criminal act the same argument was made and the this court said that women's argument is foreclosed by a man gore's tore his versus united states and then in a footnote says all those recent did page three you say but more broadly the question raised in the opening brief was not whether mr lopez moakler admitted to a prior conviction or whether all men there is torres versus united states could stand even if he had so admitted office not to respond to the contentions that there is controlling authority in the field which which eliminates your argument or how which must look at this certainly not your honor and i do apologize for having not responded either to the to the government's argument either by trying to distinguish will and or by conceding that the argument is no longer alive wine and that is certainly what the position i would take at this moment and when the court began its recitation of the history of this argument that w going to be my response i do regret having put the court to the trouble of reading an argument that i now would concede of course is one that is only preserved for further review by the supreme court and that would have been the appropriate turning then to the booker issue your honor the book or issue in this case is to do with the courts having converted u s versus littman in which this court clearly said that it's an illegal reentry defendant returns to this country because of cultural assimilation because of family ties and then that person's culpability is less because he has returned for non economic reasons  return for reasons other than the opportunity to commit any crimes and his to his character is also less tarnished because he has returned for motives that everyone can understand motives of love and concern  here the district court did not consider the mandate of lipmann it it converted this argument into an aggravating factor for the district court someone who returns who who has family ties to this country who has family here who has ties of love and affection here is not a less culpable person but someone who deserves a higher prison sentence than a person who returns to this country for other reasons because in the district courts formulation it's not a big river if you didn't put the person in prison or do something he'd be back the next day so you really have to do something and later when the defense counsel attempted to persuade the court that was incidentally on excerpts page thirty three and later when defense counsel attempted to persuade the court or raise them with the court that mr lopez locus really was returning only to be with his family in the that the seventy month sentence that the court seemed to be leaning towards was really too harsh in this case the court said that basically the more powerful the defendant's emotional ties to to this the higher the sentence he deserves he says the court said and it's an excerpt page forty the trouble is that when you say the more reason somebody has to come back here the less i will sentence him you're asking for trouble the guy doesn't have any reason to come back you don't have any reason to put him in prison at all he'll be gone it's the very guy that's going to come back that creates a problem for all of us because he wants to come back and so for the court what this court has said very clearly is a mitigating factor if it if it is  found for this district court it was an aggravating factor now as i read kendra all of that really saying what i got from having mr court says we have to be turn this defendant from coming back in a couple of  that's when i really i agree that it's possible to read that way and i think that if we asked the district court what did you mean by that this this district judge might say exactly that your honor but this court has said that the that the ties that one family to this country if one is not legally resident here are not to be considered as a reason for a higher sentence but as a reason potentially for a lower sentence because they diminish the culpability and th context it construed and aggravating gating factor as an aggravating factor i mean rule even rule thirty five fifty three a rick i mean requires consideration of a defendant's history and characteristics of this of which this is one and i think that when a district court is looking to its sentencing decision it has to reconcile what the record says about this person with it and with the decision that it's formulating and if it can't if if on review this court is unable to reconcile what the record says that this person has family ties that this person sentence and it's a way of coming up with a sentence then the process by which the sentence has been calculated is incorrect i think that there may be cases in which i mean it's it's always possible i think or nearly always possible to say that a factor that ought to be considered aggravating may be considered mitigating and vice versa i mean it's hard to imagine any factor that can't be turned inside out under various circumstances and i think perhaps it's up to this court on a more generalized case by case basis to say that this factor or that factor is generally a mitigating one or generally an aggravating one or in this context is generally a mitigating one while in that context may be generally an aggravating one but in this case with mr lopez lopez the court's already children i believe in this country as his own they were his girlfriend's biological children but there was some very moving evidence in the record about how he had loved and cared for them he had he was an outsider in mexico according to his counsel's statement supported by the p s r at sentencing because his family there considered him responsible for his mother's death since she had died while giving birth to him he had no they had ostracized him to the point that he had run away and begun to live on his own at the age of ten and had ultimately made his way to the united states where he had a very substantial work history i'm not discounting his his criminal record as well but he did have a very substantial work history in addition to that as a very humble worker since he had i think only three years of formal education maybe it was six but he had tried his best to provide that a seventy month sentence under those conditions was too harsh that was the sentencing of us so i think discounting the age at which mr lopez had arrived in this country i think the more appropriate focus is by saying we did not address that issue in this briefing in fact conceded jurisdiction however this our brief in this case was written soon after