thank you your honor may please the court tim scott for the appellant julio d s the issue i'd like to discuss today is our assignment of cambrai error and more specifically whether the record reflects that the district court both appreciated and exercised its discretion whether or not to depart from the guidelines given that the conversion rate from oxy cottoning to marijuana and the fact which i believe is undisputed that that does not that that conversion rate does not appear to be based on any scientific or pyrrhic eleven events at least as of the two thousand and three and then minutes to those guidelines i think that it's further beyond any dispute between the parties that the record is silent as to whether or not the district court considered that cambridge discretion wrestled with it in any meaningful way and then disposed of it on the record i think where the parties diverge is whether that endures to the benefit or to the detriment question we were st and remain for sentencing i emphasize that because henderson says on its face that when one is unable to tell then that is a situation that is appropriate for  his meaning the disrepute his ruling on this issue is unclear it states we are unable to ascertain whether the district court committed procedural error by failing to appreciate its kember discretion or whether it recognized but today but  to exercise that discretion in that is precisely the situation here but in henderson didn't the district court the basic knowledge i'm not sure if i have the discretion and i'm going to kick it up to the th circuit to see so there seems like the judge really didn't understand or wasn't sure if he had the discretion here we don't really have that if anything i think from the context just the judge problem or started in the objection here was really based on a policy disagreement the sensing commission says it isn't there enough that i just quoted i think demonstrates that as far as as this court was concerned the record was ambiguous in again i would say the report wrote that we are unable to tell whether he appreciated his other evidence in henderson to suggest perhaps he did and just decided not to use it and so i think where we end up that is where we are here which is there's there's no way to tell one way or the other  now you know so this is a case that's in between a situation where the court says i recognize my camera discretion i recognize that this isn't based on empirical evidence however i choose to follow the guidelines here and it's also not a case where the court says i don't think i could suggesting and we're not arguing that this if this was a more traditional guidelines case that a court would have to automatically in by rote state that i am choosing not to exercise my  discretion in a case where the guidelines are based on science in on empirical evidence so it was our argument that if this was one of the almost all other guidelines provisions and situations where in fact the sensing commission has used national data and empirical evidence in sight input from the relative or the relevant scientific communities that would be a different matter entirely so this is a more narrow type of camera discretion in our view what we're arguing is that when it is undisputed you know i believe it is undisputed here that the guidelines have departed from the traditional sense in commission role as they did in kimberley itself with the crack cocaine to cocaine equivalency or as they did in chopper odyssey guidelines case this is similar to those two cases that it's the same where this is driven more by congressional mandate or by some other  decision that is outside the realm of science and appear a system that's really i think it's very clear that judge carney understood the policy argument you were making and then it's clear he just didn't rule along the lines of the policy argument what was he supposed to say humans clear i mean i i have the sense that he rejected your policy argument well it's clear that he received the argument that he clear that he didn't he didn't accept it i mean that's clear what isn't clear is whether he made a deliberative or a reasoned decision independent from mr diaz as to whether these guidelines ought to be the starting place and i guess what i mean by that is is only using you're conceding that the judge understood that he had discretion to not follow the particular ratio you know you're on no i mean i'm not going to say what you just said no i mean if i did i absolutely misspoke i want to be very clear that  i am conceding are the record reflects that he acknowledged now is the argument and you know your argument you know he didn't say i recognize that i have cambered discretion and here are the reasons why i think the guidelines ought to be applied as they as they exist so basically your argument is when the record is silent on whether on the on whether the judge understood it or not then the silence should run in favor of the defendant and he needs to be reminded so the judge can explain it better that's exactly right and i think that's exactly what what henderson says the reason that i think that's important in a case like this where the guidelines i think are concededly and admittedly not the result of the empiricism in the science that i've been describing is that all of those factors are completely independent  of dr d as in this case or of the defendant so while in some cases it would be the question of whether the guidelines are appropriate as applied to that defendant and then we can infer the decision that the court made based on all of the other facts that were before about the defendant here the argument is setting aside dr diaz entirely for the moment do these guidelines that event say six thousand five hundred to one ratio of oxy code on two of marijuana that represent a one thousand five hundred percent increase in the amendments as of two thousand and three do those facts independent of the defendant suggest that we should take a closer look  judge carney could have and should have made a decision and made it on the record as to whether those guidelines are appropriate not for dr diaz but for everybody for any defendant no matter what their situation and what their specific cases  in a situation like this the court ought to have decided whether in all d cases those guidelines were appropriate and then whether that represented the appropriate starting point for dr diaz  outset that isn't the most strident objection that a person could go to hear the judge crying it was brought to his attention that you want a precise ruling on the policy issues that apply to on the basis of what is essential e a legal policy disagreement with the guidelines and then it says we defer to the court for resolution i think the question is is that since what you're raising here is a procedural error in the procedural or being the judge didn't say something that suggested he appreciated his discretion shouldn't that argument have been made after the judge didn't do what he wasn't supposed to do in other words at the when when you're objecting the pre sentence report