the sentence he received upon pleading guilty for an illegal reentry on the reasonableness grounds set forth in booker but before i get to the substance of the appeal i'd like to address the court's questions that it sent to us regarding the jurisdiction of the court has to cooper case i do think it's a dream a case that does provide some basis for analysis your honor the problem that i believe we're facing on this particular question of the court's jurisdiction regarding even prior to booker thirty seven forty today is the only specific way the defendant could challenge the sentence and the floor situations in that subsection were specifically the limits to  and that was have a save the guidelines they made them merely advisory rather than mandatory that's correct your honor and everything else seems to stay there and in fact this court in control has said that thirty seven forty two way does survive intact but i suggest that it cannot survive intact because booker expressly stated that defendants can challenge their sentences for a reasonable less that is not an expressed provision in thirty seven forty two eg and in coober which i think is instructive the the court also held that  booker must the reasonableness of the sentence for review must be read into thirty seven forty two a one that if a sentence is not reasonable then it is a sentence imposed in violation of the law i have trouble with that because there's a provision hippias provision for challenging illegal sentences and it has traditionally been understood not to mean sentences that  excessive in light of the crimes in the criminal history but rather sentences where the judge got mixed up on the statute that exceeds the statutory maximum something like that that's correct your honor however what we've then would be faced with if we cannot reach into thirty seven forty two a in any of the provisions that the defendant has a right to challenge a sense for reasonable missed the pronouncement in booker is meaningless at that  point clearly a challenge on reasonable this would not call into a two because a two contemplates challenge is based on an incorrect application of the guideline so that would be simply a pre book or analysis of whether or not the court properly interpreted and applied the guidelines will self really aggressive sentences that are greater than the guideline range after application of the guidelines so again a reasonable the standard wouldn't logically fit there and as far as a for which allows for the review under reasonable sentences but only when they're imposed for offenses for which the guideline doesn't contemplate any range so again if it doesn't fall within a one we don't have a reasonable m which again flies in the face of booker in fact thirty seven forty one has to now add this unreasonable is or rather reasonable is review in order to make sense of booker i think the court may have unintentionally changed the body of law saying that booker we don't allow a review of the discretion not to do a downward departure but i do think booker did intend to change the sure that i'm being clear about as far as the court's question of its own jurisdiction yes this reasonable notice is not part of the statute that something new we would be foreclosing some review of sentences because as control says this court has determined that now sentencing review is to start first determine if there was a misapplication of the guidelines was there an error in the guidelines of occasions if there is  that's what the remedial part of booker getting himself and that's that's our position on that in order to allow for the reasonableness review that stated in a book or it has to be consistent it has to be read consistent with the existing thirty seven it's meaning it's unconstitutional for a judge to find facts in the at that then go to a mandatory scheme but it's constitutional for the judge to find facts and use them and not me please the court steve came from the united states if i knew your nominee also begin with the question of jurisdiction and i think the crux of the argument comes down to whether we read book or just stand for the proposition that this court proper to require reasonableness review across the board or not and five votes that have reasonableness review across the board and i decisions under a three part test under this court's analysis which reviewed departure decisions to novo review the extent of departure for abuse of discretion in factual points for clear error the supreme court said that was an improper standard of review and it created a unit is you wouldn't necessarily agree with the view that the supreme court could strike a restriction on appellate review because congress has to confer  on reasonable as abuses of discretion and twelve minute one provided a catch all jurisdictional provision then we certainly could exercise tradition there but we did not because thirty seventh week is the exclusive basis for jurisdiction in this court point two eight superfluous it strips them of any meaning because it means thirty seven forty two a one can be used to review all sentences from recent ones and it plainly violates the canon or statutory construction you give all sections meaning secondly as a violation of law specifically on talking about the cases of morale us and lo and i'd be happy submit additional sites if i need to but in those cases your honor the defendants challenge the discretion of departure and they  their claim this way they said that it violates the directive of three five five three eight of not imposing a sentence that is greater than necessary just serve the statutory purposes set forth in that statute so in other words the coins back then were cast in the exact same way the claims are being cast now that a violation of three five five can in abuse of discretion should be construed as a violation of law and this court rejected that analysis as a matter of statutory construction and nothing in poker change necessarily an abuse of discretion but it's i want to say that when it just a court abused its discretion it's committing a legal error discretion necessarily implies that there's a range of reasonable choices and if the court decides excised portions of the sentencing reform act remain valid remain intact function independently we would submit that our reading comports of the clean wording of the statute it gives meaning to each provision and it's consistent with this court's consistent two besides the implications of the words in subsection one was imposed in violation of law i look at subsection four we can review a sentence if it was imposed for an offense for which there was no sentencing guideline and it's plainly and reasonable to me what that means is using the taking the word and seriously there there ha to be two things for us to do reasonable nest review actually plainly and reasonable review at one is the sentence is plainly and reasonable and the other is there's no guideline the implication of that is that if there is a sentencing guideline we don't get to review it for unreasonable that's true even plain and reasonableness and i understand that  interpretation of the statute and the implication of the words might be that way in the absence of the supreme court's statement that the court will review sentences for reasonable m what is your response to opposing counsel's argument that that is the standard of review rather than an explanation of jurisdiction for review well and i i see how that booker can be read that way however other courts have not interpreted so limited play and in fact this court in control specifically identified that the reasonableness review is more than just the standard the court uses but it's something the court  so cooper which is a fairly consistent with other circuits at least on that issue on the idea of the reasonableness not just me a standard of review i think comports with this court's decision and control which recognizes that reasonable this is not the standard to review only it is a basis for the review which stuff and based on that i think the government's conclusion that booker is living itself to a standard view isn't correct