errors which i'd like to focus on to this morning if i may first the district court failed to adequately explain the specific reasons why it imposed a sentence outside the guidelines on the nine twenty four count which renders morgan sentence procedurally unreasonable second work in sentence is also substantively unreasonable because the district court imposed at thirty six month variance the nine twenty four seek out where the ten year mandatory sentence already accounts for the harms affected by morgan's discharge of the weapon and each of these errors requires three man for the sentence to go latter when you said it's already accounted for is that the argument that the mandatory minimum is in fact the maximum as well but it isn't ten to life it's just that it's a separate argument this is  five fifty three c two requires that the court explain the reason that selected that saddens with specificity both in open court and in a written statement of reasons for it and everyone agrees that the district court made an error in it with the district court's explanation of the stand and were arresting goal isolated clerical error that only he had checked the wrong box and otherwise it were perfectly clear what the district court's reasoning is i think that would likely fall in the category of a harmless clerical error where remand wouldn't be necessary but that's not the situation we have here and here in the written statement of reasons for in a separate section i section three of the for the core incorrectly identified the guidelines founded on the nine twenty four speak out as one hundred twenty months to life when everyone agreed in the in the district court that the guideline sentence for the nine twenty four c count  the excess of the statutory time near term quote wouldn't necessarily be a variance because there's not a guideline range for that count and the statute provides not less than ten or more than life and the court elsewhere described a ten year as the bottom of the range for the night before count so if we had one place where the district court misspoke or made a single isolated clerical error we could perhaps be confident that we understood that the hearing that the court was maybe a bit confused about what the guidelines sentence was at the outset and after hearing argument from counsel had it straight and imposed a sentence that was an upward variance but then  errors in the written statement of reasons if otherwise this sentencing hearing and other materials it is clear what the district court intended to do this court has essentially treated that is a harmless error under i think it just define a sentence outside the guidelines in six d but instead he gave reasons under eight as facts justifying the sentence correctly or that if those things had been in sixty instead of eight then you wouldn't even have that portion of the argument right i think there is a lot of confusion based on the court's average statement of reasons pharm both about whether he necessarily understood what the guidelines and it's here and also  on what grounds even assuming he understood that this was a sentence outside the guidelines on what grounds and sentence in access to the guidelines would be appropriate on the nine twenty four x you found that there was an intent to kill that you'd fired shots he had level not into the ceiling or into the floor he credited as a factual matter the testimony that he knew these were the police and  addition to the other smoking crack with minors and so forth and he talks about all of those things and he varies upward by three years out of town so it's like a thirty percent variance so how does that go intent to kill when he discharged the weapon but then the court said even absent that specific intent finding i would have imposed exactly the same outward variance and outside of the intent of finding points to no specific facts that would distinguish morgan's conduct from the typical case and and i think the only logical way to interpret that statement is to conclude that the finding of specific intent didn't affect the sentence number one i'm not sure the second one undercuts the first but the this situation even if you didn't specifically intend to kill was extremely dangerous was more dangerous than the usual discharge not sure that if fair representation as a district courts explanation here the court said in making the alternate finding that he would have imposed the same sentence regardless even taking the defendant at his best day and crediting the argument that he was simply firing warning shots he would have imposed the same sentence which i think necessarily undercuts some of the other facts that the court had used to describe the conduct here for example th are in such a reckless manner that they could indeed could easily have struck them one that would be just as much evidence of recklessness as  is another characterization would i i think certainly nobody disputes that the defense behavior in this case was extremely reckless and i don't think anyone has ever represented anything other defendant's conduct is going to be at least reckless the reason there is such a substantial ten year sentence under nine twenty four c is precisely because there's a substantial risk when somebody discharges a weapon during the commission of a violent crime that there certainly are meaningful distinctions to be made across cases within the realm of nine hundred foresee but is this court recognized in the united states versus stewart the vast majority of defendants sentenced under nine twenty four are going to be sentenced to the statutory sentence be it five seven or ten years depending on the conduct at issue in a separate subsection and i don't think it's a reasonable interpretation to say about the vast majority of defendants sentence under nine twenty four s imply firing into the air and representing no danger to others in the close vicinity to and the cases in which courts have imposed and the courts of appeal have approved sentences in access of the  minimum twenty four c have involved especially severe conduct and typically somebody has been injured in those cases i think united states versus stewart which the government itself cites on the point of substantive reasonable mist as a good example of variance in that circumstance based on the severity of the conduct its impact on the victim the fact that the chip and locked remorse for his actions and i think stewart is plainly outside the heartland contemplated by nine twenty  four but this case by contrast is fits within the heartland carved out by that ten year sentence which is already a significant sentenced to impose in addition to the only eighteen month sentence on the underlying intent is justified which i think we presented our argument on that front in the brief and i won't elaborate further on that if we take the circumstances as a whole and even setting aside that circumstance as we cited in our brief there are numerous instances where defendants have been sentenced under nine twenty four c for discharge offenses that involved the police shooting directly at police where they could see them and would none the less sentenced to the ten year statutory term good morning your honour's and i please the court paul mccaffrey on