if the sentence was the result of an incorrect application of the guidelines ok let's just jump right to that premise standpoint so what's your position as to what the crowd lines were our position is that the judge properly ven so what's the strangest twelve to eighteen months right so well that and i'm not exactly understand it so you're saying the drop to eighteen to quite calculation is the correct calculation in order for the judge to have gotten to that calculation the way the interference of the flight crew sentencing guidelines structure is under a five point two it requires the judge to make a finding as to whether a defendant's actions r think that the government said something that the range should have been what twenty one to something the government makes an argument based upon a finding that the district court should have determined that mr  aircraft was reckless the government at sentencing also agreed that the proper base offense level was nine they never objected when the quote i know but i'm talking about the arguments here and let's say if we say ok if the court calculated that the sentence range wrong and that's error and it needs to come back in order for the court to rescind if we're saying it was wrong because it was forty one to another number finding when it imposed a higher sentence or yes i'm telling you you can't have it both ways if if the stem strangeness twelve to eighteen and that was correct then we have to go through the whole evaluation if the sentence range was was wrong and the court was looking at it wrong and it was forty one to another number and then if we say that that's when it needs to come back with a court considering the proper range then and that's one thing but but if it if the crack range is twelve to eighteen then we're looking out for the notice if there was a notice issue and we're looking at it as to the reasonableness if the range was correctly calculated contradiction in regards to how the two cases if if the guideline calculation was wrong from the outset even though it's higher than what you were to it was but if it really should have been forty one to fifty one all the government might argue it's harmless the judge would have done the same thing we don't have any precedent i think don't think that says that when there's a guidelines calculation error you can make that type of harmlessness determination second we don't really know here what the judge would have did would have made be if the guideline range had been higher he wouldn't have felt the need to depart and wouldn't have gone as far as he did so are you sure you don't want to accept the government's i think it was the government has that position that the range was improperly calculated although they argue it doesn't matter we believe that the judge improperly calculated the guidelines and that contradiction improper when it imposed the higher sentence no i don't think that's what you don't believe you still think that twelve to eighteen is co actor which is what the checks use so that you're making other arguments but see you want to go back and say ok it's twelve to eighteen but the government's saying it's only forty one to fifty one if we were to say ok it should have been forty one to fifty one and then you go back on forty one to fifty one you don't come back and bob you can't you know you want to all waste well in order for the judge himself and went against that complete that that finding and imposed a higher sentence not the government never are those are there arguments why you're saying the sentence this round but you're saying the top the eighteen is correct yes we believe that the twelve to eighteen months is quite right in this case but twelve just about forty one to fifty one would be correct if mr dodge with his drinking and his cornering of the stewardess and everything were your lower guideline range argument is premised on the idea that the judge is the finding the judge made about the guideline range is like an implied finding of no recklessness which was later contradicted by the she was acting recklessly by cornering the stewardess and interfering with duties at the stewardess or others on the airplane i could be wrong on that but that's the way it's looking to me is that the judge made a mistake in calculating the guidelines and we should return it to the judge to make a sentencing based on the proper guideline range but it's go ahead with your argument whether the defendant's actions or rose to the level of recklessness in the guy need to defend it was smoking in the bathroom he set off a fire alarm he didn't respond to the flight attendants when they were knocking on the bathroom asking him to come out he lied to the flight attendants about smoking and then after he got into this altercation with the flight attendants he threatened to kill americans that those facts established recklessness did none of that in this case he got into an altercation with a flight attendant about drinking and which led to him spitting in her face but after the altercation was over he went back to see he complied with all of our all of the instructions of the flight attendant he didn't at no time did he physically touch any of the flight attendants at no time did he threaten any of the flight attendants at no time was the travel route of the flight ever ever considered to be altered and when he was asked to sit down in his seat he eventually prior contact with the court where he had not been remediated he continued to i think twenty news drugs from when he got off the plane intelli was sentenced so you know i mean we can look at the other things and those you know they can be what they are but i think that we also have to consider that each defendant is housed i don't operate a set of facts but also their own opera operative set of facts trouble to do they are in terms of stats but if you're looking at the issue  and you have to those facts you can compare the facts to mohammad the facts in a ghani are substantially different than the facts in dodge and in those cases this court determined that those actions correctly conduct it's just with the