mr bostic presents the relatively straightforward proposition that a criminal defendant needs to be able to rely on statements made by the district court to accurately reflect the court's reasoning for imposing and want to find it cannot do that there's a fundamental unfairness that arises well here's my problem you make an argument that the district court judge didn't places explained this reasoning during the second sentencing so even if we should assume that the judge didn't sufficiently places reasoning into the record in the first sentencing of what moment is it that detrimental to rely upon the statements made by the district court at the first sentence when he was addressing the thirty five fifty three factors during the second sentence when the government asked to reimpose the original sentence sentence would be far above the now a clickable guidelines mr box counsel made the argument that well come on nobody would even be talking about an above guideline sentence if he had already been sentenced under he actually said a lot of very interesting things about the seven circuits law and about other such editorial comments but he pretty much sends i don't think the stache house thing makes any sense i know it's about to go ahead i think i need to do  under thirty five fifty three anyway i i mean i thought that it was pretty clear on the record as these things go what he thought he was doing in the sentence winds up not a life sentence but it does wind up above what the range would have been without this stash house and why would he care why would he be required to say all that a second time because he didn't quite say it your honor what he said is that there may be some unfairness involved and opposing the guidelines ex post facto but the appropriate place to consider that rather than under the guidelines would be under section thirty five fifty three so that's where i will consider that's where i well considered he said but then when he discusses the thirty five fifty three factors which he did at some length that was not one of the factors he discussed he mentioned various parts of mr posix background and violence in the case and things of that nature he did not discuss the ex post facto issue he did not say that he had considered it or how he was considering it but do you know what it said he was going to do it but he said he would he did brian well it was two days later your honor and it very well may have slipped his mind this is a long hearing when he said he was going considerate there was witness testimony after that that he never explained even if you was going to consider it even if you intended to consider it he never explain what weight he would give it he didn't say ok i will effectively reduce the guidelines by two levels even though i have to apply them that's what he said he did later at reset and saying well he never said that that's what he's doing at the time to be written original so what he said when he calculated the range impose a sentence is one imposing this sentence it's in the middle of the guideline range he didn't say oh i'm imposing this sentence which is in the middle of the guideline really applies but it's actually above the guideline range i'm acting like i'm composing for him because of all the other issues that i need to put up with for he didn't say that he didn't say he's going to take into account the stash house business at their thirty five fifty  and at this point isn't the issue for us whether that was pursued ural irregularity he does explain he's going to go above the guidelines he's already talked about m sorry record you know that he thinks he needs a bigger sentence than just the guideline range and he said that after mr bostic it already submitted all of his sentencing arguments after his counsel had made his position clear on what the sentence should be an he'd only responded to the government's request asking for about guideline sentence by saying they were only doing that because an earlier sentence had been imposed with a higher guideline right if the council had known that the court was already considering imposing an above guideline sutton's the argument could have been tailored more toward that and the reasons why that would be inappropriate as opposed to relying on what appeared to be the court's position that a sentence in the middle of the a political guideline range was the appropriate sentence the standard is different for whether you're going to depart or vary from the guidelines especially for an upward departure variance tenet is for where within the guideline range a sentence should be imposed and mr  to accurately and adequately address the right argument basically because it ricky relied upon the court's earlier description of the reasoning it was using from posing a set does he ever tell that i mean the transcripts are stops here  but i don't remember him raising that to judge conelly after he finds out what the new sentence is going to be saying wait a minute you didn't give me an opportunity to put on the table some things i would have talked about your right i believe that was not addressed so under the illinois supreme court precedent of burns and i give our one strong put him to say the p a u w conviction be it a two or b in a four is invalid and therefore under the guidelines i think it's for a one point two six the invalid the constitutionally invalid conviction means that that is criminal history that shouldn't be counted and i burns as hot off the press basically right thank goodness and right on point yeah so we have the three points there and then the two additional points as a result of him committing the instant offense while on supervisor on corona's really five points or five total points of his six dramatically reduces his guideline rain from what it was down to one eighty eight to thirty done is procedural