we'll take the strongest one first and well the first the first one runners i think we could break it up into two parts on one hand we have this policy variance and on the other hand we have everything that came after that and here the court certainly issued a policy it and that policy variance was directly contrary to the policies of both with and that requires us to conclude that because he hadn't yet  foreshadowed his thirty five fifty three analysis that he was making a firm decision based on some vaguely articulated policy isn't it perfectly fair to read the opinion quite differently to read the opinion as saying because of my thirty five fifty three analysis of about which you will hear more later i'm not even close to agreeing to the advisory guideline sentence either the career criminal version or the non career criminal versions both of which of course are much longer than the mandatory minimum why isn't that really the better reading of this somewhat casual conversation that's a personal sentence imposed i understand i when he was i was however more than quibbling with your language i think you would be making your position much more clearly if you were stating precisely what the district judge said but what  i and i think you just quoted it i kind of his their career offender status were significant violent drug deals that sounds like a personal difference of opinion with the policy that was set up by sensi well it's it's a policy variance in other words to say that  looked just at this individual defendant and that's why he's very it's really not fair because in the context he has a policy if you don't fit this policy significant violent drug deals i want to play this and that if you look at him from spears that's certainly a policy balance because the defendant falls within the mind run of cases for which the sensing commission intended this guy learn to apply and this district court will not apply if you don't fall within his own separate policy now what so at step one you had a correct calculation under the career offender guidelines one hundred eighty eight to two hundred thirty five months and then if you didn't have that if you just had the crack cocaine sentencing guidelines it would mandated by congress and the courts are not free to decline to sentence within them based solely on a policy disagreement but i understand from your brief i just want to clarify that the government is no longer taking this views are correct that it is not taking that position and has not taken the position in this case and it no longer takes up so you're basically following the second and the six circuits which have said that you can do it but so that what you're saying is ok but when you do at step three vary from the guideline relying on including fact that he was going to give a greater sentence than this defendant had ever received before well i think what what what were the critical items that he had to have in there that he omitted well i think you only have to separate some of that out there we're talking first of all mere statement of a conclusory statement a personal belief is not sufficient that's what this was if you look at the little bit you conceded in answer to judge question that at most he had a higher burden when he got to step three and it is thirty five fifty three analysis and then you went on to say as i heard you that he didn't meet the higher burden under the elevated thirty five fifty three analysis and then i ask you well what was missing and then you go back to say well he had a personal policy  that's not a response of answer well on the policy around or he had to know on the thirty five fifty three i mean in standard what was missing that's the question what's your answer while you're out of the policy part is a thirty five to three step three analysis in other words you got to step three them correctly if step one there was no departures of step two at step three if he's going to vary based on policy he needs to acknowledge the policy he needs to discuss the policy he needs to explain how he came up with this policy he needs to explain why and that's  throws out the one hundred thirty five he does that based on his career and the guy he doesn't like it doesn't apply here doesn't lie because this person is in effect doing street crime so that's why he's saying well he's again it's a policy variance congress doesn't believe that the sentencing commission doesn't believe problem is that's not what congress and the commission think and if you want to disagree on that basis he needs to give us more rights and if so you agree he may disagree he may disagree with the policy but if he does so he has to say that more then what i presume you're suggesting is here exactly if you look again and i'll go back to like a case the district court there said you know i think that these are psychological crimes deterrents isn't a factor that should be an issue and this court said no that's a mere statement personal belief if you really believe that then tell us how you got that tell us about the congressional policy tell us about the commission policy tell us why and i think if you distinguish that from the spears case the twenty to one ratio of spears or the district court said there or the supreme courts of the district court relied on several well reason explaining what twenty to one was the proper ratio and that those opinions relied on the commission's own work in other words does work there there's a reason the court here just came up with something so it's not going to apply it and didn't explain why or how it got there just throughout the congress throughout the  and the court can do that needs to give us more and then even if you get past that that only gets you down as you point out your honor to one tenth of one thirty five i was the court getting all the way down to sixty from there he's in oregon resume the argument is that he didn't give any reason for why he went down he gave very little reason i'm not going to say he gave no reason but he said you know this crime isn't that serious well as the court point out in golf the sentencing guidelines take that into account if you have kilograms of crack his guidelines will be much higher than it was and he pointed out some other small small factors but never went through the analysis that this court need step by step let me take you to another issue in our guard opinion we indicated that the the  district court needs to address arguments emphasized by the parties in the government emphasized the risk of sentencing disparities at the sentencing and prior to the sentence we run it was in the brief in two places and i think there's here that the district were completely missed in not discussing thirty five fifty three when you say it was in the brief are you referring to the sensing memorandum given to the district court in america and there are two points raised first that it would create an unwarranted disparity with other career has