specifically whether or not the district court answered all of mr joiners arguments in favor of sentence my the government agrees that the district court did not answer his argument that as a black american he faces a two hundred and eighty percent is no increase in risk of death from covered one thousand and about three hundred and seventy percent increased risk of hospitalization mr mr i'm always a could you hear the argument in the last case i did not hear on here in the last case the defendant was arguing that it is absolutely constitutionally forbid for a district judge even to think about race when imposing a sentence you're arguing that it's absolutely constitutionally required for a district judge to think about race when deciding how long somebody spends in prison it does seem to me that both of these propositions can't be true but once you are right i think in this case that's an argument that i feel the district court might have set up i'm saying you know however that two other district courts have considered this issue well hey if council in the previous cases right those other courts who violated the constitution doesn't mean we should require a consideration of race as opposed to requiring racial neutrality to the best extent we can let me in instead of asking you questions about an argument you didn't he let me ask you an empirical question are there any data about the mortality rate of coal that nineteen in prison by race your honor i don't have that specific is that the difference in mortality by race outside of prison is pretty well established in peer or what's not well established is why there could be something genetically linked to race or it could be linked to average income were could be linked to family size which has to do with the ease of transmission where it could be linked to the quality of medical care in prison many of those things held equal in prison everybody gets the same medical care whether good or bad in prison everybody has the same amount of space usually small and s unless there are studies about incidents in prison how could one be confident that difference in the raid is linked to genes rather than socio economic factors that don't matter anymore when one  in prison yes or in these are arguments i think the district court could have made or questionable look counsel and did you it's all very nice to say well the burden is on the district j i'm asking what the record shows about these questions and the answer may be nothing or maybe what the literature shows about the options and it may be nothing and then you can play boyer's games about saying somebody else has the burden but st we need to know just what there is for us to know the record shows at the time your honor that nineteen was only a few months old and that the research at that time this was filed last july that the research showed that there was a difference in outcomes based on rings and without reason fine but there's a lot of empirical research since then and of course one can cite and ask the court to take traditional notice  peer reviewed published scientific research right we're now another seven months on i'm asking if there's anything that you are i don't i don't know of any research  case similar to the cunningham case where it was that missing hearing and we're not asking for a plenary resenting but this court held that the district court can't just say hey we created everything the if another tribunals has in credit to the defendants argument and the nd circuit has not for clothes that are a defendant can at least expect a judge to comment on that argument letters judge maher's cough subsequently has commented on this i mean and said look i don't know why but the core statistics the difference in outcomes and considering that it's not clear why it please the court in this case as it was stated in defendant's brief right at the beginning is specifically a procedural argument it has nothing to do ultimately with the facts of the case other than what was presented to the court at that time and were not the determination by the court to not address the race based argument made by the defendant was procedure that's what we're dealing with we're not dealing with the underlying whether or not he should have been granted compassionate release or whether or not that race based argument would have helped water somewhere else what we're dealing with is that this defendant filed a compassionate release documentation release specifically cited to judge these conflicts questions studies  whether it would be sensible to remand to the district court for more proceedings if there were such clear evidence now that might make it appropriate to remand the alternative course is to tell  well file another one and start from scratch but if in fact we have no better information now than we did last summer it's harder to imagine remanding the government is not aware of any studies at this time your honor that have been done specific to the individuals within prison as your honor mentioned in the question defense counsel there have been a multitude of studies outside of prison based upon the racial aspects of coven  and whether or not those specifically are related to the biology of the individual or as you mention where they live the family structure of the shared housing and all of those things but as your owners pacifically pointed out those are the same in prison but again those arguments were not available or the study linking anything to prison and race were not available in the court and were not provided to the court of the time again this is a surely procedural question of whether or not the court should have simply acknowledged or stated the reasoning based upon race in their determination that he should not have been given compassionate release when we look at that the evidence actually was that was provided by defense counsel negates his argument he's claiming that because it is race outside of prison would place him at a higher level eventually of risk that in prison it does too except that he then cites to two different things that say the impact of the disease or diseases in general is not biological but his socio economic in other words the judge could basically look at his argument and say ok you say that it's based on race you acknowledge that it's not and then you cite that it's not it's so weak at that point that it simply does not merit consideration which is the standard that this court has to decide for the purposes of this case that whether or not the court should have taken that argument should have looked at it and should have made the determination based upon what was in front of it because there was nothing in front of the court at that time to state that there was any merit to that case there is no reason that the court violated any type of procedural due process in looking at the cases that defense counsel cited in  their additional authority those courts while mentioning race actually look at two different factors those being the individual lives factors of that individual who was making the compassionate release in smith it has to do with smoking in hypertension in lewis it has to do with the fact to be a sickle cell trait and the fact that there should have been a prior filing to reduce his sentence in the court in the courts and both of those cases to those into account having mentioned race but that was  it again your honour's because there's nothing in the record to suggest that there should have been some other taishan so the court to make there's nothing that proceed really which is the question here that the court did improperly if your hon disagree with and which i would say as i said in the brief willfully fails to connect the dots but this is an argument that should have been made in the district court the government did not make that  whether there are studies or not that is that is what district courts are set up to value if the district judge says hey i'm questioning whether or not you are statistics from outside the jail trans inside and you were go the district court should have given this court record to review to assess whether or not the district court had sufficiently utilized its discretion  between over representation of certain ethnic groups within the jails included nineteen complications that's just in black and white was actually emphasized in this easy documentation that was printed out and handed to the