may please the court my name is rachel see what i'm after mr herman we are asking this court need behind the tool and in risk assessment tools in general they do lack transparency in scoring they can conflate correlation with observation they can classify individuals based on group it isn't a problem and the reason is while we do normally take a judge's statements app based value here the time line just proves that that's impossible to do so st we have the district court states that it would use the pick an attorney in th sentence and then we have the district court actually ordering the life sentence then we have mr herman objecting to the use of the pickering for for sentencing purposes and then both parties are heard on this issue and then we get to the transfer pages that cited where the district court states well ok i'm clarifying i will not use the crack and that at that point the sentence had already been administered so just based on the timeline alone while we normally take a cent a sentencing court would have been there so you're saying it came too late i'm saying what was it good for gore to do other than do you say what he said shirt thanks for the clarification the clerk could have said that it would have reached the same result either way the court doesn't do that here the court just all the court it was clear by no i did not use the paperback for sentencing which is different than saying that it would have reach the same result either way so we know that  as the beneficiary of that error her they bear the burden of demonstrating that the district court would have been part of the same sentence and they just can't meet that burden here moving on to the issue of the five k two dollars departure which specifically that the defense kind of was unusually heinous cruel brutal or degrading to the victim so departures are meant to apply and in rare circumstances here by their nature in this case they have nd degree murder and we know that murders are cruel there it is hard to imagine a murder that is not going to be cruel but the question is is whether that's unusually cruel and many of the characteristics that the court cites don't support that mr herman's conduct was unusually cruel and so some of the characters some of the findings that the dish a court made was that mr herman didn't call for medical would actually notify law enforcement that they just come in nd degree murder similarly that mr herman did not notify the family there's a trend here so again it does seem like it would be that unusual defendant allegations and india i don't think that the medical examiners are specifically starting with the strangulation the medical examiner expected to see evidence of strangulation and never did so we dispute that that happens in the st place  herman's original sentence guy lying range is presumed to be is presumed to be reasonable and it was two hundred and ninety two to three hundred and twenty seven months that is not a short amount of time that's twenty four to twenty seven years president proper answer and that's important because the paper now isn't proper but it was used to it was used to discuss whether or not mr herman could be rehabilitated and in ordering a life sentence we know that he pointed out that the district court when that was raised stated twice that it was not relying on pick russia as part of its decision and specifically found that it was going to rely on a criminal history calculation in the p s a r and stated that it did not intend to indicate to the parties that it was relying on that you know based on that  and the number of that the fact that he has nineteen criminal history points and he has ten violations of prior court orders and probation talks about that that the he said about those aspects and basically he's talking about two things but he's getting at the same thing which is that this defendant's history he's not picking up some magic eight ball or or reaching for that says the score is this he's looking at actual factors that that comprise the the picture and he's and he's and he's comparing them with what he sees in the p s i r so you know at that point when he's called out and he says well you know i  t i'm not relying on the on the pick twice says that i am finding you know the the criminal history in the p s i are but notes that there's a congrats between the two and them and then says he didn't mean to indicate that the parties so you know the law as is everybody recognizes is that we all take the district judges words for what he says they were which is that he didn't rely on it maybe and he didn't mean to indicate that he was to the extent that we we look beyond that again the argument that the defense is making is that somehow the timing that this was a gotcha once he said that this was a bell that he couldn't on ring were still in the sentencing hearing yes he's made a pronouncement of the sentencing but we're still in the sentencing hearing st of all he said that he didn't do it and that he didn't mean to say it even if he had he said i didn't do it i didn't mean to indicate there's no objection that that wasn't daily and a sufficient fix to the perceived problem you know i would also point out that it is this court's previous cases on outward variances the vendor break which is lack of remorse larry which is a hit person has a history of violence unprovoked attacked didn't get any defendant has has has a determined violent past all of the the history of violence that the defendant had toward his now ex wife crystal herman and against other women  he has had a determined violent past in extensive criminal history he committed most of these crimes while he was you know he had broken in an ankle bracelet was was you know was was breaking probation then after the crime he doesn't show any kind of room where she goes on another crime spree where he he commits more violent crimes with a baseball bat struggle strong arm robberies all of these things his reaction there's no remorse here is extensive brutal history the brutality of the crime itself that that's not adequately taken into consideration all of those things almost all of which are nature of the murder itself lends itself to a determination of of extreme conduct certainly based our brief our position it certainly is i mean that this was a multi faceted attack occurring in two locations she wrote in her own trunk wrapped in a tarp for fifteen to twenty minutes begging for mercy and  you know on the other hand more beatings for hits with a shovel under her on her head again wrapped up in a tarp it would have taken a long time to the judge noted to tie the knots that are represented pictures  this is a an extended attack the terror must have been enormous and it is simply not the type of inherent extreme conduct that that y other issue that i wrote down that was f the transcript where he goes into this lengthy discussion about and using that mr herman you are a level four and that means that you have a forty two percent chance of rast and seventy percent chance of being revoked it and then later on to say oh no i didn't intend for the parties to believe but i was relying on that it's just doesn't   without consideration of it but that is not what he said he said that i did not intend for you guys to believe that i was using the pick graph that was not my intent so that is that i would reach the same result either way here in the bishop or to not do that and that burden is not met we rely on earlier statements about how or all this while nd degree murders sad and they're cruel and they're terrible and senseless and every other adjective that you can think of for the murders they're terrible but the issue is whether that whether or not this kind that goes outside of all right thank you for your argument thank you to both counsel the cases submitted and the court file an opinion in due course