the court i am jane mcclellan from the federal public defender's office and i am here on behalf of the appellant boyd by lists i'd like to begin by addressing a few of the matters that were addressed in the supplemental grief  any difference whether it's review for an abuse of discretion or underwrite an overall standard because the extent of the harsher was clearly so unreasonable and not justified or explained by the court by the district i think even under the existing existing law that there was an obligation of the court to explain with sufficient specificity the reasons for the extent of the departure for the so that it could have it can be reviewed on appeal that the reasons for the upper departure had to be stated in the written statement of reasons so i don't think that this court needs to go through and review every possible basis for an upward or downward departure if for instance th upward or downward departures have to be set forth and if the court does not find those that the original proceeding you can't go back and try to get another shot at a on a different basis for a downward departure but what about additional  proceedings with respect to the grounds that were specified in the when we since i don't think that there be any change in that respect the statute doesn't change that i would think that the existing law would apply so if we wanted to me that they would be able to do that i just don't think you can come up with a new basis for a departure based on that amendment to the statute so really did control let the district court in the the district court should consider and remain and is actually a premature issue for this court because it should be considered in the first instance by the district court if there is agreement but i would submit that in this case there is no necessity for offense conduct that was included in the pre sentence report the factual basis provided in the government's motion for upper departure and in addition the testimony of the sister of the victim and the investigating f the explanation regarding leaks i think that in looking at the factors provided by the district court and the district court's concluding remarks when i didn't post sentence that the court did supported by the testimony of the victim's sister who testified that there were repeated assaults against that those repeated assaults almost always involved a striking of the left side of the victim's face such that she would not even have healed from one injury before another one was inflected and i think that it was that testimony that moved the court because the court explained that it part of the sentencing process and i would suggest to the court that what the interpretation of that is he's noting all of the previous assaults but again saying but i haven't taken all of those assaults into account because i agreed not to sentence that they can be they're not considered for the ask themselves simply to establish that there was a pattern and practice by the defendant and it was that pattern and practice that caused the court to district court in the district court with them to conclude that the law means what it says and that the district court had not consider any grounds not specifically mandatory then this court could only affirm that were reversed that as a matter of law couldn't  and if we agreed with the district court then we would have precluded the district court by our failure to discuss any other grounds that the district court might have taken into account i  i have two two part response to that the first is i believe that with regard to the protect act certain portions of it certainly apply today to this court i believe that section regarding may not apply today because that's it specifically directed at the district court saying the question not impose a sentence outside the acceptable guideline range except upon a ground that a was specifically in affirmatively included in grounds of departure that were offered but i submit that the district court in the first instance will be the one to determine what was in that statement of reasons because there is i believe an argument here that the district court  findings the district court is permitted to do that by adopting either the pre sentence report or some other pleading that sets forth reasons that the court is adopting and i would submit that in this case that it's appropriate for the district court to have not necessarily because this court would not have spoken to it and the district court would then be free to say that that that this court viewed a particular ground as being firm or infirm and didn't address the other ground that was mentioned and when it comes back to the district court just a quick us back and says you know my initial statement of reasons the reasons that i gave were a and b the just the court of appeals just passed on the f a a and found that it was either permissible or  impermissible therefore if they felt if the court of appeals finds it ground impermissible i submit that in that case you're correct that the district court could not go forward on that ground but certainly if there's a ground that's not addressed by this court and you find only with regard to fact parted on that ground or just recognized it as a possible ground for departure i submit that under the facts of this case both grounds are permissible grounds they may not and then explained as they should have then there may not have been a departure as it should have technically been done but that doesn't change the fact that the grounds themselves are permissible grounds and they could be adequately explained under the facts and circumstances but the court would be limited to any grounds that this court permissible it should be made clear that as to count four the district court found that there were two possible there were two grounds for departure the under representation of criminal history and the extreme conduct but as to count seven the other assault case the other small charge that the only ground that he found for average parcher was the under representation of criminal history on count seven and that is part of what is so clearly erroneous about the way that the average departure was done in this case the government has tried to argue that it's really all just a departure for extreme conduct but there were absolutely no finding some extreme conduct as to count seven and there's no way the court could have gotten to the extreme sentence of sixteen years that it got to without up with just putting on both case as to both counts and i