factors that appear to have driven the district court but the district court didn't adequately line what separated this particular case from the mine run to pieces covered by the guidelines that would support such a major b could as a matter of law he could have given consideration to it but there's nothing in the record that shows he did or how he did that's correct your honor there's nothing preventing the district were from considering the particular case in mind when  this record in this case if the sentence would have been higher had you not been acquitted on the firearms offense but then would considering the seriousness of the other offenses for which he was convicted he says that the fact that there was a good involved made  acquitted on the firearms charge but he said that the fact that there was a firearms firearm present was supported by proponents of the evidence so that he could take it into consideration when considering the circumstances of the offense and so rice sanity i mean he didn't necessarily during the sentencing say preponderance of evidence but he did make it clear in his order didn't it so he doesn't the jury was the proof that it was beyond a reasonable doubt but he employed the correct standard at about your the other point you had made which is that you d said that all of the nature of the offense was taken into account the guidelines but didn't this is a district court here talk about the particular circumstances of this particular offense that he had identify conduct that he thought was not accounted for by the guidelines were aspects of the conduct that were not accounted for by the guidelines first of all i don't think the record it's very clear that when the district court  substantial a lengthy sentence was warranted and i think all parties agreed on that at the sentencing but if you if you want to look at the guidelines here it's one hundred and eighty eight months t sends the defendant to two hundred and eighty eight months after presiding over his trial in which the government proved the defendant arm with a gun and the knife stole narcotics and cash from the apartment of an octogenarian and while in flight assaulted a good samaritan who came to the victim defense judge hall that sullivan stated his reasoning on the record setting the violent nature of the offenses and the defendant's extensive criminal history a sentence which was procedurally and substantively reasonable and none of the arguments raised by the defendant merit revers did not select a sentence based on improper facts and he adequately explained the sentence an explanation that took up approximately six transcript pages nonetheless the defendant takes issue with judge sullivan the explanation for his upward variance and its reliance on the defendant's firearm possession and crafting sentence but neither criticism has merit regarding judge style of an explanation of the sentence and considering that there is by fifty three a factor judge belvin found that as the court has noted that the violent nature of this particular robbery and the flight when combined with the defendant's criminal history merited a sentence of twenty nine years imprisonment the defendant however argued these explanations and these reasons one not good enough saying that judge because the criminal history category was calculated in such a way that the offense conduct for a prior conviction would not add criminal history point does not mean that under under  the standard way in which courts go about sentencing defendants that the court cannot take into consideration the facts surrounding any particular sentence whether or not it be one hundred and twenty three or zero criminal history points based on the guidelines and that's exactly what the judge did here he looked at the actual conduct that underlie the offenses that made up the defendant's criminal history and he have valuated that underlying conduct as part of the th fathers now the nd thing i will say with respect to this is that the court's judgment in evaluating the possible criminal history category based on the court's precedent could actually give the court  no pause and actually reassert that judge sullivan did precisely as this court instructs district courts to do and that the judge faithfully calculated the criminal history category and determine that the defendant was not a a criminal offender here accused me a career offender here and even though he disagreed with the court's precedents on that topic he still made that determination then when it came to the three thousand five hundred and fifty three a factors the judge examine the conduct underlying those factors and determined that given the criminal history category which at the time of the sentencing judge sullivan thought to actually be higher he believed that the defendant's criminal conduct in the past placed him in a different situation than many of the individuals you are sentenced and power within the criminal history part of the quote unquote box score of the guideline that led him to believe that the defendant was differently situated from others who come before the court and therefore deserving of a variance from the guidelines or that  in exactly the way that a court would want to distinguish this case from another case and i think that the way that the court was thinking about a knife and i believe judge sullivan said something to this effect was that he was thinking about the way in which individuals who are typically in the criminal history categories that the defendant was calculated to b n might be different from the defendant and when he examined the criminal history of this particular defendant he determined that the criminal history category was not necessarily capturing everything about the defendant or conduct the box score of the guidelines was not capturing everything about the defendant conduct and therefore that of variance would be appropriate in this case but it is as if the court noted that was not just old and