so you're still under oath all right presumption and the first it doesn't even attempt to show here so i'm not going to dwell on that but there are cases where the district court considers multiple alternative versions of the guidelines and says under either one i don't post things that didn't obviously knew the guidelines correct at that one point she referenced the correct number references to ten to sixty two range about thirty pages sure and she also had before her at least six alternative ranges that were being bandied about in argued over i don't think it makes any difference i don't say we can't know of course what was in the district court said all we know is what she said cases the court never said that it was miss cross federal and state sentences and we have been really odd for the courts make that comparison given the mr smith hadn't even been sentenced in state court at the time of his federal sentencing from the guideline range two hundred eighteen months this is a low end you're right that the court said mr smith is more culpable than the codefendant but there's a huge space between fifteen and nine and so that's why i think that we can't in any way tak any meaningful away from the fact that the court went down to fifteen and that it wouldn't necessarily go down further if it applied the correct guideline range which again was over two years less than the one that the court  and i think typically we're going to take the word of the court right on the word of the probation officer  guideline range there itself can be sufficient to show a reasonable profit probability of a different outcome and there's not a reasonable probability in this case that snow since we've been lower and  money case rather says that a fortuitous comment can make it clear that the error in applying the guidelines didn't adverse adversely affected the alternate settings and i think in this case you have more than one or two for two minutes comments we have a court that was very much concerned about disparity between this defendant and the codefendant and in fact right down to the final sentencing statement the court was very clear that  you know mr smith's behavior in my view is greater and greater only in the aspect he was willing to for the picture across the internet making publicly potentially available to others i believe a downward variance in the guideline range appropriate  number those chosen the court went through the thirty five fifty three a factors looked at the guidelines i believe she misspoke as has been pointed out we can't mind read here she said what she said but at the point of determining how much of a variance below the range and the variance here was below either the correct range or the incorrect range at that point in making that determination was i'm concerned about the disparity with this codefendant and so that's the driver and i think that gives us an indication of how the number was chosen and what is the disparity i'm sorry what is the disparity his sentence ended up being about fifteen years again there was a long of smith's state case a process in the prosecutor said up to sixteen years was possible that the d a was leaning towards a halfway house so effectively zero prosecution then said that smith's codefendant groff was subsequently given an additional eight year sentence consecutive in state court so she's looking at seventeen years although that eight years will be calculated different federal because there's more credit for time served and good time and as we we don't have those documents in the record i can provide them through twenty ha because we're public court documents that in fact the sense that the prosecutor was representing is in fact  that because he already had a federal i don't i don't know what the state da's reasoning in that beyond what the prosecutor said before judge krieger just that the d a seem to be leaning towards halfway house in light of the federal sentence so and that's going to be volume three page ninety two i mean we can all agree the record is not you know abundantly clear on all this particular where in writing i mean i think again as judge kelly pointed out the law says there's sort of a presumption here if you start from the wrong starting point almost invariably you it's go time served the government opposed that was to make sure that she got time served credit and the other wanted to avoid unwarranted sentencing disparities along defendant the only one of the defendant here all right so she's indicating this is why i'm doing this for because of the sentencing disparity now would she choose precisely this number i guess we can't be one hundred percent sure that that goes back to your question if if the court chooses to remain and as long as we're clear that see that the guidelines were not of a particular concern for her given health far down she dropped down build a low the guideline as announced or the guideline that everyone in the courtroom understood we're working under the one that probation that talked about when the thank you think you