behalf of the united states the district court's sentence in this case was both procedurally and substantively reasonable the court made clear findings of fact that mr morgan intended to kill the police officers who were entering his apartment those findings were based on testimony presented by the officers as well as mr morgan mr morgan's wife and the only finding that is disputed here is whether he had the intent to kill as opposed to just recklessly firing a warning shot they do not dispute the finding of fact that he knew they were police officers and i think when you take those two facts together  common sense tells you that most people do not fire warning shots at police they don't try to scare away the police by firing at them that had that level and so the district court's finding that he intended to kill these officers was not clearly erroneous but once you have that in place i think that the district court's sentence is substantively reasonable the i mean again the standard of review just a step back on substantive reasonable  is abuse of discretion not could the court have imposed a different sentence but was he required to impose a different sentence than what he did and where you have findings that the defendant fired a weapon at head level police officers who were entering his apartment building there is a sufficient basis to vary op word from the mandatory minimum of ten years here this was not as your honor pointed out a shot in the air or a shot in the ground it was two shots at head level at the police officers who were entering his apartment and on that basis the sentence we would submit is substantively reasonable and the court as the transcript reflects considered all of the thirty five fifty three a factors he specifically considered the need to avoid discrepancies between similarly situated offenders and and did so by pointing out the egregious nature of this conduct  what about the various errors in the paperwork here and especially the one that says that the guidelines range is one twenty to life that is the statutory ranges one twenty and up but i thought the law was pretty clear that one twenty was the guideline range and you have to vary or depart in order to go above it that's right the guideline range is clearly the one twenty months and there's clearly an error in the statement of reasons in that it says that the range is just a statement of reasons i'm looking at part three where the the guideline court court determination advisory guideline range before departures and it says imprisonment range one hundred twenty to life which would at least lead to a potential inference that the judge thought he was still within the guideline range by adding on the three  years and i think that inference potential is a potential inference but i think it's rebutted by the sentencing transcript which reflects a clear understanding by the court that he was varying up words in adding the thirty six months to the statutory minimum of one hundred twenty months and we don't question that there was a clerical error in the statement of reasons there's the government get to see this form that has the various problems on it where it could try to see that it's corrected or does the government not see it until like later if there is an appeal i'd actually dial of the answer to that i think that's something you guys might want to think about though for the future if i would know that there is a there are written findings an explanation of the sentence in part eight of a statement should have gone in part six because that is the it is a variance from the guideline range right because six six is where it says explain the facts just sentence outside the guidelines you know i mean clearly the district court sides but do you know the practice in your district is the probation office filtered out or does  pointed out in the brief we're not aware of any case where the sentence was vacated every man district would because of errors in the written statement of reasons where the judges explained to sense in the transcript as he did here where he has provided an explanation how be it in the wrong place in the written statement that is a sufficient basis to satisfy the procedural reasonableness prong of the of the sentence the court required to impose a different sentence and did he explain the thirty five fifty evaluate the thirty five fifty three a factors based on that evaluation was he required to impose a different sentence and and he was not here he considered each of the factors he specifically consider the factor that they object to which is the need to avoid discrepancies in the sentences of similarly situated offenders and he found that this defendant mr morgan was not the same as the defendant who fires a shot into the air a true warning shot the facts were that he fired the shots at the officers and that that that was a basis to vary upwards from under this court's booker sentencing protocol and between the erroneous statements made at the resentencing hearing and the numerous mistakes in the written statement of reasons for him i think we have the best and in the us record as to whether the court accurately calculated the guidelines as a starting point and of course failure to do so would itself be a basis for finding the sentence procedurally unreasonable in addition there are not just a statement of reasons here and i think the case is that the government sites on this point for example united states versus pointer and which this court said even though there are some shortcomings in the written statement of reasons it's otherwise perfectly clear what the district court was doing here at the sentencing hearing the court clearly articulated the reasons for the sentence and we're satisfied that we understand what the court was thinking it's not what we have here where as explained there are multiple ambiguity i hearing better coupled with the shortcomings of the written statement of reasons and as this court explained in united states versus blacky the requirements of thirty five fifty three c two are independently significant to the sentencing process such that a failure to adequately explain the sentence is in error in fact in blackey this court found it was plain error even if the sentence would otherwise be potentially substantively reasonable based on  involved in the case of this court wanted to dig into the record and attempt to come up with a justification of its own for the sentence that's not what thirty five fifty three see to ask that asked the district court to provide the specific reasons why that court imposed the sentence that it did and here primary justification that the government's and the courts finding that mr morgan had the intent to kill the district her all that nullified from its explanation by but i would say that the reason is that to get the district court appointed to you outside of the finding do nothing to distinguish morgan's conduct from a typical case i think is this court has held an upward variance is not justified unless the court can point to some factor that distinguishes the case from a typical case under nine twenty four and again as this court has recognized the vast majority of defendants sentence under nine twenty four c will receive that ten year guidelines and