you know you don't know whether the judge is going to explain what he's doing or the only happens at the sentencing hearing and he made this argument about you don't have to take an exception but i really question whether what's that but that's what this is the procedural or doesn't the defense have to say something about it right then well i guess argument in response is   st as we said our papers you do not have to that's a delay because i just says that's the problem i think i'm sorry i'm not sure that's what this is so if the court then rejects that that this isn't an exception situation that they should have entered a specific objection at the end of the sentencing then i would agree that that was not simply made i would argue it shouldn't have to have been because of the exception will but if the court get agreed to play if it's playing if players a standard you still have it but if it's plain air henderson has been on the the morning may it please the court and the water wolf on behalf of the united states the government does not agree that it is beyond dispute that the district court was silent in the face of the objection nor does the government concede that there is no empirical data or national experience behind the  conversion to its marijuana equivalent but st i'd like to just start with the issue of plain air and i alla nikken or this court made clear that where as here a defendant fails to object to this sufficiency of the district court's explanation or discussion of the kimbrel claim that this court then reviews for plane air here  the defendant's excerpts of record pages four dollars and five dollars judge carney acknowledged his objection to using the marijuana equivalent for oxy co down to establish a drug quantity and immediately thereafter he rejected it by adopting and incorporating the marijuana equivalent analysis in the pre sentence investigation report and in the declarations of diversion and investigator colp you can mean you agreed and suppose he didn't express lee say i'm rejecting your argument you're saying it's implicit from what he did correct correct your honor in other words he acknowledges the objection and immediately thereafter he says he says again he doesn't say i reject it but he says i do adopt the analysis as it can as it is set forth in the p s r and in the cold declarations which of course is the analysis as required by the sentencing guidelines we know from that that he understood that he had that he had the ability to reject the the conversion ratio well as this court decisions have made clear we do not assume that a district judge who has been sitting on the bench for almost twenty years since two thousand and three since before the kimbrough decision came down does not know what the law is further during the course of his analysis in particular of the three thousand five hundred and fifty three dollars a factors the judge noted numerous times that he does have the discretion he acknowledged his discretion to very above the guidelines or below the guidelines and he said simply that the facts and circumstances of this case he could not in fact he he suggested that it were not for the mitigating arguments that dr diaz made and i just as a side note i know for the court that the focus of dr diaz's arguments on re sentencing was on his post conviction rehabilitation he judges being deemed to know the law once they've been on twenty years i actually would like to get the benefit of that that's so but i mean i really just kind of i'm wondering about that so what's the cutoff  hear is it seven years well every day that again when we have a district judge who has been on the bench for almost twenty years since before the kimber decision came down and i know i you know i really can't buy that argument because sometimes  they diminish and and it's just human nature and you have a case for that well i certainly have plenty of cases where this court including henderson where silence or guarding its authority to depart with a misunderstanding of that authority so the fact again that he acknowledged the argument and then immediately said i am going to adopt  the declarations of the diversion investigator is sufficient because this court does not then assume that he did not understand that he had a the authority to depart so the difference w judge carney did no such thing here and again he went on during his analysis to say if it weren't for the mitigating arguments i would impose above guidelines sentence i simply cannot impose a lower sentence given these particular facts of this case which among others twenty overdose deaths associated with this doctors prescribing over four hundred visits to the emergency room we have other doctors coming to the defendant and pleading with him to stop we have family members begging him to stop giving their addicted loved ones prescriptions and he continued for years in one year he was the highest prescribing prescriber of narcotics in santa barbara county he cried during the course of the investigation over five million opiate pills and people were dropping dead sometimes after visiting him once and they were dead the next day and he knew it and nothing stopped him until he was arrested in this case and those are the facts that judge carney looked at when he imposed this sentence and just briefly in terms of the sentencing commission the amendment that the defendant objects to mostly is when the commission took what had previously been a conversion but of the entire weight of the drug so every tablet of whether it was a five milligram tablet a ten milligram tablet or an eighty milligram tablet converted to the same marijuana equivalency in two thousand and three recognizing that we're dealing with prescription medication and therefore they have very specific amounts of the controlled substance in them it said in order to be more equitable we will now make the conversion of solely the actual drug it's one of the few drugs in the sentencing guidelines where the commission has done that the other is it would be when you have actual methamphetamine period of purity analysis so here the conversion only accounts f the actual amount of oxy co down and that is different than almost every other drug which is done by the the gross weight for example fentanyl which is one of the drugs that the defendant brought up in his papers converted by the fentanyl conversion rate which by the way is as of a year ago is not even called a marijuana equivalent it's now called a converted drug weight in any event that is known perhaps at st blush appear to be significantly higher because you are only counting the amount of the drug you are not counting the gross weight of the pill you are not counting the gross weight of whatever cold controlled substance it might be laced with which is what happens when converting say fentanyl or a fat in all analog that would be if you even have trace amounts of the controlled substance you  convert the entire amount and unless the court has questions the government cements right thank you counsel thank you thank you very much us three says he is would be submitted