asked of it is to make new findings of fact i think where the where the difficulty lies for the appellant is that they believe that the videotaping  of the behavior that was noticed by west village security the casino that first initiated all this on the you have to record starting at page one sixty or leading up to one sixty the security officer at west village made all these observations about watching mr avery we go through the parking lot wander through the casino in and out of the parking lot looking on doors on page one sixty is when he notifies surveillance and that's when the cameras caked on so i believe that's that's where the the the conflict lies as to why there's a concern about any conflict as to what happened what was being observed versus the videotape the fact is is that there are many things that happen that happened prior to the casino surveillance turning on its cameras to observe mr avery going in and out of the parking lot the casino had suffered several auto burglaries so that's why that they were concerned when they see an individual who seems to be strolling up and down through the he was familiar with how the firearms would really weigh on on someone how it hangs a certain way and he did have a concern and then when the police officers arrived they made their own observations as well the videotape nearly every single thing that the only things that it does not cooperate are those minute details where the cameras so far away you can you have a hard time seeing what has happened one of the place officers testified that when he reached out to when he when he put the cuffs on him or trying to put the cuffs on him was that you're not under arrest this is for the change shall explain everything the second that the defendant made some sort of move to try to slip out of it that he said that we police officers are taught and that created other concerns moving on to the issue that i think that the that the court may be most concerned with is the sentencing issue this is a this was a mandatory minimum case the defendant did conceded to the fire for prior violent crimes of violence there was a fifth one but the court went ahead and rule against that fifth one but we only needed three the only question i believe that's before this court is whether or not the court yes which mandates that meant a mandatory minimum of fifteen years yes the judge the u s probation under their guidelines calculations had a range of one hundred eighty eight to two had gave a one hundred eighty eight months sentence it would be it would be unclear whether or not the judge he could have gone lower in this case the judge did not go lower he gave a mid range of two hundred the there's nothing there's nothing information in the record that indicates that the judge exercise that discretion he did not while he did not go through and list all the factors in the thirty five fifty three there is no mandate that a record that he did that he took into consideration all all the good works done by mr avery one mr avery had been in prison mr avery had a lot i had quite a career in prison and he spent a lot of time helping other prisoners w that taking all this consideration and in fact he he he recommended that mr avery have more of those opportunities mr avery does very well in a controlled environment and was very anxious to help others so he says i've taken all that in consideration i also took into consideration a report that was done by a doctor mr avery was examined a couple of times by mental psychologist to kind of explain his behavior and to explain why he sees the world in the way that he does and the court gave that as as a as mitigating factors had the court gone to one hundred eighty eight months only question i have is in any time did he say  weren't there if the if the if the guidelines if he if we if we were to believe that he was given a lesser sentence then we would have expected that he was given the lowest possible sentence which would have been one hundred eighty eight months how  don't know and i came fully prepared that that was very likely to happen i guess but the best argument that i can offer to the court is that because the judge did not give the bottom of the guidelines and took in the contemplation   and i guess what i'm asking this court to do is to say that it's not necessary that the court has come out say the guidelines are only advisory and percent to thirty five fifty three a the sentence it would appear that because simply the sentence that was given in mid range senates lower than the government's recommendation lower that then then probation but it's much higher then the bottom and now you're drowning in the pool below the water flow i keep going if you she's going to if you want well i'm taking the hint and not want to make things worse let me see if i can take a little bit different track the i guess with the emmeline i guess there's just really no air believe and i think this court decision i am away has been upheld by booker and i think it's pretty obvious that the court agrees with that i understand however there is one issue that i think that i  need to raise i don't expect that it should go anywhere but as a lawyer i need to raise it there are i believe it's a policy that we do not consider prior convictions fac