appeal it is our contention that the sentence was unreasonable under booker we have two prongs to that argument the first is a procedural issue in which we question the adequacy of the reasons an explanation that judge martina's gave to mr mcduffee and then the second is to claim that substantively the sentence was unreasonable because it was greater than necessary to achieve the goals of sentencing as set forth in section thirty five fifty three of title eighteen one of the principal case to sign which we rely is u s versus foreigner a six circuit case and i wanted to alert the panel that in preparing for this argument i learned that the sixth circuit had granted on iraq and i so i submitted to letters to the panel on that and i apologize for not catching it sooner find this i just want to make a couple of points that i think are not adequately made in the briefs and then i'll sit down first is i note the government relies on the articulated differences in title eighteen section thirty five fifty three eighty four the requirements as to the explanation of the sentence if the sentences were then guideline range less of an explanation is required then when the sense is outside the guideline range and my point is simply that those articulations were part and parcel of a mandatory guideline scheme and we now have an advisory guideline scheme where other factors are also p and therefore i would suggest that every this for purposes of appellate review whatever the statute says and whether the statute continues to apply after its revision or reconstruction by the then i thought well what does this mean here's a guy who and you can see what i did i said well i was looking to keep this guy in the community because i thought he could do it he had shown himself over six or eight months he was a tired lucky young man to get out on the first was leaning really in the direction of right where you've gotten him and he went through a lot of these factors and then of course we had this unfortunate incident i'm a little hard pressed to know what extra mile at least i think we don't quite know what he was thinking now if he had said mr mcduffee i see a problem here and i don't think you're beyond hope i think you need to participate in the drug and alcohol program and i know there's going to be some delay before you can get into that program at the federal correctional institution and i also know that if you succeed in that program you can get up two years off you know off your time so taking all that into consideration i'm going to give you twenty one months which may turn in to ten or twelve because i want you to have that incentive to succeed in the drug and alcohol program well then we would know exactly why the judge did what he did and here is the only thing the judge says you've already gotten a big break and therefore you shouldn't get any greater break i think it's just when you gave just now a good reason the judge couldn't handle but he didn't have him that reason ali and that was good reasons and i think he gave some pretty good reasons well and that is a matter of judgment in which we disagree i think he came up a little bit short the only other point i want to make which might well have been put into a reply brief is as far as the government's argument at page twenty seven in their brief where they suggest that the guidelines already encapsulate the thirty five fifty three a factors therefore guidelines range sentence should be entitled to a great deal of respect or actually what they say is the the factors that the sentencing commission was directed to use  developing the guidelines are a virtual mirror image of the thirty five fifty three factors in booker and i can't let that stand corrected because the guidelines do not consider all of the thirty five fifty three a factors but the government i believe gives the guidelines too great a way i think the court has my argument unless there are questions i will sit down good morning run freedom for the united states just martinez in this large wiretap case ended up sentencing about thirty people all of them in the end pleaded guilty and he'd got to know the case quite well and i would agree with at least as the sentiment expressed in the questioning that he really did all you could ask him to do and frankly i would suggest that you know these serve both these cases are pretty much the model  exercised by the court and how to first figure out the guideline range and then apply all the factors and that's what he's done and he's clearly awake he clearly is conscientious and he clearly knows to defend it before him and we'll hear argument next in the united states versus if you're determination of the role it shifted into the three five fifty three factors and we think that the court first must independently make a guideline assessment before it throws into the hopper all the thirty five fifty benefit from that in looking at all the factors that affect the court needs to avoid unwarranted sentence disparities so what it does is jump to thirty five fifty three factors instead of actually make a was reduced his exposure on the a mom drugs kept him in the conspiracy but reduced to moderates because of his cooperation instead of getting a five k motion they lowered the amount of drugs that the court we agreed to this  which i frankly think the government did the right thing here they charged a fairly low level when they couldn't charge much higher the charge to be precise to still conspiracy fifteen to the issue is the amount of drugs  and one of our arguments even if we didn't have agreement was that these drugs amongst were determined by the brothers or other people that he was doing favors for he wasn't paid he was that he was the goal for them and as i say he he wasn't the one involving to go shooting the amount in making its findings really kind of jumped ahead and didn't deal with the role issue per se because the court i'm not sure really relied upon that adjustment to say that's why am i getting the well because the court said he was substantially less than the others and didn't make the distinction that the government did well there in the largest in spirit he was but not of the one he pled to because our position is the one he pled to he was still in a minor role he did not make any deals lies on the government that the record if we look at plaudits for that again that's that's not really the big conspiracy that the rest of the people were involved with the large quantities of cocaine and money he was a drug addict and i think in this case you do have to make just read finding well based on all these various factors i'm going to go with the low end of what the government probation say should be the guide like range so we can use is that it's just touched on well when are you saying that that guideline range was argument that he does is plays any role but in my role in this case that's been our position from the beginning and the cantrell case to say that if the court doesn't get the guidelines right then this court doesn't go and determine whether the which he was engaged with others and used the strict guidelines reasonable for civility standards and for right to keep my time short paragraph forty five of the pre sentence report was on objected to by the defense talked about cocaine and i was that nothing on that second and not nearly anything else in fact even though the factual basis for the police says he also engaging cocaine deliveries don't exist in the stipulation of quantity there are no cocaine deliveries that exist twenty five talks of him turning out sixteen thousand dollars worth of cocaine from power into rock cocaine that certainly he wasn't held accountable for that the next sentence talked about thoughts about him carrying a gun this defendant was a lesser involved member of the conspiracy but we didn't put him at the level thirty two that applied to those who were held accountable for the general amounts or involved in this conspiracy which were frankly dozens and  served he's going to he thinks it's fair and i'm reading it page sixteen of the excerpt of record the government believes reasonable sense would be twenty four months at the bottom of the advisory range giving him credit first truthfulness and dealing with the government a months is is quite a good bargain and one only hopes that during those twenty four months a definitive learns what he needs to learn thank you you thank  it's pretty much our position of the government is still sidestepping the issue of the fact that he cooperated with them and that was the reason for the reduction in the amount they pleaded grima this very open about the role and  and he did not get a five k here and the fleet greenman clearly required him to continue for operating and i think that that factor changes the torture that the government's trying to make that he was given a pre tiny amount so that that washes out the role issue i just don't think that that's really what happened here and i think the record that the government points to and please excuse me in the pre sentence report actually support