judge obvious reluctance to change the sentence whether that is material or whether this court would have to go to the second question with which would be whether the ultimate guy level what's the point of either trying to get at the supreme court about this because if even if the supreme court rules the weight to be given to a correctly guidelines calculation everybody agrees that whatever weight is to be given to just under a fifty percent drop from the bottom of the guidelines and even if you don't want to go you know even if you don't even if you don't want to go to the route of determining whether a sentence is reasonable but you know even with hardly any reference to the guidelines hold as to the proper weight to be given the guidelines but i would submit to you that it this court should not hold this case until the supreme court rules because unless the supreme court says the guidelines  have no weight and and can be ignored it will if it says they are to be given any weight at all even if you don't get a presumption of reasonable is even if you know whatever articulation is required for within guidelines  satins is different if there's anyone any association with the guidelines any analysis visa v the guidelines everybody agrees the guidelines have to be correctly calculated and we don't have that couns address the propriety of the computation of the guidelines own the first appeal is that kind of an aberration are is that a frequent first appeal kurt left approximately two weeks after booker was issued at a time when the docket appellate courts were overwhelmed and i think what the panel did was correctly determine the conviction issues looked at the sentencing appeal issue raised by the defendant rejected it and then the rest of the sentencing issues raised by the government are difficult but looking at booker we're we're going to remand it and that's that's what they did i think in yielded that he made guideline errors in his calculations he yelled at that and what he said though was well it doesn't really matter because some of the enhancements i gave couldn't be given again because they weren't in the indictment they weren't in the verdict form and the jury didn't find them well that's blakeley that's not booker and we tried to explain that to the judge but without success and what we're asking the this court to do is rule on the to the supreme court rules it's still going to have to rule on the guideline errors that we raise who have ought more like i'm sorry on that we would have a lot more light well you might what if the court if the court i watched i guess the question is if you have that if the guideline errors are as we say they are my question though i guess would be what say whether that's reasonable or unreasonable or is the court going to remain out at that point and say district judge now that we've corrected you and let you know that the current guideline range is one hundred eighty eight to thirty five months now that you know that that you calculations are wrong what sentence would you issue under the thirty five to eighty three a factor so i'm suggesting to you that you're not going to bet it in the court would not benefit from waiting for the supreme court to rule because you're going to have to do the exact same thing that well i'm not sure you're going to not have that anyhow because if the supreme court says what let's say the supreme court rules let's say that they give very little the reasons the judge gave for not correcting his the errors or so iranians i think is going to have difficulty justifying the satins under a proper an to wait for the supreme court but it is my suggestion that there is there may not be a need to do so if this court can correct the guideline errors and give good instructions does that to the just a judge suggesting is that i knowledge that possibility but i also acknowledge the possibility that the court that you may have that anyhow because i'm not sure of this that the court after discovering court rules you're going to be able to get to the reasonable now if you rule that there is you know a fifty percent difference from the bottom of the guidelines i'm not i don't you know i don't i can i have some cases like that if you have the material guidelines air  some further instruction about how you review the sentencing guidelines and it seems to me that the critical element here is not whether or not the sentencing guidelines were calculated one way or a different way but ultimately whether or not those replaced by the requirement that judges impose a reasonable sentence the discretion that the district court judge employs in determining a reasonable sentence will necessarily take into consideration many of the factors and numerated instruction five sentencing guidelines but to require two exercises one to calculate what departure would be allowable under the old mandatory sheen and then to go through much the same exercise to arrive at a reasonable  departure it's a departure difference between departures and adjustment ok but i think what they're saying is essentially this case the district court judge gave a three level downward departure under the guidelines and under more harm and that takes care of th for the district court judge to consider and looking at everything else from the thirty five fifty three he gets at the guideline that gives you some frame of reference some starting point something to think about ok and then you look at all the other factors ok let me  i don't think this court has it's proper for this court to go back and determine whether or not the calculation was correct because it didn't do so prior to booker this first appeal was argued strenuously by the government and it addressed by this court part of booker well we you know it's not for us to but i think that this court should look at the record and know that this is the third crack at the apple so to speak on the very same arguments and judge