appellant was riding along as her codefendant drove appellants car to an a t m and that the two of them and met at a bar in the middle and could withdraw money to purchase cocaine from the code appellant raises two issues on appeal with respect to her sentence first she argues that the district court plainly erred in calculating the criminal history score for purposes of the sentencing guidelines based on a prior conviction a prior that resulted in a probationary sentence the government does not dispute that there was an error and that the error was plain however the government argues that there did not affect  are inconsistent on this point one or the both of them met a man who wanted to purchase cocaine from the codefendant he didn't have any money on them so the codefendant drove appellants car with the pellet riding in the grabber seat to m so that the man could withdraw money to purchase the cocaine on the way to the a t m the car was pulled over by the middle and police department for a traffic violation appellant consented to a search of the car and in the car the officers found a purse behind each of the two seats the driver seat in the passenger seat single person to person to person as appellant had her purse behind her in the passenger seat inside the purse were and so she we have to take that so she knew that she had it and she allowed her car to be use for that so why is she how do the district court here well  activity because her car had to be used and she is all the controller of her car well are with him dribble to the activity not peripheral well this court has held in the past that in order to be eligible for a defendant must play a peripheral role in the criminal activity and that a defendant whose participation is integral therefore disqualifies her however the sentencing commission has clarified more than once that that is not what it intended amendment not since the most recent amendment that took effect on november first of this year the court has expressed that same view with respect to peripheral peripheral involvement since the november first two thousand and eleven amendment  however it's difficult to see how that case law is consistent with what the commission senator levin we have to follow the case that applies after after the new we have a precedent we're bound to follow it unless there's another press another change in the rules well if the court would have you the twenty eleven minute as not controlling in this instance there's still the november first twenty fifteen amendment which added a sentence to the commentary to the guideline that says that the fact that a defendant performs in a central or indispensable role in the criminal activity is not determinative such a defendant may receive an adjustment under this guideline if she is substantially less culpable than the average person participant students rights well it is if you if you took the lowest guideline range under what the district court used versus now with that both sides agree with the correct you don't agree that well with respect to just that one error in the effects the integrity of the cortex out or if it does that then why are any sentencing era do the same in other words would surely not every satisfied the court is nevertheless declined to exercise its discretion to correct the error for example the defendant's criminal history might be particularly extensive and agree just and in that situation the court may find that there is no adverse effect on the fairness integrity and reputation of the judicial proceedings in this particular case the error was particularly obvious and this court has mentioned that as a factor weighing in favor of exercising its discretion to correct the  appellant counsel didn't object but the probation officer who is responsible for preparing the precepts report also missed it as did the government in the court so yes there should have been an objection but nevertheless and this court has addressed this error of more than  there indication from this record that judge the nail relied on the the absolute numbers in the guidelines on the word ok i'm i'm gadabout the guidelines on the pick a number somewhere along that because of the guidelines as opposed to control right well after the court had addressed the the government's five k motion and the request for a minor role judged no went through the guidelines calculation and said i find that the guideline range is fair and reasonable so i believe that reflects that the court was in fact relied on what it believed to be the correct guidelines range as opposed to some other considerations outside of that factor that might have weighed in favor of the s we might want to analyze this case but in our precedent the third prong is still applicable even if supreme courts grant cert you know this question so if we were to start this case today you would lose on the third pro advisedly post book or are there still a very important part of sentencing you know the supreme court has said that in making at sentencing determination the district court must start with the sentencing guidelines that's the starting point in the initial benchmark  and it is also the case that the the the rate of within guidelines sentences varies quite a bit from district to district around the country and i don't have the statistics in front of me but i'm fairly confident in western district of texas where this case is from that far more within guidelines sentences are imposed than in other places around the country so it's not simply that the guidelines remain important and the benchmark but that courts particularly in this district still rely on them right now in order to slip a guideline even for the correct range and so that might affect our decision to use our discretion it can and i believe that nevertheless the court should exercise its discretion to correct the error in part because of the obviousness of it which the court mentioned but also because as i said the guidelines are still very important and central to the sentencing process and i think it's important that errors of that nature are in fact corrected and although this isn't strictly speaking relevant i'll just note that at the time of sentencing the when the government made its motion for a reduced sentence for substantial assistance it was relying on a prior version of the pre sentence report and request of a sentence of fifty seven months which i believe to be at the bottom of what it believed to be the the correct range based on using your we have to give some meaning to that public integrity and so what i have a hard time saying that our callers were close call it this that or the other affects the public integrity of this court we're doing the best we can please the court i would like to direct this court to page one sixty three of the record to clarify a question about what the court were large on right before imposing sentence the court clearly stated that it was considering the guideline range in an advisory capacity and then it went on to say that it was considering the senate inspector's as set forth in the thirty five fifty three before arriving at the seventy month sentence and i think it shows that he also looked at the factors and that the range he didn't feel bound by and that he thought that seventy month sentence was the proper sentence and not that he was  that the sentencing guidelines change that was recommended but what i really wanted to focus song is exactly the fourth prong and i do believe that the particular facts in this case  yield a result that seriously affects the integrity and fairness of