inconclusive on how the district courts have to consider the thirty five fifty three a factors that there is some case law that talks about ways to at least in which a district court can go wrong in considering those factors i'm thinking specifically of the hock case from the eighth circuit which lists a number of ways in which i just report cannot fulfill its stuti in considering the thirty five fifty three eight factors it can fail to consider a relevant factor that deserves weight it can give significant weight to a factor that was improper or it can weigh all the correct factors but commit a clear error in judgment in doing so and i would submit that the district court in this case made several of those errors in fact i think it made all of those errors and let me begin with mr jarvis prior convictions i think that the way in which the district court considered this factor both failed to give weight to a factor that can that deserved weight and also considered an improper factor because what the district court here did was to look at this middle aged man mr jari was fifty five at the time of sentencing who with no prior criminal convictions whatsoever so more than thirty years of a life in which he had suffered no convictions and to say that not only did that not matter but that it wasn't even true he said the district court all you really are i would respectfully disagree with that your honor because the thirty five fifty three eight factors one of twelve thirty five three a one talks about the history characteristics of the defendant and it's not just  negative inference that mr jari had had really engaged in a life of crime it's also failing to give weight to a factor that really deserved weight which was that sure was a middle aged man with no convictions which makes him different which is not only significant in itself but also makes him different from someone who might be nineteen years old with no adult convictions it shows that he'd had more than thirty well twenty five or so thirty years or so of a life in which he had been law abiding well just from an abstract standpoint literally what the judge said was true literally what the judge said was while he's a first time nonviolent offender it's the first time he's caught right now that is literally true it is literally true that this was his first conviction oh now all of your argument is based upon the negative so negative inference right if that if that is a certainty as the truth and that's all that a person thing is that is equal to saying well yeah but he's been doing a lot of other things for which he has not been caught precisely and well we can draw those conclusions in a lot of conversation can we not if the record thing but if you look at mr jarvis pre sentence report the record does not actually support that kind of inference and also your honor i don't want to belabor the point on the point but it also fails to take into account that this really wa that can be considered is a matter of law prior convictions are certainly not your honor certainly not but the court the sentencing court really does have an obligation to look at it i defendant's prior record we did not consider the guidelines and did the range was correctly calculate right and so when you're saying that he didn't consider the fact that he had no priors he had least did sentencing with a very low end of the range established with consideration of the fact that he had no priors he did your honor but under booker the court was also entitled to consider that this was a man with a long history of no convictions which makes him different from someone with a short history of no convictions he was also entitle to consider that mr jargons age made him less likely to resort evade all of those things as well and while what the court saying is true are you are you then telling us that it's always unreasonable for a judge to sentence an older person to perhaps what might be the same sentence as a younger person not at all your honor we have to be able to find us was unreasonable yes yes and our argument your honor is that it was unreasonable to confess to invent a history of prior bad acts on mr jarvis part that aren't supported basically saying here as i read it is there is really bad stuff out here and given that bad stuff i'm giving you a break by sentencing you down here but the court if there is no bad stuff out here because the government and as the court itself acknowledged couldn't prove it then this is not a lenient sentence and so once again the court is ok one second to see what he got because thirty three months you are once again the court is bad stuff out here and i'm considering you a really bad person when the record really doesn't support that inference outside of the facts of this offense then let me just say you want it yes it doesn't indicate the minor person who was roped in by somebody else no your honor it doesn't say that the only issue as well there's an issue its role in connection i think with the rule thirty two issue but i would like to turn it in the brief time i have to the court's guideline calculations since that has come out of the guy like help me advice recalculation with respect to lost the court so that thirty three months was the bottom of what would have been the guideline mandatory sentence but in order to believe that that's true then the court had to sentence mr jerry based on a last calculations that lead to an eleven doubt it said that the government at first said that it was questionable whether the government had proved it by clear and convincing and it said there's no way the government has proved it by clear and convincing later in the sentencing colloquy and then it said it was questionable whether the government had proved it by a preponderance and even if the court believes that the standard in this case really is preponderance rather than something higher grade of great deal higher as we would argue then the court still didn't find it because in order to believe in order to stand it's based on a preponderance of the court has to be convinced that the fact exists convinced by a preponderance of the evidence that the fact exist and you're the court's only statement was i think it's questionable whether they've proved it by a preponderance and so that makes that caused the whole advisory guideline range into question it calls the court statement that extended to get the bottom of that range into question and it also requires remained under this court reasonable keeping in mind that this court held a full full adventure hearing cross examination of the government's witnesses and then at the end of the record before the court sentenced if you look at the transcript pages fifty nine through sixty said at the beginning of the record that if she did not believe that this defendant to be