bench starting with a district court and ending up here and then almost forty years so i know that and the only issue that the parties are in dispute about is whether or not the sentencing judge judge should a recognized his discretion to depart downward from the sentencing guidelines and whether or not the transcript indicates  his recognition of discretion or not and my review of the case law indicates what we really look at is whether or not the reason for the denial of a down departure is based on the facts of the case or based on some sort of legal belief or legal holding th departure is not appropriate and than he had from his prep previous felony that it would make sense and i think the judge said i think it would make sense to give you more time then you got for your previous felony but he got fifty seven months and i think that a reduction in the well most two levels his ability to park on that basis let me let me ask you this if i sort of want to hear your best argument in response to i think it's likely there was some advisement your client in terms  of but he said well i didn't really really think it would be this bad or a you know i really didn't appreciate the difficulty but he was told you can't come back and that you know it gives you know things will happen to you if you come back but then the court systems in court also i think the was directed to mendoza and the court acknowledged that in the sentencing transcript that it had reviewed mendoza and mendoza stood for the proposition that a downward departure was a possibility but the court basically didn't feel it was appropriate here said there's no the court  the effect of well there's no precedent i guess in the sense why can't you interpret that to mean you didn't cite me a case that said you know on exactly your facts that you're entitled to a downward departure i've looked at mendoza i don't think a downward departure is appropriate here i mean mendoza does talk about having this forward i believe the court thought that mendoza is simply in a clickable because it's a different context not that he could  analogize my interpretation of when the judge said this is without precedent it was this is without legal authority and then goes that isn't applicable and we also have to look at the government's arguments that were presented to the district court at the time of the sentencing hearing the government wasn't taking the position that well in some cases this could be a basis for downward departure if there's this or that showing and certainly in cases that we've cited in the briefs sometimes when the government presents a factual argument against a down of them without factual basis the judge was saying i don't find legal authority and what the case law says this i just need not say i recognise i have the discretion to depart but i don't need to i choose not to on the other and the judge does not need to specifically say i don't think i have discretion to depart for this court to determine that the drug judge did not recognise his discretion to depart in addition there's the cases i cited in any case that if there is some ambiguity the solution is to remain and so that the judge can make findings more specifically and i think that's appropriate in this case the district court is in the special position to look at the circumstances of the case the circumstances of  just say well even though the ninth circuit thought i was confused i wasn't confused and i didn't want to give you a downward departure or where i was confused and now that i know that i can i still don't want to give you one and i think that's always the case when there's a it often happens in my experience that a case will be renamed it because it's not clear that a judge understood the law correctly and the same sentence comes out but i don't think that's a reason not to remand the case and allow the judge and i do think the judge indicated he wanted to give less time so if you just read on the face of the transcript what the judge's inclinations were she wanted to give less time than the fifty seven months what specifically are you playing to in the sense that yes you know tell me why it's not just the judge sort of rambling about why if i had you know if i were doing the sentencing because he kind of says well it should be more than what the original offense was but you know maybe i wouldn't pick this amount but why isn't it just sort of the ramblings of i'm not you know i'm not the legislative branch of the government and we have to deal with the and why does that mean he didn't know that he still couldn't downward depart i think that he addressed his concerns his sympathy with mr hasse's legal position but yet his hands were tied it's not a case where judges will often say i think this is too much time let's actually i've looked at chapter five and all the bases for downward departure unfortunately there's no facts to justify it the judge was frustrated with the state of the law and indicated sympathy both towards mr  individual as well as to his legal circumstance of just having some paperwork thrown at him the initial paperwork that was given to him in july of two thousand and three was all in english as about two minutes according to if you read the timing of when things were signed off on a couple of minutes were transcript here about whether the judge you that you know was he or she had the authority yes he has judged that edward said he and that is exactly correct and i think that the use of the one precedent and also if you can tell there were two arguments for downward departure that i made one was the summary nature of the deportation process and the other one was concession of the portability and the judge on the briefly address the facts of the second request saying that there was no colorable claim that the concession of the portability had any value and that was the position the government had taken with judge shay and so he just guessed that request on the facts when i was the first issue on the la saying it's without precedent mendoza which is a drug case having to do with drug purity is not political doesn't that just kind of devil's advocate or doesn't the fashion determination sort of go against you the factual determination the mind state of the individual when they come back and i guess what i'm saying doesn't that sort of say that the judge was looking at the facts and didn't find those facts compelling to fall within a departure isn't that one interpretation you could have  going with the court and i think that's the thing the solution is it is pretty straightforward and easy and that would be you know is that the government should stand up and say you are please put on the record whether you if this is discretionary whether you believe you to do this that the issue is this is i think it gets right down to it is did this judge say that he had the discretion and chose not to and i think he did say that and the case is the case is a come along and there's been this development of the area of this law about silence doesn't mean he didn't acknowledge he doesn't have to specifically give his reasons it just has to appear and it in the cases seem to indicate is that the judge should say i do not have discretion i don't prohibit it at the senior vast argument about what your cow crap counsel has stated there is no precedent hi hi i made your best argument for you on that by saying he rolled he considered and that was that and that talks about discretion i think that the statement that there is no president means is that there is no case point that is there is no case where and someone has taken an appeal on the issue of the as they called it the summary nature of the immigration process and as for his saying that mendoza doesn't apply i think that's strictly on the basis of the facts it was a drug case that individual was transporting he was involved and largely on narcotics but he didn't know the purity was in the valve in the manufacture and in this case different than mendoza imposed that life which is that he stayed there is no basis and i believe that that statement in conjunction with the other parts of that indicate that he shall know basis whether there was discretion or enough he said there isn't a  i don't know that i'd be prepared to state a position on that i don't feel comfortable that i find i this government's position that it wasn't a summary proceeding he was advice of the consequences he was told he was being deported was told that he could not return to the country and those tax time had co counsel fighting in terms of which would give the court discretion doesn't say it has to be a summary proceeding or not is that the heartland or the that's correct but is it outside the heartland if that individual got the same process was given the same procedure sign the same notices as any other person who is removed from the country what makes that procedure in that case which is done multitudes of times were does that take it out of the heartland because in this case mr bras claims to have a lack of education argument that you ma you know after just after discretion is determined to be a possibility i think the court has described it's not excluded and so therefore yes the court would err i mean if we go out there it would be i guess the argument is that it doesn't take it out of the heartland so the the argument we would make on this we just we believe that the language is there and under the case law the judge does not say i do not have the discretion i am you know i'm prohibited from making this but rather he indicates there's no precedent that thank you and the only thing that i would add is when the judge said there is no basis other judges didn't make clear in that sentence whether or not there was no factual basis or no legal basis i think that the word precedent when when one talks about there being a lack of precedent my understanding is there's a lack of legal authority meaning this is not been recognized as a basis for downward departure much as the case  for instance in sanchez rodriguez where this court on walk held that the type of prior aggravated felony could be something that we take into account by the court that was before stenches rodriguez came out certainly that wasn't a part of the sentencing guidelines it was nowhere to be found and the judge in that case thought there was no precedent or legal basis to reduce the guideline range for a downward departure on that basis so i think the same is true here that judge simply didn't there's nothing else thank you thank you very much matters