they certainly wouldn't have been a knowing waiver in this instance there's nothing that i'm aware of no authority that says you can waive the explanation which rule thirty two requires rule thirty two and guideline step to six a one point one specific required the explanation and there's nothing in there that says that the defendant can waive the explanation the on the record explanation that the wife and that the harm in this case is that as i said  the proffer and maybe asked the probation officer to fill any information that potentially could have been missing and asked that the parties suit to what their understanding of the guidelines was that the court could have arrived at that guideline range give an explanation but the your i would disagree that the only problem here is the failure to give an explanation the court did essentially find that the guidelines were not applicable if you look at the statement of read the reasons  in an a to n a months in the court it also did check the box if there were any record stops as no need for a yes sorry but never explain that finding a record and never said what it thought the guideline range was in this case the court months after but it's our position the judge essentially stating that just as a way of dismissing the guidelines is essentially irrelevant in this case and that in our position is this is plainly was not the explanation that's required by rule thirty two far above guidelines as you suggest forty seven well really forty eight months gave a month credit forty eight months vs twenty seven a little more explanation is needed and so the lack of explanation problem that you're articulat looms larger but i'm sitting here like you still haven't given us the information we need in typically the party seeking relief is the party who's got to give us the information we need to grant that really under harm here that it's does not appear to be meaningful consideration of all the relevance in a seafood but in that case what didn't the court find that there was no reliable evidence in the record and here you're saying there was no explanation not that there was not a reliable information in the record but the judge didn't explain himself yes you are the dutch didn't explain himself and he went one step further so as to essentially not consider one of the required factors which is the guidelines and this is a judge as all district judges are sent around sentencing every day all day i think he's well aware of the fact that there's a guidelines and that those get calculated it's setter and it was a discussion of that well we got thirty months before when the defense counsel said i think that's the high end i mean there was a discussion of the guy lies not like the judge had no idea there's such a thing as guidelines that's true but but the judge did not identify what the gun range was and in his statement of reasons indicated the guidelines were that's our exercise of discretion given them that if the judge did forget there were guidelines the defense counsel certainly aware that there are guidelines why should we exercise our discretion essentially to to grant relief here where defense counsel said we're ok with proceeding right to sentencing and never said look i don't know what the guidelines range is judge we really need a p s r to get the gollancz range immediate cetera et cetera and when the judge announced the sentence a judge whoa wait a minute we need a p s r because you're way over guidelines and we need to have that back never said a word why should we exercise our disk russian here under these facts your honor  is local rules thirty two point one provides a way of the defense counsel asking for a waiver yes or and it involves a motion that contains all the information that it has or would normally have in it which is factual some our position that the explanation must be on the record and must identify the guideline range as well as the court should also give some indication that it has enough information about this up with the atlanta range and when judge farm in s twenty four to thirty based on a criminal history category of six elephants level ten and a cut some of those offenses would have been too old to score in this case therefore his guideline actually we believe would have been lower twenty one to twenty seven in this case our defense counsel did give an estimate of thirty months being the top of the guidelines range that appears to have been a tad bit high there's no so if we had a case where there was sufficient information for the judge to give a proper to an inch without a p s our report card the guidelines were calculated i got enough information i'm going to send in sam but doesn't give an explanation well i think that what you just said might be the explanation you know if he says here i have you you've you've given me these calculations and we've talked about them i agree that this is the guideline range i have this proffer from the government which outlines criminal history i find that you know there just seem to be no problems with that therefore i have a feel i have enough information to proceed without a yes or this case i mean i think that would be an example of an instance when the court could discretion here because of a lack of magic words when we know the judge had the information about what happened with judge harmon cad that this sheet that showed the our convictions have the information about the current had a lot of information about this  defendant and says oh i just didn't say the magic words and i therefore conclude that i have enough information that seems like a funny thing to find wrong for discretion when i disagree that magic words are fired that's first the district for the record has to establish that it meaningfully exercised at sentencing authority under section thirty five fifty three and that the corn explained finding this court of course as applied to that ru two things your honor first of all the judge asked the federal public defender do you want to go forward the federal public defender said we won the jack which is effectively yes let's go ahead and second thing the federal public defender helped out the judge in the sentencing decision by offering the judge harman just a mere two years ago had sentenced him to the top what the court believed to be thirty months so we know that that that was the top of the guard lines while the judgment nobody introduced the judgment into this record the judge choose had that judge for whatever reason because he was looking at he said he relied on it so what we know is that he has this judgment that the federal public defender said the top of the guidelines back then was thirty months ago judge shoes made clear in his sentencing decision that mr lopez had been serving this one year sentence for dudly conduct the facts in the record show that he was found that's how the judge harmon felt when the if you will was discovered judge harmon sentenced him to thirty months he was deported and in january and was back in may and that did not sit well at all with judge shoes and i set forth in the brief and of course it's on the record as well the chronology of this man's felony he admitted that to those things that i just said that she had been serving this thirty month sentence and he returned four months after being deported actually it was less than four months and also he agreed that he had either been deported or convicted four months later and when he gave them one when she was gave both the federal public defender and the defendant an opportunity to offer mitigating circumstances the defendant gave a rather perfunctory apology and the federal public defender more or less offered