and we moved to the nd case this morning united states versus procedure we erred by not considering my clients aging out that it's now aging out is a recognized ground for a reduced sentence to barry downward taken to account decision is a very recent origin in the th circuit not so new that we have cause to doubt it but it's been within the last i think ten years that the court this court has issued breast and a rate of other courts likewise recognized aging out and furthermore the statistics account for that as well so when a person reaches the age of forty and proceeds beyond that they are in a period of declining criminality so eating out is a well established ground for a lower sentence than to point out that my client's lawyer did not read did not advance eating out until the district court began to inquire about circumstances in my client's history but once the issue was raised even by the court it must then be considered by the court in a proper imposition of sentence and there's the procedural error in this case because my client specific his lawyer specifically mentioned aging out at age thirteen in the appendix so the judge should have considered it under cunningham and that line of cases and as the government is unable to indicate anywhere where the judge did address it we believe there's a pretty definite record here show that procedural error that would be more recent you're asking of the district court to consider aging out based upon this defendant's age obviously the activity that he engaged the frequency when i hear aging out is a defense i often just aggregate certain crimes from others say some crimes like a sexual offense may not be aged out of but something that would be more violent would be age doll what level of  specificity are you asking for the district court to apply we may believe like you are just explained that d it's on a case by case basis so there may be certain offenses that we are unable to say are as apt to an aging out see fraud offense and we've got other cases that involve more violent activity that the statistics track even better to show that there is in aging and so the type of bends does matter in the particular circumstance of the vigil and counted for problem here though judge is that that wasn't done there's nothing said about aging so i would say that how much has to be more than zero in here was zero so that's where a ground of recognized legal merit has to be accounted for as part of the procedural calculus to the judge here asked the question at the end of the sentencing hearing whether he had adequately addressed the  mitigation i don't recall that judge if you did it hasn't been the focus of any response from the government such that we can away any concerns and say this is harmless so that's the short answer on that as far as i can recall ok and what do you make of the fact that the counsel in the same paragraph where he raised the aging out point says it's not a strong argument because he was anything or recollections actually but my client was simply lawyer was simply fronting what there are by way of some problems with an aging out of its butt or exceed the argument but nevertheless it remains something the district court should account for and the district court could have been braced those facts and said that is not convinced that there is an aging out here but nevertheless it had to occur and i think that my client's counsel may have misperceived the aging out by explaining things the way they did statistically even though there have been periods of incarceration followed hard on the heels of release age is the relevant benchmark for determining e g now that's i don't see anything in statistics to say that the period of time in which there  and suggest person is not subject to a ballot iching have argued it is a function of age it should have been considered and it's great for the questions on this point if not i'd like to move briefly to the substantive and reasonable  we've done that when the government appealed the guidelines sentences any over emphasis on a set particular sentencing factor is a basis to challenge for substance on the reasonable so it was a blow guideline sentence and rocking in here it's an above guidelines but the factor never last works in the analysis the same way and so when the judge was concerned about my clients like that i'd already been accounted for in the obstruction enhanced scene for criminal history it was part of the guideline calculation itself when criminal history is that it is part of the guideline determination so these are the factors the district court relied on they've been amply accounted for especially with the flight and the flight we take issue with anyway because there's nothing about a particular rate of speed that my clinic that will that such that it was especially dangerous there's nothing in the record to show that there are a lot of people around but there are many people was the police who were giving chase and that is normal or police activity it can result in some dangerousness but there is nothing that was especially dangerous in any of the facts that are a record here and so when the district or emphasize those two things we believe that's an overstatement over emphasis on a rocking analytically this case falls within the parameters  arguments in mitigation there's nothing principle about mr ramirez this argument down below that he was allegedly aging out of criminal activity in fact is just hamilton doubts defense counsel said they did not have a strong argument for it and defense counsel was conceding truthfully what he had to which is defendants who are aging out of criminal activity are not sitting in jail for yet another crime and judge hamilton you are remembering correctly that this is a defendant who more or less since one thousand nine hundred and ninety eight until the time of sentencing had been facing some sentence or another some criminal activity or another and the district court noted that i think judge kane i think you're right that defense counsel's basically advocating that there is now a checklist of things you have to consider and so because this court said impressively that you have to aging out a relevant argument now every just a court judge is going to have to consider that at sentencing especially when it's not raised in the sensing memo even when it's not raised in the defendant's i know there was an opinion by judge four and another one by me following up encouraging district judges to avoid becoming him kind of reversal and trying to reconstruct their thinking says what the court can and can't consider in terms of when they're going to get reversed for a substantively unreasonable sentence it's an abuse of discretion standard and the district court has wide discretion as to sentences that it gives this case it wasn't above guideline sentence but the district court justified that with sufficient rationale it noted that mr ramirez has a link to a criminal history and yes some of his criminal history was accounted district court noted there were eight criminal convictions that weren't accounted for the guidelines also don't take into account the fact that some of these the chew crimes he didn't get points for the guidelines treat the same really regardless of the severity of the crimes in the district court i think was rightfully disturbed that one of the crimes was basically a drive by shooting into a house with people inside the other crime was what the district court described and i'm paraphrasing here is a terrible aggravated battery we're at the defendant broke someone's jaw and that laugh broke the jaw of his children's mother and then laughed at her she's blacking out the courts allowed to consider that an imposing sentence in the court rightfully gave it the weight that it was entitle to in terms of the argument about the flight the reckless endangerment enhancement applies in situations without cars it applies in situations where there are not many people put at risk where there's maybe even one person put at risk what we have here is the defendant engaging in a high rate of speed at seven  commercial district in south bend you know it's a busy commercial district because the p s r talks about the fact that he's driving through it can't deal with sweets he ends at a seven hundred and eleven and this is dinner time your honour's the p talks about the fact that there's he's driving through speeds i'm sorry streets and parking lots with other cars presence he's driving through red lights that isn't especially well you're out of the p s r as both right it does say red lights and paragraph eight and then later on i'm sorry paragraph four and then it talks about one later on but i don't think that matters the point is this is a commercial district and if the defense thought there wasn't a high rate of speed they should have objected down below we had the case agent ready willing and able to testify about the facts of this event they didn't and so when the p s r says in paragraph eight that this is a high speed chase at the high rate of speed it says in paragraph eleven defendants driving a high rate of speed if defense counsel really truly had a problem with that and thought that district court couldn't rely on that they should have objected they didn't and so the court adopted these findings as its own because  time and place we love to see you peel waivers go out the window altogether your honor but that that's not a view that is engaged in by others certainly those in the row so we understand courts are busy places but when rights come to issue courts are supposed to consider these things and it should consider in this case and the judge just didn't address the matter once raised didn't engage in the sort of questioning that judge hamilton mentioned while saying last this defense is not required to bring in the government's witnesses to have a better record for the government to work with on the appeal so we won't be asking the government agents questions to scuttle our chances on appeal but we will allow the government of course to make the