it was the court on behalf united states i asked the court to reverse remand to the district court the sentence which includes in the government's view two legal provisions first a three level downward departure based upon  the government made an objection dealing with the fact that i actually don't see this drug or alcohol abuse constitutes an extraordinary situation here then the government made a further further objection based upon circumstance and we specifically dealt with it there we specifically talked about how this when you're talking about the fact the lifestyle the fact that drug and alcohol abuse somehow meets the final problem that this represents a mark significant planning this required a flight to just do it required running a car required driving to the border or getting the drugs with an intention of bringing them back there was certainly significant planning it was  there might be a question about it well i think those are the only two cases where this is ever happening again and this is clearly not something that's reflected in a lot of appellate decisions i don't believe that many courts have decided to take money the that the government was entitled to for purposes of for the record my name is tony gallagher i represent peter bernard very junior arizona he came from arizona to missoula rented a vehicle and went up to the react valley and he admitted to district court that he picked up approximately seventy five pounds of marijuana what makes this case case extraordinary what makes this case unique what makes this case outside the heartland is the fact that peter bernard carey and as judge wardlaw has already pointed out this is a very experienced united states district judge chief judge of the district of montana found at their worst ordinary circumstances although that word does not appear in his judgment nor does appear in his with mr vander weathering or with me during the course of the sentencing in this proceeding but as this court is well aware certainly the court can look at the record to see that in the p s r and in the sentencing memorandum and letters that were submitted to judge the lawyer there is more than sufficient information to indicate that this is an extraordinary case and i would direct the court not only to the facts in the record but also a case cited by united and application no two to five k two point two zero in determining if the case is extraordinary those five factors are ours are the five factors that are evidence are replete in those letters that were submitted by mr kerry is the time i checked those five factors talk about his prior employment they talk about his prior good works they talk about how this particular and i find it somewhat constrained here to mention for the court something that's outside the record but i think it's obvious from the record that it's peter's doing great i mean he's not been revoked he's not back in jail he's finished his home detention he's halfway through is purely a probation there was no proper objection and then mr newton i mean mr mercer cited to the court objections by mr banta weathering at one point that page one hundred eighteen of the excerpts of record i'd like to point out to the court that mr vander weathering was speaking to my request for an additional departure ground under five hundred one point three for mental and emotional conditions in his addiction and peter's addiction it was an objection to the a it was not at that point it was the objections of the request for departure in the five e and constant objections and demanded a ruling on a roll thirty two which never happened here the government did not highly objection to the pre sentence report writers draft report the government did not file an objection to my sentencing that there was going to be an objection to the arguments that i was making  any objection to that if this court finds that they did not waive their objection to the disbursement of the fine i'd like the court also look at the authority of this court to consider the sentence at all consider this argument the thirty seven forty two the government is not arguing how the sentence was imposed the five thousand dollars fine is certainly within the guidelines range five thousand dollars fine is not affect is within the guidelines range disbursed is not within thirty seven forty two they're saying and guilty will sentence in the sense in guidelines if it's illegal because of the way it was dispersed the government's argument is not with mr kerry mr kerry for the purpose of drug education programs in the high school system in missoula county that's what it's there like wasting gas that the court ordered that it be sent to a shelter there was a charitable reason now that's the dispersemen it was made after the us court of i believe it was made of the united states of america but be that as the name was paid to the clerk of the court and whether those funds have been dispersed frankly judges i have not looked into i don't  it may be true that they freeze them in the gas the case and the court asked that we consider the particular fine argument that mr donahoe and i get together to enhance the argument with regard to the fine dispersement we have done that  cites if i could i think page forty paragraph forty three the p s r says that the defendant moved to missoula montana in two thousand there is paragraph sixty one references to it dollar rental car rental in missoula there is referenced to the fact that he had acquired a driver's license from arizona at least seventy two the extra to record and if there is a discussion as part of argument that motion hearing one of each one of the six about where he was from there is nothing in the transcript that deals with the pl