knows that is only a departure because it's a unmentioned fact and the guidelines that should be invoked if you hear exactly i'm sorry what does it mean here i recall when the guidelines first came out i recall it being used in the sense of somebody who comes from a country where all government conduct pretty much is corrupt so some government official comes around says you have to do this or you have to do that they offer a twenty dollar bill and they get charged for bribery and they get a break because they didn't know any better than their culture that's what you do this is something different and i don't understand exactly what cultural assimilation as a ground for departure means in this case well it appears to me that based upon this court's decision in lippman a case in which you had as i recall a defendant that was from jamaica but had lived in this country has come with his mother had been here for maybe twenty years or so had been in public schools for the birth of them if you actually sent them back to the other country they wouldn't have the faintest idea what to do is right no family there so he tries to come back and in that case the district court denied it departure but this court as i understand it almost seems like dick to me suggesting that under certain circumstances that this sort of departure may be appropriate and it's the government's view that this is exactly the kind of problem that well i think women still really suggests that the basis would be if someone who had had the under that fact pattern that there was some sort of really compelling reason why the person had tried to come back into the country based upon that the fact that the person of been here for twenty years his family was here it's a very different factual circumstance than this circumstance in which the defendant comes back for what appears to be nothing of the neck anomic reasons there's not have a spouse does not have children here talked to them is rather pre sentence reports what they were any ancillary crimes they were charged with they don't all come to him like this one you know where the guy's living o a decent life and then there's someone goes after him as illegal reactionary sometimes there are other crimes that are involved that bring some of the light but many that he makes the judgment this person is of all the people i've seen in seven years this is the greatest event that i've ever seen and i don't know if a judge can do that but if he can do that if you can make that type of comparison wh case and the question is what do you do with that shall we call it a novel interpretation by the ninth circuit which is nevertheless published and you have to follow  the district court is really disturbed that someone who comes to this country illegally albeit illegally comes this country and supports a family and works in construction and doesn't number of different things that we would expect that's certainly part of it i think another part of it goes back to the question that part of your question and that is how does this sentence you know that when you look at the part you practice and all this court and the commission ask you to try to harmonize what  fifty three eight to add those purposes of the hunnish meant when it's departure law this is not a sentence that deters you provides general terms that notion that the similarly situated offender would be aware of this particular people with a drug conviction the congress in the commission believe that those sorts of folks should be incarcerated so we don't get general deterrence we don't promote respect for the law with so he wasn't for that was the government's interest as to the l provisions of the guidelines from forced and i don't believe that in this case as in some other cases in the district of montana we're been hearing a firm of appeals that the guidelines have been enforced and we all understand there are places for departure but there where this is not in our view or case so we are worried about specific deterrence with this particular defendant if you comes back that will be the third time after two convictions and we're going to want to make sure that we can get some more specific deterrents but i think it is important to say all those other purposes that are set forth in thirty five fifty three a two are designed to achieve other goals generally turns promoting respect for the law and protecting the public and the congress clearly believes that this is the sort of person that should not be allowed to come back in here and we've got a person who's been deported because of a conviction based upon a drug tr of the guidelines which requires mandatory incarceration write anything at a criminal history one offense level thirteen mandatory incarceration for twelve to eighteen months no community confinement no attorneys where the government has deported the individual after this short sentence i don't understand how you can rescind this guy if he's not here we've got a very practical problem  government's view the record supports nothing and this is a classic example to say well his wife needs to support and yet with full knowledge of the census can result in an immediate deportation and he's going to be back in mexico the other thing i'd like to say about leon because he got time served you got six months which you've already been and essential i think you might even a few days short circuit made of that time was gone he's not eligible country one has known your fellow came to the u s voluntarily rather than being brought by his mother and he came of age twenty one rather than age twelve so we can't really say that the united states is the only real home country he has ever known he did not get brought here as a child and go to school here i wonder if especially when we consider that the spike is even stronger equities the client first came to this country in one nine hundred