thirty with the guidelines range of eighty seven thousand one hundred and eight months defense counsel was ineffective a chance in concerning is crucial aspect of the case and to respects he didn't realize that serious bodily injury was not statement admits to selling the drugs that cause the bodily injury i didn't know he did that in the form of acceptance of responsibility by saying that it was he himself will call the ambulance so he use  the victim referred to in the case is victim one which is neighbor but it may very well be that there that the drugs who were the drugs that the the victim some issue in the prosecution's mind as to whether it was actually drugs by bike or a danish that caused the injury or the d s may have particular done from some other source and when the prosecutor is asked by the court as to why she didn't include that in the guidelines calculation in the plea agreement the prosecutor responded at the time of the plea we did not have the defendant's admission that he has made his sentencing submission and i what i take it to mean is in the absence of the admission there was a question in the in the government's mind as to whether these drugs that diaz gave to victim one actually came from cardenas there were some issues about the content of the drugs and whether there we spent  included and the judge basically didn't seem to be influenced by this one way or the other and she said she was opposed to things that were going so well what's the what what's the prejudice ok i think there's prejudice in two respects seven of the appendix mr carden the signal is that the use of heroin he distributed resulted in serious bodily injury this individual now no where else in the case not in the plea agreement he was not required court says it would have imposed the same sentence under either the eight hundred and seventy two thousand one hundred months guidelines range without the two d one point one eight two or the two hundred and ten days to sixty two months with a to do one two a i think that i understand that the court has held that disputes about a portable guidelines ranges need not be resolved with the sentence under either of two guard lines ranges there is not such a wide disparity is there is in the instant case in watchman the court to characterize the disparity between the two alternatives ranges as a slight adjustment jass involved two potential guidelines ranges separated by only a two oval enhancement the other problem i have with the district court saying that it would have arisen it would have given the same sentence under your guidelines range is that purely on and appears to be inconsistent with what this court in the supreme court has repeatedly repeatedly said when analyzing sentences which is that the guidelines serve as the starting point and initial benchmark and there seems to need to be an irreconcilable tension between the notion that the district court no matter which of two guidelines ranges is correct but that isn't the case this is judge kearney but if understanding is right we had the guidelines range being to tent to see to with the time and if i can just take a moment to respond to your question i want to see him respond thank you very much i think that the ninety six month sentence and i do appreciate that the district court did weigh the mitigating factors like the fact that he in effect say that the morn's life by calling for help is issue created way that the problem i have with that is that the one factor that the district court discussed that the heroin that was distributed by mr cardenas cause bodily injury was only in the record because of the erroneous concession by defense counsel and perhaps had defense counsel litigated that issue when they were example basis to do so then the sentence might have been less than ninety six months i  understand again that the district court and i appreciate that the district court really tried to impose a fair sentence and did waive those mitigating factors but i think what was it what may have skewed the calculus based on this record was concerning the performance of his counsel there without merit and the judgment for picking up where the court left off i'll start with the prejudice analysis as to the argument made in the council brief from the stated she would have been close to the same sentiments and the six months even come to the guideline calculation as what was stipulated to in the  conversation she was presented still with a range of two tech as well as a concession an apology for causing severe injury to the neighbor for whom  cardenas had affection and you know he had taken extraordinary steps to save this person's life seemed unclear whether it was drugs provided by mr cardenas or anyone else that had caused  the crisis a health crisis and i'm not sure that we could be so confident as you suggest in concluding that the judge was unaffected in the end in setting ninety six months when she thought  guideline calculation the one that was contained in the plea agreement she would have imposed the same sentence i think we can clearly read into judge making a statement that you it's cognizant of a conversation like this one potentially happening and wanted to dispel the should we make in the usual case of a sentencing judge saying well all of these arguments aside no matter why this is the sentence i would have imposed because it's very much a purpose that a business had been agreed to by the parties and while in every case it might not be a situation in which the court can just protect tenants by making a statement like the one that was making here in this case given the back and forth and given that it was a close call does compel the result that jason thought this through and determined that in either of these two guidelines ranges the sentence that she came to would have been appropriate she did that the judge o it's clearly was on her mind autopsy report so i want you to correct her and i think that that came from some sort of just vocabulary that was clarified during the course of the argument which was  r that did drive her determination that one there's not one that is and moving ahead your honor turning to the st prong to strickland about this again council's performance has it not fall below where there's an objective standard of reasonableness we can see through the record that council did go back and forth during the course of the sentencing ultimately consulting with his client and coming to a determination and that determination allowed counsel to take responsibility and a lot is client to take responsibility for what had happened allow his client to say how badly he felt about what had happened to the victim allowed his client to and he to talk about the genuine remorse he felt and the steps he took to save the victim in all of these facts were in the present report facts that were born from recorded calls and other evidence that was provided to develop by the government and all facts that were not disputed even before sentencing submissions and quite frankly could not have been disputed because of the nature of the evidence had the appellant continued to deny his role in the overdose he would have still been faced with these undisputed facts and would not have been able to take credit himself took in connection with the overdose and take credit for the remorse he felt and the impact the overdose had on him and that also bleeds into the prejudice argument again which is that judge  pointed out that there were ample uncontested facts in the record from which he could have concluded that the appellant was responsible for the overdose he sort of gave the government a hard time about why didn't i insisted upon that guideline calculations in the plea agreement which speaks to the fact that in judge nathan's mind there were sufficient back absent in admission from counsel to conclude that the overdose was the result of the descendants behavior although defense counsel referred to the medical records as an autopsy report by the time the court imposed sentence it was quite clear on the fact that victim one had died from causes unrelated so i just wanted to make that clear in all fairness i do think that it was troubling that and i again  i have tremendous respect for the amount of effort and amount of thought the judge nathan put into the sentence i think she strove my glee to be fear but i think it is problematic when you have a court saying i reasonableness cases is the st step is to go to the guidelines range and determine the correct guidelines range the next step after you have determined the guidelines range that gives the cont thirty five fifty three dollars a factors and in this case the context of the got the guidelines range that car dangers were sentenced on was determined by judge nathan to be the tw