the plain language of rule thirty two h by failing to provide specific notice as to the grounds the court was contemplating for it to increase sentence and second that the district court erred by failing to state reasons for the degree of the departure with respect to our first issue the plain language of rule thirty two h entitled mr joseph to specific notice as to the grounds that the district court was considering for an increase and since in his and the district court also had a discussion of the justice drug and alcohol or drug issues and whether the five hundred hour drug and alcohol treatment program in the prison would be appropriate but that that would require a and we have here this is a departure under criminal history from credit already for to category six and rule thirty two it's it's important because neither the p s r nor the government requested any sort of increase not guideline sentence in this case so that we have that rule because when a district court is going to do something that's on its own we need to have specific noted as to the ground on which the court is contemplating a departure case and i included i was counsel below and i did include a footnote that basically expressed some of her fusion as to what the district court was considering in terms of you know support for an increased sense well i did briefly address criminal history issues i certainly would have filed a more targeted sentencing memo had the district court specifically stated that it was considering an increase in tents under under representation of criminal history grounds the only indication we were getting at that given at the first sentencing was a variance as stop and conduct and perhaps an impermissible ground for an increase would have been to hold him in prison longer so he could receive drug and alcohol treatment and so those were the stated reasons on the record when we appeared for sentencing the district court started discussing the charge of this criminal history we did not and i'll move into the issue later but just with respect to the possible of the two possible basis the under represented criminal history and you basically say so i'm not sure you didn't suggest in the sentencing memo that if you knew for sure you would have said more i don't see that in the sentencing memo it seems to me that you anticipated very clearly that it would be based on the under represented criminal history and your honor simply because we and could some argument with respect to that i still think that that doesn't cure the issue because what the  district court's notice and what else would you you don't indicate as far as i can see what else she would have said either here in your memo or in at the hearing you also spoke quite extensively about the criminal history what else was there that you would what would you have done had the district court given you that specific notice that you are asking for if but if we knew that the district court was considering the multiple pope narry sentences that mr joseph received in two thousand and three and two thousand and four one of which was a robbery that included mr joseph having a night we would have attempted to get additional records on that case and also possibly call the clerk in that case we did make an argument at the final sentencing hearing that that night was not used as a weapon it was used as a tool to open the cash register i think that was important and so we certainly would have gathered more records and had more witness the tried to get a witness to come to the hearing with respect to our second issue regarding the lack of explanation for the degree of the departure of the district court erred by failing to articulate any reason to explain the jump from category four to category six and then the high end sentence in category six without any explanation with respect to degree the court orders deprived of the opportunity to review that degree of the departure to determine whether it was appropriate given the facts of this case the government relies heavily on us to be robertson in their filings in this matter are cases distinguishable in robertson basically the only justification for the increase in that case with pursuant to forty one point three eight to either defendant and robertson had significant similar conduct for cases that did not receive points that was really the only ground and so this court went through an analysis and said that even though the first three prongs of the planar standard were satisfied there was no relief to be had for mr robertson in that case because there was sufficient basis in the record for this court to uphold the district court ultimately sentence in our case we have a very convoluted record at the second sentencing we have the issue of notice with respect to a variance for office conduct and possibly to hold him longer for treatment but then at the final sentencing the court went on to discussed discuss mr josephs criminal history that did not receive points in addition to an charge conduct and pending cases and then the district court also discussed at the transcript of the second hearing on page twenty one on previous arrests and oftens conduct factors on page twenty of that seems transcript so the explanation that the court gave includes specific office conduct in this case thirty five fifty three a doctored non similar adult convictions that did not receive points and pending matters one of which was dismissed  at the time of sentencing so big because those are the reasons given for an increase that satisfies one issue that the district court needed to cover but we have nothing in the record to explain the degree the district court simply gave a throw away line this looks more like a six than a four did you object to the district court say or to to discuss the degree or the extent and did you argue from playing there in your brief on the point honor we did not object specifically to the