this argument was a ball taken by the district court which as mr powers you're on to provide it with some additional facts aside from the revised tough talk elation of the guidelines range to convince it to reconsider its original  unsound approach to every sentencing in addition in this case the district court relied on incorrect information without prior notice to the parties when it cashed in that sentence that was one hundred percent based on the park your analysis under the pre book or guidelines certainly it doesn't have to be used well that the court has said that it must be there must be more of an explanation based on the departure from the guide from the guidelines so it has to be more fairly explained to the courts reasoning in this case the court adapted its reasoning from the original original sentencing   why they were in that taken into account adequately by the guidelines range and potentially more troubling is that when  when the defendant came in for this research and saying the the court essentially operated from the assumption at that it's cut its consideration of other factors previously was ill not necessarily have changed when the reason that the case was remained in the first place was an error in the guidelines calculation as it was here so so th problem here is that the remedy of free man for the defendant is largely a mystery that is if the burden falls on the defendant to convince the court that it that there is there must be some other reason to impose a different sentence one that's more in line with the correctly calculated guidelines cases in this case that that result in and this significant departure from the guidelines range and i realize that in this case it's it's twelve months which and that in many of  seems relatively consequential but in this case it's you know it doubles the time that this person is sitting in prison and and it doesn't with his thinking that there's you know extra time is justified by his drinking while every time you get behind of the coil of a car you're drunk you're putting every other driver at the risk of serious man  months however it was also determined that they got the pro create guidelines mean should still then be twenty to twenty four months when the court considered it before arriving in court that day as was made clear in this second three sentencing when all he he didn't change his mind we were but if the majority of these cases of nothing new happens there isn't going to be something to give the judge a reason to change his mind other than the guidelines range factors in light of a six to twelve month guidelines range now i cannot tell you exactly what the court would have decided at that point it is possible it would have come up with a twelve twenty four month sentence however  it's completely unclear and to go back and say well now you have to show me something substantive that has changed and tap of this guideline change in order for me to revisit the factors in reconsider them is what's what occurs international said to the calculation the guidelines range permitting defense counsel to articulate thirty five fifty three a factors a judge considering those factors then  about how the twenty four months that he reimposed related to the recalculated guidelines range in other words he didn't acknowledge the recalculated recalculated range and explain why he was very up for it he just have demanded new facts which were not forthcoming because of course nothing had changed as a factual matter the only thing that changed was the legal question about what the guidelines range was and in what sense is that a clean slate sentencing as if it were the very first time i think what we have to look at is what the judge did in this case in going back and looking at his notes and king at the initial transcript of what he said any team and said you know in this particular case the thirty five fifty three a factors were the driving force and so i think that's why he asked why did things change i don't think any thinker hit the court as a matter of law as essentially the defense has argued from taking into account its prior analysis and i don't buy into it now there's nothing in permissible about but the judge does need to explain you know how the sentence actually imposed relates to the guidelines range that the guidelines range is insufficient  i'm right he states as a wrote matter that i'm taking into account the guidelines but there's no acknowledgment that the guidelines range is now half what it was i think it and you know when when stating that he is a danger to the community for doing that did he directly tie that right back into the six to twelve month guideline range no i mean i'm not going to state that he did  first hearing insane i recognized though that what drove me before was the thirty five fifty three a factor is not the guideline range and that's the same thing that is driving me this time is a thirty five fifty three a factory not the guidelines range so i think it comes to me judges have broad discretion on the amount of weight they apply to the guidelines for better or for worse but when booker said you will six to twelve months no he did not but i do believe he gave an adequate statement for why he imposed a twenty four month sentence to allow for the perception of fair sentencing and that is what is required by the district court judge it's not to necessarily tether everything here she states to back to the guidelines so i don't know what what the defense really is essentially argued in their opening brief was a court cannot consider the thirty five fifty three factors from the first sentence of carrying their day and there's just nothing that prohibited report from doing that so well i don't understand the argument precisely that way i think the argument is that reset and saying there's a fresh look at the case but she says that's what a recent thing is a fresh look at the case in light of the newly calculated calculated guideline range and that that can't be the rule of lawyer here well maybe not but there does have to be a meaningful fresh look and the question is whether that occurred here why do i see that concentrated very heavily on mr paas groans i dui history i'd think it was somewhat very similar to what he did hear the difference being that the guidelines were the bottom of the guidelines where the statutory maximum for sense of hearing whereas now it was significantly reduced from twenty four months effective range to six twelve months right so the guidelines advice the first time around was not a range but the maximum correct  and the thirty five fifty three analysis conforms to that guidelines maximum recommendation and the situation that remain and was very different we had a guidelines range of six to twelve bank you know the analysis the fresh look that is supposed to occur you think would take some meaningful account of the given for changing the guidelines was it i had to deal with this court first rule that had to deal with the timing of the defend it's deportation with respect to his aggravated felony felony so because his deportation occurred prior to his commission of an aggravated felony there was no he didn't quote remain in the united states after order of deportation he was ordered deported he left he came back and within a matter of time they committed his aggravated felony so based on the application note to the guidelines that the timing was different so the hate level increase to do not apply with the guidelines changed because there was a different but if a judge though can reject the guidelines range on policy grounds as fair with respect to this court i certainly respect the holding and we we support it but he can he can look at a guideline is it as a data with respect to that however someone with this exact background had the guidelines been calculated appropriately in the beginning when you have a charge wasn't going to apply the guidelines he made that clear he does guidelines have anything to do with how he thought about that you know i respectfully the first time around he was intending to impose a guideline sentence as to his understanding additionally ninety eight percent of nationwide and even a slightly higher percentage of than that of illegal re entry cases receive guidelines sentences to then come back and say well why would i revisit what i had already determined not going to win which you don't have to say exactly that's exactly my point you know that that's not the basis of the argument thank you for your time ok well thank you mr lynch walthers