that a court should not and really cannot depart upward from the criminal history category six which is where mr ranger was and yes unless there is a basis to find that that particular defendant's record is significantly more serious than other defendants in criminal history category six which of course is the highest criminal history category if the guidelines provide for and the  basically said that it's a stricter standard it's reviewed with a higher degree of scrutiny because of the fact that if you're going from category structure going up from the worst of the worst as opposed to going up from a category where there is another level are a lower level of criminal history and let me older crimes the behavior that he was in front of the court for in this case was a very garden variety type of a felon in possession case it was not any kind of violent behavior and there was nothing to suggest that there was an involved nine major criminal episodes of armed robbery first degree murder kidnapping and just completely over the top levels of criminal conduct that's not what we have here and if you look at mr arranger record what strikes you about it is it's long it's repetitive but it's relatively low level it's not the category that takes him worse than armed career criminals worse than career offenders worse than murderers and rap significantly worse unanimous agreement that those factors might just might in the right case justify an up or departure from category six what you are saying is that in others in category six i would also make a point your honor that the court invited in that is there is no evidence of assaultive behavior that was played down from felony level assault of conduct in this particular case there were no depart upward and the guidelines contemplate that and this court in a number of cases cited by the government cases such as to the rebel rape singleton durham talk about the criteria used for that one of them is what a willing to tell the court that if we are perfectly capable of reviewing it to novell and departing upward that we are also perfectly capable of reviewing it to know the law and and giving a downward departure are you comfortable with the appellate court's taking on that looked at this case as the whole you would see that there are a lot of low level misdemeanors there a lot of traffic offenses in there but there was clearly a long pattern going back nine hundred ninety two of violence against women starting with him punching his mother threatens a seven month old child in addition to the violence against women we see a trend toward eluding police alluding violence we see convictions in recent years ninety seven looting the police in which he drives eighty miles an hour individual who would have forty six points they get him up to category six but the question then is it just stop the government position would be no because the guidelines provided some sort of a mechanism to adjust for somebody who was way over those points the other thing to look at is not only just but i don't want to emphasize that you should look at the points per se because this court the very clear the point still matter what you need to do is look at the quality of the criminal conduct the conviction the quality of the criminal conduct and when you look at that quality you see that trend the one thing i've not heard from the defense both at sentencing and this morning is the issue of recidivism if you look at what the defendant said important what mr frazier crochet says i've said it numerous times and it has been the truth every time it has been the truth every time i don't like the way i live i don't like what i do when i'm out there i just do it it's out to happen it's out of me being comfortable being that way that's the jest and i think the judge found that that this is a man who's going to go back and do this again he's not learning from it and both factors of the test to see whether or not he should be somebody we're going to  consider whether and whether or not that's what the judge was talking about when things being busted down to a lower level misdemeanors i'm not quite clear what i would say however is that we had a situation in which we saw high level felonies armed robbery the government felt that because of the nature of the types of crimes because he wasn't committing arm robbery but he wasn't committing rape he was committing serious offenses against women that some sort of an upward departure was appropriate we try to strike a balance we try to find something that would be would reflect that but not bring them up to the category in which form career criminal i'm sorry a career offender would be so the difference between us that's really seventeen months which  things being balanced is a reasonable sentence a reasonable operative porker somebody who quite frankly has a very long history of violence toward women someone is moving toward firearms as the judge pointed out somebody who may be in a situation where somebody  of argument not appropriate or compelling your still to others as well and so forth how do we deal with it while saying that there's a history of violence against women does not make him different and type of crimes so it's not just hasan is a good guy or a bad guy it's to say that he's not worse than the worst who are in that category i think we just have to the course of just been very leery of allowing departures above