guidelines commentary which applies to this kind of departure and fixated instead on the mere extent of the past convictions that is focused on their quantity not their quality in the process the district court committed several legal errors which themselves constitute an abuse of discretion also the district court relied on legally inadequate sources under shepherd vs the united states this is the district court misapplied the guidelines under cantrell there w under for a one point three is very clear but there are two two factors that have to be considered in order to justify a departure for under represented criminal history seriousness and likelihood of recidivism the district court didn't discuss either one of those and when you actually compare the facts of this case that was before the court on the record it's very clear that neither one of those factors is supported here which supported part of the cases in the commentary the departure only uncounted prior convictions to be considered otherwise you would be engaging in permissible double counting so he has twenty two convictions according to the p s r but only nine of those uncounted and those are the only ones which the judge could legally consider well some people don't have any so how many do we have to have before and how much to have to talk about recidivism when you have it over a period of time and a lot of times well think because you know i you know i can say the flip side of that if someone has no priors of course that's that's we totally emphasize this is a person your honor that this is the first time that they've ever been before the court and on the other side of it this is a person that's their whole life they've hardly gone more than two months without getting a conviction so that's true and that's why it's not it seems like it's not the number that matters and in fact i can't give you a specific number we can compare to this for a period of time has to matter  same features i think there are several reasons why i remain and it would not necessarily lead to the same sentence there are some very specific reasons for once if the departure was error and therefore the guideline sentence would be different on the second time around judge constant is required by thirty five fifty three any to consider that new lower guidance and so that's one factor which might lead to a lower overall sims it's now clear that it's unanimous not only the defense and the prosecution but also probation now agrees that thirty three months was the appropriate sentence of probation didn't agree to thirty three only because because of their internal policy they didn't factor in the fast track to definition isn't up to the ju legal but i do apologise to the court i did mean to imply that judge johnson would just was not doing his job in that regard i believe that there is a problem with him not applying the specific factors that would apply to this sort of departure so but you're saying that the judge didn't specify those being serious and therefore doesn't count that's correct judge fisher the whole problem is that the the judge referred to these in bulk at the generic  just simply said i've never seen so many convictions without actually talking about each one individually and talking about whether or not those were serious in the sense that we're taking in some of the other cases like r inform the defendant of its intention to adjust upward at the sentencing hearing if you look at the facts this case this is a fast track board a bus case to take the defendant's recommendation sensing recommendation i think demonstrates the fact that the defendant was on notice that this was an individual who would be a candidate for an up or departure on the basis of his criminal history because unlike most cases this defendant didn't move from a downward departures now that doesn't alleviate the court's providing those to the things that the defendant but and no time during the hearing did the defendant's attorney say you're out of this is this is an unfair surprise to us to the defendant didn't have any indication that the court would and that is in the in the government's brief we indicated that the appropriate standard for review would be plain err on the issue of whether judge thompson appropriately departed upward the government  just just a couple of final points then your eyes if you don't have any questions and that is that even if the judge thompson did not apply the cross standards that is not the government's position here today the seriousness of the of the offenses or in particular the defendant's indicated track record of being a recidivist would have provided adequate and adequate basis for judge thompson to depart upward but even if just thompson did not apply that standard correctly it's clear in this case the judge thompson in light of thirty five fifty three factors would have given this defendant the same sentence and he said as much when he in responding to one of the objections to the defendant's prior criminal convictions judge thompson said that that wouldn't make a difference i think mr green for pointing out the fact that we did talk about this before the government was not going to contest that there was an objection raised and that was the only context in which thirty two each issue was raised in the reply brief simply to show that counsel was caught burns versus united states was talking about they're talking about giving counsel the adequate opportunity to meet a sentencing departure and i would claim even after post booker that as evans martinez kinds that indicates that you can post  there's still a very very beneficial effect of this for the sake of making sure that all sentencing issues are fairly met on an adversarial basis by all the parties that the good sort of cases actually well not only for departures but i would say also for variances from the guidelines that that and i realize that might be an extension of that but i think the same reasoning would apply this for the fall of fairy airing of sentencing issues it only makes sense that the court specifically indicate that and give all parties an opportunity to address that as for the shepard issue i would say that the case law especially more recent case law in the case of shepherd applies more broadly to the finding factual findings of predicate priors use sentencing and contrary to mr green's suggestion that this court can go on and do a reasonable list analysis i think i would hold that indicate they can travel specific you can travel and kil specifically state that that is not the case that this court if there is material air for the first stage in calculating the guidelines that's where this court stops and remand no reason was for review takes place at that point ok