benji turns thirteen years old he stares himself in the mirror and proudly yet tentatively declares that he's a man that's a scene from keeping up with the steins a movie about a young boy's bar mitzvah and what's important about that is that that particular scene represents what the sentencing is all about the sins of each individual man are held against him and no others in this particular case you're here to decide whether or not the upward departure by doubling the minimum or ups are the maximum sentence out of the guidelines was reasonable in this particular case judgement sant took the guideline sentence maximum of twenty seven months asked me why shouldn't i upwardly very this sentence and i gave him the reasons why you shouldn't those reasons that the judge were in thinking about was that he had just sentenced a few months previously a young man who was here illegally like mr martello and had killed three individuals the mother and wife of those individuals who were killed white elephant he spoke for about two thousand and twenty five minutes in front of judg fault when he killed them not necessarily while driving while intoxicated and so when he asked that particular question of me i reminded him that there are state courts to regress to address the d they're the guidelines take those d w eyes into account in fact in the guideline sentence and further at this point he's going to be deported and so the public is further protected by his absence from the country a three year term of supervised release and so the protections are already there in place under the guidelines scheme while we were discussing his sentencing surely his alcohol problem came up and the judge issued his concern about that on the oral record that he certainly was an alcoholic that he certainly had a problem alcohol problem alcohol and drug and that he wanted him to get some rehabilitation and that he thought that a larger sentence a longer sentence doubling that to fifty four months from twenty seven months would afford him the opportunity to get that rehabilitation the fact that he had in his mind three people dying from a previous case and the fact that he is interested in getting the rehabilitative efforts to keep that from happening and mr patel is future are reasons why the sentence discussing the opportunities for rehabilitation and then we have elaborated on that it tapir occurs when rehabilitation is a dominant factor if that's your argument or you coming out of from a different way are you sentence why isn't that just discussing the opportunities for rehab that tapio louse to be discussed but i because as that gets into his mind of why he's enlarging the sentence to give him that opportunity to get that and that's that's different from saying well when you're in the your present going to recommend the alcohol and substance abuse program or even the our program and so getting into his mind which i recognise difficult in this court has to do it and the only thing we protect society from your alcoholism i'm going to increase the sentence so easy saying both i believe he is saying both and the fact that he wants to protect society he hasn't taken into account that the guidelines itself have that protection in it and as does the immigration code the judge knows that he's going to be deported he said so in his statement of the conditions of supervised release that upon a release from  a duly authorized immigration official for deportation he's got three years of supervised release so if he comes back into the country he's going to get sentenced under this case again if he's revoke and another one thousand three hundred and twenty six dollars charges so built into the system is the protection of society and so it's it's only that he's thinking of what happened in the prior case in his two pages prior to his oral pronouncement sentence that leads anyone to believe reasonably that he's thinking about the deaths of these three individuals when he's enlarging the sentence of this particular defendant mr rose alice when therapy killed three people and so he's basically enlarging the sentence of mr patel oh to make sure it doesn't happen of what the judgement zant stated during the or pronouncement the sentence i would agree how is the district judge supposed to know the basis of the objection if it's not specified that it's that it's  sentence and one of the ways it looks at it is for the abuse of discretion and one of the ways that the court can decide that the discretion has been abused by district court is but a useful discussion for a district judge  prongs of the of abuse of discretion is did he give undue weight or any weight to something that is irrelevant or immaterial or illegal and that's where the tapia air comes in and so when you put  but they didn't they gave us this particular framework under gall this court has recognized that framework consistently and we don't have to we you don't have to conclude that it was a dominant factor i just said it was a factor that the court considered and if we considered it then it was improper under the nd prong of unreasonable as to have considered it and i believe the totality of the record the or record that judge was that pronounced does provide that for the court people who drink too much alcohol and become intoxicated and draw are a danger to the community that's not only common knowledge but than what the district court considered in the call ok he's effectively because in all the district court considered a study not at that particular technically there's no difference because the case relate to this defendant's circumstance and his characteristics and drive and he mentioned that the defendant had not apparently done the treatment again but he was in pain weepy and he kills people luckily that to his not happen to you again and that is an expression of a concern for he said so that it's the basis because of your three d you on highways and to help protect society from your alcohol issue i am going his right and like he is but he talked to the women say you are not understanding you are putting people in accurately calculated the sentencing guidelines and determined that the advisory guideline range was not appropriate because this defendant keeps being deported and coming back to the united states and drinking and driving there  i want to be sure i understand you're saying that your objection in the district court was that the sentence was unreasonable you said that's the end of the sensing hearing and if your your argument today is that the sentence is unreasonable is that is that right that's correct or are in fact the supreme court so where i'm having trouble i went back and looked at your brief it's of if it's a fairly short brief i flipped through it twice i don't find that the word on reasonable appears anywhere in your brief might maybe i missed it but i don't think i did can you point us to where your brief you argued that the sentence was unreasonable and that word is not in there it's to be inferred from my issue which was that the judge utilized that information that he should not have which made the sentence and reasonable sentences for reasonable miss under the deferential abuse of discretion standard in doing so they take a look at the totality of circumstances all that's contained in the gulf case to make a defendant or to require a defendant to issue a objections when the judge decides on that to shoot from the hip and do an up or variance places the defendant at a disadvantage this is not a case where there were  objectionable issues within the p s r so of course we would have objected the p s r the p s r was calculated properly so that's not a problem so we didn't have objections up front we were asked by judges that why shouldn't i up were very and that has been the standard there is no other standard the test as as i said on my initial opening was that one prong he overly relied on the the future and therefore we're going to a larger sense to keep you from having that opportunity and so since the guidelines themselves and the statute themselves take that possibility into account protecting society by deporting this individual my request reverse it and the governor will surely appeal and take it up to the supreme court in which case we'll get hopefully clear direction your honor i would note my last seconds this is my final act as a assistant federal defender i'm retiring this month at the end of this week i think this is either been my th or my th argument before this court i've appreciated every time that i've been heard and i thank you for the honor of being here