the first thing is we would reverse if we thought that the district judge did not recognize that he had ability to grant the downward departure however i look at page sixty eight of the excerpts of record law and seventeen through nineteen and judge says i recognize that i am able to grant downward departures based on the court of appeals opinion but i do not think that they are appropriate in this case now my reading of that is the judge recognizes that he has the discretion to grant a downward departure and decide this a matter of discretion not to so we have no jurisdiction to not clear at all it looks to me as though it's real clear he's entitled to the three points in calculating his guideline range you get a guideline range of i don't remember hundred forty two one hundred sixty months something like that and if the guideline range is higher than the statutory max then the max is the guideline sentence and the max here is lower it's only yeah i was at ninety six months and so that's the guideline sentence and he you had a three level decrease for acceptance of responsibility in what i understand your argument to be is that it was not meaningful in any practical worldly way because of the way the alaska for years we had no plea bargaining rule you just tried to cases sets all a lot of people pleaded anyway so the judge wouldn't hear how bad it was and just i don't get it it seems like all you're entitled to is a three point adjustment he got the adjustment it still came out higher than the max so we got the max and if he thought geezer nothing entered for me pleading early i may as well roll the dice on trial and roll the dice and that's probably what he should have reason to think that what this defendant was asking for was a discretionary departure the defendant quoted three one point one relied on chase law applying three to one point one the defendant relied upon the probation officers recommendation and while the defense characterized their recommendation as a departure with what recommendation it was clearly a downward adjustment recommendation rodriguez had a couple of components to its analysis before it got to the question of whether sentencing court could depart downward you know if i see one point one any sentence or four seventh's of responsibility you first address the question whether it had the court were to treat the damage to parts your theory that that is on the table now the departure for acceptance of responsibility as having been made below that and the district court clearly would have rejected it along with every other departure ground advance but where you don't understand what i'm asking you i don't think well then you wouldn't have the jury the court would have you would never get to the question a waiver if we have no jurisdiction it's like it's just like if we took an appeal from the superior court of the state of california to the ninth circuit no jurisdiction good bye we don't care what he did in the spirit of court well sure sure your honor it the district to the extent of the district court considered all the parts are yours this court would not have jurisdiction but there's a sort of an answer in question as to whether this w that's sort of a fundamental problem with that with the appeal but i think it's right in that to the extent that the argument was meeting which is which is a question i just record rejected all would be a double benefit for this defendant to get acceptance of responsibility adjustment under three one point one and then subsequent to that after that statutory maximum sentence was imposed a departure based upon the same conduct  and it would be inconsistent the government's ignorance with the guidelines to give him that double benefit three points for acceptance of responsibility early you've got a max of ninety six months after he comes the guideline sentence but at that point you don't anything to take three points off your you don't have the ninety six months doesn't come from an offense level the way usually get a guideline sentence where there is a lower max is you've got an offense level on one access and the criminal history level on the other access and they give you a range here you don't have an offense level or criminal history on a graph and you don't get a range you just get a number and it's not based on a level so i don't understand what you subtract three from if i may want to jump to the district court judge on that very issue  we didn't disagree with the criminal history category of five however when you look at the table to something table in the back of the the guidelines provisions there's a table and if you look at the prime of this record category five to mask and penalty if you were to put in the criminal offense level twenty two he would be looking at the maximum punishment of ninety six months so it was my position that the court should tackle later determine the offense level to be twenty two with a criminal history category of five and that would have therefore have placed the court in a position to i will recess for ten minutes