mr combiner yes jeff good market i get your name right yes and for the apple e we have ms could let yes your honor ok thank you very much and we  have somebody you have a total of five minutes but you've reserved one minute for rebuttal so why don't you go ahead thank you to your iris may please a court there is a reasonable possibility that judge rake  when the sentencing began judge a great knowledge that he would ordinarily be d very sympathetic to that consideration but then said he wasn't going to extend any particular he didn't feel that he could be in this case because he had resumed participation in the drug trade after his return and resume participation that's a quote from  we i thought we had prevailed because judge rake said that ordinarily this would he said this would be a very major consideration in the sentencing but then he said that you know i'm not going to it into consideration because these as i think you know correctly pointed out that this was just an allegation in that they may have been dismissed but then unfortunately because while it constituted what they claimed was probable cause that mr brereton committed the crime and then they made some reference to  that the report good reception or reject it but the only thing the court ever said after that after telling the government that no no the presumption of innocence really says i shouldn't look at it the only thing that a court says when explaining it judgment was to talk about the bail jumping which you agree right i mean he was convicted of jumping right right even once or now we have to imagine that the court was thinking something that it didn't say well i have to clarify something for the court here if that's not the only think jets read after the government made its argument the court responded with this somewhat rhetorical question so you're saying even if he wasn't guilty of many of the very thing that he was associating with people who are in the drug trade i suggested then he had not learned his lesson right and so if i characterize your question right now and i  hope it does but i mean i'm not saying it's a certainty it does but the wages rate said that in a we have to look at the bottom line here at the end of the day he only granted perera a six month variance from the bottom of the guidelines now the crime of bail jumping is easily explainable in the real it only inference from that is that mr didn't come back to court because he was terrified of being deported anything new and that was what was going to happen to was why is that the only inference well i think it's by far the most compelling because he wasn't the underlying charges so what is the evidence that he wasn't guilty i mean maybe he was guilty maybe not that's another death but why would we assume that to be true why would we assume that the government dropped the charges because they had no evidence but he knew he was guilty and didn't want to get sympathetic to the circumstances that led mr brereton to return to illegally returned to the united states effectively ended up giving him only a minimal var get at what ricardo really meant is that it well it's it's a same thing as in united states versus where there was also a case and that's a principle case we're relying on where it was also unclear in the oral argument today i think there were a number of occasions where i talked to lawyers and both sides and i said something like well let me just make sure i understand your position just so i make sure you're arguing x i can tell you right now that that doesn't necessarily mean i agree with x that's just a very common approach from the bench to say i really want to make sure i understand the point you're making counsel and i don't want to be you know writing an opinion based on some argument that in fact you're not mak i hardly think that having a judge clarify his understanding of a party's position in any way suggests that the judge has somehow secretly adopted that position particularly when he's already said he won't and then when he later gives an explanation for his ruling which makes no mention of that it seems a bit of a stretch well and he actually don't think it's easy you have to couple it with what he just an outside possibility but a reasonable possibility if he did in some way consider the circumstance the effect oh this is a rest as a reason for salvador but his government consul points out this defendant keeps violating the law every single time you not only comes back illegally he jumps bail there seems to be no word of the court that he pays sufficient attention to so i don't think  have been as to what he was thinking well judge i think what's unclear is that given his initial inclination to consider this arrest given know you only got so much cost to make the suit of clothes right you know what the what you got i am doing but here i think there is actually d a substantial possibility that judge rageh despite all his attributes the record in the moment or to modify the sentence if necessary for any perceived error by not doing that it denied the district court the opportunity to make that course correction if necessary which is the purpose of that very thing they objected after the statement of reasons after hearing the clearly erroneous fact articulated by the court in haste misassumptions about the number of times a defendant had committed  case turns on it but take a sentencing where order no defense counsel says your honor please don't count this one prior conviction towards my criminal  preserve the objection that counsel has to repeat that again after imposition of sentence that it's not sufficient to have told the judge before imposition of sentence please don't do this thing that as a sentencing factor you know what it is let's ok let's say that the court didn't hear is the defense counsel says your honor please please don't use this for my criminal history and the court says all right thanks very much counsel they go on they talk for an hour and then at the end they impose a sentence based on this conviction that was objected to so there's no colloquy and once again the answer would be no because bear in the statement of reasons it's relying cite that the record is absolutely clear that the court was not reliant on this impermissibly but if there was any question on clarity about whether or not john shrink had not adopted defense counsel's position and if there was any one clarity at that point in time which they are you today it should have been objected to at the proceeding itself only to seems like your trade is strictly that it's more distinction between if you were raising as defense a challenge to fact that judge breakoff didn't say anything in a statement of reasons lends considerable support to the government's argument that on the merits there was no three thousand five hundred and fifty three dollars error but it seems like to the extent they're raising what i think is  fifty three claim it just means that it is very likely to lose your honor i understand the distinction however we think for clarity of the record and should provide such recall with the opportunity to correct it in the moment and objection would have been necessary but i want to fifteen arrest in any way let alone an impermissible fashion your honor if there are no further questions with respect to this matter we would simply rest on the submission and other than repeating the government's argument judge race did address that their arguments and when he imposed sentence he said that they had he was in the transcript i think there is a suggestion then he is adopting the government's argument that he keeps violating the law in not just by jumping bail and just so i again so i understand your that necessarily agree with it coming back to what i was just saying to the government my understanding of your argument today and in the brief is that you're challenging the district courts what you claim is his yaks and that's yes that is correct word and that is what we objected to d when i think that's all we needed to do to preserve the record i don't think i needed to say it again after right it's very hard for me to objectionable you don't have to agree with that i'll just remain agnostic on that point that all right thank you very much to both of those very well argued very helpful to the court so thank you thank you