re sentencing consistent with the statute eighteen u s c sorry five fifty three and first i would like what is it that the that you think that the district judge should have done that he didn't do well your honor the district judge simply treated two defendants who or three defendants who are similarly situated in every relevant way differently and defended you simone received a maximum two years you statutory maximum of two years which was on four occasions received a more lenient sentence of a year and a day there was no no not no difference between them made your client's behavior worse well there actually is a cashman they're not similarly situated in the underlying criminal offense however they are similar situated when it comes to the violation conduct the more dangerous but even if the court were to look at the underlying crime the underlying crime is the same one with respect to codefendant pulled solo but more importantly the district judge below did not offer that reason for the disparity and when asked by co defendants counsel about the disparate treatment and the disparity in sentences the district judge  the course said in united states versus ebbers decided in two thousand and seven that you are willing to remand the case back to the district court if a defendant credibly argues that a sentence disparity has no apparent explanation it's not it's not a requirement right in other words we have cases like for example many cases example a gal yani case where  the court says that and of course we remember reviewing under plainer here that section three fifty five three eighty six requires a district court to consider nation light sentence disparities but does not require district court to consider disparities between co defendants yes your honor but that was in the context of the defendant requesting a departure from the guideline range and that is important because that line of cases where the court said it is trick or need not consider disparities between and only nationwide disparities was an interpretation of surrey five fifty three subsection a a six that was before booker and the reason that is important is because before booker the guidelines were mandatory and so this court reasoned if a district judge wards of the par from the guideline range based on codefendant disparity then defendants screw up the country would receive or there would be the court would be creating disparity between the defendants sentence and other defendants similar situated nationwide but after book and the guidelines becoming advisory this records are departing from the guideline range in every in in a lot of cases for a lot of different reasons and even if the guidelines were so mandatory this is not a case where the defendant is requesting a departure a downward departure or variance from the guideline range all the defendant is asking all the defendant asked for below was a guideline range or a guideline sentence between the range of four to eleven months and the district judge sentenced him to the stats where the maximum while giving similarly situated co defendants a more lenient sentence and within the span of two to three months all three defendants were sentenced by the same district judge and as you know my time is up thank you thank you you'll have two minutes in  please the court my name is lindsay greatest and i'm appearing on behalf of the united states in this matter i also represented the government at the district court level in this case simply put the district court did not commit procedural or substan at the district court level in fact the defendant actually withdrew his sentencing recommendation of four months and said that it couldn't argue with a two year sentence based on the conduct here but even under any standard of review your honor whether it's plain air i know the appellant has argued for a lesser standard under a modified plane or under abuse of discretion the district court here made very detailed findings on the record and attended only a year after being released from prison with top echelon members of the banana crime family council i agree i agree the judge care of has touched all or touched many bases when he explained what he but remind me of the record please did he address what counsel your opposing counsel is saying was this disparity between the two or did he not i think  did not address that the procedural history of this was that he ended up addressing it when he sentenced pepitone who was sentenced to two years just after mr de samone but judge he was relying on his his institutional knowledge of these cases and he did point out our distinctions so that's correct decent receive a two year sentence and pepitone who came shortly thereafter also received a two year sentence for similar association violations some of the same meetings that mr de simone attended and in fact other similarly situated defendants charged with even less agree just association violations received more than a year and a day sentence we pointed to three of those instances in our brief  violator received a two year sentence for three association violations pepitone again received two years for some of the same meetings and in us the celli another defendant received an eighteen month sentence for a single association violation but when my opposing counsel was indicating that there are simply no differences between decent individuals who receive lesser sentences i don't think the record supports that and i think your honour's indicated some of the other differences decent moen is somebody who is eighty two years old he has gone undeterred by his previous periods of incarceration he has held the captain status in the binondo crime family and bitterness associates for decades also the court had pointed out is younger he's half decent ones age he was fully employed responsible