four years this worked perfectly until booker came along and after booker things changed somehow no longer one of the guidelines mandatory they were so the question became really is nine twenty four c or eighteen u s c thirty five fifty three b which is the guidelines the correct sentencing mechanism the government might the answer really is fairly simple because the guidelines themselves are statutory and there's nothing big gives princie to anything outside of the guidelines for years these courts the united states courts have used the guidelines for sentencing and in fact they should and do continue to use them to this day so what i'm really saying and what we really need to decide is are the guidelines advisory or mandatory in this particular instance is there something about nine twenty four see the changes the nature of the advisory gu they're either mandatory or advice free can't we would argue that here they cannot be both either in the split along to the circuits when have been a few of these cases before this court before and there was some question as to whether there was a split amongst the circuits there's no question anymore united states be smith seven five six f there are eleven seventy nine twenty fourteen explicitly contradicts this court's holding in roberson that they know  it requires a suspension of disbelief that the courts cannot do their jobs statutorily imposed upon them because they're required to essentially ignore the fact that they're going to send somebody to prison for seven statute require the guy loosens be imposed with regard to the mandatory minimum seven years that was followed this case essentially makes those guidelines minatory  may please the court kevin burke on behalf of the united states circuits deciding the way this court has decided previously and roberson that's not one of the three compelling reasons a numerated for overturning a case now at nine twenty four c is a very specific statute in pertinent part says in addition to a punishment for the crime of violence the add on is at it in this case seven years because it was because the firearm was brandished and that is not withstanding any other provision of law so congress expresses its intent very clearly and is this court found roberson this specific provision supersedes the much more general or as this court called it the very general provisions of thirty five fifty three a even thirty five fifty one a day as it prepares of the reader to go into thirty five fifty three eight factors makes explicit that there's an exception to the application of the factors when quote otherwise specifically provid prohibition on undercutting the crime of violence sentence because any offset is essentially any offset of the underlying offense is cutting into what congress intended to be mandatory consecutive sentence now as i mentioned sense roberson no compelling reasons for overturning the case law manifested no new statutes no new supreme court in fact in cal on this court considered roberson it was invited to overturn roe percent and again found as as it as it did in roberson and found it was even more satisfied that its holding was a correct one that was consistent in the separation of powers and at that time  three other circuits had joined this court's holding and since the calories decision to other circuits down further it's not really clear what the appellant's are complaining about because in this case they're asking roberson be overturned but they suggested to the district court in this case and in correct reading of roberson the government put the judge on notice that the defendants were potentially going to lead the court astray and it appeared during the sentencing that the district court was indeed taking the same position on rover sin that the government was that any offset whatsoever on the underlying crime of violence  separation of powers and it undercuts a seven year consecutive sentence notwithstanding that the judge later did say that it was accepting this crack in the door theory that the defendants in that and at sentencing were offering and the crack in the door was this sentence fragment in roberson where this court identified all of the various reasons why there's a prohibition on offsetting the underlying crime of violence sentence and then set it remains to be considered whether any weight may be given now remains to be considered was not a phrase suggesting this court was saving that to be considered on a different day the court said remains to be considered because it was going to consider it in the next few sentences and in those next few sentences this court made it clear you couldn't even reduce a fifty month sentence down to forty nine because of the seven year atta that's a two percent reduction even a two percent reduction would be violet to of nine twenty four c who would have been here here the guideline range was sixty three to seventy eight months and the two defendants received up twenty four in thirty months on the underlying sons so they were less than half the bottom end of the guideline range in judge connelly did say that he felt that that sentence fragment did allow him to give some weight to the to the overall sentence that he imposed now we were not cross appealing or anything along those lines relief of over roberson being overturned they already got what they asked for a finding a judge who felt unbound by this prohibition  thanks if i understand your last point calquing you're saying overall the government could have quarreled with the challenge because of the language to learn because it's pretty clear he the judge did in fact feel i'm up by the law and he made it very clear that he respected the circuit's decisions and that he would follow them he also made it very clear that he was unhappy with the mandatory since he had  don't pretend to be wise enough experienced enough to decide what that would be judge kiley expressed his opinion that he thought that maybe three to four years would have been sufficient in a case like this so how he would work that out quite honestly is beyond me short sentence given the fact that these guys were i don't want to compare him to keystone cops who didn't weren't but did it were really not your typical criminal they were just surviving on their daily drug  why even though they were armed robbers it is a horrible story judge they went from being in training camp to professional football right to an accident to junkies to armed robbers is no i just wonder that if somebody under the s guidelines were you and you know good reason go below the guidelines they could have come up with that sentence even twenty five and thirty months i don't have to agree with the government in this your honor i think that the seven years in military minimum is exactly that that that he cannot receive they cannot receive one day less unless the government sets forth a motion to allow but i don't believe that there's any way for us to have accomplished that any other way with just one final thing there is a split in the circuits pepper is a supreme court case that came out after roe vs and you know i believe that this court in the interest of justice will look at this carefully and reconsider his position and i think you so much for your time and look forward to your