my name is lauren arden i represent the appellant alfredo varian's i'd like to reserve two minutes for rebuttal and i intend to address the government's twenty a letter at the conclusion of my art search that different provisions of the sentencing guidelines are not subject to equal protection review when the defendants have committed crimes there are several sources of authority that refute the government's claim first of course the government sites know what's already for that position the primary authority on our side conduct the district court first has to conduct a guidelines calculation the court has to decide what the a playable guideline range is under a correctly calculated guideline review that includes a determination of what the criminal history category so there too as actually we can jump out of the government's citation to mix which is this court's most recent statement on the interplay between the thirty five fifty three factors and the guideline calculation the district court conducts to analyses the court figures out what the guideline calculation is and then the court looks to the thirty five fifty three factors now let me just jump ahead as well we believe that mix is not a political to either of the arguments that we've raised to the extent that the government relies on nics to say that  sentence within the code correctly calculated guideline range is reasonable now first mix does not state that i think it will be reserved for a later case whether that's the holding of mix but the second we have two challenges here that are not susceptible to reasonableness review the first challenge is a constitutional challenge to the application of enhancement that has a radically disparate impact under one guideline as compared to another the second challenge in my brief is the district court's failure to depart for lost opportunity to serve concurren distinction that's been drawn now what's interesting in this case there is the specter of the fact that the defendants under the more harsh guideline are undocumented aliens what we know from plyler versus doe undocumented aliens are not a  class however i think it's important to be cautious of relying overly on their status as undocumented undocumented aliens to conclude that they can be subjected to enhanced sentences purely for that reason as a way to deter them from returning to the united states the most bulk of the government's argument is directed toward that point that well there the fact that there are undocumented aliens of course is not a status that we now recognize and thus they may be punished for that status that is for the of being undocumented aliens and then it should be up to congress to determine what the punishment attaches to that status should it correct and then it should be up to the court to determine whether there are disparities between guidelines where the identical factor is being  result in an odd we don't have an identical factor if you have in one case you have been documented aliens or another case you don't so we have a status that is capable of punishment by virtue of its status alone well let me advance to the other point that i wanted to make regarding the sources of authority for my belief that these defendants are similarly situated under the two guidelines first i think it's important to keep in mind that the sentencing guidelines are resort of this to sentencing scheme the guidelines already treat all criminal defendants as being similarly situated for purposes of determining for example their criminal history category it would not be appropriate for undocumented aliens to get six points for a certain kind of prior conviction under the criminal history calculation where other defendants only get three points for the same prior conviction are you saying congress could make that decision i think that the equal protection violation would be more apparent if that's what we were dealing with here i'm speaking about the horizontal axis of the criminal history table of the of the sentencing table and the criminal history calculation if one class of defendants were singled out to have their criminal history points doubled for the identical conviction i think the disparity would be obvious and i think it would be clear that except counsel that you just admitted that undocumented alien relevant respects and that is if you look at the base offense level that is the signed to these two separate crimes the guidelines have assessed a similar severity to these two crimes the base offense level for thirteen twenty six is eight or goes up to twelve if the defendant has a generic prior felony the base offense level for a prohibited person under ninety two g is fourteen so in fact we see that an alien with a prior felony in streatham slightly less seriously than a felon with a prior felony then we come to the enhancements that are added in of the two guidelines and that's where the disparity kicks in the factor is the same for the enhancement in each case a prior felony conviction that is either a crime of violence or a drug trafficking offen but now that they are advisory and judges may depart upward or downward then don't you have to do a don't you have to offer somebody else who got a different sentence that your client rather than just simply pointing to the guidelines i  ruled against me and the departure was on a different axis on the criminal history at the council do we have jurisdiction to review the district court's declamation to the park further that's w done in the context of considering a downward departure we can't review that can we i believe the court can if there's a legal error and here again mix has a footnote this is the case cited by the government looks as a footnote that the guideline calculation is still  for legal error and that this isn't the guy we've gone beyond the guy i'm calculation at that point and determine whether or not to depart from that calculation is a different consideration what case authority are you in line upon to say that we now have the authority to reach a denial of a departure request then i believe that would be nixed where we're talking about a legal error and here the court did not recognize or acknowledge the authority me that given the separate nature of the state state offense that that should be a basis to be part so the court indicated that because the sentences were for different crimes it could not be voting on the guideline range and that conflicts with sanchez rodriguez because in that case as well the defendant had a prior drug crime and was currently before the court on the thirteenth twenty six and in fact there are always going to be separate offenses in state in federal court when we're talking about a thirteen twenty six offense because state courts have no jurisdiction over that crime and finally also in contrast to government relying on mixed in that regard and this court stated in makes that the first step courts however must consult the guidelines and take them into account when sentencing even