firearm we appealed the sense that was imposed it was imposed the sentence that was imposed was forty six months because the court determined that the guidelines range was forty six months to fifty seven months that was based on a criminal history we believe he is harmed and the reason we believe he is harmed is because we believe that what the court did in this case is that he applied the guidelines in a mandatory fashion even though the court on the record says and acknowledges that they were advisory in essence what he did was he gave them a presumption a presumption of reasonable ness in this case and because he did that and was looking at the guideline range he really didn't believe that he could go beyond that range unless we did something extraordinary he gave them a tremendous amount of weight more than any other factor under thirty five fifty three eight if he had done the same thing taking that enhancement off then and done the same thing he did in this case which was given the low end of the so with the lower range i'm honestly i don't understand the court the court's question even even without highly unlikely because the court was persuaded that in this case mr clark was carrying the gun for no other reason but to protect himself he was up on murder charges for a murder that he did not commit he had been shot at he had been hit in the arm he was wanted dead the state of nevada wanted him was speaking at initially the death penalty against him so it wasn't like he was out committing a crime he did this he had no other resource i believe if you look at the sentencing memorandum he submitted the i truthfully believe that if you look at the record you can see that the judge gave him the low end of the guideline and would have done the same thing if the government had come in and the p s r had said the range in this case thirty seven to forty six months because his criminal history category is a seventeen i believe judge pro in this case would a looked at this and would have said very well the guidelines are advisory but there are a good place that i need to look at i need to consult and you're looking at thirty six thirty seven to forty six months and then he would have given credence to the arguments that we made and would have said in fact i'm going to take a chance here and i'm going to give you the low end instead of the forty six months i believe the government would have argue for could not be considered by the judge that that's your position that is correct that there was no evidence presented of the obliterated serial number no basis for him to consider that or talk about it or ask versus thomas and your honor said it was part of the case so i'm sort of behind the eight ball in a way you would be able to tell me better but we're when we read that opinion based on that o position our position was to the district court that fine they had made the allegation in the indictment that there was an obliterated serial number how simple would it have been for them to present the gun show the orbiter rated serial number but my client did not plead guilty about that that's another possible i mean we could have been proven by thursday morning you know actually physical evidence but i'm wondering i mean if you  honour's referring to the cases that were submitted by government on monday of this week which i did not receive a copy of until i walked in here that stands for the fact that if there is something in the p s r that's sufficient if if we don't object to it or i can the what they say but as i read those cases they fly in the face of thomas which stands for the proposition that you can't just simply rely on the p s r and they only in this court said there's nothing sacrosanct about the p s r so when you take a look at that could the good morning her and me please the court i'm around them and for the united states i think i want to start with the question the church pressure first closed why thomas doesn't apply and there are two reasons first and i think what even though the plea is to an indictment that specifically states the enhancing facts in this case thomas doesn't apply for two reasons first of all the court isn't relying solely on the guilty and i would point the court specifically to page ninety one of the excerpts of record that is the police report which express the states that the serial number on the gun was obliterated and that was offered to the court as exhibit an just the beginning of that so if you were charged with any kind you weren't charged with any conduct other than that of being a felon in possession of a firearm and one of those firearms has an obliterated serial number is that a finding  is you work charge with us i can't see how you can take a piece of that the sentence that lists the charges and finally i think that's myself wholly inappropriate argument for me by any lawyer and particularly by a prosecutor and yes somebody appointed by the attorney these concerns where since there was all this discussion about the charge and the argument you just to characterize of the defendant in the hearing which is how i read it also that there was a focus on whether it was in the charge or not and it was the obliterated serial number was in the charge what other evidence  to come to the conclusion that the serial number was obliterated well it happened exhibit and to the sensing memory and submitted by the defendant which is the police report which stated that the serial number was obliterated it also had t rely on the p s r right so and and is there anything in the record indicate that the during the sentencing hearing that the district court would actually look at those aspects yes  is earlier on around pages one forty one forty one of the excerpts of record and they do go over this legal objection to whether or not you can rely on me guilty is your honor any day as a matter of fact his release date according to the b o p s website is september twenty third or so this year but my understanding is that within days will probably be released to a halfway house is where he will