a change of heart he's thirty two years old he's changed his mind he's he's seen the the correct way is not going to come back which judge choose outright rejected because it had been a mere four months if in my brief magic words are not required that you have a skilled public defender who knows that a proof pre sentencing report is required likewise we we all we all know the rules but the public defender chose to go forward on behalf of our client now there are unhappy with the sentence and the fact of the matter is the record is replete with the with the factual discussion for why judge shoes made the decision now did he mention thirty five fifty point no it isn't the statement of reasons but if you look at what judge you said he clearly was relying on thirty five fifty three at the nature and circumstances of the offense the defendant made history and characteristics the seriousness of the offense promoting respect for the law providing punishment and deterring lorenzo from continuing to enter the country all of that satisfies rule thirty five fifty three act which of course is the first prong of role thirty two or section six a one point one but even if this court were inclined to believe that plain error occur we still have the third and fourth progs and fulfill both of them let alone either of them because he has to show there is a reasonable probability that he would have received a lower sentence this is a fairly long sentencing hearing those court has seen plenty of sentencing hearings and this one is as i think it's fair to say much longer than the average one if you will and judge choose not to be repetitive but he set forth all these facts that he thought justified this forty eight month sentence which of course was reduced to forty seven months because of the deportation time but he fully articulated the reasons and there's nothing in the record to even remotely suggest that the sentence would be lower and again i want to emphasize he did say that this sentence imposed is below the advisory guideline range and that makes no sense in light of what she said that the belief was that the high end of the range thirty and he gives forty eight so is that so inconsistent with what happened at the sentencing hearing that we are to remain on this to get some clarification of what why he checked the box below when it's clearly above any sentencing guideline anybody's posited to us those far but the boxes also check that he relied on thirty five fifty three a day and i think that has to trump the statement of reasons which really is a mean the purpose of the explanation it seems to me would be for us to gain an understanding of what the judge is thinking and it seems like that what we can infer from the oral record is for you know the judge think he has enough information because of this and the other but the information the judge has is that the top of the range is thirty months then he checks his box it says below when a given forty eight months or so does that then give us a lack of confidence in  implicit explanation the implicit finding that he has enough information when he doesn't seem to know whether he's giving the below or above guidelines since i don't believe so because again i think the timing of all of this was extremely important to the judge namely he was serving the sirloin post was serving the dudley conduct sentence he was discovered in during his confinement and then judge harmon sentenced him all of this was like an accordion it was very very tight and the only opening you have is four months between the deportation and his back and that excuse me the star of thirty men who did it but then some time but i'm saying what happened and essentially is that he's out in less than four months later he's back again and joe chooses or comments that was extremely important to him he said you know  the best of warring can can justify any and he chronicled every single one i believe every single one of his prior convictions and another point that needs to be made is judge choose pointed he had graduated in his crimes and moved on not just from immigration but now who was tampering with the government records who had done the deadly conduct and judge who said to him i hate to do this to you but your conduct is getting worse it's not there does seem to be a little bit of an issue i don't think the district judge doesn't know about the guidelines were i got but there does seem to be a little bit of an issue with overlooking important procedural requirements such as the p s r and so  way in our problem for analysis to say well you know maybe we need to remind the judge of the importance of these rules and send it back even if it results in the same sentence i think there should be some deference here to the just for court judge as there is and in other aspects of this court's jurisprudence you have to remember that these border state judges western district southern just these types of judges are inundated with these types of cases they're very skilled they see these people all of the tie the reason why the judge should be very weird the need for a p s r in it i'm in him and to know what the guideline ranges and at a minimum to know whether he's giving a below or above guideline sense i mean we have a skill your presentation with there's no question in my mind that he didn't do what he's supposed to do in terms of the explanation the question is is there enough here to say it doesn't impugn the integrity wrong three or well two points first of all you did have the federal public turn to founder saying yes let's go ahead and again the federal public defender is the one that said the thirty months was the high under the guidelines and the judge harmon courts and so she clearly believe it was clearly was from a with  suggest that the defendant intending to resume the same activities which the chronology here does suggest then the court should exercise its discretion and in fact in florida says it was used from prevent a miscarriage of justice and davis this court specifically said not every error that increases a defendant a sentence has to be correct the sentence was well within the starched very maximum force listen this is way below such tory so the government's contention is none of the four provinces can be satisfied in this particular case and unless the court has any additional questions of government or heal the remainder  motion accordance with the rule thirty two for one local three to four one often times it does result in a favorable sentence for our clients to go forward out of this or usually in straightforward cases this case is an example of one that it did not work out the way that being said the governor has made much of the fact that we have agreed to go forward but a run this court that that we can't we can't just wave and so it seems to me that unless there's something that says you can't waive it like there is about the fetus or that you can waive it you didn't appeal the lack of your story you made that very clear to me so focusing only on the explanation and to me the lack of explanation defender assisting federal public defender realizing to their shock that the judge is it considering the guidelines and that the boy to go your honor i'm sorry i thought we could perceive it now i'm realizing no one knows what the guidelines are that's one of the thirty five fifty three a sentence it is extreme that's a seventy four percent upward variance given the circumstances of this case even with all of the judge's explanations of the his quick return after serving a thirty minute sentence or fiction for deadly position that is an extra seventy four percent upward variance is extreme we also believe