say given prison in walker one in fact and in answering that question why don't you contrast the certainty that we had in our web case where the courts were mantid and said give a list and it's within this range that's pretty darn clear i it never explicitly said as it did in webb you must give him prison time there is never any reference to that at all well we we read the court it is true that the court did not  factors i understand that but there's another passage where the court speaks of time served and of course you didn't get time served on the second go around but the is it would you agree that our president requires specificity in terms of the limitation under the imposed no prison time although you added a few you know additional factors that weren't in the first sentencing you know what's the right number i know you've advocated a number in your brief and we know what the range and you know i i've been on you know two of these cases recently and you know trying to come up with the algorithm that takes us from substantively on reasonable to suffer really reasonable no easy task i mean with five with six months been enough here twelve months twenty four you know i know we're engaged in speculation but you've lived with this case and what would the government's position to deal with the minimum time before he got two years on home detention and i would note that the guidelines treat home detention as a substitute for in prison so it is not a small matter that he got two years of condescension  and speak to the question of you the language you use like exception riddle well isn't that aren't the standard conditions may not be able to go out partying on a friday night but he's still allowed to do the things that most of us do in our regular life he's got to worry under conditions of home detention well our submission is still that that is not the same remorse but his criminal history i believe he had seven convictions for bank robbery has admitted to more than a dozen he had controlled substance offenses his criminal history it's certainly as  sentence and so certainly walker was knocked out for thirty three days time sir but what if this went back and the district court said all right thirty days report for incarceration for thirty days to be followed by two years of home confinement would you be right back here because that is such a huge variance from what the guideline recommends well abuse of discretion i mean we deal without all of the time we were just dealing with that in the first case so you know that that's what appellate judges do right and you know coming back to judge bill's question and barnes  judge bacharach wrote what i think is a quite powerful dissent in that case and tries to lay out a path for its evaluating these cases and you can see from the dialogue there's a bit of back and forth about whether this is art or science and you know the government's put forth some percentage percentage comparison for a variance is one way to look at it i suppose you can look at cases from around the country and compare those which is what point nine percent reduction so you know that probably requires a pretty robust explanation for our districts are sensing judge and he tried to do it here i mean sixty pages it was he wasn't you know blown up blown off arena and i don't was there a couple day hearing with this and you know besides through more studies that i knew existed on sensing that you know where did it where did he go off the tracks in those sixty pages you know didn't look deterrent you know peace and you know you know is that the government's position might be you know no prison time is never you know that that  undervalues general the terms so significantly that it you know it sounds wrong message to the to the world and you know we flounced the conclusions of the sentencing commission that it's just too low but y basically the parties to create everything whether it be a statutory factor walker one of the precedents it asks for the most up to date information about mr walker and in response mr walker filed a brief addressing the by seventy three which the government does this is basically a do over for everybody only after reading the court's tentative decision and they and the court gave everyone sometimes it's just a sixty one page memorandum decision that it technically adopted and then gave us all time to go back and  consider objections and things that might have that we might have still to make and only then after reading the decision does the government come back and say i think the temps are bit was communicating the need to impose a pr knew what he was doing and generated a record to justify the lack of prison time that you know we had three respected colleagues that thought prison time was necessary in this case and you know it's back up with none and you know that gives me pause because a you know what's what's the difference now then is if the hearing is of the longer opinion what what's what's the hook for us the difference is mr walker himself when we attended a very lengthy and intensive residential treatment program that basically just changed the way he thinks and hanging over that of course was the prospect of a long term of incarceration so he had to me do well yesterday i had a bank pays bank robbery case involving the same district judge who imposed a term of imprisonment and i look at the thirty five fifty three  treatment and so forth when so many other defendants may very well with that kind of prison time hanging over their heads has done just as well as mr walker and yet they're in federal prisons right now why should i not be concerned about an unwarranted sentencing disparities between mr walker and any number of other people who would do just as well as mr walker but never got the chance and the court did take a chance on him and gave him pretrial release based mostly on the fact that he had been successful in a prior term of supervised release in other words he had hit proven himself to be a manageable risk in the community and so the magistrate judge see that mr mr walker's case on the margins that way i mean like as if to meant to get to your second question about fairies you know the disparity language in thirty five fifty three is borne of this notion that people across the country who've done similar things to take advantage of it he used to completely transform of life and he didn't do that and in this appear and provide rhetoric and and argument in support of that position he brought in his judging with respect to the mandate i just want to make sure our position on that is clear we believe the mandate is found at the end of the opinion where it says that mr walker received basically an unreasonably short is a significant record on each of those points with respect to offense and offender characteristics the district court was careful to point out that the nature and circumstances of mr walker's offense continues to favor incarceration evill bank robberies a serious crime as such philip has pointed out most bank robbers go to prison at the same time there's there's i cannot accept the government's position that the offender characteristics mr walker's characteristics were static over time that when he came back for sentencing a year plus later that those were exactly in the exact same position as he was before and the fact is we know from testimony from the witnesses that ted you know that were present they can testify to the remarkable transformation that mr walker had made the way that he was dealing with problems in the past had that fundamentally changed  they were prior there was discussions about things that had triggered his criminality in the past and how he had changed the way he deals with those things as a direct result of the program that he had participated in that's significant and as pepper demonstrates those kinds of changes and in this case there's the stain changes over a significant period of time they inform the courts analysis of other factors they have to i mean when you're talking about if you're talking about a run of the mill bank robber like mr friedman who doesn't have any real compelling circumstances a sentence like mr walker's would make no sense but for someone like mr walker it makes perfect sense with respect to just punishment again the court is very conscious of this and in knowing that most bank robbers including the ones that heat sentences commonly are going to prison but unlike mr friedman who was only able to show any really distinguishing characteristics about itself that mitigated his crimes mr walker has diminished culpability like slightly so if you know it's not that he was given free rein to commit crimes because he's a drug addict but the court a future car payment yet a lot of bank robberies i mean he was a career felon and he had been in and out of prison and you know he basically district you know always a proven disregarding lawyer you know yes he had addiction problems and you know they all do right and you know for me this really boils down to my interpretation of walker won and the general deterren by significant prison sentences and those that really aren't and i think the purpose of thirty five fifty three eight is to instruct judges that listen you need to look at the defense defender and and you need to look at what type of sentence and this affirm here i don't have to agree with every finding of the district court and i don't have to agree with its rationale for why deterrence doesn't work right it's just such be reasonable yes exactly and i think there's a flip side to the general deterrence question that may be missed and walker is that that you're not affirming the sense of will send a message as well and mr walker put himself out there he really tried hard to change the way he lives and he sold his car he separated himself from his family for over a year he experienced having a family both work together to kind of get through this process and we sent him back to the district court to be sentenced to prison and it tells other people that you know don't bother you know there's not there's a point at which your past is going to it's is nothing you can do right now to change it pass i think mr walker demonstrates that that's just not the case as if there aren't that redemption is possible