same as what we had in workers and so i'll start off by reading what the sentence was if it please the court from the transcript which is a page one of eleven of the excerpts of record beginning one hundred eighty eight to two hundred thirty five months based on the off chance level of thirty six and then he goes on to talk about done with departures and someone now it is that part of the sentence that i take issue with and because it's deceptively simple i think it's a good idea to take a look at go back to the basics and see what booker actually says  other than a prior conviction which is necessary to support a sentence exceeding the maximum of the rise by the fact guidelines as advisory and section three thirty three fifty five three eight factors and that's a big difference from booker you haven't really you haven't fully digested justice briar's opinion oh i don't doubt that let me let me are the guidelines guidelines the other one that was what i'm talking about here and this i think will answer everyone's question i hope will now the words is everything out the window the answer to that is no it isn't verdict now the jury verdict in this case for that more than fifty grams of methamphetamine were involved in the say a maximum statutory sentence of life right that's correct  under the statute under the facts however in other words if we just take fifty grams as of fact which has been proven beyond a reasonable doubt by virtue of the jury's  i suggest not well under booker i think if we don't consider it as advisory then the whole sentencing guidelines are unconstitutional and that's the whole point of booker i mean everybody wanted the thing changed and then people modern into a situation where i think most defendants could find themselves  worse off than they were before right because these become advisory but what happened here on leaving booker aside for the time being what happened is the judge said all right i find  that in fact instead of the fifty grounds which the jury there were eight hundred eighty two point seven grams which is i'm not disputing that finding you know that that's what the evidence was at trial one hundred eighty two grams which is necessary to support an increased sentence and here we're talking about a difference between a level thirty two and a level thirty six that fact must be proven beyond a reasonable doubt now that fact was not proven in this case it was adopted by the judge and now the government says that what i'm saying here is the judge can't do that i'm not saying that at all the judge can and should determine is the way i understand it extra judicial fact finding in the sentencing count context doesn't offend the constitution anymore after booker's so long as the sentence doesn't exceed the statutory max sentenced to life plus one hundred years or something that would have violated a pretty have you read the kill the decision and how do you reconcile your argument with what kilby says the judicial fact finding simply isn't all that exciting anymore so long as you stay within the  maximum ok that's a problem that we have here because what the judge did if he said i find that there are mitigating circumstances here and so therefore i'm going to sentence within a range of a level thirty that's what he did now what i'm saying is that he should have started with a level thirty two and then applied the mitigating circumstances you see what i'm saying i see what you're saying i was the district  sentencing guidelines and so i have gone through the sentencing process where i look at the statutory range and i look at what you're curious i decided and then i could make decisions within that range depending upon what the jury had decided and further thanks which i found in the process of sentencing and i think in many instances that's what we have come back to except there's more emphasis now on section three fifty five and that what we have here is not a question of could there be or could there not be judicial fact finding but was there a six amendment violation and i suggest that there was by virtue of the judge himself precisely are the instructions that you wish us to convey to the sentencing judge that he has to start with level thirty two and then determine in his wisdom what if any downward departure as there would be no i think i've used my got a sense of hundred thirty five months i believe it was yes it could be very favorable to him because the judge was inclined to give him the benefit of the dark as far as his health problems were concerned his lack of criminal record and his age but the judge started off with an impermissible sentence he should not have started with a guideline of thirty six although obviously this is something where reasonable minds may differ but i do wish to stress appears to be already for eight different statutory max based on a guideline sentence of thirty to level thirty two hundred twenty one two hundred fifty five months i guess my question would be what creates what makes that a maximum and nothing two hundred fifty five months to one hundred thirty five months within the guideline range even under defendant's argument even under assuming or you endo that the at least fifty grams was all that he could