of hope it's a relatively simple appeal and i don't really want to reiterate what's in my brief but let me turn first to the disparity issue in just eiseley three examples as i see the issue that i have raised here the whether it gave then having made that interpretation gave undue emphasis my argument is that the interpretation is inconsistent with the cases holding that that provision of section thirty five fifty three day is intended to address  district to district or national or judge to judge disparities not disparities within the case your argument is that under the thirty five hundred sentencing factors it's proper for a district judge to at comparative and relative culpability similarly situated defendants i don't think that it's improper to look at it but what happened in this case was that it became a controlling factor and in i was the court's view of the disparity rather than rather than what you have let me if i read from the examples that i isolated i think that it makes the problem clear first court said that it would compare each defendant to the others because in his view that is how thirty five fifty three applies here and then later there's nothing wrong with that with that if that's the first there should be no limit placed on the information to the court consider if you can't have sort of so i don't think the court was wrong to consider it but the court specifically used it as a reason to reject any argument for leniency on behalf of mr say because of his concern that it would create a disparity with the other defendants so it elevated disparity which it misinterpret is meeting only codefendant disparity to the point where it became a controlling factor i good ground and and that's ten to controlling there's nothing wrong with that is there well there's an exercise of discretion maybe i'm not being courageous enough in my argument maybe i should go further and say that it was it is an improper factor but i don't i don't think that it is i do think from a rough sense of justice a judge should be able to consider what he's getting relatively supposin a hypothetical case th all other proper thirty five fifty three sentencing factors are simply not helpful they're there neutral they don't cut corners the way or the other but in this particular hypothetical case there are some differences in relative culpability among co defendants are you saying that a district judge could not then base the sentence on either higher or lower well i'd like to answer yes i mean i do understand how the world works and i think i think that the judge that that's something that just should be able to consider on the other hand i don't think that you're going to find that hypothetical because disparities between co defendants are something that are in direct addressed by the guidelines factor of section thirty five fifty three a and one of the problems here is that the relative culpability of the defendant think mr say turn was responsible for delivering more pills and then miss pock who got the most lenient sentence mr nobody got a role adjustment in this case because each one operated with sensually independently but if they had been working concertedly there would have been a role of just not for the leader those are things that are subsumed in the guidelines to really by placing emphasis on the disparity beyond calculating the guidelines for the defendants individually the court creates another problem i wanted to also deal with my my first issue which is an important issue and that is the courts  minute as a legal permanent resident in one thousand nine hundred six his mother naturalized that was before his eighteenth birthday he was never legitimized he was born out of wedlock both his parents were aliens as an op but by operation you know i think it under the rule of belief i believe the rule says that the court must make an affirmative finding or state that it will not consider the matter in imposing sentence i may be mistaken about that you know but what you infer from that  to the service and since i believe that this court has done so in the one nine hundred eighty five case and i was just going to check the citation that is in the brief i know that the court at least noted the importan accurate as possible and lets the court make explicit findings of the test system to report even if it finds a challenge allegation untrue and does not rely on it prisoner parole officials may subsequently receive the uncorrected report then rely on the false allegations in correctional or parole decisions that possibility is precisely what rule thirty two c three d that's the former subdivision seeks to prevent and i do want to alert the court that the bureau of prisons because the report describes mr say turning correctly as a possible non citizen has placed an immigration detainer on him his citizenship certificate application is on hold because  happen to him is he i believe that he's he's not going to be placed in the five hundred hour drug treatment program and under the thirty six twenty one now there's an incentive for completion of that program which is a year off the sentence where he may wind up doing an extra year in prison issue in this case and the issue with which judge leavy wrestled in making his sensing determinations was one does he in fact have the authority to make that finding and to if finding was in that mr say turn is either a lawful permanent resident based upon the immigration file in the pre sentence report that has been given to him by the probation office or he is a lawful or he's a citizen which is based upon  the legal conclusions of a privately retained immigration attorney as as well documentation that supports some conclusion  there's no evidence for that now with those we find systems by automatic operation of long he says he could make that finding because of what is contained in the defendant's green card is lawful permanent resident status none of that in and of itself without drawing the legal conclusion which judge leavy correctly refrain from doing without drawing le of all he found that he was a lawful permanent resident right it was the first thing that was the first thing he said yes ron and then after further consideration he modified that sentence to say lawful permanent resident or citizen correct correct or on what happened in between what happened in between was some evidence of citizenship was presented by mr say turn and his defense counsel again this letter th let me ask one question the question raised about the you know the sense in this parity really goes to i think how we should review reasonable