section four a one point three as the court is aware that that section allows for departures when the defendant's criminal history so to find his criminal history substantially underestimate the person's prior criminal conduct as well as the chances that that person will or serve it the district court in this case departed upward one level from criminal history category three the criminal history category fo can i guess from the standpoint you know obviously in terms of convictions or in terms of things that are considered mr bad marriage has a bad record a answered but i think that under either prong either under the recidivism prong or whether the criminal history is not adequately reflected i think that what the court needs to look at is the underlying seriousness of the offenses and the the offenses that were in this case i think on the government has to concede we're under the case law the ninth circuit not serious they involve primarily drunken behavior  orosz behavior a number of shoplifting some misdemeanor assaults but particularly when you look at this this court's decision in the lopez pastrami case and i think it dealt with the martinez case and what the mark what the martinez case said is that's crimes that are defined under four a one point two cd in those are crimes such as disorderly conduct shoplifting bad checks those sorts of things are not counted because they offer no basis for predicting future criminal conduct and so if in that context the sensing commission and indeed this court has found that those types of crimes do not assuming that you're saying essentially for guidance because it's not exactly employing rest correct right that talks about county right right and this is and then we have the r word departure so we you're asking us to import the language of counting into the upper departure right right but i think you have to if it can't be counted for one purpose i don't see how you can go back and fall back on and allow it to be counted for parts for purposes i guess in terms of if you just put yourself in the sentence in judges position and say you know let's say mr bad marriage just had the ones that could be counted and they were in fact counted he had nothing else on his record hatch to not treat those two individuals exactly the same but i don't think they need to be treated exactly the same and that's why the commission provided guideline ranges one maybe sends down to the lower end of the guidelines for mr bad marriage may very assault battery type things and that type of thing but i mean he certainly has you know he's consistent but i think i think the sentencing commission and in wording that's the specific departure guideline provision indicates that the underlying offenses have to be serious but i guess when someone commits so many crimes and over such a long period of time h really give a court something to hang its hat on in terms of recidivists behavior i mean it let's say now it's ask elated and we do have some that are serious that have to be counted but i mean he just has you know it's just so there's just such a long crimes have to be serious and as i recall there's a i think in that same guideline provision when they're talking about the types of offenses that should never be counted they they talk about a person may have a large number of misdemeanor type offenses and therefore come out higher with a criminal history category than someone with say less but more serious type and so i think that the commission specifically look at indetermined non serious type offenses even to even a great number of them should not be used either to be counted after a certain point because you can only count for one point or so to speak and after that i think i don't say you should stop counting the one pointers and also for purposes of departure of an up or departure a case to sit with the witnesses pretrial and listen to these kids kids who are fourteen fifteen sixteen years old talk about their just their lives and interspersed in their conversations our stories of how close friends and relatives have got to prison have died horrible accidents have contracted serious diseases have died in violent crimes so i don't i don't know what the answer to the broad context of the question is and alcohol is clearly an enormously serious problem i mean every great and it's terrible no doubt about hope there is one found as clearly for mr bad marriage not for at least for his future not to simply lock him up again and again for the people who are the victims of his crime like you mr bad marriage up is certainly part of  for but you have to try to do something he doesn't do to get him in jail and then think it over and i would hope that he would get some rehabilitation maybe this time but we just are going to prison not so far that's point three actually says is that there can be a upward departure when the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct the seriousness of his past criminal conduct that doesn't say that the defendant must have a felony somewhere in his history before there can be an up or departure or a series of felonies that says that his past criminal conduct must be serious i don't see how you can look at mr bad marriages total picture all of his past conduct and say that it's not serious it's as you pointed out it's a revolving door he's practically not out of jail before he's committing a crime again and and how at some point how can that not be serious my second argument is that the guidelines provide for the possibility of up departures if mr nessa's argument is true there could never be an upward departure based on a misdemeanor criminal history and i don't think you can look at mr best and this or bad marriage is the perfect example for why that should not be the case a little bit lacking dispositive case law yes i mean i think that mr nast said it was exactly the case he's asking us to import the counting case law into the know i think i think that there's a clear need to try to address the social problems on the indian reservations rather than simply lock people up because i think it's pretty clear that it it just doesn't work and  particularly now when the treatment opportunities in both federal and state prisons are being cut back as more and more people are being put in prison and the mines are boiled on the reservation not on this particular reservation although it is although it is it borders up against pleasure national park so there is the potential for terrorist type crime part of what kind of mine now i don't i don't believe there is a mine on this particular reservation no never depart in a situation where a defendant only has misdemeanor type offenses and i don't think that's true because a court can depart on the basis of conduct regardless of whether or not the defendant was convicted of a felony conviction that the park and upper later part i think if there was a description i'm clearly indicating that it involved wife beating i think that the court can use that underlying conduct to depart the problem here is with this pre sentence report for the vast number of these convictions there is no description about what actually occurred and when you go to look at the statute a conviction for example for domestic abuse under montana law can be supported by rather look at the facts and i think you can look at the facts i don't think you can necessarily just take the conviction when you don't know what happened