court's order instructing the parties to be prepared to discuss knows whose gun your honor the court's opinion and knows his gun requires a district court show that it considers all of the sentencing arguments were pretty much all about book or book or mitigation and pretty much all the district court sad was is there any legal reason why sentence should not now be imposed the court did say a few other things but not a lot and there is no shelley here that the court didn't regard the guidelines as presumptive took all of the information it had in front of it into account or that the sentence that it imposed really is one that is  in its opinion in d s or get to the court instead has to look at the particular person in front of it and the particular circumstances that have brought that person into court for sentencing and there's simply no showing here from this record that the district court here did anything like that it may have done but there's no way you can tell and for that reason the sentence has to be vacated and the court has thre a little issue and a big issue little issue was how that's his record but the bigger issue is how how can you tell whether that affected the sentence or not how i mean because the the district court here really set only five things before imposing sentence three of them were ministerial things that it said under its obligations under rule thirty two has a defendant read the pre sentence report  hear from the defense now mr vivus would you like to address the court and so all of those are very ministerial things and the only other two things that it said at all during sentencing were to point out that mr  had been on probation or parole rather at the time of this conduct and second to ask a question when the defense counsel talked about mr the evidence having moved away so that he could get off drugs he moved to texas and he did it by himself he lived with his strictest relative who he knew would keep him on an upright path until he was capable of doing to that path on his own and the district court said always that  the court viewed the mitigation evidence how would you would his prior record all that we know is that after listening to the defense the government didn't make an oral argument at sentencing after listening to the defense go on for how it would his conduct and how any of this thirty five fifty three a factors the sentencing guidelines anything tied into the number that it was now pronouncing which was a low end guideline sentance unless the little issue of how that was his record i i don't think that's a real issue here but i would point out that just express this criminal history points that without the recency points he accrued because h conduct did occur while he was under another sentence he was only in criminal history category four with the recency points he was in category five and that's i mean his sentence his convictions themselves were perhaps a bit problematic but on the other hand he had very impressive mitigation and it certainly doesn't make him you know the criminal of the century so the point isn't so much about what mr of us did or didn't have in his past but how this court can satisfy itself that the district court did what savella commands it to have done excuse me that is start with a guideline range see what other information is out there and find the most reasonable sentence within a judge the best sentence will be something perhaps a little bit different and again it's a very difficult process to describe because instead i mean gauging in a mechanical  number accounting analysis the way district judges mostly did a couple of years ago now the analysis is far more impressionistic it's far more holistic and the because it took no account of mr view this is a very considerable mitigation this was a pretty it's a low end of the guideline range in the old days with say he did take account in the in the old days he wasn't allowed to with reasons that we take a holistic approach and with respect your honor your you your job is to make sure that the district judge took that holistic approach and two to be convinced looking all i mean if in mr give us this case the defect is a lack of a general justification for the sentence as the court expressed here the defect in this case is the lack of any explanation for the sen and the particular circumstances of what he did she lived on his own in weaning himself from what must have been a terrible drug addiction working steadily as a very humble occupations and given his life of political violence with his father having been the subject of a political assassination in el salvador and with his own fear of returning to that country and his inability due to his record to apply for asylum in this country there's no indication from the fact that the district was sort of was present on the bench that the district court considered any of that when the defense presented that to to the court at the sentencing argument  can't with respect you can't assure yourself that the district court did its job here it may be that this is reasonable sentence or even the reasonable sentence for mr just for whether the reasonable  i don't think there's a magic number although i will then then the best you can do your honor is look to see how the district judge did it and say that the district judge approached it with care that the district judge looked at all of the information before i hearing that the district court failed to consider the thirty five fifty three eight factors or failed to adequately explain that he had considered them and we submit that's an important lesson and knows his gun and as applied in knows his gun and we would submit there is no play here here the sentencing transcript shows that the court did begin with the guidelines factors which were undisputed in this case and then heard from the defendant and from the defense counsel concerning all of the facts and circumstances that that fairness thought were relevant to the court's the sentencing determination and there's no claim that the court didn't hear those and the other thing that knows his gun instructor says is that it's appropriate to look to the record to see whether in fact the court consider the statutory factors and that the court is not required to specify each factor that it considered but in fact we can look to the record and see what the court considered and that we can presume that having considered the guidelines the court took into account deterren and rehabilitation and here there is no issue as to whether or not the court took into account the defendant's personal circumstances because both the defense counsel and the defendant spoke at length about those circumstances and so the court necessarily consider them that's an interesting approach if counsel make the argument does that mean that the court considered yesterday the council argued thirty five fifty three factors in the courts is nothing are you saying that that means he must have considered it because he heard is that the argument yes your honor and i think the facts here bear that the court did consider it because it was in the factual portion of the argument that the that the court and gauged in some colloquy