and our final case on this mornings are large my calendar is united states against young gregory f young mr mullins thank you for me to please the court my name is brian mullins i represent gregory yana the appellant's in this case we believe that the district court procedurally erred because it's based at sentence on a clearly erroneous fact that his prior burglary convictions involved violence i don't see how you get there when i read the district court's comments at sentencing even at the beginning she's very clear that she's operating from an adjusted offense level of twenty one and if these had been crimes of violence as they would have been before august twenty sixth teen she would have said twenty three and she's very clear that she she just says what  would its within the range of the properly calculated guidelines and it would be it would be you she's using a conditional tense it would be the low end of the guideline range if your burglaries were incorporated as a crime of violence but that's what the word if means if she's not doing that so she decides to eighty four months sentence works no matter how you look at it but i i don't see the procedural error there we get there by the district courts reliance on and citation to the commentary no two guideline for b one point three why does that trump her actual statements that she's using offense level of twenty one and that she is giving the eighty four month sentence which she says at least it's within the range which it is it's about three months below the top of the range which is eighty seven but why does her allusion to an application no trump what she said well it gives context to what she says i don't know that there's cont or that she disagreed with the cod minds change and also that she finds the combination of those prior releases and they offensive conviction to be cause for concern she never relies on the finding of violence last you can tell us where in the record there is a finding that his burglaries by her that is burglary is far more violent or we believe that the district court citation to the commentary notes which the co commentaries you know specific guidance that there may be faces in which a burglary involves five violence but does not qualify as a crime of violence and then the district court explained that therefore i'm imposing an eighty four month sentence which would be the low end of the guideline had your burglary involved violence under the guidelines as the court said technically the court good knowledge that technically the burglary did not involve violence what we believe the court then committed error on procedurally erred on is going the next step in finding that not only that it didn't technically involve violence but it in fact involved violence or at least we believe that the court found that even though the burglaries didn't count as i'm sorry i missed the first part of the question and she gave him within guidelines that and she gave it to him whether or not the burglaries were considered violent that doesn't sentence you know she gave was near the high end for guidelines range that is not enhanced per violent burglary and that the low end guidelines range that it is and hands for violent burglary was you know she referred to the lower range as his properly calculated by denying my true she the court did not take the extra step  sentencing mr young above the guidelines which the commentary now does suggest could be appropriate it did not the court did not do that but done analysis that the court used to explain the sentence that it did impose we believe relied on a finding that the burglary involved violence and whether the court sentence was within the guidelines or above the guidelines if it was based on a clearly erroneous fact that's a procedural error if the sentence was at least in part based on a clearly erroneous fact whether it was above the guidelines or not that is a procedural error it is a violat rights to process getting to the government's argument that the should be reviewed on plain air we believe that we have properly preserved the issue for appeal under to knowhow review twice it was raised by defense counsel once in the pre sentence reports paragraph one hundred of the pre sentence report suggests the possibility of an upward departure under this commentary note forty one point three and defense counsel that object to that and pointed out that the facts do not support an upward parcher and then again a sentencing when the government suggested that burglary might have you got to me please a court case in bombay of the united states judge darryl did not rely on any clearly erroneous facts when she sentenced mr young and the problem with the reliance on her she did quote this application  problem with relying on that is the application no says that an upward departure or variance is appropriate if the burglary is violent well the judge carol have found that the burglaries were violent one would expect that the corresponding upward departure or variance that that application no talks about would have followed that didn't happen here she sends within the properly undisputed properly calculated guideline range which also was the bottom of the range had evidence in the record regarding the conduct that constituted those burglaries i just cited the district court's comments on page seventy four of the sentencing transcript in which the court said the court may consider in instances which a burglary involves violence but does not qualify as a crime of violence as defined higher sentence or a higher criminal history category than would have applied if the burglary qualified as a crime violence and that is exactly what the court then did it impose higher sentence than it would have if the court did not consider those burglary convictions violent and the evidence does not support that