seventy nine was he twenty one or not how old was he is in his mid forty's so i think that's probably right but he did come in like ok my point being he wasn't brought here as a child but i don't think that's a meaningful distinction why shouldn't we limit lippman to people who've been brought here as children because here's what bothers me your fellow has great equities my feeling is the same as the trial judges she looks like he's a good citizen except for not being a citizen it's a real shame it can't stay here but all these departures and all these their failures to follow the sentencing guidelines and career the sentence people that's what stimulates congress to pull up the ladder and impose mandatory minimum some prohibit departures altogether require with strawberry recordkeeping for departures and it winds up pieces are just heartbreaking i mean that i announced once to deport these people because now they've been caught let's say for a drug trafficking offense back to a country that they don't know yes and that i think is what church pra lippman didn't the court and let men didn't make that ruling that it was limited to children because there can be other reasons it's going to get limited in the same case they get limited in subsequent  the question you have why shouldn't he be excluded because and i'd like to start from the position that this wasn't just a cultural assimilation departure it was an outside the heartland departure based on united states first parish and val's who clearly has serious medical problems he's got two minor children but need to be supported he's got a great job working construction on highway bridges and he hasn't committed any other crimes except the one that got him deported the last time and that it seems to me the government's response to that is what we're really doing is rewarding this guy because he kept his head below the radar cover and didn't get caught for a number of years during which he did his character and that is a part of cultural some malaysian and family ties and problem part whenever you've got these deportation cases the alien found in thirteen twenty six cases a lot of them are the there are lots of them but i think that in this case family ties doesn't i mean even though lopez refers to indispensable obviously you don't look at just in the that's true and if i might add something else off the record we have i have tamed a for free an immigration lawyer to see about getting him back in this country even though the chances are very bad that it's his wife's wish and that answers one is even though it's extraordinarily difficult and practically i mean very hard it is not impossible and if you look at the sentencing transcript the judge milloy said you're probably going to panel to not judge the issue is that i think it's important that to reverse a disturbing trend which if it's to them to decide that is retroactive until we don't do friends and i needed an argument rather than just a statement of position you said that you don't think the protect act is referral acted but you didn't state why  consultants legal obligations at all and as for trends that's for newspaper operated writers on a reprint my point was simply that there has not been the substantive analysis done if you look at the prior cases which  very clear is that we presented an extraordinary factual sentencing i mean that's what it was and it's only answer the question first is that they have a thought but it that and at the time i told mr reavis consults here's how this works and we're going to put on these witnesses to talk about how great you are and we're going to spend all these letters and we're going to have people make statements and the judge is going to make a factual determination and he's the one who gets to do that because he's the one who sees the witnesses and the standard is abuse of discretion and so you know i told because maybe not in every case but i think a good lawyer would explain what happens at sentencing and why we try to persuade the district court judge that actually and that the district court judges in the best position to make in a civil case where the district court makes findings of fact which are binding on us unless we can declare them clearly erroneous but then we review through novo on the basis of those factual findings in applying the away from the sentence or case held the same thing your honor and i sing out back absolutely we typically said that in parole cases where there used to be discretion to grant parole and then the discretion to grant parole is taken away and we at that harkened that made the punishment harsher because the person subject to the possibility of parole had previously had a possibility subject to the the court shall not impose a sentence outside the apple couple of guideline range except upon a ground that day was specifically and affirmatively included in the written statement of reasons required by section three fifty five three think your argument would be right based on that subsection but i'm having trouble seeing how your argument can be right applied to this case where you're talking about is the duty of the departing judge to give reasons f that's true for the area well actually it's a valid basis for the part of your vote some question of degree replication and it also it applies to application of the facts to the law and and so the court is going to be looking at the facts he knows all as well and that brings up this is the perfect case we would better quit incidentally we've got a half hour more than a half hour and ten minute case you just on your side and and letting me answer those questions graphically here from the beautiful told by the clerk's office that the first circuit that when they're considering making an invasion call on a case that they sometimes withdraw their opinion from publication the answer made no sense to me because it's not