with defense counsel which should be sufficient to show that the court did in fact hear the facts and circumstances here this court has has not told us how much explanation post of booker is required and here we realize that we are at the you know the end of that hypothetical where we really had that it's sufficient to explain how you've reached the guidelines determination and then if in the mixed case if there if the court decides to sentence outside the guidelines why more or less is appropriate this court hasn't told us what in fact the and in that case that deals with precisely this issue i'm looking just for the citation of it it's one sixty nine f thirty six one six thirteen and now it is a case where the court found it wasn't plain it goes i think to the statutory error rather than to the book or error because i think the court did have some case law on the statutory era failing to provide any explanation with his book or change the latest paper but the importance of the thirty five yes your honor i would acknowledge that it has and that's why i would acknowledge to this court that we don't have a full idea of what this court requires in terms of explanation we know on the one hand that if the court goes outside of the guidelines more specific explanation  what you're saying is you can never claim error because we have would have to presume that the district court under these circumstances because we have to presume that the district court would impose the same sentence under these circumstances where we we had no case law describing what type of explanation was required and you had a guideline sentence i think those are the factors that we're looking at i think it's distinguished from amman line and that there is no issue here that the court understood that it had discretion  and it's difficult to realize that there is a difference and in the analytically but still it's hard to say that we have to presume that here it is different your honor because and in those factors the court the government asked the court to presume that think that the district court would have given the same sentence had it known it had discretion that's a little bit different than here where we the district court knew it had discretion and impose the sentence nevertheless so it seems that there's a much stronger in if there's a difference do you think do you equate the two you described it as you said there's no prejudice because the same sentence would have been imposed but that may or may not be the same as if i think a substantial right i guess that's my understanding of the third prong doesn't he have a substantial right to have the court consider the thirty five fifty three factors if not those factors are surplusage that is blowing in the w a just record doesn't have to provide any explanation at all then how can we review reasonable miss we don't know whether it's reasonable not except through our impressionistic holistic view  we don't we don't know why the district judge sense too we don't know why he imposed the sentence that is different than saying that there is no record here and so i want to be very careful in not saying that the government is adopting some overall position that no defendant could get that's why we're here we didn't address stevens which is addressed in the briefs and i would just like to know if in this case if the government thinks there was a stevens error or if there wasn't fairness the integrity the reputation of the courts but the first question is there are students there yes your honor we have conceded there is a stephens error here at the courts this was that not that drug treatment instance as with the prior thirty five eighty three and i think that that should be dispositive on the fourth pronk because under thirty five eighty three either defendant here has the ability to challenge the drug test if the probation officer prescribes too many before he violates them so the defendant is not in a position where he has to violate a condition of supervised release in order to challenge it and therefore the government would submit that the integrity of the proceedings aren't all in piano and he has really due process so to speak loosely because he has the ability to about the language and in steve and in this case through the lens of stevens the order is quote he participate in outpatient substance abuse treatment and submit to drug and alcohol testing as instructed by the probation officer now that's not identical to the language that you were described in the last case but it's pretty close and in the last case the government took the position that we ought to construe that whole clause as saying that we're talking about drug and alcohol testing in the context of treatments you don't test you don't have that interpretation and that's why your honor i do not and i was not aware of that case until i heard it argued here actually three cases that have almost identical language on this on this calendar and that's why i'm asking the question is that i think on one hand we have to either construe that language and say look when when the district court puts treatment and testing in the same clause same provision if you will we construe that as treatment the testing is limited to treatment and therefore it's ok understood or we have to say no there are two separate conditions the second condition isn't ok under stevens and then we have to do the planar analysis the judge judge rule has this right now the language is a little bit different in this case and i'd have to look at it carefully to see how it's different whether makes a difference but do you have aids position on the route we had to take if we assume between those two choices you are having not seen the language in the other cases i don't think it would be fair for me to opine on sing a sentence within the advisory guideline range and i would submit that the sentencing court has to do in that instance precisely what it has to do in any instance because the guideline range is not a  said your honor deprived him of the right to meaningful appellate review since how can this court as i mentioned earlier satisfy itself that the district court did what it's what we now know it was supposed to do  sitting and possibly paying attention while those factors are argued in front of it i'm so i would say that those are two ways in which his substantial rights have been affected sentencing use is you know this is one of this central serious act in the criminal justice system and to say that there was an error here and we really don't know what the district court was thinking but oh well it is really  perhaps that was more to the fourth probable i know but really does call the public reputation of the criminal justice system into doubt and does affect the client's a substantial right to have the sentencing really be something that thinks about who he is and how he got here and what's appropriate given what he's done and what brought him to this point in his life where he's standing in front of a federal sentencing judge looking at what's going to happen to his liberty in the next set of years as to the stevens issue again i've just looked at that to supervise release conditions in the