able to prove that it was not jointly and severally liable for the entire loss now the hearing started with the stipulation that the false claims that have and convincing is the burden preponderance it was unclear what the burden was and i think that district court in statements didn't like the government's theory of loss calculation instead had it's own and found that so so the one point two million wasn't a total loss that was clear what was the amount that they actually built was that the one point two million and then the government's theory was ninety percent of that was fraudulent yes all right now what support is that there's one person who testified as to the ninety percent correct couldn't find beyond reasonable doubt or by plane convincing evidence and he questioned whether he could find of my preponderance is that what he was talking about what he questioned he said he couldn't find it beyond a reasonable doubt he said he didn't think there was clear and convincing evidence there's no actual finding  the low end of the mandatory guideline would be thirty three months he is in fact finding the range of thirty three to forty one months it's not a perfect record it would be better if he had said i don't like the packman it's proof  there and the result to determine by inference that he applied the proper burden of proof then you have the argument that we heard about the improper factors considering this man's lack of record and so on and then we have on top of that a failure to make explicit findings on things that were in dispute and then we have the issue of allowing the probation officer to decide  payment for future treatment and with respect to the to the findings when you when you say the judge concluded by saying it's undisputed the defendant takes that to mean that you didn't understand we were disputing it now that's a problem that i see and instead of it being a finding it's an assertion that it's on the you interpret that to be a finding the defendant interpret it to be a misunderstanding now those are the problems i see here well we have to patch together a whole bunch of inferences to come out one way or the other in this case we can't look at anything very  turning to the second one the explicitness of the findings is that addressing the rule thirty two issue on the role findings or in the last findings that john i was concerned about both ok on the last findings i've already articulated my my argument on the findings as to the role enhanced meant well it's well accepted that the court can rely undisputed facts of p s r so the first aspect of looking at that question under rule thirty two is what was disputed the probation officer is putting forth to support the role it just meant there was no mention in that paragraph of paying kickbacks to doctors if you look at the sentencing transcript the government never argued probation never whether he in fact after he recruited all these people after he showed them how to operate the scheme he continued to manage them now the court didn't explicitly rule on that but from this record one can tell what the district court was in lying on and i would point the courts to be rogers and cam in particular as three cases on go thirty two which are favorable to what the district court did here in rigby this court specifically held that although the defendant argued that it was a mere career in the district court you can have a couple minutes thanks turner i'd like to address the joint and several liability question first it's true that the district court did begin the sentencing hearing saying why can't i just find joint and several liability but the nature and quality of the government proof i think puts paid to the district court's reliance on that theory because that in the nature and quality of the government's proved during that sentencing hearing showed that agree with show that there was certainly a great deal of or at least some percentage of the government's figure that it wanted to attribute to mr jari that couldn't be attributed to mr cherry because there were people who were also involved in this scheme who had no link to him there were people who he had admitted lee perhaps recruited but who then went on to do things by themselves there were people who were also bringing in billings who were doing it cleanly in an upstanding non dishonest way there was a patient who became a recruiter  and the government could show no link to mr jari and so i think that the district court far from saying jointly and severally liable if he set it up abandoned that theory as soon as he heard the government's proof and then was faced with the very question of how am i going to find this lost and we would submit is we've argued that it did not find the last beyond a reasonable doubt it did not find lost by clear and convincing evidence which is the lowest standard we would see in it that it was required to use and it said that it was questionable whether the last could even be found by a preponderance which distorts its guideline and alice's and requires when you get to that on i'm sorry your honor what pages which on wh indeed i agree with you that it's certainly not beyond a reasonable doubt that's fairly early in the argument about sentencing and then at the conclusion of that argument the court decides that there's no way that the government prove lost by clear and convincing and it says that at page one hundred seven as the court as a court mention and you think it's based on united states versus jordan in cases like that we need clear and convincing i do your honor there was mr jerry was not charged with a says well i didn't think the government was able if i thought if the government were able to rove that he was the kingpin but they didn't i don't see where the allocation matter i guess as to court clearly said he was not a kingmaker if i thought he were you'd really be looking at serious time and so i can't see how the court decided last at all and therefore i don't see how it decided it's guideline issue i thought if the court could indulge me i just wanted to talk for moment about the explicitness issue and rule thirty two if you look at the the question of whether mr jari actually didn't admit or explicitly denied that he had ever paid kickbacks to doctors you'll see that his change of plea explicitly denied that he had done so and perhaps the sentencing papers weren't best phrased but that was an explicit denial it does go to whether he wasn't organizer of this because he would have had as an organizer he would have to have done something to keep the doctors happy and keep the scheme running and so it does go to the reasonableness of the organizer finding in the court simply didn't make any explicit the only thing on the council makes your argument that that assertion was never made in the pre