though they now have the discretion to impose doesn't necessarily question fully as far as is it really necessary but that's the best we have at this point from this court second i just wanted to even if we could keep it counsel but even if we were to conclude which we have not yet all those other courts have that the guidelines are us fars in the district courts is that's a necessary first step it's as necessary a first step as it was pre booker where the calculation had to be done the court the ninth circuit has not ruled on the fact that initial argument in the brief the defendant is not similarly situated to the defendant or the hypothetical defendant that they're comparing themselves there's no cases cited by the defendant and there's no cases cited by the united states that's correct and what's what may be helpful in this regard is plyler has language and it's cited in both the united states as well as the defendant's brief this act four fifty seven us two zero two sixteen the equal protection clause directs that all persons similarly circumstantial be treated alike but so too the constitution does not require things which are different in fact or opinion should be treated in law as though it were the same here we have differences in fact there is an illegal alien who is committed numerous crimes versus a person who is a citizen at least for  comparison that the defendant offers before this court so we think at least the united states is of equal protection analysis and there nevertheless if the court determines that these parties are similarly situated  accepting the defendant's argument there's a rational basis rational basis which was articulated in a somewhat similar circumstance in adelaide out of the eleventh circuit the sentencing commission may have concluded that alien who has been convicted of a felony should be strongly deterred from reentering the united states consideration not present with respect to an american citizen the higher punishment is rationally related to deter and the illegal reentry a person who has been deported after committing certain types of felonies deportation hasn't worked they've returned back to the country and that higher punishment is then rationally related to the fact that policy unless the question of the court is any of  questions regarding the equal protection argument i would like to go on to the sentencing at with respect to sentencing there's two there's two steps first the procedural which is the court must calculate the guidelines hear sentences other than in certain circumstances we believe here that because the sentence was not higher than the properly calculated guideline this court does not have jurisdiction under thirty seven forty two  or decide upon the reasonableness of the sentence now in full disclosure this argument has been presented to other circuits and has been rejected almost uniformly so if the court that's in the first if the court does feel that it has jurisdiction then moving on to the second step which is the court here why procedure appropriately properly calculating the guidelines applying the thirty five fifty three a factor  then rendering a sentence within the properly calculated guideline range the united states position is that if these two steps are conducted properly and the sentence is is pronounced that is within was there an improper calculation of the guidelines the now the parties here are contending that the downward departure that the court effected in this case was not under a under ground that was that was mandatory or so i've got confused myself actually the downward departure the court that this court wants to review we don't think that it would necessarily have the jurisdiction other than what was so what was allowed pre or going back to the substantive aspect of the sentence and why was reasonable the court follow the proper procedures and makes again is telling in this regard i'm going to quote from which  star five judges need not rehearse on the record all the considerations that section thirty five fifty three a list is enough to calculate the range accurately and explain why if the sentence lies outside it this defendant deserves more or less in this instance the judge properly calculated the range applied to thirty five fifty three factors and sentenced the defendant to the low end of the guideline range united states does not believe that the court this court need to needs to go behind why  the district court imposed that sentence so mean that we want to address the argument made by opposing counsel regarding the district court's denial of the request to depart down what port it legal error what's your response well the legal there was no legal or illegal or that as i understand it the defense counsel is raising is that the court had the ability to download to part if the court wanted to that's not what the court that's not why the court did not want to part hear the record we believe is the fair a fair reading of the record is it doesn't seem to me that given the separate nature of the state offense state offense that that should be a basis to depart the court doesn't say that he couldn't depart in fact the whole sentencing hearing was conducted in the framework that booker has come down the judge was well aware that he had the decree discretion to depart if you wanted to outside within the guideline range applying the guidelines a outside after applying the thirty five fifty three a the court could have gone lower the court chose not to that discretionary denial of the downward departure under the guidelines the united states consent contends is still not reviewable by this court regarding the court's departure on one ground and therefore is there any reason to look at the court's failure to depart on other grounds i think both before and after book or as the government acknowledges where there are multiple factors presented to the court as a basis for a lower offenses now the judge may decide to give the same sentence on remand but the judge should have the opportunity to offer other factors beyond the only factor given which is not a permissible factor understand because right now finally going back to the protection issue of the is whether a prior conviction for a crime of violence should be worth six points on the offense level calculation or sixteen points on the offense level calculation in fly away or the reference to whether it's constitutionally relevant is raised only in the context of alienists classifications that you need to foreign policy entry into the united states and grant of citizenship the government is essentially overlapping different powers of congress to suggest that because the congress has powers written with respect to foreign nationals in the immigration context congress should be able to sense an alien's more harshly in the criminal context simply for that reason if congress wants to impose higher sentences on defendants who reenter the united states those factors should be based on things that are related to the