lack of explanation with a degree for increase the government argues that we should be subject to a plain error review i think the general objection at the end of sentencing i would argue that we did preserve the issue because the final sentence was the degree of the departure i mean that it was an increase from four to six the final sentence was based on that decision by the district court to depart as to criminal history but even if this court follows the pla standard i do believe that we are still able to to satisfy your honor although you didn't argue for that correct the reason that this court returned the law requires some sort of explanation as to the degree of the departure is because to ensure fairness integrity and the public reputation of proceedings this court and the public need to be able to look at a sentencing transcript and see why the district court ch chose an ultimate sentence so we certainly have reasons here for why the court wanted to give an increase but we don't have reasons for the amount of the increase this would probably not be an acceptable argument in a case where someone was given just so one level increase and while this court doesn't require a mathematically precise explanation of the degree the fact is we have a degree here of going from four to six without any explanation as to why five category five would have been sufficient and we  securely articulated it certainly could have your honor and if the court had provided that explanation than then we could have that object and i think that's the other reason for basically for this this issue on appeal is that if it's the court gives an explanation and counsel below here's something that does not line up with the p s r or the facts of the case that the court cited then you know you're basically triggered to make the objection they're being given a reason and it's it's almost like hiding the ball and not on purpose of course but when you just pronounce a sentence and there's no explanation counsel below is unable to understand why the court went  to that specific sentence and this court is unable to give us a meaningful review and in this you look at mr joe says prior convictions in the p s are some of the on charge conduct and the fact that one of the cases one of the pending charges w dismissed there may be permissible or impermissible grounds to support the degree of the departure in this case and so it's important to know why the district court chose the degree that it did in the sentencing procedure that was used to did the district court morning again how is the microphone i may it please the court page messick for the united states we have two objections in this appeal neither of which was raised below about whether the district concede that what the district court said does not meet the standards that the court has set out for the explanation require of the degree of a criminal history departure there's no dispute about that we also don't dispute that that error was plain but what this case then hinges on and that second argument is is pronk three of plain error that there is a reasonable probability that greater more particular explanation would have resulted in a lesser sentence for the defendant here and i would first point out that the defendant didn't even address this problem of plain error in the brief which under the court case law is the end of the road i will nonetheless address it here that criminal history departure was solidly supported by evidence that was in the record and the district  where reliable information indicates that the defendant criminal history substantially under represents the seriousness of the defendant's criminal history or the likelihood that the defendant will reciprocate and there is plenty of such reliable information here the court need only walk through joseph p s r to see it which i can do here but i don't have really anything to add to what i said in the breeze if you look at paragraph twenty six twenty seven twenty eight does a residential burglary aggravated assault with a deadly weapon and robbery those convictions receive no points so they were stale but there were none the less serious misconduct which under the guidelines is a proper ground for departure so those weren't stale they would have gotten two points each repeatedly in treatment is also another proper ground the district court was surprising espress record that these last two the latter two sentences were merely probationary sentences there were suspended by the new mexico courts and if they had not been suspended they would have received three points and also no longer been stale at that point so just those points that on convictions the district court press concerned about could have given enough points to bring joseph to a criminal history six there's also the conviction for armed robbery in paragraph thirty two ish the district was very troubling that conviction was uncounted because it was imposed on the same day in state court as another robbery sentence even though the two robberies were separate that the guidelines recognize that as a ground for departure  where you have a prior sentence of substantially more than one year and this was three years here imposed as a result of an independent crime committed on a different occasion so the guidelines would support recognizing some under representation for that too or also just it's to pending drug possession charges and there were also some dismissed charges one of which was an armed robbery involving a high speed flight from law enforcement which is similar adult crash in a criminal conviction of which the guidelines also recognize as a grounds for departure so there are plenty of ways the district court could have said the right things about its concerns to explain the degree of departure from a category four to six if you look at the context here the district court was obviously troubled by defendant criminal history