and the only question with respect to variance is the procedural question of sufficient explanation i believe there's also says the substantive reasonable this which applies to both the the departure end  review and the only issue one at issue here requires the court to consider whether the district court committed a significant procedural error i believe that may have been inordinately stated that as to the the the the  think you're right and that you don't need to have raised it but that you don't it doesn't need to have been raised below but you can look again when we get to rebuttal but your brief has the the only section about the sense being and reasonable states the extent of the departure sentence was unreasonable and i don't see any part of the brief that discusses the variance being unreasonable or will work when i when i really read the argument with regard to the variance is that the explanation is more of a recitation of the negative information in the in the pre sentence report and not really an adequate explanation or justification for explaining warning this case falls outside the normal three thousand five hundred and fifty three a factors offenses was a factor that the court considered i would submit that that it's much less significant in this particular case because the drug conduct was so fifteen years he says that showed that in the variance context that matters that that significant i don't need guidelines perhaps but in variance analysis i'm not sure that i factors in other words my position is that the judge and properly sentencing more or varying from from from a particular guideline here where it's a category six you know it it's a fair comment but but when you look at the sentencing the totality of the sentencing is it really picks the the court misapplied its focus and it didn't really look action on this particular defendant in category six for the particular offense conduct the court got the conduct wrong in a number of ways he made made mr kills much more think it's somewhat of climate tory but it didn't really apply to the facts in this case who really the facts show that over a two year investigation mr kill showed up on a wire for just a series of calls and it appears at most there's evidence that there appeared to be two transactions where he purchased there's no evidence of them selling there's no evidence of them being in the street there's no evidence of him having any activity in burnie place those kind of comments he you know suggests that he punished mr keel's for culpability that was well beyond this to kill culpability  and he did that by turning the focus completely on to the criminal history which end to the prior drug offenses which were all much much earlier except for the two thousand and six case which was than the one where there was no explanation as reversals where the explanations either were not particularize to the defendant or applied equally to everyone convicted of that crime who was in that guidelines range and those two were laughing obviously government summary of those cases i think that the the government oversimplifies those cases i think that there are parts of those cases in this case where the court fails to particular specify why that category six offense level twelve for somebody similarly situated was not sufficient   the judge chose things where and i think maybe salute to the way brown case where with the factors were really accounted for the recidivism the difference from category one to bill really double punishing our for conduct if you if a judge was to go through and read every negative piece of information twenty two positive drug tests when somebody was twenty one years old in the two thousand reasonably regard the guidelines as inadequate not taking into account whole picture but the court still has to use it as a starting point and generally has to find reasons as to why the guideline is not appropriate and in this case it's easy you're quibbling with the whole picture the judge is trying to paint the whole picture here going back to each twenty previous punishments so what's wrong with the jets saying as much as he can about these histories trying to paint a picture of citizen house interest there's nothing wrong with the court of serving if there's nothing wrong with the court considering the court can consider a great deal but when the court can't then rule on it is to say this is not this is not that the heartland circuit defended here this is unusual well the guideline miscalculating category six for this minor offense and the the nature of of the conduct that's recited is pretty standard pretty typical for a category six defend committed fraud after he had previously been convicted of committing fraud it's questions whether these factors are ok is not a question of what everything adds up to with respect to the question of the time lag at least procedurally the district court he answered your argument the district court says your attorney points up you live in your gap this is not as impressive as it looks at st because you were incarcerated at least five of those  you know an explanation for that why that the judge is an explanation for why the gap doesn't matter to him so why isn't more of an explanation would be required the mind run case for this category six defending for this case and therefore i'm going to double the sentence where no one requested the departure where probation recommended thirty three months where the government recommend thirty months good morning and may have please the court eric hansard for the united states i think we based on that of course questions we agree that the early is the easiest way to resolve this case this as a or miscible upward variance here that the district court did improves the variance in the alternative to the upper departure and we do think that the district court's explanation for why your original guidelines range of thirty to thirty seven months did not adequately express captured the defendant's full criminal history there was an adequate explanation for that and that was particular eyes to the defended in ways that those four are maybe two parts to that question one is on what's particularized and east as we see it what's particular eyes to the defendant is parts of the defendants criminal history that aren't fully reflected in the original guidelines range and so what we know and tailor recognizes that a defendant's prior commission of the same crime repeated commission of the same crime is not reflected in the criminal history score because the criminal history score treats all crimes the same this court has also cited that as a factor in upward variances in multiple cases we cite ransome and nicely in the briefs there's much as you're suggesting we do know well i i think that i think their rationale of molina and those cases is that the guidelines don't consider the nature of the prior sentence as it's just the extent of them and that a defendant who and so that is not reflected in the original guidelines range and is therefore a basis for an upward departure area but as to that data question that the court is asking about need do not only problem is that i'm not entirely sure whether we have whether we know enough to apply with much confidence but i do think well you know this explanation there which i think  i i may just be repeating myself but i think i mean as explanation there says that the guidelines do not adequately capture that but just in terms of other kind of benchmarks to weigh the defendant sentence right or understand right about right just still doubt a doubt i think that is true i think there's i think it's based more on the intuitive logic that a defendant who commits one crime gets a thirty nine month and is not deterred by that sentence need to hire sentence to be deterred in the future just in terms of those benchmarks the sentence here does not come anywhere close to the statutory maximum of twenty years and guidelines range and so the defendant sentence here is certainly not out of whack with those sorts of benchmarks those other circuits are projecting our view we're just haven't reached it as i distribution in those circuits would qualify for career offender status we also just are needed whether or not there's been a time lag or whether this is when do we dated conduct we would know that the defendant at the time of this code offense was still on supervised release for the underlying attempted distribution and so that conviction has not at all faded into the background  depart upwards from how the gory sex based on similar prior convictions i'm happy to address the upper departure if there are any questions on that you do think the easiest way for this court to resolve the case is based considering technical aspects of a departure that was the whole point of workers break at the guidelines advisors so it would always be easiest not just i think that is true and question thank you we've asked the court to her the government is kind you back you one minute forty eight seconds of his time with your response to the court's question it appears i may have taken