the sentencing proceeding and i want to start at the beginning in this case early on the magistrate judge stated what gives me great concern great concern is appellants criminal history there were record reflects a life time and life time of criminal history by appellant spanning twenty years hundred ninety five when she was twelve years old she was charged with her first past and i do direct you to pages one ninety one the one ninety six of the record that's the pre sentence report in your criminal history a very lengthy arrest record a very similar it's criminal history that i think the court took into consideration or this court to take into consideration when you look at this said that she got for example in twenty twelve she was convicted of possession of a controlled substance however the p s r goes further and says in this that when the police went to execute the narcotics search warrant at the home they found appellant in the home along with them that are individual along with a pistol along with a magazine containing six rounds digital scales and twelve hundred or over thirteen hundred dollars in cash that's a serious crime this is important from page one sixty one i'm quoting i want you to be fully aware that you are very fortunate that the government did not inherit your conviction in this case she had two prior convictions if the government had filed a sensing information she would have been looking at a mandatory minimum of three hundred and twenty months she got seventy the government gave her a break and not filing  of her wife her history i am you know they felt bad for her but i felt white what i'm guessing is they felt like she could get her a decent sentence without the hundred twenty but when you look at that board prom and board and i think judge taken morgan is correct that we have to focus more on that last prong and oftentimes in the past and kind a lump them together but when you do look at that our recent cases fourth prong and it's not enough of what they're trying to mean absolutely absolutely we're focusing on the fourth floor thong i was just saying that watching these cases proceed it seems like we are spending more time on that fourth pawn that we have in the past and i think that is right and i just want to just remind this case that back in pocket versus united states that the supreme court says it's difficult to meet all four prongs and then the supreme court in a  said that discretion should be exercised when a miscarriage of justice resulted and when you look at that direction from the supreme court when you look at the fourth factor here i don't think the court should choose to exercise its due when we consider in that decision is it appropriate to explicitly consider the fact that the district court went on at length about the decision by the government not to enhance and said if the government would have enhanced this would have been a mandatory twenty years and you're just really lucky ma'am that that they government didn't hands because there's no reason that they couldn't of and that's just their decision so this is not a problem case for us to exercise our spearing discretion because the person's already gotten such a good deal is that a reasonable thing to consider is that not appropriate do you think it's reasonable to consider that that's part of the record music it's a very fact specific question about this case and i think it's absolutely a minor role although what sentencing objected she did object she offered no evidence she merely gave so serving and supported statements and for example she says at sentencing defense know where that evidence comes from it is not in the pretty central port i combed the record i believe that was just a statement made by defense counsel and then in their brief when they argue she's entitled to min world they argue that it was a telling stealer and then they cite back to the attorney's statement at sentencing so that's that is not evidence that i'm aware of and if it's in there maybe i've missed it but that is not reflected in the present report this case shows that appellant was involved in the planning she was involved in the execution they were both in the bar they both met the man and they just they hatched this scheme about going to an a t m having the defendant follow her and they used appellants cause i don't see how a court could find that she was substantially less culpable than her in fact her came up at the hearing that the information the district court had was that she had never mentioned this in her did extensive debriefing this whole just might be you were right she specifically include her information that she is now proposing to the court is that this is the one and only time that you know that she was doing this with the with the dealer that's right before that and that's so that's it's it's within the discretion they could choose to disbelieve that late statement by the lawyer absolutely respect to the fourth prong on the first issue the government mission of that appellant has an arrest record going back to age fourteen i think it's important to put that in perspective she did have a troubled childhood and her parents divorced when she was ten years old she lived with her mother who was a heavy drug user primarily of cocaine and she was also the victim of sexual abuse as a child and while she does have a number of arrests and conviction she has two convictions for theft forgery of a financial instrument and possession of a controlled substance and i would also dispute the notion that she had a break by not having a sense and ha mastermind of any operation the record shows that she was a drug abuser mastermind to get the mandatory minimum i mean you don't have to be the mastermind and the district court said i want you to be fully aware that you were very fortunate that the government did not enhanced your conviction in this case which would have been a mandatory minimum sentence of twenty years so the district court thought she was very fortunate and said there is nothing mr bronson can do and nothing i can do we be a mandatory minimum of twenty years there's no control was in fact concerned about her and i see that the mandatory minimum point well he was incorrect about the mandatory minimum if she had you know if the government had filed in and have some information that would have raised the mandatory minimum from five years to ten years which i believe the district court mentioned not not twenty years twenty years i don't believe is available under the subsection of the statute under which she was charged based on the drug quantity novelty or your didn't say anything at that point like oh you're on or you're wrong about that or no no but again i think that the statements of the district judge reflect a genuine concern for her welfare and he was attempting to impress upon her that she has to get away from this drug is necessary to impress upon smith that she needs to get out of the drug activity and for that matter the just parent that i believe the supreme court has held that a sentence can't be extended for the purpose of ensuring that somebody  treatment but i think the the upshot of that is that sentencing somebody to seventeen months based on the plainly incorrect guidelines calculation because they're a drug user who has a criminal record that says that that's statement you could have gotten a lot more it wasn't that he was holding out the possibility of a needed link the or sentence than seventy months he was impressing upon her that she needs to change your ways and assume a time is expired thank you counsel thank you