settled that you don't have to establish any prejudice because there's no way of knowing the impact that the misinformation had on the imposition of sentence the only appropriate course is to remain silent and that's who would like to have  pro eighty four months we'll discuss those in a minute but the big picture is that the defendant entered into a very favorable agreement that called for the government to dismiss several counts and forego charges in both wisconsin and delaware as part of that agreement the party particularly did to the sentencing range of sixty to one hundred and twenty months which was significantly above the anticipated guidelines range they agreed in other words the thick guidelines range was totally inadequate and it fencing propes council underscored this by admitting that it would have been quote foolish for him to recommend the guideline sentence in light of the offense conduct and his client's history defense and judge essentially split the difference between sixty and one hundred and twenty months and offered a justification of that sentence that we maintain was sufficient under any standard of review he touched upon the nature and circumstances of the offense the history and characteristics of the defendant and the need for excuse me the need for deterrent in his remarks and also in his written statement of reasons the judge noted the extreme nature of the offense conduct as his principal justification for an advance guideline sentence i won't belabor the extreme nature of the conduct here because it speaks for itself and it's it's well described in the briefs these harassing calls were not of the prince albert in the can variety they were horrific and the defendant admitted during his allocution  they had a tremendous impact on victims not turning to the trees that my opponent is concerned with the forty one versus thirty one prior convictions for the same sort of conduct st of all this exchange in the sentencing record takes place before the judge offers a justification for the sentence there was ample opportunity for defense counsel to object and he did not i don't think that the record supports a fair inference that he was trying to object here it's pretty clear that the judge and the prosecutor are talking past each other the judge is interested in the number of calls that are relevant conduct prosecutor misunderstands and gives the total number of convictions for similar conduct he the prosecutor misspeaks and gives the number forty one which is the total number of convictions not the total number of prior convictions for making harassing more obscene phone calls the judge then repeats the statement of the prosecutor as it correcting him and pivots back to what he's interested in which is relevant come he never comes back to that forty one number when justifying the sentence and so it's true that defendants have a right to be sentenced on the basis of accurate information but miller which my opponent talks about is that to overturn sentence for a violation of this right the defendant must show that the information was inaccurate and that the sentencing court relied on the inaccurate information what's missing here as a basis for inferring that judge response relied on forty one versus thirty one in imposing sentence the miller by contrast the sentencing judge inaccurately stated the information about the defendants prior felonies i think four different times had a similar observation about the judge's comment on criminal history of page forty one of the transcript here he is reflecting on the defendant's stance of criminal history and he's wondering aloud whether category four captures back history adequately maybe he wonders some of these calls when  prosecuted that doesn't seem like an unreasonable thing to wonder about given the repetitive nature of this conduct on this to protest but it doesn't matter because the judge immediately said that even if  advisory range wouldn't be any close anywhere close to sixty to one hundred and twenty months and that's true it would be something like thirty three to forty four months so other considerations are driving sentence as the judge goes on to make clear in particular the nature of the conduct and issue we ask you to affirm the sentence because the defendant has not shown that the judge's explanation was deficient or that he relied established the government has done a fine job in trying to explain the contacts to go through all of what occurred at the sentencing but i cannot get around the fact that the judge in light of misinformation the consequences are very simple