stewardess on an airplane is a reckless act cornering or i mean yes he didn't together but you know cornering her blocking your movement being drunk on an airplane that he thinks can we infer from that if you endangered the whole aircraft i think you can make an imprint that they can spot that it was reckless but at no time there's no evidence in the record that supports that finding at no time to the flight attendant say that she felt that she was is there is there any precedent on the general issue of reasonableness that would guide assuming you were correct in your guidelines calculation counsel and  guidelines are there's then the second step of the judge that's what the judge thinks is reasonable i think given this record given that there is a clear contradiction by the judge in what his initial findings were given that there is a waiver by the government for any argument as far as wreckless is concerned that this court can reverse the sentence and remind based upon those finding a reasonable sentence under the circumstances of this case and he made very explicit both oral and written findings setting forth the factors under three fifty three and with respect to that he took which this court in mohammed had ordered in a situation where the criminal history of the defendant was a lot less and in mohammed of course the defendant had a criminal history of one and all though this this court noted that it did not actions of this defendant throughout his criminal history including right before the sentencing well ok but on the guidelines range issue that if if the court calculated the guidelines wrong and record and the judge as right use implicitly in his findings finds that it was a reckless endangerment i mean there's no clear statement that when you're up in an airplane and the crew gets diverted from their normal duties and or the pilot copilot has to leave their post in order to take care of a matter it's very dangerous very dangerous and i'm citing that seventy one he talks about this environment being a lethal environment potential for a lot of danger so i think he  did make a funny the government did not object and it really doesn't matter because the end result was that the court properly applied the three fifty three a factors and his sentence ultimately did fit the characteristics of this particular defendant so i'm months what kind of noticed that the defendant have that he was facing that kind of a sentence your honor the government filed a motion for upward departure about a week before the sentencing and in that motion they listed three grounds first the defendant's pretrial violations and that would necessarily subsumes his drug addiction and his drug history i mean those were the violations that issue and that was something judge as rigid used as a basis to impose his sentence secondly they also noted that it was based on the three major grounds were his conduct on pretrial release the violations his likelihood of recidivism again his criminal history was something that the judge emphasize continual contempt and disregard of previous court orders up until two weeks before the sentencing he was violating he was using marijuana this was even after the probation had issued the court issued a petition for revocation aircraft i'm going to six years so what notice did he have before sentencing to prepare for that eventuality well you know i think the rule thirty two age talks about only notice that's not already given by the government or in the pre sentence report and moreover that that claim is subject to plain eric the defense never raised that below and therefore it's our position that even though it may be error that it doesn't rise to the level where affected the fairness or integrity of the proceedings because here they had a full week to know that there was going to be an argument that it would be going upward and what what is it that the defense could have done in terms of i mean defense counsel argued fully and was able to address the emotion they might have been able to point out that the right mind range was calculated incorrectly and now the defense would be would not want to say look for the twelve months is incorrect he should have been higher but the problem is certainly in the light of hindsight that maybe you have judges or had no nothing guideline ranges as high as fifty one months he wouldn't but i think that goes no question that explains why the judge is reduced but it doesn't go to the point of what notice did the defendant have that this was a nice sentence that he was potentially exposed to and we don't know what the defendant might have done had he and his lawyer known what was going to go on had some idea generally what was going to go on ok i know judge called you have a question and go ahead i'd like to i'd like to get the that we've never had a precedent within the circuit after cantrell that's ever said that if there is a guidelines range miscalculation  the court can say it's harmless and it doesn't matter because we think the same result would have been reached anyway so i'm in my right in both of my recollections if back to the district judge say you made the guidelines error calculation while though you you departed or you gave great weight to the dangerous aircraft you didn't recognise that that's already taking into account in the correct guidelines calculation so we really don't know what the judge would have done if he'd seen that viewing result would have been the same and that's because the court in this case made a very careful three five five three eight analysis both morally and written and based on the facts that the that the sentence probably would not have been different and therefore the court should not itself would would go up based on actions that create a risk for the aircraft it seems like it's hard to know what he would have done if he was aware that at least with our if both sides have used their time but if either of the panel members have any questions that they like to ask the appellant i can extend that to you that if you have any additional questions you know all right thank you then the matter stand