for taking care of family members you're your suggestion that because he's over  virtually that it could do to stop mr de simone to provide any kind of deterrence for him based on his criminal history to that point and his continued association even at the age of eighty two with a bet on a crime family he can organize cry figures at face association violations but none of this magnitude ronald d alonzo's conduct is by far the most egregious given the number of association violations span of time in which the violations occurred and the members of the crime family defended associated with the leadership of the crime family so who is the most egregious i mean they can all be the most egregious and i think that in hindsight it's the attendance of these three defendants who were on supervised release at these meetings when you're comparing their association violations with the violations of say chile wa and watts who had more one on one meetings with members of the crime family the association violations of indecent mon involved the top echelon members of the crime family where one can only assume that the business and affairs of the been on a crime family are being conducted even the defendant at sentencing did not object and did not try to offer any other explanation for decent moans attendance of these defendants that may have been more appropriately put your honor but i think that as the court is considering judge sentence the court did not by any means abuse its discretion when it gave mr de simone the above guideline sentence it considered the guidelines it considered all of the thirty five fifty three a factors and it gave a very detailed rationale as to why mr de samone deserved a two year sentence the court even indicated that mr you think we should revisit our circuit precedent no your honor i don't think the court wants needs to do that in a scase and as far as going through those legal gymnastics i think that the record here before your honor's actually indicates that the district court thr out the sentencing proceedings in fact considered the sentencing disparities between co defendants but the law is it's an it's a nationwide consideration and we have pointed to not only situations where  defendants beyond the scope of co defendants receive more severe sentence but we've indicated that even a codefendant here received a sentence commensurate with the sentence that mr de samone received so i don't think that the court needs to go through his legal gymnastics in this instance i think mr de simone was very deserving of the two year sentence based on the record based on all his personal characteristics and i do think that the court should uphold every every defendant is situated differently i don't think that this needs to be a case that the court changes at circuit precedent on those considerations as of as a general matter what is your view to this case that it's not necessary you know i think what's what's important in these cases is that the court consider each defendant individually and i do think that many of the courts already consider what is going on with co defendants in cases i think it's something that comes natural lot of times when judges does the summer right i mean the government will argue differences between various defendants and frankly defense counsel will argue the same thing when making  let me let me just ask you because i think the the sociology which we hear from time to time sitting up here and i know the district court's concern or and i'm sure the government and defense counsel considers that as people age out  they get over there their criminal proclivities and ideally occurs when young but i think maybe the sciences somewhere in the forty's and was it not a fair factor for judge consider the age of your client and the fact that he doesn't seem to understand the word no well your honor age is a relevant factor and the district courts of and both ways you agreed on that correct and the judge did person who is in his for his the court was explaining it's more lenient sentence of a year and a day or two because of his medical condition and because of his age and the court said that was indistinguishable and it was brought to this or court's attention that mr de simone suffered from from a heart condition and but there are a few points i would like to get through and may not be able to get through all of them but  discord has said in in many cases that if a district court were to conclude that to sentence that that two sentences equally served the purposes of sentencing it could not impose the higher sentence consistent with parsimony cause and the court concluded that the sentence of a year and a day was sufficient to deter the same type of conduct the same type of association violation for a different person for different person who attended the same meetings who doesn't understand the word but it could offend and of defendant was also eighty two eighty eight about eighty years old and it was actually elevated to acting street b line of cases in every case the court was presented was a request for a departure from the guideline range and in every such case the course said district courts cannot the par from the guideline range based on codefendant disparity because they would be introducing the disparity on a national level but in this case there is simply no request for a downward departure from the guideline range all the defendant is asking was for a guideline senses and the defendant did not forfeit or waive the right by was drawing or not making an objection as sentencing defense counsel was drew his request for a four months sentence which was the bottom of the guideline range but still requested a sentence was in that range of four to eleven months and just by not objecting after the defendant was sentenced that would not trigger