think the prosecutor can charge and you have discretion you can do whatever you want to do well if the judge doesn't like the way you charged the judge can come to us kenny and say this should have by who will say these pills meet compulsive enough so i'll buy but it takes all three of them to make the crime then the judge look and he says i can't say you should have been charged with a felony you are only going to have a misdemeanor conviction  you're going to have a felony conviction i can't do anything about that because the prosecutor has this question seven and i can't do anything about the buyer because he wasn't charged that we would see fairly often and you're quite correct that at the time of sentencing at that point particularly under the old guidelines regime which well a lot more intimately familiar with than what's going on  now it's kind of that a new world which i'll get to in just a minute but certainly under the old guidelines that's when the considerations like mine are all major role how much of the drug quantity that actually ended up being distributed forseeable that kind of the thing and even back then the judge could consider those things and then he would he would impose discipline and i don't mean that in a negative way but different senses and other thing that he would also consider and under the guidelines he was mandated to consider on government motion and now he would argue that it would be unreasonable for him not to consider would be cooperation which we also saw fairly often in those types of cases let me s honor that in this particular case the factual scenario which you present although not an accurate only encompasses a very tiny part of the criminal conduct  frank for the defendant in this case and his acquisition and i don't know how he did it at this point this is prior to that to that investigation revealing how he did it but it was obviously either by importing a manufacturing counterfeit niagra he acquired it and we know he this that but i'm concerned about what a judge can do when they judge is unhappy with what the prosecutor has done and he can't do anything except correct he can't come and said this is conspiracy court of appeals back in charge of all these rascals he says i can't touch it he can't say you won't be guilty of a felony and the guy who was coupled will maybe not equally but certainly so significantly sufficiently is also guilty of a felony he's going to always be able to say i'm guilty of a misdemeanor the only thing  statue will occur the same sentence will be imposed and then we'll just be back here on a reasonable as an inquiry it's possible that that will occur but your honor respectfully that won't make it right and the reason i'm not saying it's right i'm just and i just asked you i can question is that enough that's more global issue one on all the some in the district court judges obviously would like more leeway on sentencing they don't like it when we say you've got to resign all these factors and i reverse them they go through something often the government doesn't like see a lot of them as well are appeals where you have a defense appealing at a sentence which they think should have been lower but which is right around or not significantly higher or lower than the guideline range and i think and i think that that's just part of the problem with that that's part of what makes this unreasonable is the factual findings that were made to the limited extent very limited extent that they were made i've argued were clearly erroneous