miller case which found essentially that in the plain error context where there was no objection contemporaneous objection to the charge that   the subjective knowledge element in the indictment amounted to plain error and an error seriously affecting the integrity of judicial proceedings so is this case is our case distinguishable from that or really it really is not your honor i think i would have to say that miller controls this case i agree with the government on that i think and where and we're bound by no we're bound by miller so in the end we're we're headed to the supreme court it looks like unless the court takes takes up medley or some other related case in terms of courts departed upward to a sixteen month sentence from a much lower guideline range and a guideline range of twenty seven to thirty three months  didn't really address the sentencing guidelines in calculations that put the defendant at a much lower sentencing range and in particular the court  did not address or did not discuss why the defendant's placement in offense level category four in the guidelines was not sufficient to recognize or to take into account his prior criminal conduct ask a question there please mr that i didn't the judge in the case though not only adopt the report the pre sentencing report but then they also alluded to the conduct as to the circumstances under which the defendant was arrested where he was riding an a t v down the highway and when stopped attempted to throw or did throw a firearm under another car alluding to the dangerousness of that conduct and also his prior offense am i correct so i'm not so sure i'm ready to agree that the district court didn't give some reasons for the upward departure from twenty seven to thirty three up to sixty months are we free to really ignore all of that discussion in that saying no you're not free to ignore it but on the other hand the guidelines took the conduct that your honor just mentioned the guidelines addressed both of those issues that is to say  guidelines addressed his the reckless endangerment during flight with a two level upward adjustment under guideline sections three c one point two so the guidelines took it into account  downward farquaad far accepted the responsibility right well he yes he did get it down or the government's objection over the government's objection but in other words i think we have to take these individually and not treat them as though they can be balanced out i'm not suggesting that but i am simply trying to look at the calculation that the judge was aware certainly off of the guidelines range well he had but he had to address why issues which the judge focused on and which your honor just asked about into account and the judge didn't say why he had to go upward to almost double the cent i think the gal case in the supreme court says the extent of the variance has to be justified by the court and here you have a variance which is very dramatic and the court didn't really because the i think there's there's two issues on the procedural front he specifically has to address the guidelines i don't believe it's sufficient for the court to say here's what i think based on your criminal history based on your conduct during the arrest which caused a real concern you know which was dangerous and concerning therefore i'm going to sixteen months he can't do that your honor it seems to me without aggressing being the specific guidelines provisions which cover both criminal history and the conduct that bothered him so much and this kind of i was are is it what do we do with the fact that the standard is more burdensome on your client because of the plane error in other words you didn't make the subjects of any of these objections below and when he was invited to make a statement at sentencing you declined to do so well your honor he doesn't take that that does is that this a departure and then in his statement of reasons filed after sentencing called americans so if the defendant had objected to an upward departure he would have he would have objected to a theory that the judge didn't even articulate till after the sentencing so the court shouldn't apply plainer here as well as for the reasons in the result us case which i say in the reply brief thank you will hear from the government morning your honour's and me ecclesia court my name is sean eldridge i'm an assistant united states attorney for the western district of new york i represent the united states and its appeal and i represented the united states before the district court below m preserve received claim is foreclosed by this court's presidential decision in miller and because the reasons that were articulated by chief judge jury c during the sentencing proceeding demonstrate that the sentence of sixty months that he imposed is both procedurally and substantively reasonable this court should affirm the conviction and the sentence in terms of the miller argument my friend has conceded that the facts are indistinguishable miller of course is the law of the circuit and in any event is also consistent with the decisions of at least the th th th th night and th circuit on the or heave issue unless the court has any questions on the miller point i'll move on to the sentencing issues in terms of procedural mr mr feasters procedural error claim we are here on claim error review the court did use the term departure once during its sentencing but at the end specifically referred to his decision as a variance and also i clarified this is it a two of four  and what judge jury see addressed here the defendant's history in that this was his th conviction it only age twenty two in his rd felony the seriousness of the conduct the remarkable similarity of the conduct to his prior conviction where he aside a sentence if it is shockingly high or low and under three thousand five hundred and fifty three dollars a this this core presumes that the court considered those factors and the court is required to articulate reasons for the  not required to give kind of a mathematical calculation you know because i find this fact i give you six months more or vice versa in the court did exactly that here in fact to the extent certainly the guidelines take factors into account  but i take my friends argument to essentially say if the factors are in the guidelines that's the end of it and frankly that's really a pre book or argument the guidelines are but one factor for the court to consider as long as the court considers those factors correctly which you did it found a range of twenty seven to thirty three months gave the defendant acceptance as judge stance you noted over the government's objection even after he went to trial  carefully analyzed the three thousand five hundred and fifty three dollars factors and articulated his reasons primarily focused on the conduct the prior conduct the remarkable history of a twenty two year old man who is already in criminal history category fo booker are required to take the guidelines seriously and they are quite required to address the guidelines in making a very if this were reversed and the district court instead of doubling the guideline range had given half the guidelines sentence the government would be here arguing that the court didn't pay adequate attention to the guidelines yet now the government is here arguing that the guidelines don't need to be specifically addressed you know this is two years of someone's life more than two years that have been added to the guideline range that is not something that should thank you both the court will reserve decision