i'd like to point out that this is a case where there was such egregious errors the court doesn't even need to reach reasonable to reverse in this case the court since mr cruz poorest forty six months for illegal reentry returning to the country where he since he was thirteen and where his family convictions and he did not have regular access well on that point you know obviously you know defense counsel and the defendant can't sit there like a potted plant and that when they were discussing all of these i think in the powering through it it doesn't seem that there was any that no one bothered to point any of that out if there if there was a problem and even assuming that what you stated some of that might have been a problem how would that have changed his offense wobble it would not have changed the offense level unit because that was based upon the amount of time that he was given for the convictions but the fact that the court specifically relied upon the claim that he had committed of violence regularly when in fact that was not true based upon the judgments that we've submitted to this court and ask this court to look at that was not true there were not acts of violence there was one aggravated assault but the other two assaults one was a petty  offense and the other one was hindering prosecution based upon the actual judgments and the p s r it simply misrepresented those convictions and so did anyone say anything no it wasn't race to the district court the district court and i think all the parties relied on  convictions existed correct but it was the characterization of them is what you're what you have difficulty with it was actually what he was convicted of and in fact all of them were gang altercations in which mr cruz prez might have been present but there's no indication of what role he actually played and so that's a significant fact when he's convicted of aggravated assault or acts of violence he may have been there in one case there were ten to fifteen other people there nobody knows and the  exactly what he did when i was the stabbing one wrong the stabbing one i think that is the aggravated assault but the important thing remember about that case is that there is a gang side there's ten to fifteen people there we don't know what mr cruz president in that s r doesn't tell us all that we know about that case is that when the the state court who presumably knew something about what role he individually played in other things the state court eight years ago gave him six months for that offense so the state court fish well i think actually in this case after a book or we can look behind it we don't necessarily look behind it in terms of the guideline stands but after booker we were required to look at the reasonableness of it and if we look at the effect that one eight year old conviction for court to find its way and the standard is within the statutory guidelines that it's some just plain reasonable why do you think that that's wrong and why would you not want the court to go there well i think first of all this court certainly hasn't in direct conflict with the remaining thirty five fifty three factors because in the sense in guidelines there are a number of factors that the sensing guidelines explicitly and i guess as a practical matter just in terms of the judge sense people you're the defense attorney the prosecutor you know why are you disadvantaged by a roll that says a sentence within the guidelines is presumptively reasonable because the sensing guidelines only take into consideration the aggravating factors they don't allow consideration of mitigating factors and as the steeper hill or why i think that's certainly true i mean especially in this case if you look i'm just trying to understand why they want it and why you wouldn't want to tell i think because the presumption of being a lot of courts don't look beyond that presumption and i think we have unfortunately in this case there was certainly a d and it seems to me because there's an enormous amount of mitigation which wasn't considered by the district court wasn't even addressed in the district court sense but the problem with a presumption especially when you've got a guidelines that only consider aggravating and don't consider mitigating and this is important and many whether recognize there's an enormous demand that you get in fact is that in an individual case you need to consider under thirty five fifty three and and we've got a presumption often the courts don't look beyond that and it's unfair to have a presumption which says we will presume the aggravating factors are reasonable but the defendant has to prove that all the mitigating factors are reasonable right that's why i understand that you want to reserve the balance of your time yes think ok thank you or all of the factors set forth in section thirty five fifty three day second that the district court relied on errors in the pre sentence report in sentencing defendant and third that the judgment and commitment order  address what those errors are and then examine what impact if any they may have not understand and sentence with regards to what the errors are the record is clear there are three prior offenses that dissent defendant he does not challenge the time that he received and he does not hallinan any of the facts set forth in the pre sentence report he did not challenge that for the district court he does not challenge it here the only challenge defendant makes to the first conviction is that it should with regard to the second convection defendants not challenge that he sustain a conviction he does not challenge the amount of time you received for that conviction he does not challenge and he did not challenge before the district court any of the not challenge and this is important because it gives both the sport and it gives the district court a more complete view of it and its criminal history what defendant does not challenge in addition to the fact that he's disdained three criminal conviction is he does not