error and it should be a basis as wasn't jenkins under planers standard of review this court debate freemantle he can be recent and with the correct criminal history calculate you know if we were to agree with you on that there wouldn't really be much point to saying a lot about the supervised release conditions since that would all have to be revisited anyway in light of thompson and cetera indeed it would i put in there because it's an important procedural hook it's a vehicle for him to get  were not inclined to be persuaded by the criminal history we would have done the fallback position in the procedural hook of the supervised release conditions being wrongly imposed and i say this briefly insofar as the government says that there was way around this there clearly wasn't as this is an intervening development in this court's jurisprudence that happened in two thousand and fifteen of course the sentencing happened at the tail end of two thousand and fourteen september of two thousand and fourteen so the intervening decisions of thompson and capice those weren't things that were must this court has additional questions or reserve the balance of my time all right thank you thank you by his failure to raise them and in his initial appeal the two issues were beyond this the scope of this court's re manned and united states versus adams in this in that opinion this court expressly limited the district court's authority to reopen the guideline range because the defendant had already one opportunity to present to the district court arguments concerning the guidelines range calculation but his second sentencing takes place before thompson you know that would be a very aggressive form of waiver  when this is still in process one of a point it wasn't there isn't raise the first time it goes up on appeal then it goes back down for the second sentencing and the case is still not decided and now it is decided of course and we have as you well know remanded any number of cases for full reset and saying in light of thomson capice cetera and the court in thomson of course offered of full recent seeing rather than one limited to just the discretionary conditions of supervised release so what what's the government's position as to why if we were to send this back the remained would be limited why would it be limited your honor if the if this case were to be remanded if issue preclusion does not carry the day for the purposes of this appeal a full reset and saying would be appropriate we would ask that this court not consider the second issue in terms of the proper calculation of mr gill's guideline range as including the aggravated unlawful use of reasoning so it doesn't matter if you had a close to or a class four felony which is something i haven't been able to nail down on the record but suppose you know it's close to it's still not something that's available anymore surely that mu case deciding that the class two form of the felony was unconstitutional so there was no plane error and that card but there is now i mean when a statute is substantively unconstitutional as we've seen say with all of this giant line of johnson cases that means it was always unconstitutional it's not like a procedural flaw was there that you know you have to get into the question whether it's some fundamental error whether it's waiver ball or all the rest of  if the statute unconstitutional is unconstitutional we would ask that the court not reach that decision in this particular appeal why no because this is not been something that has been fully briefed on the merits there have only been submissions chip this court based on the recent decision and burns and rule twenty eight j letters the full scope not only the conviction but as well as the constitutionality and whether a district court should even consider the constitutionality of it is something that the government would like to address in the first instance and the district court developed that record and then what kind of record you need as opposed to simply if you are asking for the opportunity to file supplemental briefs on this issue we could think about that but what do you need in the way of a record that this was a class considered under the adequacy of the criminal history category so whether or not it was appropriate for the district court to effectively impose the same criminal history category for this defendant putting aside the constitutionality of that conviction whether at the adequacy of us criminal history is represented when such a conviction has been found to be unconstitutional that's not something the district court mess at the constitutionality is not something the district court needs to reach to resolve that issue well but if the but if the district court knows from the illinois supreme court now that the class two felonies even let's just assume for the sake of argument that is what he was convicted of certainly seems likely but we now know that's unconstitutional and yes the application no talks about the use of convictions that are now void they should be done that doesn't preclude the district court and rescind saying for making any of the other decisions a court would always make which is do i think your criminal  history record adequately reflects who you are and you know what i want to do with thirty five fifty three a or that the various things if it's a full resentencing those things are on the table but against the correct legal backdrop of what this statute is i just don't see why the question of law can't be resolved as has been presented so the government would like an opportunity to more fully develop its arguments in that regard in terms of the law recognizing that no federal court has decided whether class to form of the felony is unconstitutional the illinois state of illinois may file petition for a search of the us supreme court that