the court didn't mention it at all and given that the government had you know raised that argument the court has to discuss if you look at this is because the government put in the factual evidence of what sort of sentences had previously begin been given to the cliffs that would result remember this defendant had forty nine point one grams of crack at twenty one criminal history points and receive the same sentence that you or i would receive for doing this with five grams of crap the family would slightly more fifty grams of crack the first time offende receive double the sentence mandatory the court in this case that only you have to look at it in the severe case the defendant raised an argument and that was a within one sentence and this court sent it back and said look the court has to discuss that it was raised this was an important issue that the court didn't bother to discuss do you have this is this is not directed to any of the issues you have explicitly raised but it is is it the government's view  that the district courts and perhaps perhaps in the wake of calm code that the district courts are being less than exceedingly careful about setting out their reasons in meeting requirements for what is referred to as procedural reasonable mous i think that certainly haven't in this case you know well that's enough again what i'm asking you i'm asking you whether out there there but we don't see them as a matter of routine nor is the process written the routinized as far as the justice department is concerned so i'm just curious about why this particular case involving what  would seem to be a street level rather small time dealer albeit one with a long and prophetic history why that would evoke the interested well first the first part of that is yes i think we there was procedurally the court didn't do things right that we have to deal with anything on the substance of what we have we're not raising that argument now your honor this court has explained a preference to having the court you know send it back at the district court do it correctly you know follow the steps at that point we'll see the government's hopeful that when the court does apply the steps properly and goes through the analysis that will hopefully achieve a higher sentence but we're not at that stage right now and we'll evaluate that when the court  play and the easiest one just working backwards because we'll spend a lot of time on the other ones but is the thirty five fifty three a six the disparity with others i couldn't find anything and i mean anything in the record that that dealt with that particular factor in thirty five fifty three or i think disparity was a concern running through the sentencing in the way the district court dealt with but but we're an a could have somebody telling us how this factor weighs against one side or the other and why the court is either taking this into significant account or is discounting it after having considered it and i couldn't find anything the district court did consider that in the sense that it was clearly aware of the career offender  substantial or significant it was clearly aware that what it was doing i'm talking about sentencing disparities not the extent of the variance but that the question of how the sentence would compare with other similarly situated defendant i would take two things one it was aware because the government did raise it in it so the government emphasized that you can see i would not say emphasize it because i would say the only argument the government made in to emphasize was give a guideline sentence and look at  history but you can't you can prevail by saying the judge was aware of something because we can deduce that from the whole hearing transcript you've got to show some specific statement by the judge addressing the disparity of sentencing well i think this court has been willing to look at that the entire transcript as a whole in the sentencing proceeding as a whole this district court in this case was so careful to acknowledge it had read the parties memoranda it had it record as to what other defendants got with this type of criminal history and offense level the district court certainly didn't compare it didn't compare it to any case point is what else the people got who were in his situation that's a factor and it just isn't there and it would seem that that alone calls for email i disagree i think this court has you point us to anything within that transcript which demonstrates that the district court not only considered sub silentio the impact of his decision but discussed explicit sentencing disparity which is not the sentence itself but rather an effect of the sentence in distinguishing it from cases that do warrant the career offender range the court was implicitly saying so now it's a rabbit and a half and i do agree the court never said thirty five fifty three a six and never said never explicitly said what others correct but the government i think the expert the rationale the sufficiency of the rationale has to be reviewed in light of what the government rates do you think not and they don't you think that while this court considers the sentencing transcript as a whole that we should require the sentencing judge to articulate with specificity where he or she very says extensively percentage wise as was done here the reasons in not only thirty five fifty three a factors but the reasons for that variance i think the district court did explain that here i don't think the court should set up procedural hurdles like you have to do a check out you have say when you look at the kimbrough and spears they say when you go outside of the heartland of cases that the normal run of the mill type of cases and you very significantly you've got to give a lot of justification and then goal says that when you have a and by israel when you go way outside the guideline range here you need a lot of justification so you've got three supreme court decisions that say that you you have to do that and for a court to say i reserve career offender for non violent cases where there is significant involvement of drugs and not in effect street crime i don't know of anything that the guidelines deals that look the judge can say i disagree there's no doubt about it but our cases make clear that you've got to give a lot of reasoning more reasoning so that we can do our function as an appellate court i think that goes to the sufficiency of the rationale in this case court gave a reason why the court did not wish to follow the career of federal guidelines in this case i could see no reason as to why the court did not explain away it did not follow the crack cocaine guidelines of one ten two hundred thirty five months i think the court did explain that it looked at what the career for what the range was with out three or fender and it was one tenth of one thirty seven and the court it specifically address crack and said i don't believe the ratio that said the one hundred