challenge his criminal history category that he's in a criminal history category three and that all of his criminal history points including the criminal history points for each individual conviction were properly calculated  a challenge so even if we corrected the errors but he still be in the same category yes and there's no dispute the defendant your honor that defendants guidelines calculations would remain exactly the same and because the district court selected a sentence at the lowest end of the a flexible guidelines defendant could not receive a difference tensions except were he to argue perhaps that some departure based on overstatement of criminal history or other thing of that nature were all of the nearly that apparently the government thought that he should get thirty months from the court gave him forty six months right so biased and the government's position reasonable now as opposed to the court's position that the government's position at sentencing your honor was that defendant should receive forty six months the government sought the sentence that the district court imposed the thirty months tensions your honor comes from a plea offer that the government extended pre indictment to dispense it was pursuant to the government's fast track program a program which this court has approved and then will us rodriguez and other prior thorns and push to ensure consider the government's charging decision to pursue a section thirteen twenty six charge when the initial offer was rejected and imposed sanctions based on the thirteen twenty five rather than the offens find that if the sentence was and was it was within that guidelines that it's presumptively reasonable tell me why that's important to the government but then also tell me why if the guideline are only advisory now if we make being within the guidelines presumptively reasonable are pushing them back closer to being mandatory your honor that is important for the government and it is not  tantamount to pushing the guidelines into the realm where they are mandatory again for several reasons first of all the guidelines and book are expressly acknowledges this the guidelines are the appropriate starting point for computing a defend tensions and more importantly the guidelines take into account many factors which congress has determined are appropriate to consider in sentencing and individual contrary to the defense position the government's admits that the guidelines do take into account appropriate aggravating and mitigating factors for example one's role in the offense one can it's receive higher sanctions based on  is lower or higher and so the guidelines take into account many factors which congress has determined are appropriate in sentencing in individual both mitigating and aggravating the guidelines consider other factors which are set forth in thirty five fifty three such as finding purity among different individuals who are convicted of similar offenses things of that nature and giving the the burden i mean if if we say there's rebuttable presumption that guideline senses reasonable then there's up to the senate to come forward and say these are the reasons why it wasn't reasonable to decide that to decide this case or can we decide that this sentence this recent poll with what we have in front of us oh you need not resolve that question your honor in fact based on the record this court can affirm that the district court  none of that is in question before this court and that along with the other factors that were presented to the district court that the district court considered the district court expressly rejected on the record just on its arguments regarding cultural assimilation so it's clear the district court to consider that ultimately what this court would have to do to reverse the sentence is to second guess the district court's decision and the governments of minutes that that is not there's just briefly one of the last promise from the prosecutor was that this court would have to second guess the district court's decision and as i began that my opening remarks you would have to second guess because in fact we know now that the district court's decision was based on erroneous information and one of the arguments made by the prosecutor w that's one of the arguments that we raise in our brief that the court is required to consider that under the issue of the thirty five fifty three factor absence sperry's and the prosecutor comments that the district court felt that that was not appropriate and rejected it but in fact the fact that that  thirteen twenty five versus the thirteen twenty six is not relevant under thirty five fire and you know i see some i see somewhat of what they're saying and that there's a lot of regrets after things don't work out for people i mean it's the person that you know for example the person briefs he did not in fact have an aggravated felony so the court was required to consider the conduct not the fact that it was to a different statute and the fact that mr cruz for us was similarly situated to thirty month sentence defendants and their one thing that i also wanted to address which was the prosecutor was saying that the guidelines should be presented to a reasonable because in fact they come to us all factors and she specifically referred to a role in the offense and that's one of the ways in which the guidelines start out first of all they do not consider mitigating factors the based on aggravating factors but then they skew upward because in the guidelines you can get in houseman's for the amount of drugs that you possess your prior convictions but when you talk about role in the offenses the prosecutor does the downward adjustments are all highly  party requesting that they didn't want oral argument but i have a question on the panel they are going to submit supplemental letter briefs i believe so do we want to the first submission or do we want to submit it getting supplemental briefs and the fact that we're waiting for a supreme court case to be decided