at the hearing ended with the district court saying you know your sentence could have been a lot longer so there is no indication displayed there that the district or was interested in giving mr joseph a lower sentence whatsoever there's no reason to think that a longer explanation for the dri degree of the departure would have changed that at all the other issue that just different up on appeal is regarding the sufficiency of his of the district court's notice that it intended to depart or there was considering a departure on criminal history grounds the district court did say that it was considering based on his quote history a higher sentence than what was contemplated in the guidelines and noted that it was required to do so which is only there is only a requirement when it just record is considering a departure at that requirement doesn't exist for a variance so that constitutes reasonable notice of the intended ground of departure and indeed it was received as reasonable notice counsel in her sentencing memorandum acknowledge the district court might be considering a departure on this ground argued against it argued against it again at sentencing so that notice was was given and received there also couldn't be any plaintiffs about any error that the district court may have committed here by not being extremely specific because the rule doesn't require a specific word it requires reasonable notice and that may be different based on the circumstances so the rule itself can't convey exactly what the district court house to say and defendant cited no case law to establish that notice of this or is insufficient and finally this argument also fails on the third prong of plain error there's no reasonable probability that the district court would have imposed a shorter sentence had it used more specific words to convey its intent to depart for the court has no questions and i'm happy to return the rest of my time so we've got two cases that look an awful lot alike from the same judge and the problem is lack of sufficient reasoning to support that's right sometimes when you're an experienced prosecutor you say something on the record like could we have some more backup for the sentence your honor or something times like that yes your honor and i know you probably did you try this case i did not i didn't but core and i'm sorry what was that sometimes you can help the district court and absolutely and that's something we will make you try to do better in the future thank you thank you i'm glad that court i'm touched on the similarities between this case and another case on the docket this morning obviously we were appealing because it is a concern for our clients that we represent that we are not getting a after this case i have made externally exhaustive and specific objections i thought i was incorrect in my understanding of what i needed to do on behalf of my client i thought a general objection  to the specific sentence would have covered us to go on something other than plain air standard on this issue i see now that we needed to make the specific objection and certainly going forward will do that but i again i do think that we still satisfy plain error when there's no discussion at all to justify the degree of the departure because that renders this court in a position where there is no opportunity for meaningful review yes there may be some support in the record for different groupings of cases that the court may have been able to rely on to get mr justice to a category six today justify a high end sentence in that category but this court is unable  think to confidently say that the district court was also not extending the the sentence for an impermissible reason which of which would have been to keep mr joseph in custody to allow him to participate in the yard that program that was one of the reasons given on the record in the first sentencing hearing  that was one of the reasons that that we addressed at the first sentencing at the sentence and the second we argued heavily please do not keep him in longer just so that he can participate in drug treatment and so i think because we have that you  don't you don't really tap the with us and isn't that case helpful it is your honor and it's it's it's settled i think that you that say that the district court can't rely on you can't play someone in extended imprisonment so that they can obtain treatment solely humidity a base a basis for imprisonment yes your honor it can't the court did that here right well that's one of the arguments that we're making is that the court i don't see you siding tapping yes we did not cite tapio your honor i'm simply saying that in the record of our first transcript hearing the court gives that in her miscible reason as well didn't the court at the end still give that reason  one of the three in the second hearing yes to consider allowing him additional time to do drug treatment so i think because we have the lack of clarity with respect to the final sentence and there's enough in the record that this court should be concerned adds or could be concerned as to the grounds for that final sentence we can still satisfy plain error and we also have the the issue of notice which i  just have a brief amount of time left and just wanted to urge the court not to adopt the government's argument that the word history should always put defense counsel on notice that the court is referring to criminal history if you look at the sentencing transcript i referred to my client's history  n both the first and the second tranche i'm sorry sentencing hearings and i'm not talking about his criminal history i'm talking about the abuse that he suffered as a child the fact that he was able to graduate from high school so that word i think in and of itself even when you look at the guidelines history doesn't always mean criminal history thank you thank you both for your arguments this morning the case is submitted