only basis for determining that a variance would be appropriate in this case in explaining his sentence he also concentrated on the way in which the robbery was different from other robberies that might come before the court he explained that this was a terrified eighty three year old and that there was an assault on a good samaritan who was trying to assist his neighbor so judge so even did do exactly what the court requires he gave an explanation for his sentence and he differentiated the ways in which this case was different from other cases and explain why it would merit an upward variance he did with this court requires him to do and therefore there was no procedural on reasonableness with respect to that determination and that explanation because i've been the difference between the burdens of proof for conviction and trial and consideration of fast at sentencing as the court so aptly pointed out this court has long held that the latter is the appropriate burden for sentencing facts and the jury's  considering a reasonable doubt does not necessarily settle the issue of what the court can and should consider at sentencing judge sullivan having presided over the trial determined that the evidence showed by a preponderance of the evidence that the defendant had used a that that his sentence in this case would have been higher and having made that determination there was no procedural on reasonableness in him a valuating what he viewed when he presided over the trial in calculation of the guidelines was two levels because of possession of a dangerous weapon right and the district court goes on to talk about the firearm overruled we're going into sending the bo situation in which the facts that are covered by the guidelines may be broader and may be distinguishable from the particular facts that are at issue in this case so here it is true isn't it that the my question would be i'm sorry to interrupt but the question would be whether he had to specifically as a matter of procedure had to specifically tell us why the gun charge the firearms charge baked into  quote the the guideline sentence was it was not enough and why why did there also have to be a variance did he tell us that the sentencing judge tell us why there had to also be a variance in addition to the fact explaining in his explanation of his sentence and how they differ from other how it was that the defendant used that dangerous weapon that would be different from perhaps others who just  example carried a knife during the commission of a narcotics offense but your position is that he did explain why a variance was needed despite the fact that the issue of carrying a firearm was also included in the guidelines a little yes your honor if it's the government's position that the explanation as a whole was sufficient to meet this court standard to give a reasonable to give a reason and opinion about why berrien would be needed here and i believe that the district court did so with respect to this firearm when it explain how the defendant used the firearm but equally as important there were other factors that the court considered in making this area and the court explained those as well including a criminal history category if you did a criminal your honor yes i think that there is there are there are many factors that the court outlined in describing the variance and i but that said i think that the court also met that standard in describing a variance with respect to each part accounted for in the guidelines the particular circumstances of the particular use that occurred in this case the district or explain was egregious enough to warrant a variance and then when you were arguing yes that that i'm not necessarily disagreeing with you but i'm trying to figure out as i look at the case am i supposed to be focusing you know i'm reading the record am i supposed to be focusing on whether overall there was enough of the the firearms was not adequately accounted for in the and the guidelines and therefore a variance was required i think they're a little different i'm trying to figure out what i'm supposed to be looking for understood your honor i think what i would say is that you can look at it holistically and you can determine whether or not there was a sufficient explanation but i do want to make sure that that i clearly state the government's position which is that the court did go on to make a determination that is also sufficient with respect to the firearm and explaining how the firearm and use that it was used to menace an eighty three year old woman and at a good samaritan outside you know on the street outside of a school so it's the government's position that with respect to that fact and the other facts that judge sullivan considered in finding that a variance was  he considered the very specific nature of this very heinous crime and determined when looking at a particular fact that an upward variant a significant upward variance was appropriate in this case under the thirty five when i think what you're saying judge was really the role is a very very limited one precisely thank you one and this was a particularly heinous crime for which judge sullivan found that this particular variance was appropriate and unless the court has any additional question the government rests on its ok thank you very much  we're going to hear from the a couple points st on the point at the guidelines already capturing the firearm element i agree with the honors that not only was there a two level enhancement or use of a firearm already baked into the guidelines but i want to keep point in that particular instance did not make any determination as to those objections the district or simply assumed that that d portion that portion of the p s r was true so that we believe were in sending the case back your reply brief you realize that the argument you know the reply brief we can disregard if you didn't make it in your opening but if you realize that don't you we do ok thank you and my last