trama half a benjamin blue the court the district court the crowd court could have said i do not have the power to do what you're asking me to do son going to sentence you because or the district court could have said which is really the most important thing that he could have said is that i do have the power to s record would have been absolutely clear if the problem really focused from a as i wasn't trial counsel in terms of drafting of the assignment of era if the district court had said i don't have the power to do what you're asking me to do then i could have explicitly assigned that as error let me ask you this in explaining listeners district court specifically referenced blues brother and blues opiate addiction law wasn't a sufficiently individualized and specific explanation of the since it was if the district argument oh well the issue of the opiate addiction the influence of the older brothers are just the reasons that trial counsel was advancing for a bolo guideline sentence i thought trial counsel was also pointing to things like a disparity in the sentence between the defendant and his codefendant making an argument that quite apart from the defendant's own characteristics that this guidelines range was just plain too harsh yes he was all right and did the district shot so that means the disregard did not address that it means we don't know whether the what the district court thought while you qualified your own case question is you say explicitly that was the just maybe was implicitly this in terms of whether or not the era if you were to find that there were it's harmless because we don't know what the judge thought as to whether or not he have the authority to conceivably sentence for one day that's correct and we have know and i'm sure there's probably an explanation for that but i don't know what it is have no idea whether this and you know the the best part of it is that well at least from our point of view is actually specifically blue specifically suggested sentences both in its final sentencing memorandum as well as at trial he went up when he was actually at sentencing but in the fact of the way he was our seventy three months less off from what he was actually sentenced to you have the situation where one of the factors of the three fifty five a or three five three factors is protecting the  community you have an effective difference of about six six and a half years under the sentence that he got he got fifty five he would be out when he was fifty five if he'd been sentenced to what do you ask for he got now when he was forty n well i'm not unsympathetic deal position but i've i don't remember the judge saying that he didn't have the power to sentence below the guidelines i mean we're send a record he didn't say anything  at he didn't say hey we don't have the power he didn't say he didn't have the power i mean he was completely silent and which is as you said that's gregory i mean we don't know if that impacted me mean just a few words he could have said what was he needed to say to properly support what the sentence that he was imposing but he didn't do that so and i agree that courts don't have to go into great detail you know particularly when they're doing in it with in god line sentence i agree with all that but i just think i was handicapped by what he didn't say and this court is handicapped by what he did and so i think for all those reasons the case should be remanded for new sentencing court on behalf of the united states in this case the honorable judge beatty imposed a reasonable sentence at the bottom of the defendant's advisory guidelines because this decision was not an abuse of discretion the government's  says considered arguments on behalf of the defendant with respect to history and characteristics and then it mentions two although not all of the ones that were put before the district were but there were a whole bunch of arguments that had nothing to do with the defendant's history and characteristics and i just can't see any indication that the district court considered the or and if the district court did i have no idea why they literally no idea why they rejected like this disparity thing yes sure that's a big disparity right sixty three months versus two hundred seventy two months and the other guy provided the gun i have no doubt that the district court that there's some explanation but how can i review that i don't know what the explanations your are i think we can tell from the record that the judge did consider all of the arguments specifically and we're talking about the arguments as to mr blues not just the sister in characteristics but as the district court began that paragraph talking about his substantial criminal history category in the there was a large discussion and debate by the forty's of whether or not mr blewitt was in fact a career offender whether his prior bank robbery conviction qualified which this court since has at that time decided mcneil that it had and whether no discussion in this case however i think the record is clear that the district court judge did hear the arguments of counsel it internalize them and they didn't use those arguments in applying the thirty five fifty create factors this was not a case where there were  generic reasons that were given that had nothing to do with the arguments of counsel the district court judge in this case mr blues counsel argued for at some length in mitigation but related to the defendant's family history talking about the fact that he was on being central bank robberies and he had multiple of the brothers that have been convicted bank robberies and that was a negative influence on his wife the dishware judge also specifically address the defense argument but they did opioid addictions it's clear that the defense arguments w support the lower sentence there were other better opioid addiction clutha urging on in terms of the influence of been circling and history in characteristic do you think there would cover all of the six i don't think that covers everything the defense counsel said i think defense can do you think it was they were not cover our non frivolous your honor i think that they address primarily the defendant's criminal history which the district board indicated that it affirm the decisions in those cases the description by the spring reader the district's explanation was brief but legally sufficient and that's what we're asking the court not that this is how this court would choose to do it but by finding that the dishware judge did not  transcripts and records and making this determination it's always going to be an individual