gate jane engaged in criminal conduct when he stabbed officer will sit there is no dispute about that he pled guilty in the problem was that his sentence was improperly where he was says to an additional forty five months in excess of the guidelines i'd like to address both of those in turn if i may the st of them  surgery that clearly happened here that's what happened he suffered several injuries he had a dislocation to his jaw he what happened he had a low level five unhandsome and this was not a case where the united states argued or he was entitled to a seven level enhanced not for a permanent or life threatening injury that's just not what happened here  certainly in this case though the injuries are not permitted at least according to the findings of the district court but what i didn't understand is in help me unpack the facts tear probably in advance of this injury this exacerbated things and he can get a knee replacement surgery on it's not he didn't need new replacements surgery before the attack by mr james that's true ok so after the attack he needs knee replacement surgery i don't see why that's not a permanent injury because it can be fixed with a relatively routine procedure be fixed with a foreign device it's not my it's somebody else's i was a piece of metal or piece of plastic makes an interesting point and i guess what i would suggest to you that is if the government didn't carry its burden in showing that the injury was i not a result of a preexisting condition but actually what happened as a result of this the medical records that were introduced do suggest that the the mr james was here is stepping up i think you're arguing about one or guideline range right yes that's a yes and you're saying the court did not have discretion to move upward even that one bump or i'm not arguing that the court doesn't have discretion to do that it's just going to make it a reasoned decision on with a court found world record might have said as judge murphy suggests somebody have to have an artificial knee is it may be not too bad or as you try to characterize it but in fact it's permanent permanent doesn't need that you got to be  i think that certainly there was a preexisting injury that he had this exacerbated things in though he certainly has a he had it something that required he had an additional surgery what the government didn't prove to the court find is what would this  happened anyway there was no medical testimony that it would have suggested that he would have had to have a an artificially at some point anyway so i would suggest to the court that this is not so much question of discretion but a question of process where the court needs to make a better findings that it did what it appears to me happened is that the role rather than one that is consistent with his duties to make the appropriate findings we see in what a judge acts like solomon the judge has abused her discretion no your honor but i am suggesting is that if if he's going to act like solomon he needs to explain his decision in a more reasoned way i think you see that again when he turned to the question of offense or the need to for just punishment or deterrence the protection of the public these are already things that are incorporated within the various things that he was received in hansoms for he had a base of do enough explaining to know this court is reviewing court looking at it to novo why why did he make these decisions we don't know that and because the court didn't provide that level of what is contained within the sentencing guidelines related to your argument that the problem here is an inadequate explanation you still have to show that there are some harm is  utterances of the district judge it's sufficient least to establish that if we send it back for further explanation isn't it pretty clear the same court decisions were very well supported so as to the st issue the six level enhancements for injuries that fell between serious bodily injury and life threatening are permanent injury the court made a very good record after hearing testimony including from the victim of the injuries and the district court consider the totality of injuries the focus wasn't only on scarring or only on the knee only on the damage to the dislocated jo but the district court made clear that he was aware that this victim had made repeated trips to the emergency room to deal with infections to the scarring that had to be drained numerous times and the victim had to be put on a course of antibiotics more than once the victim actually did have to have some plastic surgery to help correct one of the scars that initially been sutured near the ear on the left side and that was a there was testimony from the victim that that was a very large scar in addition the district court noted in the district would have the opportunity to observe the victim that the victim still had scarring at the time of sentencing which is very important sentencing was sixteen months after the attack here and there is case law on the th circuit which is persuasive which discusses looking at the injuries at the time of sentencing and why what the condition of the victim is at that point rather than trying to predict what the future will look like and here the district court observe that this victim still had scarring on his face and on his head which continued to cause the victim discomfort  meniscus that the victim suffered during the fall down the staircase when he and the prisoner were struggling and while the victim was still being stabbed the victim testified that he still practically every day because of the need injury previously he had been able to run six to seven miles every day and after the attack and even after the arthroscopic surgery he could no longer ryan and he testified he couldn't even jo so have the district court imposed a seven level enhancement for a substantial impairment which is likely to be permanent the government's position is that would have been well supported as well but need for a replacement surgery as a result of this attack by mr james was a permanent injury you did not take that position chris well you and i know before the district court the government took the position that the seven level enhanced meant that the probation office had recommended was was correct understandably i'm talking about specifically as to the knee injury a whether we would argue that that's permanent i thought you did not it was not argued it was permanent in the district court in the district court your honor i can't remember specifically and i don't want to say something that's wrong here i think it would be supported that it would be a pro and injury well if they did presented in the district court made no findings that it was permanent at least for this record we have to take it that that was not a permanent injury at least in the eyes of the fact finder right with the district court found as to the jaw and we injuries was that they were not substantial so that is a finding that the district court made in the record that if they were not substantial based on the evidence that was presented you say jaw and the jaw and need enhanced met which was more than serious bodily injury but he just didn't feel that the government had met its burden to prove by a preponderance that the seven level unhandsome that was justified now a different judge may have found otherwise and there i submit enough facts here that seven  enhance men could have been applied but here certainly the plus six is supported by the record it was well explained by the district court and here the defendant concedes that the five level enhancement there's no  that that would apply and that in fact could apply looking only at the scarring injuries and the stab wounds that would have been sufficient alone to satisfy the five level unhandsome and because that involved extreme physical pain and it suggesting that the injuries were life threatening that the court just didn't feel comfortable imposing the seven level of hands on so it may have been that the district court just wanted additional testimony or records from a medical professional but that may have been the issue there  circumstances in this case the record makes clear that the district court was well versed in the facts of the case the district court considered a number of factors and not place any undue weight on any one factor alone  a calculated attack by the defendant that the could have died the attack ended because there was in for intervention by other staff at the prison not because the defendant just decided to stop the attack the scissors that the defendant used to attack the victims were capable of like dean lethal injuries as district court noted the district court also considered the defendant's motivation in the attack which was to basically get  at a different pretrial facility involving a knife also led the court to believe that the public needed to be protected and that the sentence had to afford adequate deterrence and so that one hundred and eighty month sentence didn't reflect