minute into consideration but you didn't well i think there's two problems with that because that particular sentence when when looked at with the whole ruling of the court it looks like she only took into consideration thirty five fifty three evidence and the court so that's that cuts against you because you're telling me that the lawyers specifically argued that factor and so are we supposed to assume that the court can pay any attention well to the court the of tea dance where judges have to follow a certain pattern and it's not good enough to say i'm considering thirty five fifty three hey you got to say to wit and then you've got to just march mechanically down the list you know you and i we're not advocating a take the sentencing factor account of counsel don't put before you facts say look this is the way in which this defendant is similar to my client and therefore there has to be a rational reason why th provide adequate showing that there was an issue he made a presentation that there was an issue that should have been considered by the district court well let's say we get past all that and this is the court says  lenient and you know i don't i can't articulate any difference between this individual defendant but i'm certainly not going to be bound by a decision my end of a judge the names of the case in this case numbers and what the sentences were but your primary concern is the judge have failed to consider uniformity and put in the imposition of sentences that's right that's your primary concern act and yet she sentenced this gentleman right in the middle of the guideline range which in the guidelines when you look at the purpose of the guidelines if you page two of the of the manual says the pervasively the policy statement is for honesty uniformity and proportionality and so judge health basically probably did the one thing that would guarantee uniformity she sentenced in the guideline range in those those were developed uniform means uniform in terms of what other other similar situations situated would receive isn't that right right under it and so one yes under the guidelines it's a loose situated defendant might have received that ok i don't think that's the issue right now i don't know if you have like the government's personal opinion on whether the court if it's something of an issue is raised by a defendant whether the court needs to specifically address that particular factor  one and and quite frankly i think it is a defense counsel wanted to compare the two party case in this case and the onus was on him to bring forward the sentencing memorandum a plea in two thousand and four the and then number six sixty three increase the case of sensible for attempted murder to thirty three and that's the sort of guidelines that defendant kline with signs under so we're talking about a change in the guidelines i'll be at the advice advisory we're talking about what i guess what i'm saying is that he put some facts forth some evidence for it in the form of the docket sheet and there was more evidence that he could have that he could have done a plea agreement sensing memory etc and because he didn't do that the district court if he if he or she does not raise it at the sentencing hearing certainly back to the point the practice point or for the government here is that with all the sense of stuff in flux and with everything that we've said about this particular aspect of the law and assist united states attorney ought to be very alert and i can tell the judge you know the mean old ninth circuit so you've got to consider all of these factors and the defense has put forward factor whatever it is and we respectfully request the court to address that factor and the sentencing i mean you can make a record so that we don't get into these whether she did or whether she didn't problems i was the counsel in this case and i quite frankly did not believe that there was enough evidence put forward by counsel and nice of somebody would have said that that we wouldn't be here  be i mean i think nothing else because the purpose of the as i said before is to develop uniformity and i'm there i understand the guidelines are advisory but for fifteen plus years they've been trying to develop uniformity it seems to me there has to be some significance to the fact that this sentence was imposed in the middle of the guideline range that's that's that's a significant factor i would think maybe it maybe doesn't rise to the level of being present to really uniform but if if there if it's not present of the uniform what is it what are that what i mean you know in the olden days before you were born judges used to get a profile of what people what sentence people had gotten for crimes like this and then your stuff wasn't really didn't lock you went it was kind of advisory here's what people are getting for this kind of a crime so i just had that in front of so i think judge by sly was a guy like that with an interesting point right well i i have not so you can even make an offer of proof that would convince us that you've got a rabbit in the hat you know to pull a rabbit out of a hat you've got to have a rabbit in at the start with and so you don't know whether it's there i look and maybe provide other district go with that argument worked ok let me tell you if you probably never heard of audie murphy he was the most decorated soldier in world war two he had congressional medals of honor was the best shot they ever had in the army we had a case in los angeles where he was charged with trying to shoot a dog handler who mistreated his dog he fired six shots about ten feet away at the dog handler and paul caruso the defense lawyer brought in all of his marksmanship records from the army and his congressional medal of honor and they the argument was if audie murphy had intended to shoot this guy you know put six bullets in his new left nostril and the jury bought it and let audie murphy off to hell and back read the book this well i think it i think if the party puts it out is you it's just i think you can put in all cases from all over the country where somebody was charged with this kind of an offense and then have a trial as to what all the sentences were and then figure out how to thread that needle i mean what's the at what what's the end of this if you're after national uniformity you try all the cases bring in all the facts all the cases what you do when i think you bring yours to government brings in there is you end up with a three week trial and all attempted doubt that we don't have to bring in all the people or at least a statistically viable sampling well i think in this particular case the defense counsel presented it the government did not even mention that's one factor and the government could have countered with yet are you arguing the treatment if you're presuming that you lose on that on the offense level and it's appropriate at level thirty three as opposed to twenty seven and you have a range of one thirty five to one sixty eight is it your argument the judge have should have sentenced at the lower end one thirty five because of these others are you suggesting she should have departed downward considerably gone beyond the sentencing guideline range into consideration the guideline range but the court should take into consideration other factors that are that's in thirty five fifty three one of them being disparity right and if you look at disparity and you agree there's disparity you suggesting it should then go down to one thirty five which is the bottom of guideline range or should go all the way down to the thirty seven months depending on what i think the court may get it's up to the discretion of the court how low she would want to take it if you are not i mean what you're