ised case by case analysis but there are some principles that are universal that this court's applied the first of those is is that a guideline range  explanation than a sentence that's above or below the guideline range and that makes sense this court in the two thousand and six johnson case talked about the reasoning behind the guidelines and how they intend to cooperate the thirty five fifty three factors th gaps late decades of both statistical analysis as well as policy procedures in determining how judges treat thirty five fifty three factors and in read of the supreme court recognize that when a judge chooses the sentence within that range that less explanation may be necessary because that that decision is voiced not just by that your just decision but by the commission's experience as a whole i think we see a lot of the cases where more explanation is required in carver which th explanation you also had in that case in the case in that there was no explanation and no it in no been done to address the council's arguments whereas here there are some explanation and the question is is that brief explanation legally sufficient but i guess i don't totally understand what you're saying about it within guidelines outside guidelines more or less explanation but it does seem that we have this other principle which is that grief are not the only full or not the explanation has to include addressing even if briefly all of the non frivolous arguments we're going to disagree do you think that we're in for with a within guidelines and it is it becomes unnecessary to talking about the term the district court or of the arguments and made an individualized decision but we also have i thought it was about or in part about that but also about the district guard's obligation in open court to say what it affirmed decisions were just for judge specifically address some arguments but didn't explicitly address others and the citations were always uses is to read is the language and read of the district court judge is not required to specifically check through in that there are some non frivolous arguments at synch your honor i think i think you do i think you do require the port to consider them at your desk who's not to do it today i don't think this court's required in the past i don't think it should require the district court judge the referee argument in that case as long as the record is clear the district judge look into everything and made that individualized terminations there's been concern in this court's opinion specifically in johnson about exalting form oversized substance and you know again we are looking at what is the minimum necessary for just a question of session that read a genuine question i don't have and on of me i always thought that the robotically through language ones we don't require a district court to say three understanding that the court consider the arguments and i think there are some us by the government here to do the same thing to look at what the judge said and see that he did consider the arguments and for from that and his discussion about the defense criminal history that that history was what he was basing his decision on and certainly there were a lot of factors the judge to consider in that context make clear that he did this was not just the sentencing hearing for an armed bank robbery and a nine twenty four c it was also a supervised releas violation hearing because the defendant committed the armed bank robbery while under supervision for a federal bank robbery conviction with prior convictions for armed robbery and certainly all of those factor for aggravating factors the court by just by the nature of horrible zoom all of the deals made as to how many counts we want to drop it really is what's left is a listen ask them before you your honor and these other things are all about me individual that i want you to consider and the giving people who are accused and convicted of a chance to individual as their plea the sentence should be something else other than what the machine comes out with as a guideline in that really was about it what's wrong with the non frivolous reason being considered even if there were ten of them it didn't take that long this is people want to spend forty years in prison because it takes thirty more minutes to determination i don't think that factors outside that would weigh outside of that range always are necessarily or to the defendant's benefit there are certainly many cases where the government would argue for above guideline range sense for we would argue that under this court's precedent that that is procedurally reasonable even if the explanation in an in guideline range sentence case is very brief or not exist i think it's some and as as we've noted when the just report judge does decide to go above or below the range more explanation is required us to why that decision is made but when a judge stays within the guideline range discordance recognize that not much explanation is always needed in this case there was a brief explanation it was one that can give this court surance that the dishware considered the individualized arguments by the defendant even though it didn't take that all of them it the record indicates the dishware judge heard and gave reasons that were beyond stop reasons replied every defendant specific to this defendant and for those reasons the government believes the explanation in this record is brief but legally sufficient unless there are other questions thank you for your time it was  mr and you have some time  now and so calculating the goblins and so he spent great great great tom to make sure that everything was added subtracted exactly and apparently went over repeatedly and so as far as what rude i agree i agree with that one hundred percent i mean if you're with them the guidelines what you have to say to justify it is much much less than what you would have to say for should be discussed but the quanta of the discussion i think is what i was trying to you know concede that you know a within guideline sentence the quantum of discussion of every non level as argument is not as great or is not is not is required to be as great as the quanta discussion of either a below or above things all because language that looks like the same or different because they've got lines and don't apply because it's it's not cookie cutter it is individual and there are no guidelines so really if you look at just that one paragraph on page forty nine of the joint appendix that was it and he didn't touch on a lot of the non frivolous arguments he didn't acknowledge whether he had the