morning make the court council my name is emily kingston i represent the appellate randolph church in this matter and i think the court for the opportunity to present argument in this case last week the court directed the parties to address the ninth circuit's recent opinion in do that did that in the original appeal by challenging the court's underlying rulings that predicated the stipulation upon which the ultimate sentence was based in the original sentencing hearing so the issue was specifically briefed and raised the reasonableness of the sentence was raised during the original sentencing or excuse me during the original appeal and for that reason our position is that the the somewhat limited approach reasonableness reviewed that  in the argument if what you're arguing in essence is that the reason the sentence itself is inappropriate because of the underlying rulings that the court made i believe that that would challenge the reasonableness of that sentence and so i don't i don't believe that court has to determine whether or not the court properly calculated the applicable guidelines and why oh well i won't belabor these points as they are discussed in our brief i would like to just touch on them briefly it's our position of course that the district court did not properly calculate the guidelines here because it relied on the stipulation that was conditioned on this court's affirm and some of the district court's underlying relevant conduct rulings upon which the stipulation and ultimately the sentence was based also when the district court was given the opportunity judge i thought pretty clearly so had i been remanded to me to determine whether the sentence i would have given would have been the same here especially the guidelines so at that point the guidelines fall away and she says i w fact that the condition precedent for subsequent did not occur there was no tax loss upon which to base this guidelines calculation so had there been no tax loss the correct calculation would have been zero zero to six months unreasonable missed aspect of it and that i might like to reserve a few moments on moving on from whether or not the sentence was calculated correctly which we obviously believe it wasn't this case should be remanded because it's our view that the sentence itself was unreasonable and  has to look at under the cult's test we are to determine whether or not the district court fully understood the scope of her discretion under the advisory guideline system and here the court clearly did not understand the scope for discretion and this is illustrated by the fact that she made no effort to move from the original sentence and indeed considered a factor that had never been considered at the original sentencing hearing this irrational sentencing record which is under the aniline decision the record that is supposed to be considered in determining whether or not on the same record that was presented at the sensing hearing she would have imposed the sentence under advisory guidelines system in that resulting hearing nothing was considered at all with respect aning at precisely the same sentence he had originally imposed at the first sentencing hearing now the second question of the opinion combs specifically prohibits raising new issues and as an animal in augmenting the record to consider new factors that were not considered the first time around that portion of the comes opinion we believe would prevent the government and also the court from the government from raising in the court from considering the factor of hi purported falsity at trial i can't help but think that in reading the court's decision that it was placing undue weight on the guidelines here in attempting just to stay within what the original guidelines had originally or had had mandated under the my reading of that case is that the judge sure pires is talking entirely about whether in for preservation whether the sixth amendment issue was raised by the defendant or not and i to be raised at sentencing in district court and it wasn't in this case and quite understandably couldn't have been because this was a pretty plainly sentencing consequently been raised i guess with a pretty yes it could have been but it was not part test under combs did the district court determine that georgia sentenced would not have a material difference under that bridge advisory guidelines i think it's clear from the record in this case that the court understood that that was what her task was to do and in fact she concluded that she would not use the st george differently under advisory guidelines and under combs who cannot look beyond that that that heard her statement of limited and then the question really is whether or not her ultimate terminations infected by ignorance or misapprehension of the law again a review of the transcript of the hearing in the remit makes it very clear that the district court understood what her task with us she understood that she had the discretion to sentence mr george outside the guidelines  choose she understood that she should look at the guidelines and look at all the factors set forth in section three fifty three she did that she may not have specifically of discussed each factor but what she did do she spent time detailing her analysis of the factors that were raised in argument she made it very clear she understood the distinction between a departure analysis for family circumstances under the mandatory guidelines and consideration of family circumstances under section three fifty three three five five three and there's no question she did that she made it very clear that she understood the guidelines were not presumptive the state is on the record in your decided under the combes decision with respect to the question of mr george's testimony at trial i think you'll find in the record the transcript in april fifteenth oh six of page thirty that the judge states she considered vs but as it was presented at trial including the defendant's testimony you know she she didn't consider that at the time of the original sentencing as common sense tells you she would do so he took the stand he was impeached it was clear he was not telling the truth and that impacted her sentencing at the time and it was a factor which was properly considered under section three fifty five three we believe that the case of columns contains a distinction between defendants who have specifically preserved their reasonable cause to raise reasonable most of the original sentence and those who don't but i don't believe in the in the language of the opinion does not appear to tie that reasonableness argument to specifically the sixth amendment so i think one can extrapolate from that that the challenge of the underlying sentence because of th well certainly the length of the sentence and the nature of the custody it is our position that and under the state of the case as it presently exists there is no tax loss upon which the correct with respect to the statement made i know you're over time would you know thirty seconds or so to wrap it up thank you thank you under the case of working us versus working the court is not this court is not to look for the possible reasons that the court might have relied upon in making its sentence but must look at what the court actually said and here the court's record and its is clear that it did not properly apprehend the scope and nature of the