is that the district court was not authorized to every sentence him on the kidnapping conviction after he had vacated the nine hundred and twenty four state conviction because his initial sentence was not a sentenc sentencing does not show that the judge's decision when he was very downward from the kidnapping guidelines had anything to do with the fact that he had to impose a consecutive seven years for the nine  to indicate that the judge to confirm what the judge said later namely that this was a practice since they point out that at the original sentencing the judge addressed address the defendant previously when you look at the sentencing transcript this judge is sole focus and look at all of the defendant's sentiment of it what about the two what about the two points that to the government points to the record here  that was based on each defendant's conduct during the kidnapping and each defendant's level of cooperation and each defendant's criminal and personal history there is not one time in any of those sentencings in two thousand and nine where the judge says and i will also take into consideration that i'm going to have to add this seven years mandatory minimum in fact what he says is that i'm kidnapping sentence and the entire discussion and each of the sentencings involves soli of the kidnapping conduct and then each defendant's level of cooperation and their criminal history category and if you look at townsend and you look at your smith case in two thousand and six you see that the court specifically relied on what was in the record not simply that there were a number of sentences and it ended up being a certain total sentence they the court has looked at the record to find out what the judge's intent was so in other words in that in townsend case this court pointed out that the record explicitly showed that the judge relied on a sentencing package theory that i did that becomes a requirement or think that if that was an appropriate way of explaining what happened in that case well i believe that it becomes the standard because not only was that the standard in townsend but in smith this court repeated that same standard and it looked at the record  this the defendant challenge the sentence and this court said their record is conspicuously absent any sign of a sentence and package and so our position is that based on towns and based on smith that this court has to look at the initial sentencing record and while the judge may have thought that he did something and eleven years prior the fact is that when you look at the departure on the basic crime of kidnapping because mr lassiter cooperated and the government told the judge that he was either the st or one of the st people to come in and cooperate and ended mission to that mr lester had a number of mental health issues that the judge took into consideration those were the reasons that he departed downward and that mr lassiter still ended up with the highest sentence among all  rehabilitation in assessing his new sentence or only now want to appeal after that strategy came up short has lasted or changed his position but the district court did not air and certainly didn't plainly air in it individual defendant i think this is a case where actions speak louder than words specifically dave under brown received the single highest kidnapping sentence of course setting aside last winter and the only explanation for why that could be the case is that he was the only one of those defendants to not also d have been won twenty four attempts to explain that away by by noting that they have on braun perhaps cooperated west on the other defendants there's simply no indication in the record to support that in fact on appendix page one hundred and forty eight in the government's sentencing memorandum the government specifically notes that even accounting for cooperation dave on her this court in town send a cited to the eleven circuits decision and watkins discussing the fact that a sentencing package theory is especially likely to apply where the district court goes below the guidelines range it would be very unusual for these individuals to receive the magnitude of downward variances that they receive even for the fact district work was taking stock of those nine hundred and twenty four dollars c counts  cooper and then deborah are brought that simply could not be explained on any other basis than the one thousand and four c count given their criminal history is and just the substantially greater culpability of the other didn't cooperate in the government's sentencing memo they say yvonne hebron who played a significant role quote manifested a willingness to participate in murder quote steadfast refused to cooperate and should receive a sentence greater than that of macaulay and wheeler vats while i have ever on received such a large kidnapping sentence he did not cooperate everyone else had some level of cooperation for two of the co defendants wheeler and macaulay the government filed a five k one point one letter but not for last letter  and cooper and leave it was to death row ever on so the judge took into consideration everyone's conduct and he talks about this for him a sentencing hearing the government goes over everything and each defendant did during the kidnapping and then each defendant's level of cooperation each defendant's criminal history category and that's how the judge comes up with a sentence for kidnapping and again if you look at each of these transcripts in divines sentencing transcript the judge says i look at the broader picture of how all all six co defendants are detail this in our grace he says pa to believe the same language in every other sentence and not once does he say and i will also take into consideration the fact that i have to you know slap on another seven those two possible interpretations one is that that the the one who got the highest kidnapping did not have a non twenty four city and he got he got the highest one are there are not two interpretations if you look at the transcripts and see the progression of how the court sentences each of these defendants the court's saul focus is on that kidnapping it's only look at the court was only looking at what each defendant did who had the baseball bat who have the box cutter who have a gun who did what if he was soley focus kidnapping so there are two interpretations because at the end of it at every sentence he says i'm going to consider everything that you did during that kidnapping and come up with a guideline sentence and then i'm going to add seven years for the nine hundred and twenty four dollars say so our position again is that the record is clear it is plain and if you follow townsend and you follow smith the original sentence was not a sentencing package and the judge did not have authority to resentence mr last letter on the kidnapping thank you very much i appreciate that your honors