contain any language to the effect that a sentence that is properly calculated under the guidelines is entitled to a rebuttal presumption a reasonable means to  reform act booker makes it clear that all the provisions of section thirty five fifty three and the guidelines are designed to guide district court sentenced in an appellate co than booker reference to the thirty five fifty three factors of hers and speaking out just writers opinion it seemed to underscore the necessity of doing the calculations and sentence that that is imposed but the creation of a presumption doesn't affect that well the creation of a presumption though certainly affects how much weight to give one or the other and that's the i think that the significant initiative that you honour's and must must deal with this isn't the premise of your argument that the thirty five fifty three factors are somehow at odds with the guidelines i find that curious because i think that the thirty five fifty three factors are intertwined with the guidelines took to a certain degree they ar and to a certain degree they are not under the guidelines i believe under section  there are a number of prohibited factors that the courts are are prohibited from considering imposing the sentence when we look at thirty five fifty three factors some of those considerations are no longer prohibited but the court can consider consider background history and a multitude of other factors that the guidelines per se say don't even think about taking that into account that is clear error and in that an important aid for courts seeking an appropriate sentence and help to maintain uniformity in sentencing throughout the country it follows that it is appropriate to consider guideline whether the guidelines work correctly interpreted and applied as in control but then the decision of pines without any authority without any authority whatsoever that an appellate review  reasonableness to the guidelines the court failed to take into adequate account the multitude of thirty five fifty three factors that we had asked the court to give a more genius and reasonable sentence on w to cation that the district court did not consider the other factors that you offered i don't believe there's an indication one way or the other your honor but i've i believe mr gibson was significantly in other words whether the defendant is correct that thirty five fifty three a a book or mandates that all the factors of thirty five fifty three it must in fact have exactly equivalent weight to do issues are clearly related but there is a slight distinction the consideration of the factors that went into the formulation of the guidelines that guideline sentences will in the overwhelming majority of cases be within the range of those sentences which are reasonable in light of the thirty five fifty three  factors that result you're our belief flows from the fact that the guidelines were not created separate and apart from the thirty five fifty three a framework quite to the contrary thirty five fifty eight three  thirty five fifty three a framework and the direction of congress to the senate submission to formulate the guidelines for part of the same statute and moreover congress to cynically directed the sentencing commission in the guidelines however fail to account for or take into consideration the factors and thirty five fifty three a one namely the nature and circumstances of the offense and the history in formulating the guidelines to address a whole range of factors characteristics and history of the defendant is turning white guideline ranges would be appropriate to accomplish the purpose in goals of sentencing say we're going to take all those things out motivated i can understand on one level by concern that it's led to disparate sentencing on factors and yet they are characteristics of the defendant which thirty five fifty three says you are supposed to consider is free to disregard the policy statement if if the court decides well the guidelines are built on that they may be presumptively reasonable but in this case the employment tension between the various factors of thirty five fifty three themselves but on the one hand the district court is told to look at the policy statements of the sentencing commission which frown on some of the characteristics the judge looked at was talking about on the other hand there's this open admonition to look at history characteristics of the defendant without limitation seems to me the tension might be between the factors of the thirty five fifty three i think i think devaluate jurisdiction thank you i think you certainly separate and distinct considerations the thirty five fifty three considerations the race ethnicity so as to economic status in particular to mr gibson situation the family ties and responsibilities given the fact that he is for the first time in his life at forty two years of age became a father are factors that are currently the court is dissuaded from considering under the guidelines yet factors that booker now says district courts have an obligation to consider not only and not is there an indication here the district court in fact consider i mean the economy specifically having a wife and young child that's nothing unusual for the for the drug offenders he sees in front of them so he was unaware of it he's basically saying that doesn't really change anything  it all boils down to whether or not the district court was correct in giving a presumption for the guideline factors over these particular thirty five fifty three factors if in fact the district to be out of the ordinary and i don't believe thirty five fifty three requires it to be out of the ordinary factors but rather factors that the court should consider in determining a reasonable and appropriate sentence