is still not decided since this opinion is hot off the presses there are still a variety of unknown as to how this case law will develop within the state of illinois and whether will remain a good law there is certainly a good chance of that the government recognizes that but we would like the opportunity to more fully develop this argument in the district court and give the district court an opportunity to address it in the first instance i think you've just elucidated everything that there is to lose that to be honest with you yes your honor its reasoning for imposing the sentence that it can post mr bostic at the initial sentencing hearing and then following this court's remand at the resetting hearing the district court explain in detail why it was giving mr bostic the sentence that it imposed but and in the second appeal it was three hundred sixty months the district court explained it wasn't causing an above guideline sentence because the advisory guideline range did not accurately reflect the violence that was directly attributable to the defendant to mr bostic that was what the district court said in the initial sentencing hearing it's what he said at the recent sink hearing so there's one thing the district judge does here that we've seen on many occasions which is to say you know he says i i'm not comfortable with this part of the guidelines he has the discretion as we all know to say that and so as part of his thirty five fifty three a problem do you see anything wrong with the use of these what if ranges because that isn't really that doesn't bubble up to the surface maybe quite as much as mr boster would have preferred i don't see any issue with the district court effectively revising the guideline range to a level that the district court thinks is appropriate based on the thirty five fifty three a factors or its disagreements with certain of the above that range here's my new range i'm going to go up the same one eight that's only ones are you ok with the three sixty yes and say it in quite those clear terms the first time around which is why you have you know sentencing hearing involving testimony there was oral argument at no point during that oral argument in that first sentence and he did mr boss text attorney raise the issue again the district court didn't not need to comment on and again the focus of that argument w on the violence the murders the shootings other acts of violence attributed to mr bostic that was the focus that was what was really driving the sentencing in the first appeal mr bostic is raising the claim that the district court forgot to raise his claim to failure of the claim failure of the district that's to consider it in its initial appeal or excuse me national sentencing the government raised it the government raised it in its n c memorandum the government raised its request for an above guideline sentencing memorandum mr bostic was very able to respond to it in the district court at the sentencing hearing as he argued for a med range sentence that may have been what he was shooting for he knew full well the government was asking for an above guideline sentence judge conelly adequately explained his reasons for imposing above guidelines so for those reasons we ask that you affirm the judgment and conviction of mr fosdick we ask that you from the judgment for mr gill or in the alternative that the matter for full consideration in the district court all right thank you very much mr thompson i think you have half a minute they are while the district court stated reasons for imposing above guideline sentence were adequate and as stated reasons for the sentence imposed would have been adequate at the first hearing either one of them taking separately when you combine the two it creates an unfairness because of the misleading effect it had on mr bostic in depriving him of the ability to effect argue for what the district court was actually considering isn't really clear though the district court went above the guideline range because mr boster to violence it is clear that's why he did it yes i agree with you that that is why he did it but the problem is the way he did it and in this case it sort of deprive mr bostic both in the first instance of the opportunity for meaningful appellate review which is a problem sort of systematically what are the kinds would you have made i mean you know you can say i wasn't really all that violent or you can say i have other things but other than just saying that's what i was wondering you saying it's wrong for a district judge to sort of consider what the guideline range would have looked like if certain aspects weren't there absolutely not  argument is more that it's wrong for the district court to sort of move move the goalposts move the goalposts when the arguments of already been made all right thank not be able to use the accident of a remain and to raise in the second appeal an issue that he could just of well raised in the first appeal because that we man did not were not in that situation we have jenkins which came out subsequent to that we sentencing we have thompson which came out subsequent to the recency jenkins affects criminal history it wasn't something that he could have argued before because the debbie was validly class for form excuse me it's class to form and now in burns it is not furthermore in regard to thompson those are conditions of supervised release things that were summarily imposed adopted once upon a time no explanation again thompson was decided in two thousand and fifteen as was kept this rely on both of those those were nresolved issues in state court is to punch it over to the state court and ask for an issue to be decided and then to postpone some appellate issue until we have a resolution we're further ahead than that we have burns and i have nothing further thank you all right thank you very