booker was decided on further reflection on the issue of jurisdiction office has concluded that under thirty seven forty two a this court does not have jurisdiction to review reasonable set reasonable the sentence and here is why under thirty seven forty two a there are four circumstances under which th the sentence was an appeal in post in violation of law for the remaining three factors addressed whether the sentence was within the guidelines range in the interest guidelines issues and so under the circumstances in this case where in fact it was at the low end of the is outside the statutory range of earth there's some fundamentally illegal impermissible purpose involved in the sense the reasonableness however the reasonable miss peace is more of an axe a question of the exercise of a judge's discretion of the district court judge sentencing discretion and officers position is that given the fact that the sentence here was within the statutory it was constitutional and was within the guidelines the reasonable ni we're not dealing with the question of whether the sentencing guidelines calculations were off so we focused on reasons and we start here as the court has instructed us and as many other courts of they have and instructed with the guidelines the government's position or law well the guy but the in place it in all of the guidelines your honor is the fact that the sentencing commission in this is reflected throughout the legislative history of the guidelines as well as this court's decisions and others that the sentencing commission took into account all of the thirty five fifty three factors in coming up with its calculations and so implicit in all the guidelines calculations are the thirty five fifty three factors and so under those circumstances we're not just crunching numbers here these are people who are here in the sentencing commission is a professional commission that thinks about this every single one of these sentences in these guidelines i'm bers far more than any of us do and they came in the reason conclusions suit at two sentences that made sense and so i don't think  not the government who's trying to impose a sentence that has the burden of showing by the evidence of the outset that this was i think it's more than anything it's an analytical perspective for this court it's not so much at the district court level of course all the thirty five  has made it clear we have to start there and that's what the district or did here but it went further and considered all the factors the thing that i think you judge beezer are concerned about if you read the sentencing transcript here judge let's was very careful and he gave a preliminary discussion of his initial stake on the case which was that this was an individual who had ben come back to the country and come into the country illegally twice and every time after it come crime that was the press that was the aggravating factor here and so when the when the defense raised the issue of he's got family ties here that's why he's coming back the court responded actually that cuts both ways and has just announced and pointed out that in doing so and in making the observation that so troubles the defense in this case which is only two sentences in a rather lengthy consideration of the facts in record i don't think i can i don't think that i can find under these circumstances and he actually said i cannot find that the tie the cultural simulation to the u s society is a ground for downward departure a very troubling a very troubling statement if you're looking to find out whether the judge believed he had authority that's what the district court said in lippman and the district court in this case had nothing like that it never made any legal anything even close to a legal conclusion about whether it was permitted rather it made a factual observation it was not unreasonable and again tied with thirty five fifty three factors if you look at beyond just that statement and again and let men like in this case the defense had a particular statement statement in context and in the specific context of the case the court held that the district court had in fact considered the specific facts of the investments case and that's precisely what happened here the court went from saying you know this this issue of the only ties cuts both ways and then it went on to talk about how he had come back and when he come back he hadn't done things that were designed to help people and by that he meant the crimes the ones he ninety six crime  the that the reason this man came back wasn't necessarily family ties in the more troubling fact was even if he was coming back for family ties he was coming back in committing all of these crimes over time here so i'll i'll r ars i'd like to take issue with i think just two things that the government council has said first that the sentencing commission has taken all the thirty five fifty three and factors into consideration i would point the court to judge ward laws concurrence in the outline and bonk decision which does emphasize that the sentencing commission at least in its guidelines in the guidelines has not taken the thirty five fifty three and factors into the kind of consideration that the district courts can now consider in that for example that the guidelines prohibit all together consideration of certain factors permit consideration of other factors only under extraordinary circumstances whereas now under booker the thirty five fifty three factors certainly not your honor i would only point a unified position at this point on exactly what whether reasonable miss translates into abuse of discretion or not i think the court is correct in that insofar as booker does give some leeway to the district courts that was not given to them before on the other hand i will go back to something i said up here earlier which is that i think that this court's obligation on an review is to reconcile the information in front of the district court with the sentencing decision that the just record actually made i mean what i mean to say is i think that this court needs to conduct a more searching review than simply saying that because there was a reason we're done  t the reason has to be reconcilable with the information in front of the district court or it's not reasonable that the the the process by which the court the district court has to make some decision has to be in stone why reviewable by this court although i recognize that no one can really say what degree of articulation at this point would be necessary on the part of the district court but enough to let