one i think that's too much but i do believe that if i was reading along in this transcript i could see ok the court saying i'm not going to do one eighty eight to one thirty five and here's why and so the next thought is ok fine we'll go down and take a look at one ten to one thirty five and there's just no discussion there's none i think because the district court at some point it considered the guideline range with  required to do it calculated there was no dispute about the range and then at some point the court said i i basically am setting aside the guidelines for right now i am doing a careful thirty five fifty three now and elsa's and while there's been a ton of attention to whether a district court can disagree with the we disagree with guidelines on a policy basis the more basic thing a court can do is do a thirty five fifty three nelson independent reasonable evaluation of thirty five fifty three that's the more basic instruct n let's let's list look at this from ten thousand feet and i want you to put yourself in our shoes there is a great deal of discretion much more than previously given to district court judges with respect to their sentencing and appellate courts are to review for an reasonableness see the procedural one reason was or substantive and reasonable mous if you were in our shoes in order to conduct meaningfully that appellate review for i think because what we need i think what you need especially with respect to the explanation from the sentence is think about every audience that the district court is addressing and does that audience have information court problem with the three of us are telling you we don't think we have enough and i encourage only one relevant audience and is judge embryo has pointed out the discretion that the district court has is enormous especially in the wake of congo i speaking only for myself it's interesting to me that the government which clear  virtue i way of its position and nothing i've heard here has dissuaded me from this view disagreed with the sentence itself but they chose not in the way of tomko to raise a challenge to substantive and reasonable list the entire focus notwithstanding a few arguments that seem to me to be almost in the nature of an attack on substantive reasonableness they have chosen to frame their appeal entirely on the basis of procedur reason was reasonable so that's all we have the looked and we need reasons and you have not even been able to iterate for us any reasons articulated by the district who are pointing explicitly to sentencing disparities for example i do think what we have and i think again looking at the transcript as a whole you have the rationale that mr mercer that had served sentences between three and four years in the past the district court's belief was that a sense other than career offender range was warranted here so it's not that he considered disparity in relation to another and how how is the district court's view th particular bottom line is reasonable enough when he has to step over a clear articulation of policy as embodied by the sentencing commission in the career keeping in mind that that policy applies to king pins and street people i don't think the district court's decision was based on policy here it was based on thirty i think the court went out of its way to emphasize it was doing thirty five fifty three that all the individual characteristics are the same types of things that are considered day in and day out by courts and also by the sense of commission and saying that this is within the heartland of the quote mine run case which is i'm sorry i mean this is an important component of the reason we require a rationale the purpose of the rationale required is with all due respect not just for the appellate court but also for the sentencing commission does the sentencing commission have the information it needs here to know what the district court problem was is amazing article you said a moment ago i don't think what the district court did here was policy based two words to that effect and i will concede speaking only for myself you may be absolutely right i don't know however on the face of this transcript based on what i've used the district courts if she  reserving career offender stays for violence significant drug deals if i don't know how can we do what should i do i think as a revealing who are checked well because i think if you look at the rest of the transcript the district court i think you can read this transcript and know that this district court is going to review every person who comes before every record of every person it is about the sentence just as carefully and it so here it's going to read the memory and it's going to go through the r in detail it's going to consider not just the points four but the nature of the offenses and let's say we agree with you and all the courts that this i have no doubt this court did a very thorough job but you've got to put on the record why it is that you're going so significantly away from so much of a variance from what the guidelines say and again you can have a policy disagreement no no problem you can don't challenge that but you've got to tell us why this case which appears clearly to be with in the heartland which means normally you need a case outside the heartland to very significantly normally which is why this case is so different and as they said and when you're there's no analysis given at all as to what others got in this situation and i repeat just just for the record you may win all tim but for us it really comes down to judge smith's question we don't have enough here that we can meaningfully look at this and make a decision as to whether this is a reasonable sentence or not if i if i can address just one more time i think there is enough in this record i think the court looked at the nature of the offenses that mr rosette had had committed and passed it did not deem the nature of this offense a sufficient to warrant a guidelines you know how about i'd disagree i think the court was very clearly aware of the number i think that was attention for the district court he the district court specifically asked the government to address the tension between the nature of the offenses and the number the district court was concerned about the deterrence factor but it was unwilling to give him a sentence of the writ of the type called for by the career offender provision and what it wanted to do was give him a sentence significantly long enough to address to give him a chance to sort of get his like together which will be followed i might add by supervised release for four years it seems that sufficient to meet those purposes it was paid only aware i think to whether this judge was aware of all those things my guess i would bet in your favor but my bet doesn't mean diddly squat if there's nothing on the record and that's the problem we have i think the record can be read more  advisement recall the last case of today