imposed by the district court in the case of substantially greater than that sneering almost two and a half years more than the sentence he see five years prior and so we're asking this court to you were i'm concerned is on the issues that you raise don't appeal to the first one being that urge in denying these motions of downward the park are rare and yet the trial court clearly agreed that a criminal history of six i believe you were clearly inappropriate and went down to a criminal history number four so roman numeral for so are you complaining and this is what was i couldn't figure are you complaining that the trial court didn't go to a war criminal history no you know what we were asking for was for a departure  that so your argument then is strictly based upon the application you know is that that you're arguing that the trial court should have buried down word more or departed simply because we didn't so yes well i do can we even look at the refusal of the judge to downward depart i mean the government i think argues we don't have jurisdiction to review that discretionary decision isn't that category for mr lopez but what he did what i would argue that the district that that sort ploy was application of five of the seriousness of the offense that he was here that he was there for the smart are you are you saying that the court did not understand the your argument was that mr lopez urbina was entitle to an additional reduction because the criminal because of were overstated the severity of the past felonies was overstated we are you saying that he with the judge was confused about or didn't address that argument i wouldn't go so far as it just was confused i would say that the it's not a question of whether he was confused i think for for me it was more a question of whether he considered it at all let me ask you questions so it seems to me to the extent of the district court denied the request for a departure you agree that we don't review that yes i've agreed and that your case is is a reasonable nice case and that because the district court didn't apply the application note that his decision to wear his sentence was substantively and reasonable but because procedurally he got there the wrong way because every so everything collapses into the reasonable nisar demand ultimately now worked didn't consider it properly but that there is other evidence in the record that would suggest the sentence was reasonable what happens to your case then just getting the sentence stands so if  me and you might be a great deal of help to me and i was looking on the last page of the transcript that's when the objection is made and it just says you are for the record i just want to object to the more downward departure and addition from the six to the four by application note five and i'm trying to see where that was brought to the trial court's attention when the request was made for the down party could there were where you counsel before the district court ok because i was listening to what the transcript that judge baugh lock was reading and it at the end of it he said we think you need to apply application note five to open up void disparity in sentencing and which which smacks of the thirty five fifty three a factor and so i mean that just brings me back to aren't we really just talking about whether it's reasonable wasn't that doesn't that sound like your client's counsel before the district court raise that at the hearing in the context of your sentence is unreasonable but because he still over represented as far as criminal history  all this report did not abuse its discretion when it posed a sense at the low end of the guideline range after it departed by two criminal history categories on the record before this court the defendant had an extensive criminal history in the united states extensive immigration history and so the fifty seven united states in the span of fifteen years he had seven convictions that included three d three d w waddles two domestic violence could get convictions and two immigration convictions and looking at the course of that criminal history there's a pattern that develops where the defendant gauges and criminal conduct in the united states he spends time in jail he's deported he comes back he gave his in more criminal conduct that's dangerous environment he's caught he's deported he comes back and engages in further criminal conduct in the united states i think the most recent episode is is very telling two thousand and thirteen convicted for illegal reentry the exact same events he committed in this case he gets a twenty one month sentence he's deported and november two thousand and fourteen less than a year later he's back in the united states he has yet another domestic violence conviction he gets two years in jail there he's deported not tobar two thousand and seventeen and then four months later he's back in the united states that's the conduct that sit at table this case so that pattern of repeated criminal conduct within the united states in the period leading or aim gratian laws made it clear that a fifty seven month sentence was appropriate was needed to consideration of the guy's got what's bothering me is the issue on appeal but i see is the application of note five because it seems to be indicating that in certain instances very few that the court can still even go farther down and that's maxim a what they're trying to argue or at least what i read from the briefs that they're arguing that the  which we're going to get the same thing but kill me why application note five was is even an issue i can't find where it was raised except and the the final objection made by the trial counsel objects to the failure to make of application note it doesn't even say five if you're i think so first of all it was raised in a p s r as a possible grounds for departure  let's call it what it is and he says i don't find it to be discrete to the point that i can grant mr lopez any additional relief at that point the district court is discussing application no five and it was raised in defendant's brief that it that's that's it that that's where it's addressed or are within the record and also point out on that point runner the defendant has not raised a procedural reasonableness challenge by saying that the district court didn't adequately address and make reason that that's correct wrong or that is step two the analysis the court can't consider the assertive grounds for departure in determining whether a sentence is reasonable now and this case the argument that was made doesn't even fit within the five contemplate departing on that basis it simply says that where an often slow is increased and the enhancement substantially overstates the seriousness of the conduct underlying defense because a sentence well it doesn't reflect the seriousness of the offense the court can consider a departure on those grounds but the question is not should these felonies be misdemeanors that's not what application no five contemplates so it wasn't even a really a basis for the parting on that ground even still the court did not abuse its just rushing in refusing to consider that as a basis for not refusing but rejecting as a basis for departure  and there's nothing you know and that the record supports that conclusion you know other than the defendant's conclusory statements that texas got it wrong in mexico got it right there's there's no basis for this court to believe that that that's the case and that's  that the sentence as indicative of how awful that conduct was so the district court was on firm ground in rejecting that that policy argument can with the district court can look at the statutes from different jurisdictions and you know draw some conclusions from from those about the severity of the crimes can there's there's enough there's nothing wrong with a quarter even accepting mr hussein's methodology i'm looking at whether you know there's only a few states that enhance misdemeanors and felonies and using that as a relevant consideration in reducing there's nothing substantively on recently about a judge doing that is there no you are i think that there are five fifty three factors of surely brought on some compass stand but there's nothing that requires a district judge to to do that and even to engage in policy makers disagreements with the guidelines they're entitled discretion to impose a sentence that took account for his criminal history when it reduced the category and given that criminal history a sense within the guidelines range was imminently reasonable for should defer to that judge's tribulation and affirm this sentence on appeal i'm almost sensing that the defendant wants a double bump here on the on the severity of his criminal history and so before the district court the argument is hey my criminal histories over represented because of these recidivism statutes the court says i agree i'm going to knock you down to two points which drastically changes the calculation and then he says wait for the same reason now that you bump me down for two two points i want you to give me a further level reduction right is that sort of help went down that's how i read the record  represented it was not obligated because of that finding to specifically find that application of five further departures i got yes that's my point the court doesn't just have to keep going down just because you keep pointing to a guideline section that would allow it absolutely on or this gives wide discretion to sentencing judges and rendering sentences and appropriately so they're there in the first instance they get a sense of the defendant sense of the case that was a lot more information than not